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Citation: 66 Fed. Reg. 58381 2001

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Federal Register/Vol. 66, No. 225/Wednesday, November 21, 2001/Rules and Regulations 58381

Executive Order 13132-Federalism

This rule does not have Federalismimplications. SMCRA delineates theroles of the Federal and Stategovernments with regard to theregulation of surface coal mining andreclamation operations. One of thepurposes of SMCRA is to "establish anationwide program to protect societyand the environment from the adverseeffects of surface coal miningoperations." Section 503(a)(1) ofSMCRA requires that State lawsregulating surface coal mining andreclamation operations be "inaccordance with" the requirements ofSMCRA, and section 503(a)(7) requiresthat State programs contain rules andregulations "consistent with"regulations issued by the Secretarypursuant to SMCRA.

Executive Order 13211-RegulationsThat Significantly Affect the Supply,Distribution, or Use of Energy

On May 18, 2001, the President issuedExecutive Order 13211 which requiresagencies to prepare a Statement ofEnergy Effects for a rule that is (1)considered significant under ExecutiveOrder 12866, and (2) likely to have asignificant adverse effect on the supply,distribution, or use of energy. Becausethis rule is exempt from review underExecutive Order 12866, and because itis not expected to have a significantadverse effect on the supply,distribution, or use of energy, aStatement of Energy Effects is notrequired.

National Environmental Policy Act

This rule does not require anenvironmental impact statement

because section 702(d) of SMCRA (30U.S.C. 1292(d)) provides that agencydecisions on proposed State regulatoryprogram provisions do not constitutemajor Federal actions within themeaning of section 102(2)(C) of theNational Environmental Policy Act (42U.S.C. 4332(2)(C)).

Paperwork Reduction Act

This rule does not containinformation collection requirements thatrequire approval by OMB under thePaperwork Reduction Act (44 U.S.C.3507 et seq.).

Regulatory Flexibility Act

The Department of the Interiorcertifies that this rule will not have asignificant economic impact on asubstantial number of small entitiesunder the Regulatory Flexibility Act (5U.S.C. 601 et seq.). The basic objectiveof the amendment is to allow a newparty to assume a revoked permit andbegin mining under the terms of thatpermit. Because the application of therule is limited and because the partyassuming the revoked permit stands togain an economic benefit, we haveconcluded that the rule will not have asignificant economic impact on asubstantial number of small entities.

Small Business Regulatory EnforcementFairness Act

This rule is not a major rule under 5U.S.C. 804(2), the Small BusinessRegulatory Enforcement Fairness Act.This rule: a. does not have an annualeffect on the economy of $100 million;b. will not cause a major increase incosts or prices for consumers,individual industries, Federal, State, orlocal government agencies, or

geographic regions; and c. does not havesignificant adverse effects oncompetition, employment, investment,productivity, innovation, or the abilityof U.S.-based enterprises to competewith foreign-based enterprises.

This determination is based on thefact that the application of the rule islimited and the party assuming therevoked permit stands to gain aneconomic benefit.

Unfunded Mandates

OSM has determined under theUnfunded Mandates Reform Act (2U.S.C. 1502 et seq.) that this rule willnot impose a cost of $100 million ormore in any given year on any local,State, or Tribal governments or privateentities.

List of Subjects in 30 CFR Part 926

Intergovernmental relations, surfacemining, underground mining.

Dated: November 6, 2001.Brent T. Wahiquist,Regional Director, Western RegionalCoordinating Center.

For the reasons set out in thepreamble, 30 CFR 926 is amended as setforth below:

PART 926-MONTANA

1. The authority citation for part 926continues to read as follows:

Authority: 30 U.S.C. 1201 et seq.2. Section 926.15 is amended in the

table by adding a new entry inchronological order by November 21,2001 to read as follows:

926.15 Approval of Montana regulatoryprogram amendments.

Original amendment Date of final Citation/Description

submission date publication

April 27, 2001 ................................. November 21, 2001 ....................... MCA 82-4 Part 2 Operating permit revocation- permit transfer

[FR Doc. 01-29106 Filed 11-20-01; 8:45 am] ACTION: Final rule.BILLING CODE 4310-05-P

DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 151

[USCG-1998-3423]

RIN 2115-AF55

Implementation of the NationalInvasive Species Act of 1996 (NISA)

AGENCY: Coast Guard, DOT.

SUMMARY: To comply with the NationalInvasive Species Act of 1996 (NISA), theCoast Guard has established bothregulations and voluntary guidelines tocontrol the invasion of aquatic nuisancespecies (ANS). Ballast water from shipsis one of the largest pathways for theintercontinental introduction andspread of ANS. This rule finalizesregulations for the Great Lakesecosystem and voluntary ballast watermanagement guidelines for all otherwaters of the United States, includingmandatory reporting for nearly all

vessels entering waters of the UnitedStates.

DATES: This final rule is effectiveDecember 21, 2001.

ADDRESSES: Comments and materialreceived from the public, as well asdocuments mentioned in this preambleas being available in the docket, are partof docket USCG-1998-3423 and areavailable for inspection or copying atthe Docket Management Facility, U.S.Department of Transportation, room PL-401, 400 Seventh Street SW.,Washington, DC, between 9 a.m. and 5p.m., Monday through Friday, exceptFederal holidays. You may also find this

HeinOnline -- 66 Fed. Reg. 58381 2001

58382 Federal Register/Vol. 66, No. 225/Wednesday, November 21, 2001/Rules and Regulations

docket on the Internet at http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: Forquestions on this rule, contactLieutenant Commander Mary PatMcKeown, Project Manager, U.S. CoastGuard Headquarters, Office of Operatingand Environmental Standards (G-MSO),telephone 202-267-0500. For questionson viewing, or submitting material tothe docket, contact Dorothy Beard,Chief, Dockets, Department ofTransportation, telephone 202-366-9329.

SUPPLEMENTARY INFORMATION:

Regulatory History

On April 8, 1993, the Coast Guardpublished a final rule titled "BallastWater Management for Vessels Enteringthe Great Lakes" in the Federal Register[58 FR 18330]. The rule establishedmandatory procedures for the GreatLakes in 33 CFR part 151, subpart C.

On December 30, 1994, we publisheda final rule titled "Ballast WaterManagement for Vessels Entering theHudson River" in the Federal Register[59 FR 67632]. The rule amended theregulations in 33 CFR part 151 toinclude requirements for portions of theHudson River, which connects to theGreat Lakes.

On April 10, 1998, we published anotice of proposed rulemaking (NPRM)titled "Implementation of the NationalInvasive Species Act of 1996 (NISA)" inthe Federal Register [63 FR 17782].

On May 17, 1999, we published aninterim rule [64 FR 26672] thatimplemented the National InvasiveSpecies Act of 1996 (NISA). Wereceived 27 letters commenting on theinterim rule.

Background and Purpose

Aquatic nuisance species invasionsthrough ballast water are nowrecognized as a serious problemthreatening global biological diversityand human health.

On November 29, 1990, Congressenacted the Nonindigenous AquaticNuisance Prevention and Control Act of1990 (NANPCA) [Public Law 101-646;16 U.S.C. 4711]. Congress enactedNANPCA to prevent and controlinfestations of zebra mussels and othernonindigenous aquatic nuisance speciesin coastal and inland waters of theUnited States.

On October 26, 1996, Congressenacted the National Invasive SpeciesAct of 1996 (NISA) [Public Law 104-332], which amended and reauthorizedNANPCA (the Act). The purpose of theAct was to provide for ballast watermanagement to prevent the introduction

and spread of nonindigenous speciesinto the waters of the United States.

On November 27, 1997, the IMOMarine Environment ProtectionCommittee (MEPC) adopted ResolutionA.868(20), "Guidelines for the Controland Management of Ships' Ballast Waterto Minimize the Transfer of HarmfulAquatic Organisms and Pathogens." TheIMO recommends that all maritimenations of the world adopt and use thesevoluntary guidelines.

The regulations and guidelines in thisrule will implement the Act by-

* Requiring operators of vesselsentering waters of the United Statesfrom beyond the Exclusive EconomicZone (EEZ) to submit a ballast watermanagement report;

* Providing voluntary ballast watermanagement guidelines for operators ofvessels entering waters of the UnitedStates from beyond the EEZ; and

* Promoting ballast watermanagement for operators of all vesselsin waters of the United States.

Discussion of Comments and Changes

The Coast Guard received 116comments on the interim rule. Theparagraphs in this section discuss thecomments we received, provide theCoast Guard's responses, and explainany changes we are making to theregulations. General comments arediscussed first, followed by commentson specific sections of the regulations.

General Comments

Six comments expressed support forthe rule and commended the CoastGuard for our effort to control thespread of ANS in U.S. waters and todevelop realistic regulations that reflectindustry input.

Ten comments discussed theimportance of maintaining consistentnational and international standards tocontrol the spread of ANS. Some ofthese expressed concern that States orother levels of government may issueother regulations that exceed orsignificantly change the standardsincluded in the rule. One respondentstated that solutions to the spread ofANS must be evaluated to ensure thatthey don't exacerbate the ANS problemas it applies to individual ports.Another comment suggested thatFederal government control of ballastwater management is necessary to avoidhaving different requirements atindividual ports.

It has long been the Coast Guard'sposition that consistent standards ofuniversal application, coupled withFederal initiatives to address uniqueregional concerns, are the best means ofmeeting local and national

environmental goals with the leastdisruption to international maritimecommerce. To avoid potential conflictsbetween regulations and duplication ofeffort, we request that any politicalsubdivision of the United States that iscontemplating any laws, regulations, orrequirements regarding the discharge ofballast water, consider this regulationprior to taking action.

The Coast Guard will try to maintainnationwide consistency in methods forthe control of invasive species. We arecommitted to ensuring nationalconsistency for regulations that areestablished as international rules andregulations, adopted by the IMO, andratified by the United States, which arerelated to the design, construction,equipment, manning, and operation ofvessels. However, this rulemaking isn'tintended to preempt any State, regional,or local efforts that exceed but don'tconflict with the standards set forth inthis rule. Section 1205 of the Act statesthat-

Nothing in this title shall affect theauthority of any State or politicalsubdivision thereof to adopt or enforcecontrol measures for aquatic nuisancespecies, or diminish or affect thejurisdiction of any State over species offish and wildlife.

Eleven comments discussed the costsassociated with compliance and notedthat we did not accurately reflect thesecosts in the interim rule. Tworespondents suggested that the task offilling out the report is theresponsibility of the chief officer (chiefmate or master), so the associated costshould be based on a chief officer'ssalary. One of the respondents suggestedbasing the cost on the overtime rate ofa master.

The Coast Guard has revised the costof complying with the mandatoryreporting requirement and has increasedthe estimated cost to industry to meetthis requirement.

Many of the comments stated that theCoast Guard's cost analysis does notaccurately reflect the cost and impact ofcompliance with either the voluntaryguidelines for ballast water managementor the mandatory reportingrequirements. Several comments statedthat certain additional costs should beincluded in the analysis if the voluntaryguidelines become mandatory. Theexamples of these costs the respondentsnote include those for fuel for ballastpump operations; shore receptionfacility fees; increased equipment usage(i.e., wear and tear), and maintenanceand repairs; decreased efficiency ofvessels due to reduced speeds; and



postponement or cancellation of otheroperational priorities.

The Coast Guard disagrees. The onlycosts the Coast Guard can consider inthis Final Rule are those associated withthe mandatory reporting requirements.However, we agree that the costsidentified by the commenter will needto be addressed if the Coast Guarddetermines that a mandatory ballastwater exchange program is needed. Wewill be evaluating the voluntaryprogram in the coming months in orderto accurately report to Congress on thesuccess (or lack thereof) of the voluntaryprogram. Should that report indicate ourintent to promulgate a mandatoryprogram, we will issue a new regulationthat will consider the costs of themandatory program.

We received two letters prior to theclose of the comment period fromrespondents who notified us that theywere compiling comments fromnumerous sources and requested thatwe consider those group comments evenif they were not received prior to thecomment period closing. We did acceptthese comments.

Ten comments discussed research andalternative technologies. One commentcommended the Coast Guard for ourresearch in developing alternatives toexchanging ballast water at sea. Fivecomments emphasized the importanceof finding safe, practical, and cost-effective alternatives, in lieu of ballastwater exchange, to achieve theobjectives of NISA. One commentrecommended moving research fromidentification of the problem tomanagement of the problem. Onecomment indicated that developingsuch alternatives is an extremelyimportant aspect of any long-termballast water management program forthe U.S. and for other countries. Therespondent noted that discussion of thistopic was not adequately addressed inthe interim rule. One comment notedthat with the advances in thedevelopment of new technologies forballast water management, commercialinvestment in new systems is likely ifthere is a way to implement the newsystems and create markets for them.One comment stated that nearly anysystem of treatment that avoids theadditional pumping cycles involved inballast water exchange at sea will bewelcomed by ship owners because ofthe savings in both manpower and fuel.The respondent indicated that an addedbenefit will come from the reduction incarbon dioxide emissions.

We concur with these comments andare actively supporting and encouragingdifferent technologies.

We received seven comments aboutthe Environmental Assessment (EA)portion of this rulemaking. The CoastGuard will respond to these sevencomments regarding the EnvironmentalAssessment in the EA section of thisfinal rule.

We received two comments from onerespondent about the question-and-answer format of the interim rule. Thefirst comment requested that the CoastGuard republish the entire requirementfor ballast water management in atraditional format. The second commentstated that the question-and-answerformat is not satisfactory because manyof the existing regulations have beensupplemented and are now simplyreferenced. The respondent offered asan example that although therequirements in § 151.2045 are amixture of information aboutrecordkeeping and reporting, the statedtopic question refers only torecordkeeping.

In response to the first comment, theCoast Guard changed the traditionalformat of the rule for better organizationand clarity. We used many of the plainlanguage techniques to write the rule.These writing techniques are intendedto make regulations less technical andeasier to follow and understand, and areconsistent with the requirements of thePresidential Memorandum, "PlainLanguage in Government Writing" (63FR 31885, June 1, 1998). In response tothe second comment, the actualrequirement for reporting is in§ 151.2040. We feel that if we were toadd reporting to the heading of§ 151.2045, it may cause confusion.

We received two comments about thetiming of the effective date of theinterim rule compared to the endingdate of the comment period. Onerespondent indicated that it would havebeen preferable for the Coast Guard tofirst review the public comments aboutthe interim rule before the rule becameeffective. Another respondent urged theCoast Guard to keep the rule in aninterim status to gather at least 6 monthsof data and experience for evaluationbefore the final rule is established.

In response to the first comment, theinterim rule was developed based on theproposed rule and the numerouscomments on the proposed rule. We donot believe that delaying theimplementation of the interim rule waswarranted. More importantly, to delayimplementation of that rule would nothave been in the best interests of thegeneral public. In response to thesecond comment, we understand therespondents' concerns. We did wait toobtain 6 months of data and experiencebefore we moved this regulation to final

rule status. We wanted to ensure thatany portions of the regulation that hadbeen confusing to the public, or that hadbeen open to different interpretationsthan we intended, were clarified for thisfinal rule. This preliminary data showedan extremely low compliance with thereporting requirement. One of thereasons for this may be that the nationalprogram requires reports to besubmitted prior to departure from thefirst port of call in U.S. waters. This isinconsistent with other CG requiredinformation, which must be submittedprior to a vessel's arrival at a port of callin U.S. waters. To increase compliancewith these regulations, developconsistency with other CG programs,and better monitor compliance we haveamended § 151.2040(c)(4) to require thatthe ballast water information besubmitted prior to a vessel's arrival attheir first port of call in U.S. waters.

Comments on Specific Sections of theRule

What Vessels Does This Subpart ApplyTo (§ 151.2005)?

Eight comments discussedapplicability to vessels. Three of thesecomments indicated that theapplicability section of the interim ruleis not clear.

One comment noted that the wordingin § 151.2005(a) should be changed andmade consistent with § 151.2005(b). Onecomment indicated that the term,"waters of the United States," in§ 151.2005(a) is confusing and conflictswith how it is defined in 33 CFR 2.05-30 and in § 151.2020(a). The commentstated that while 33 CFR 2.05-30 refersto the territorial sea as extended to 12-nautical miles from the baseline,§ 151.2020(a) appears to refer to the 200-mile EEZ. The comment suggested thatwe remove the reference to the "watersof the United States" and replace it with"the EEZ." The Coast Guard disagrees;in 33 CFR 2.05-30, navigable waters ofthe U.S. extend to 3-nautical miles fromthe baseline. For this rule navigablewaters of the U.S. extend to 12-nauticalmiles from the baseline. The phrase/term "waters of the United States" doesnot appear in § 151.2020.

For clarification, we modified§ 151.2005(b) to include all vesselsequipped with ballast tanks and toemphasize that these are additionalprovisions for vessels that have operatedoutside the EEZ. However, the referencein § 151.2020 of the interim rule referredto the ballast water that is of concernand not "Waters of the United States"or the "EEZ." Please refer to theinformation under § 151.2020 of thispreamble for a complete discussion of


58384 Federal Register/Vol. 66, No. 225/Wednesday, November 21,

this issue. We deleted § 151.2020 andrevised § 151.2035(b) to better conveywhat we intended.

Three comments discussed whyvessels that are not able to conduct openocean exchanges, because of the natureof their voyages, should be exempt fromthe mandatory provisions. Onecomment stated that most vesselsoperating in the Wider Caribbean Areaand Gulf of Mexico will find it nearlyimpossible to take on clean ballast inareas that are both 200 miles from landand have a depth of water of 2000meters. One comment notes that thedistance and depth covered in the ruleonly applies to a small percent of seaarea for the Gulf of Mexico. Onecomment said that most itineraries ofcruise ships operating in this geographicarea do not include the areas that areboth 200 miles from shorelines and2,000 meters in depth. The commentalso noted that this would mean thatmost vessels would have to travel 200miles out into the Atlantic Ocean andback to conduct ballast water exchangeor to take on clean ballast water.

The Coast Guard understands theconcerns expressed in these comments.But, we believe that reporting suchinformation is essential to future, sounddecision-making. If vessels entering theEEZ from the outside must be divertedor delayed, thereby, imposing economiccosts and increased fuel consumptionand air emissions, such information ishighly relevant and is important to anyfuture action. Therefore, it should bereported on the Ballast Water ReportingForm.

Three comments discussed theapplicability of the regulations tovessels declaring "No Ballast on Board(NOBOB)." One of these commentsquestions whether a vessel that is notcarrying ballast onboard, which entersthe U.S. EEZ, is expected to complywith the reporting requirements. Othercomments suggest that vessels withballast tanks that only containunpumpable or residual ballast shouldbe exempt from the rule since thesevessels do not pose an environmentalthreat to U.S. waters.

The answer to the first commentquestion is yes. Vessels which haveresidual and unpumpable ballastonboard must still meet the reportingrequirement. Since this area has causedconfusion, the Coast Guard amended therelevant sections of the rule(§§ 151.2005, 2040, and 2045 subpart D)to state "equipped with ballast tanks" inlieu of "carrying ballast water." Inresponse to the other comments, we donot agree. NISA directs the Coast Guardto take into account, when developingthe guidelines, "ballasting practices of

vessels that enter the waters of theUnited States with no ballast onboard."There is concern within the UnitedStates that vessels that declare NOBOBmay still pose a potential risk forintroducing nonindigenous species byadding ballast into tanks containingresidual ballast, including sediments,then subsequently discharging thismixture into the receiving waters. Oneof the first steps in determining if thereis a threat from these vessels isidentifying how many of them aredeclaring NOBOB and finding out theparticulars about them (e.g., type, portof call, and point of origin).

Which Vessels Are Exempt FromMandatory Requirements (§ 151.2010)?

We received 16 comments aboutexemptions for certain vessels from themandatory reporting requirements.Many of these comments duplicatethose discussed in the applicabilitysection of this preamble.

Five of the 16 comments questionedthe rationale for exempting crude oiltankers from mandatory reporting butnot exempting similar vessels engagedin coastwise trade (e.g., chemical andproduct tankers). One commentrequested an explanation of thedifference between a crude oil tankerengaged in coastwise trade and othervessels engaged in coastwise trade forthe purpose of this regulation. Severalrespondents mentioned whether theCoast Guard has the authority to exemptadditional classes of vessels.

A number of the 16 exemptioncomments requested an exemption forvessels that may travel outside the EEZfor brief periods or that make repetitivevoyages (e.g., vessels engaged in linertrade, non-crude-oil vessels engaged incoastwise trade, passenger vesselstrading between the Bahamas andFlorida, and container vessels in theCaribbean and Gulf of Mexico trade).Many of these comments also requestedflexibility in meeting the reportingrequirements. Suggestions offered formodified reporting by such vesselsinclude the following: allowing thevessel to submit an initial report, thenreport by exception when things changesignificantly; allowing the vessel tosubmit a quarterly or annual report;allowing the vessel to submit onestandard voyage profile versus voyage-by-voyage reports; and allowing a vesselthat doesn't discharge any ballast tosimply state this on the report.

The Coast Guard acknowledges theconcerns and suggestions expressed inthese comments. We took theapplicability and exemptions in thisrule directly from the Act. The intent ofthe mandatory reporting and

recordkeeping requirements is todetermine the ballasting patterns of theU.S., including those of vessels thatdeclare NOBOB but are carryingresidual ballast and sediments in theirtanks. It is essential for all currentlynon-exempt vessels to comply with thereporting requirements so that thisinformation will be available for futuredecision-making. If we do not havesufficient reports to evaluate the successof the voluntary program, NISA calls forthe Coast Guard to make BWE amandatory program (16 U.S.C. 4711(f)).As it stands now, we do not havescientific and technological support toinclude exemptions for additionalvessels or circumstances not specificallycovered in the Act. Therefore, we do notcurrently plan on exempting anyadditional classes of vessels. We havehowever added section § 151.2041 toallow for equivalent reportingprocedures for vessels that conductrepetitive voyages. The Coast Guardbelieves that exemption of vessels thatoperate outside the EEZ would becontrary to the intent of NISA. There isa growing concern in the United Statesover the discharge of even domesticballast water, so the information fromthe vessels referred to here may beessential in determining any futureactions.

One exemption comment suggestedthat tugs and unmanned barges beexempt from the rule.

As indicated previously, the CoastGuard took the applicability andexemptions in this rule directly from theAct. To expand the exemptionscurrently granted under NISA, either thelaw would need to be amended tospecifically grant additionalexemptions, or the proposed exemptionmust fit within a fair interpretation ofthe existing Act. The Coast Guard doesnot believe that any of the exemptionsproposed by the commenters meet thiscriterion. Therefore, it is important forall currently non-exempt vessels tocomply with the reporting requirement,as this will provide essentialinformation to aid future decision-making. For example, in manysituations, it may be inherently unsafeto conduct an exchange of ballast by anunmanned barge. If this situationoccurs, it should be reported on the"Ballast Water Reporting Form" becauseit is important information that wouldbe helpful in future decision-making.Alternatively, if technology isdeveloped that would be applicable tobarges and tugs, it is expected that thesevessels might be able to treat theirballast water, thereby eliminating theneed for ballast exchange.

2001/ Rules and Regulations



One of the 16 exemption commentsmentioned that the term "samelocation" referenced in § 151.2010(d) isvague and could be better defined.

The intent of § 151.2010(d) is toexempt vessels that leave a berth in aspecific port, conduct a voyage thattakes them outside the EEZ (where theytake on ballast to compensate for thingssuch as the fuel burned and heavy-weather compensation), then return toroughly the same berth in the same port,without taking on any ballast other thana type that would be acceptable as anopen ocean exchange.

One exemption comment requestedthat § 151.2010(a) be revised to read"the master, operator, or person-in-charge of the vessel must operate, orensure the operation of, the treatmentsystem as designed."

Our intent is that the treatmentsystem must be operated as designedduring discharges of ballast water intothe United States. We have amended§ 151.2010(b) to clarify this point.

To What Ballast Water Does ThisSubpart Apply (§ 151.2020)?

We received seven comments aboutballast water applicability. Thesecomments indicated that this section isunclear.

We agree with these comments. Thereference in § 151.2020 as it appeared inthe interim rule referred to the ballastwater that is taken on a vessel thatwould pose a greater risk to thereceiving environment. This is ballastwater most likely to carry species thatcan survive in the waters of the UnitedStates. This includes any water taken onfrom a continental shelf or islandplateau. The reference in§ 151.2035(b)(1) as it appeared in theinterim rule referred to what waters areacceptable to conduct an exchange. Toclarify these differences, we deleted§ 151.2020 and inserted into§ 151.2035(b), the statement "that wastaken on in areas less than 200 milesfrom any shore or in waters less than2000 meters deep." We have alsorevised § 151.2035(b)(1) for clarity andconsistency.

What Definitions Apply to This Subpart(§ 151.2025)?

We received two comments aboutdefinitions. One comment asked us todefine and clarify the term "high seas"as it relates to the EEZ.

"High seas" means the "parts of thesea that are not included in the EEZ, inthe territorial sea or in the internalwaters of a State, or in the archipelagicwaters of an archipelagic State." Wehave amended § 151.2010(d) to clarifythat what was intended by the referral

to high seas in that section was areasthat would be acceptable for open oceanexchange.

One comment asked us to define whata crude oil tanker is for the purpose ofthis rule.

In 46 U.S.C., "crude oil tanker" isdefined as a tanker engaged in the tradeof carrying crude oil.

Who Is Responsible for DeterminingWhen To Use the Safety Exemption(§ 151.2030)?

We received eight comments aboutsafety. The majority of these commentssaid that the safety of the vessel andcrew must be the number oneconsideration in any ballastmanagement effort. One commentthanked us for recognizing theimportance of safety and the importanceof the master's role in ensuring safety.One comment stated that the twomethods of ballast water exchangedefined in the rule are not safe forcontainer ships, and it requested that weconsider regulations that wouldcontinue to give the master discretion toconsider the safety of the vessel beforeperforming deep-sea ballastingoperations. One comment explainedthat a flow-through exchange createssafety concerns for operating personnelon deck, who may be, because of largequantities of water flowing on deck,subject to personal injury by slips andfalls. Five comments noted that safetyshould be the first consideration andvessel owners or operators should notbe charged with noncompliance if thereason for noncompliance is safety ofthe vessel and its crew. Two of the fivecomments stated that if a vessel doesnot comply with the voluntaryguidelines for safety reasons, it shouldnot be placed in the noncompliancecategory. One comment said that if suchvessels were listed in thenoncompliance category, it would skewdata toward mandatory requirements inthe future.

The Coast Guard supports thesestatements. We believe that safety of thevessel, its crew, the cargo, and theenvironment are of paramountimportance, and we will continue tofocus on this area in the regulations.The Coast Guard also recognizes thatballast water exchange is not theultimate solution to reducing the influxof organisms carried in ballast water.We understand that simply due to thenature of their voyage, many shipscannot conduct ballast exchange. Wewill continue to encourage advances inmethods of treating ballast water. Wewill consider applicable laws,regulations, and the consequences of atreatment before we approve any

method. The Coast Guard encouragescompanies to continue to research anddevelop other ballast control methods.In addition, the Coast Guard supportsthe position that vessels that do notcomply with the voluntary guidelinesfor safety reasons should not be placedin the noncompliance category.Therefore, we have taken the sameposition in this regard as the AquaticNuisance Species Task Force (ANSTF)Effectiveness Criteria Committee.

What Are the Voluntary Ballast WaterManagement Guidelines (§ 151.2035)?

We received twelve commentsconcerning voluntary ballast-watermanagement guidelines. Three of thesecomments related to exemptions forvessels whose routes do not take theminto waters that are both 200 miles fromland and have a depth of 2000 meters.You may refer to the discussion under§ 151.2005 for the Coast Guard'sresponse.

One of the comments about thevoluntary guidelines requested that theCoast Guard reduce the depthrequirement for an acceptable openocean exchange for the Gulf of Mexicobecause the 2000-meter requirement isnot warranted.

The Coast Guard does not plan tochange the depth requirement untilinternational agreement, based on soundscientific evidence, is reached. Werequest that affected vessels note ontheir "Ballast Water Reporting Form"estimates of the delay and distance theyexperience if they have to divert toaccomplish an open ocean exchange.This information is essential to futuredecision-making.

One of the comments about thevoluntary guidelines stated that§ 151.2035 should specify a minimumperiod of time a U.S. coastwise vesselmust operate beyond the EEZ before thereporting requirements and ballastexchange provisions apply.

In response to this comment, pleasesee the discussion under § 151.2005.

One comment posed three questionsabout vessels engaged in domestic trade:(1) Isn't the intent of the Act to stop theintroduction and spread of ANS? (2)What other ballast water methods areenforceable on domestic trade? (3) Willthese other methods be enforced?

The Coast Guard recognizes theimportance of these questions. In§ 151.2035(a), we have includedguidelines (precautionary practices) forall vessels equipped with ballast tanksthat operate in waters of the UnitedStates. However, the Act doesn't givethe Coast Guard the authority to requireowners and operators of vessels engagedin domestic trade to perform ballast



water management methods such asballast water exchange. Currently we areencouraging technological solutions forthe treatment of ballast water. We willpursue implementation andenforcement of regulations regarding thetransport of aquatic nuisance species byballast water to the extent of theauthority granted to us by Congress.

One comment concerns precautionsfor the quality of the water used asballast water as referenced in§ 151.2035(a) and suggests that the CoastGuard or other agency publish the portsand other locations that have watercontaining the noted harmful agents.

The Coast Guard recognizes that somewaters may pose higher risks ofcontaining potential invasive speciesthan other waters. However, it has notbeen proven that any given water bodyis completely free from risk. Historicalpatterns show that zebra mussels mayhave been shipped for more than 50years before they established asustainable population in the GreatLakes and before they became anuisance species. Therefore, we havedetermined that we must proceed usingthe premise that any port may be athreat.

Two comments discussed receptionfacilities. One of these comments notedthat the definition of "adequate facility"is unclear. The other comment statedthat the Coast Guard should publish thedetails of where and when the receptionfacilities mentioned in § 151.2035(b)(4)are available and what the costs are forusing these facilities.

An approved or "adequate facility"would be one that the Coast Guard hasaccepted to be at least as effective asballast water exchange in treating ballastwater to reduce the risk of invasivespecies. The suggestion to publish theinformation about any ballast waterreception facility that may be approvedfor the treatment of aquatic nuisancespecies in the future is a good one. Thistype of information would most likelybe published through a "Local NoticeTo Mariners," which would be includedin the "Coast Pilot," as appropriate.However, the publication of costs wouldappropriately be the responsibility ofthe facility itself.

One comment regarding publicly-owned treatment plants stated that theresponsibility to comply with 33 CFR151, including sediment disposal,should stay with the vessel operators,not public ports, and the Coast Guardshould avoid requiring port authoritiesto employ publicly-owned treatmentplants.

This requirement is to ensure thatvessel representatives are aware thatdisposal of sediments within the United

States must be done per existingregulations or laws, such as those of theAnimal and Plant Health InspectionService. The Coast Guard did not addany regulation of sediment disposalwithin this regulation. We reaffirmedthe existing requirements for thedisposal of soil brought into the UnitedStates that exist under 7 CFR part 330.

One comment stated that the finalrule should require mandatory ballastwater exchange in the same vein as itrequires mandatory recordkeeping.

The Coast Guard has determined thatthe regulations adopted in this ruleaccurately reflect the requirements ofthe Act. Those regulations direct theCoast Guard to develop "VoluntaryGuidelines," unless it is demonstratedafter a minimum trial period of 2 yearsthat this level of guidelines does notoffer an acceptable level of protectionfor the waters of the United States. TheCoast Guard is preparing a report on theeffectiveness of the voluntary guidelinesto Congress, which must also precedeany mandatory program. The CoastGuard considers this regulation torepresent the most practical andeffective ballast water managementmethod available at this time. However,we cannot rule out the possibility ofmandatory BWE in the future.Additionally, we will continue tosupport and encourage the developmentof more efficient and effective methodsof protecting waters of the United Statesfrom non-indigenous aquatic nuisancespecies.

One comment recommended deletingthe suggestion in § 151.2035(b)(2) toretain ballast water onboard because itis not a workable solution.

We do not agree with this comment.Many vessels do retain ballast onboard.They shift ballast as needed to controlthe stress and stability of the ship. Thismethod of ballast management is alegitimate practice that reduces thedischarge of untreated ballast, and wewill continue to recognize it as such.

What Are the Mandatory Requirementsfor Vessels Carrying Ballast Water Intothe Waters of the United States AfterOperating Beyond the EEZ (§ 151.2040)?

We received 13 comments about themandatory reporting requirements.Many of these comments wererequesting clarification of applicabilityor requesting exemptions from themandatory reporting and recordkeepingof ballast water practices. They areappropriately discussed in § 151.2005and § 151.2010.

The Coast Guard believes it isimportant for compliance to be made asefficient as possible for all concerned.Therefore, we have added to § 151.2041

a vehicle for parties to requestalternative methods of reporting. Aspreviously discussed, the informationfrom all vessels, including those notdischarging ballast, will be essential tomake practical, enforceable regulationsthat accomplish the intended purposeand to make sound recommendations toCongress for future legislative action.

One comment requested that theCoast Guard clarify § 151.2045 to statethat the reporting requirement doesn'tapply to operators on voyages in areasless than 200 miles from the baseline ofthe U.S.

This comment appeared tomisinterpret that the reportingrequirement is triggered by the fact thata vessel has operated beyond the EEZ.We apologize for any confusion thatmay have been caused by our discussionon page 26676 in the preamble of theinterim rule. We used the phrase"generally 200 miles seaward of thebaseline," however, we did notemphasize it throughout the example.While the seaward boundary of the EEZis 200 miles from the baseline in muchof the United States, there are areaswhere it differs. Such areas includeportions of Florida, New England,Southern California, Texas, Alaska andWashington State, where the EEZ limitis less than 200 miles from the baseline.The Act tasks the Coast Guard withspecific responsibilities for "a vesselthat is carrying ballast water into thewaters of the United States afteroperating beyond the ExclusiveEconomic Zone." To effectively fulfillthese responsibilities and make sounddecisions for further action, we mustgather the information for all vesselsentering the waters of the U.S. afteroperating beyond the EEZ, includingthose vessels declaring NOBOB, whichcontain residual and unpumpableballast.

Two comments indicate that therequirements for remitting the reportappear burdensome for the master of thevessel. One respondent says that itwould be easier for the vessel's captainto send information to the nearest CoastGuard office 24 hours before the vesselarrives in a particular port. Then theCoast Guard office could send theinformation to the National BallastWater Information Clearinghouse (NBIC)or appropriate Captain of the Port. Weagree that it may be easier for the vesselmaster to submit the requiredinformation prior to entry in U.S. watersas this would be consistent with otherCoast Guard programs and activities.Therefore, we are amending paragraph151.2040(c)(4) to require vesselsentering a U.S. port to submit therequired ballast water management



practices information before the vesselarrives at the first port of call in thewaters of the United States. However,we disagree that it would be easier tosubmit the report to the local CoastGuard office. We believe a centralizedlocation that all reports are sent tocreates less burden to all parties thencreating "middle men" to obtain andforward the reports. For the majority ofthe United States, the report can bemailed, faxed, or transmittedelectronically to the NBIC. It may besent by the master, owner, operator,agent, or person-in-charge of a vessel.The only areas in which there is noneed to submit the ballast waterinformation to the centralized location(NBIC) are those areas that had existingprograms prior to the development of anational program. Vessels in those areas,the Great Lakes and Hudson River northof the George Washington Bridge, whereballast management practices aremandatory, report directly to theappropriate Captain of the Port 24 hoursprior to entry by the means detailed in§ 151.2040(c)(1), (c)(2), and (c)(3).

What Are the Mandatory RecordkeepingRequirements (§ 151.2045)?

The comments on § 151.2045duplicate the comments alreadydiscussed in this preamble.

What Methods Are Used To MonitorCompliance With This Subpart(§ 151.2050)?

We received three comments aboutthis section of the rule.

One comment indicated that the finalrule should adequately describe thesampling procedures that the CoastGuard will use to monitor complianceas required by the Act.

Current sampling procedures areappropriately described in the CoastGuard "Navigation and InspectionCircular" 08-99 (NVIC 08-99). You mayview this NVIC at http://www.uscg.mil/hq/g-m/nvic/8-99/n8-99.pdf.

One comment stated that the CoastGuard cannot make a sound andsupportable recommendation toCongress at the end of the "voluntary"period based only on results from averification test that all parties agree isinadequate. Another comment urged theCoast Guard to increase its focus onsubstantial testing so that an adequateverification test can be released as soonas possible.

The Coast Guard is using multiplemeans to verify compliance with thevoluntary ballast water management.These means include a statisticallysignificant number of Coast Guardboardings to determine the validity ofreports that were submitted to the NBIC,

a comparison of reports received withthe number of vessel arrivals asdetermined by the MaritimeAdministration, and spot-checks of thesalinity of ballast water carried onvessels that are boarded. While we areactively pursuing more definitivephysical, biological, and chemicalparameters to definitively verify thatopen ocean exchange has beenconducted, salinity will likely remain asan effective screening parameter toshow when one was not conducted.

What Must Each Application forApproval of an Alternative ComplianceTechnology Contain (§ 151.2060)?

The Coast Guard received twocomments about this section of the rule.One comment noted that there is a needfor a clearly defined approval processfor new compliance technology thatshould follow internationally agreed-upon standards. A second respondenturged the ANS Task Force to givesufficient attention to the developmentof this approval process.

The Coast Guard is currently workingwith Agencies of the ANSTF to developpublishable standards and protocols foracceptance. In the interim, approval willbe on a case-by-case basis throughCommandant (G-MSO-4).

What Is the Standard of AdequateCompliance Determined by the ANSTFfor This Subpart (§ 151.2065)?

One comment urged the ANS TaskForce to give sufficient attention to thedevelopment of the criteria to measurealternative compliance methods.Another comment said that by nothaving effectiveness criteria available atthe onset of the evaluation, it isunknown if compliance with thevoluntary guidelines will be sufficientto prevent the need for mandatoryprovisions. This, therefore, places vesselowners and operators at a significantdisadvantage in making informeddecisions regarding research,investment, and alternative compliancemeasures.

We respect this opinion. However, wefeel that delay of the rulemaking whileawaiting the Aquatic Nuisance SpeciesTask Force's report of adequatecompliance would not be in the bestinterests of the general public. We haveinformed the ANSTF of our concernsand the paramount importance ofproviding these criteria.

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

The Coast Guard received eightcomments about the "Ballast WaterReporting Form." Most of the commentsexpressed concern that the form is too

detailed in scope, and the informationrequested is not needed or is duplicativeof what is already carried onboard thevessel. Several comments recommendedthat an abridged report along withexisting information carried onboard thevessel be accepted as an alternative. Onecomment requested that the Coast Guardsimplify the form in future revisions.

The Coast Guard will not currentlymake any changes to the form publishedin the interim rule. At this stage of theprogram, all the information that isrequired is considered essential to makesound decisions. We have, however,added provisions within this rule toallow for equivalent means of reporting(§ 151.2041).

Regulatory Evaluation

This rule is not a significantregulatory action under section 3(f) ofExecutive Order 12866 and does notrequire an assessment of potential costsand benefits under section 6(a)(3) of thatorder. It has not been reviewed by theOffice of Management and Budget(OMB) under that order. It is notsignificant under the regulatory policiesand procedures of the Department ofTransportation (DOT) (44 FR 11040;February 26, 1979).

The Coast Guard expects theeconomic impact of this rule to be sominimal that a full RegulatoryEvaluation under paragraph 10e of theregulatory policies and procedures ofDOT is unnecessary.

Summary of Costs

The rule will cost industry the timeand resources it will take to submit thepaperwork required by this rule. Avessel's officer is likely to be the persontasked with completing the report, sowe based our (revised) estimate on thecurrent annual salary for a third mate ona U.S. merchant vessel. We accountedfor overtime/the possibility of higher-salaried officers completing somereports, and included administrativecosts ($9 per report for photocopying,etc.). We calculated that it will costapproximately $60 to submit eachreport. The following equationillustrates the calculation:$151,464 + 2,080 hours x .67 hours +

$9=$60We used the U.S. Coast Guard Marine

Safety Management System (MSMS) todetermine that this rule will apply to30,877 vessel transits (this includestransits on the Great Lakes). Wemultiplied the cost of each report ($60)by the number of vessel arrivals fromoutside the EEZ (30,877) to get a totalannual cost of $1,852,620. Thefollowing equation illustrates thecalculation:



$60 x 30,877=$1,852,620The rule will cost the Federal

government the time it will take CoastGuard personnel to review ballast watermanagement record information. TheCoast Guard will add 30 E-5 billets toverify compliance and collect theinformation this rule will require.Commandant Instruction 7310.1E statesthat the hourly cost for an E-1 to E-5range billet is $15 per hour. Thistranslates to a yearly cost of $31,200 perbillet (2080 x $15=$31,200). Therefore,the cost of 30 billets will equal $936,000($31,200 x 30=$936,000). We estimatethat the total cost to the Coast Guard tocollect and send the appropriatepaperwork to the National Ballast WaterInformation Clearinghouse (NBIC) is$75,000. The total annual cost wascalculated as illustrated in the followingequation:30 [billets] x $2,500 [administrative

costs]=$75,000The Coast Guard will also allocate

$450,000 per year to the NBIC. TheNBIC will provide analysis, synthesis,and interpretation of data collectedunder the Act. Therefore, the totalgovernment cost of this rule is$1,311,000 annually. The totalgovernment cost was calculated asillustrated in the following equation:$936,000 + $450,000 +

$75,000=$1,461,000

Summary of Benefits

This rule is the next step in anongoing effort to reduce the numbers ofnon-indigenous species invading thewaters of the United States.

According to the U.S. Congress' Officeof Technology Assessment, "HarmfulNon-Indigenous Species in the UnitedStates," the economic impact on theUnited States from introductions of non-indigenous species has exceeded severalbillion dollars through-

* Efforts to prevent and reducefurther infestations;

* Repairs of damage to variousinfrastructures; and

* Lost revenues.For example, the Great Lakes Fishery

Commission estimates the EuropeanRuffe, a fish that entered the Great Lakesvia expelled ballast water in the early1980's, could cause annual losses of $90million if it is not controlled.

As international maritime tradecontinues to expand, the economicimpact of non-indigenous speciesinvasions will continue to increase. Thisincrease may necessitate more extensivelong-term control efforts, includingimproving ballast-water managementpractices. The reporting requirements inthis rule will allow the Coast Guard to

receive the information we need tomake decisions on what measures maybe required in the future to help solvethe aquatic nuisance species problem.

Impact on Small Entities

Under the provisions of theRegulatory Flexibility Act (5 U.S.C.601-612), we considered whether thisrule will have a significant economicimpact on a substantial number of smallentities. "Small entities," include smallbusinesses, not-for-profit organizationsthat are independently owned andoperated and are not dominant in theirfields, and governmental jurisdictionswith populations of less than 50,000.

The rule applies to any vessel withballast tanks entering the waters of theUnited States after operating beyond theEEZ. Vessels engaged in coastwise trade(within the EEZ) and passenger vesselsequipped with treatment systemsdesigned to eliminate aquatic species intheir ballast tanks will be exempt fromthe mandatory provisions of the rule.The rule requires vessel operators toreport their ballast water managementefforts. We estimate that each report willcost the vessel operator $60. This sumis very low on an absolute dollar basis.We believe that it will account for a verylow percentage of the operating costs ofeven the smallest commercial vesseloperations. For this reason, the CoastGuard certifies under 5 U.S.C. 605(b)that the rule will not have a significanteconomic impact on a substantialnumber of small entities.

Assistance for Small Entities

Under section 213(a) of the SmallBusiness Regulatory EnforcementFairness Act of 1996 (Pub. L. 104-121),the Coast Guard offers to assist smallentities in understanding this rule sothat they can better evaluate its effectson them and participate in therulemaking process. If your smallbusiness or organization is affected bythis rule and you have questionsconcerning its provisions or options forcompliance, please contact LieutenantCommander Mary Pat McKeown, ProjectManager, Office of Operating andEnvironmental Standards (G-MSO) at202-267-0500.

The Small Business and AgricultureRegulatory Enforcement Ombudsmanand 10 Regional Fairness Boards wereestablished to receive comments fromsmall businesses about Federal agencyenforcement actions. The Ombudsmanwill annually evaluate the enforcementactivities and rate each agency'sresponsiveness to small business. If youwish to comment on the enforcementactions of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

Collection of Information

The provisions of the PaperworkReduction Act of 1995 (44 U.S.C. 3501-3520) require the Office of Managementand Budget (OMB) to review each rulethat contains a collection-of-information. The Office of Managementand Budget must determine if thepractical value of the information isworth the burden of collecting theinformation. Collection-of-informationrequirements include reporting,recordkeeping, notification, monitoring,posting, labeling, and other, similarrequirements.

This rulemaking will require theowner or operator of a vessel withballast tanks, entering the waters of theUnited States from outside the EEZ, tosubmit paperwork to the Coast Guard.The paperwork will document theowner's or operator's ballast watermanagement practices. The provisionsof the Act require the Coast Guard, inconsultation and cooperation with theAquatic Nuisance Species Task Forceand the Smithsonian InstitutionEnvironmental Research Center, todevelop and maintain the NBIC. Thepurpose of the NBIC is to determine thepatterns of ballast water delivery andmanagement in the waters of the UnitedStates. The information obtained fromthe mandatory reports that owners andoperators must submit will be enteredinto a database at the NBIC. This rulerequires submission of the followinginformation:

* Vessel type, owner or operator,gross tonnage, call sign, and Port ofRegistry (Flag).

* Port of arrival, vessel agent, lastport and country of call, and next portand country of call.

* Total ballast water capacity, totalvolume of ballast water onboard, totalnumber ballast water tanks, and totalnumber of ballast water tanks in ballast.

* Total number of ballast tanks/holdsthat are to be discharged into the watersof the United States or at a receptionfacility, the number of tanks that wereexchanged or treated using analternative method of compliance, typeof alternative compliance method, ifused for treatment, whether the vesselhas a ballast water management planand IMO guidelines onboard, andwhether the ballast water managementplan was used.

* Origin of ballast water-thisincludes date(s), location(s), volume(s),and temperature(s) (if a tank has beenexchanged, this is the ballast water thatwas taken on in port and then replacedduring the exchange).

* For any ballast water exchanged ortreated, date(s), location(s), volume(s),


No. 225/Wednesday, November 21, 2001/Rules and Regulations 58389

method, thoroughness (percentageexchanged if exchange conducted), seaheight at time of exchange if exchangeconducted.

* Expected date, location, volume,and salinity of any ballast water to bedischarged into the waters of the UnitedStates or at a reception facility.

* Location of the facility used fordisposal of sediment carried into thewaters of the United States, if sedimentis to be discharged within thejurisdiction of the United States.

If we did not require owners oroperators to provide this information, itwould be impossible to produce thestudies and congressional reports onballast water management patterns thatthe provisions of the Act require.

The Coast Guard will use theinformation to-

o Ensure that an owner or operatorhas complied with the ballast watermanagement regulations; and

* Assess the rate of compliance withthe voluntary guidelines listed in therule.

As stated under the RegulatoryEvaluation section of this document, thevessel's officer is likely to be the persontasked with completing the report, sowe based our revised cost estimate onthe current annual salary for a thirdmate on a U.S. merchant vessel.Overtime, the possibility of more seniorofficers completing the report, andadministrative costs were taken intoaccount. We calculated that it will cost$60 to submit each report. We used theU.S. Coast Guard Marine SafetyManagement System to determine thatthis rule will apply to 30,877 vesseltransits (this includes transits on theGreat Lakes). We multiplied the cost ofeach report ($60) by the number ofvessel arrivals from outside the EEZ(30,877) to get a total annual cost of$1,852,620. In the interim rule theannual burden hours on industry of20,585 and the cumulative burden for 3years of 61,755 hours were not correct.The correct annual burden on industrywill be 20,688 hours per year, and thecumulative burden for 3 years is 62,064hours.

The title and description of theinformation collection, a description ofthe respondents, and an estimate of thetotal annual burden follow. Included inthe estimate is the time for reviewinginstructions, searching existing sourcesof data, gathering and maintaining thedata needed, and completing andreviewing the collection.

Title: Implementation of the NationalInvasive Species Act of 1996 (NISA)

Summary of Collection ofInformation: This rule containscollection-of-information requirements

in the following sections: §§ 151.2040and 151.2045.

Need for Information: This rule willrequire owners or operators of eachvessel with ballast water tanks, whoenter the United States after operatingoutside the EEZ, to provide to the U.S.Coast Guard information regardingballast water management practices.

Proposed Use of Information: Theinformation is needed to ensure that themandatory ballast water managementregulations are complied with prior toallowing the vessel to enter U.S. ports,and to assess the effectiveness of thevoluntary guidelines. The informationwill be used by the Coast GuardHeadquarters staff and researchers fromboth private and other governmentalagencies to assess the effectiveness ofvoluntary ballast-water managementguidelines for vessels with ballast tanksthat enter U.S. waters after operatingoutside the EEZ. The information willbe provided to Congress on a regularbasis as required by the Act.

Description of the Respondents: Anyvessel (owner or operator) with ballasttanks entering U.S. waters afteroperating outside the EEZ.

Number of Respondents: 30,877vessel entries.

Frequency of Response: Whenever avessel with ballast tanks enters theUnited States after operating outside theEEZ.

Burden of Response: 40 minutes perrespondent.

Estimated Total Annual Burden:20,688 hours.

As required by section 3507(d) of thePaperwork Reduction Act of 1995, theCoast Guard has submitted a copy ofthis rule to OMB for its review of thecollection of information. OMB hasapproved the collection. The approvalfor the Ballast Water Reporting Form,and the corresponding OMB ControlNumber 2115-0598, expires on August31, 2002.

You are not required to respond to acollection of information unless itdisplays a currently valid OMB controlnumber.

Federalism

The Coast Guard has analyzed thisrule under the principles and criteriacontained in Executive Order 13132 andhas determined that this rule does nothave sufficient federalism implicationsto warrant the preparation of aFederalism Assessment.

Unfunded Mandates

Title II of the Unfunded MandatesReform Act of 1995 (UMRA) [Pub. L.104-4, 109 Stat. 48] requires Federalagencies to assess the effects of certain

regulatory actions on State, local, andtribal governments, and the privatesector. The Unfunded Mandates ReformAct requires a written statement ofeconomic and regulatory alternatives forrules that contain Federal mandates. A"Federal mandate" is a new oradditional enforceable duty imposed onany State, local, or tribal government, orthe private sector. If any Federalmandate causes those entities to spend,in the aggregate, $100 million or morein any one year, the UMRA analysis isrequired. This rule will not imposeFederal mandates on any State, local, ortribal governments, or the private sector.

Taking of Private Property

This rule will not effect a taking ofprivate property or otherwise havetaking implications under E.O. 12630,Governmental Actions and Interferencewith Constitutionally Protected PropertyRights.

Civil Justice Reform

This rule meets applicable standardsin sections 3(a) and 3(b)(2) of E.O.12988, Civil Justice Reform, to minimizelitigation, eliminate ambiguity, andreduce burden.

Protection of Children

We have analyzed this rule under E.O.13045, Protection of Children fromEnvironmental Health Risks and SafetyRisks. This rule is not an economicallysignificant rule and does not concern anenvironmental risk to health or risk tosafety that may disproportionately affectchildren.

Indian Tribal Governments

This rule does not have tribalimplications under Executive Order13175, Consultation and Coordinationwith Indian Tribal Governments,because it does not have a substantialdirect effect on one or more Indiantribes, on the relationship between theFederal Government and Indian tribes,or on the distribution of power andresponsibilities between the FederalGovernment and Indian tribes.

Energy Effects

We have analyzed this rule underExecutive Order 13211, ActionsConcerning Regulations ThatSignificantly Affect Energy Supply,Distribution, or Use. We havedetermined that it is not a "significantenergy action" under that order becauseit is not a "significant regulatory action"under Executive Order 12866 and is notlikely to have a significant adverse effecton the supply, distribution, or use ofenergy. It has not been designated by theAdministrator of the Office of

Federal Register/Vol. 66,



Information and Regulatory Affairs as asignificant energy action. Therefore, itdoes not require a Statement of EnergyEffects under Executive Order 13211.

Environment

The Coast Guard considered theenvironmental impact of this rule andconcluded that preparation of anEnvironmental Impact Statement is notnecessary. An EnvironmentalAssessment and Finding of NoSignificant Impact are available in thedocket for inspection or copying whereindicated under ADDRESSES.

The Coast Guard is establishingvoluntary guidelines for all vesselsequipped with ballast tanks that operatein waters of the United States. The CoastGuard is also establishing additionalvoluntary ballast water managementguidelines and mandatory reportingrequirements for all vessels carryingballast water into the waters of theUnited States after operating beyond theEEZ. These reporting requirements areintended to monitor the level ofparticipation by vessels in the voluntarynational guidelines program. Ifparticipation levels in this program areinadequate, the Act requires theSecretary of Transportation to mandatethe ballast water managementguidelines. Once reported, theinformation will be used to develop andmaintain a ballast water informationclearinghouse, which will monitor theeffectiveness of the program andidentify future needs for betterprotecting domestic waters from theintroduction of invasive species.

The Coast Guard has considered theimplications of the Coastal ZoneManagement Act (16 U.S.C. 1451, etseq.) with regard to this rulemaking.Under this Act, the Coast Guard mustdetermine whether the activitiesproposed by it are consistent withactivities covered by a federallyapproved coastal zone management planfor each State, which may be affected bythis federal action. A listing of the 29States and Territories with federallyapproved coastal zone managementplans can be found in Appendix B of theEnvironmental Assessment for thisrulemaking.

The Coast Guard has determined thatvoluntary ballast water managementguidelines and mandatory reportingrequirement, will have no effect on thecoastal zones of the listed States andTerritories. In addition, the Coast Guardfound the regulations in the interim rulewere consistent, to the maximum extentpracticable, with the enforceablepolicies of the federally approvedcoastal zone management plan andsubmitted a consistency determination

to that effect. The State Administrator'sfor each listed State and Territory withcoastal zone management plansresponded, concurring with the CoastGuard consistency determination thatimplementing voluntary guidelines forballast water management andmandatory reporting requirement wouldbe consistent with their respectivecoastal zone management plans.

Seven comments on the interim rulespecifically addressed items in theEnvironmental Assessment. Severalcomments mentioned that theassessment should have considered anddiscussed mandatory ballast waterexchange as an alternative means ofcontrolling the spread of ANS.

The Coast Guard agrees with thiscomment and has added mandatoryballast water exchange to the list ofalternatives evaluated in theEnvironmental Assessment.

One comment recommended that ifwe do not address mandatory ballastwater exchange, we should consult withthe U.S. Fish and Wildlife Service andthe National Marine Fisheries Serviceunder section 7 of the EndangeredSpecies Act (16 U.S.C. 1531, et seq.).Then, we should publish the results ofthese consultations in the final rule.

The Coast Guard provided the U.S.Fish and Wildlife Service and theNational Marine Fisheries Service witha copy of the rule and its environmentalassessment of the rule. This informationinitiated an informal Section 7consultation per the EndangeredSpecies Act (16 U.S.C. 1531, et seq.),which resulted in both agenciesconcurring with the Coast Guard'sassessment that this rule will notsignificantly impact listed species ortheir critical habitats.

Another comment indicated that alltreatment approaches should beassessed by the same performancestandards and the assessment should bewritten to reflect consistency.

The Coast Guard assessed thealternative ballast water managementmethods that are being considered forapproval to determine if they met theneed and purpose of the proposedaction as defined in the environmentalassessment.

One comment indicated that theevaluation of alternative solutions toballast water exchange must be based onscientific, objective evaluations, andthey must be compared to defensiblestandards of effectiveness for controllingthe invasion and spread of ANS.

The Environmental Assessment forthis rulemaking addressed theenvironmental considerations requiredunder the National EnvironmentalPolicy Act (NEPA) and the Coast

Guard's NEPA procedures andpolicies-as specified in, "NationalEnvironmental Policy Act:Implementing Procedures and Policy forConsidering Environmental Impacts"COMDTINST M16475.1C. TheEnvironmental Assessment discussedthe effects of implementing voluntaryballast water management guidelinesand mandatory reporting versus taking ano-action alternative and notimplementing voluntary guidelines andmandatory reporting. Therefore, theregulations to implement provisions ofthe Act concerning ballast water control,when using voluntary guidelines forballast water management andmandatory reporting requirements, willnot have a significant impact on theenvironment.

List of Subjects in 33 CFR Part 151

Administrative practice andprocedure, Oil pollution, Penalties,Reporting and recordkeepingrequirements, Water pollution control.

For the reasons discussed in thepreamble, the Coast Guard amends 33CFR part 151 subparts C and D asfollows:

PART 151-VESSELS CARRYING OIL,NOXIOUS LIQUID SUBSTANCES,GARBAGE, MUNICIPAL ORCOMMERCIAL WASTE, AND BALLASTWATER

Subpart C-Ballast Water Managementfor Control of Nonindigenous Speciesin the Great Lakes and Hudson River

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

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

2. Amend § 151.1510 by revisingparagraph (a)(1) to read as follows:

§151.1510 Ballast water management.(a) The master of each vessel subject

to this subpart shall employ one of thefollowing ballast water managementpractices:

(1) Carry out an exchange of ballastwater on the waters beyond the EEZ,from an area more than 200 nauticalmiles from any shore, and in watersmore than 2,000 meters (6,560 feet,1,093 fathoms) deep, prior to entry intothe Snell Lock, at Massena, New York,or prior to navigating on the HudsonRiver, north of the George WashingtonBridge, such that, at the conclusion ofthe exchange, any tank from whichballast water will be dischargedcontains water with a minimum salinitylevel of 30 parts per thousand.



3. Amend § 151.1516 by revisingparagraph (a) introductory text to readas follows:

§151.1516 Compliance monitoring.(a) The master of each vessel subject

to this subpart shall provide, as detailedin § 151.2040, the followinginformation, in written form, to theCOTP:

Subpart D-Ballast Water Managementfor Control of Nonindigenous Speciesin Waters of the United States

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

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

5. Amend § 151.2005 by revisingparagraph (b) to read as follows:

§ 151.2005 To which vessels does thissubpart apply?* * * * *

(b) In addition, §§ 151.2035(b)through 151.2065 apply to all vessels,U.S. and foreign, equipped with ballasttanks, that enter the waters of theUnited States after operating beyond theExclusive Economic Zone, except thosevessels exempted in § 151.2010 and§ 151.2015.

6. Amend § 151.2010 by revisingparagraphs (b) and (d) to read asfollows:

§ 151.2010 Which vessels are exempt fromthe mandatory requirements?* * * * *

(b) A passenger vessel equipped witha functioning treatment system designedto kill aquatic organisms in the ballastwater. The treatment system must beutilized for ballast water discharged intothe waters of the United States and itmust operate as designed.* * * * *

(d) A vessel that will discharge ballastwater or sediments only at the samelocation where the ballast water orsediments originated. The ballast wateror sediments must not mix with ballastwater or sediments other than thosetaken on in areas more than 200 nauticalmiles from any shore and in watersmore than 2,000 meters (6,560 feet,1,093 fathoms) deep.

§ 151.2020 [Removed]

7. Remove § 151.2020.8. Amend § 151.2035 by revising

paragraph (b) (1) to read as follows:

§ 151.2035 What are the voluntary ballastwater management guidelines?* * * * *

(b) In addition to the provisions of§ 151.2035(a), you (the master, operator,or person-in-charge of a vessel) arerequested to employ at least one of thefollowing ballast water managementpractices, if you carry ballast water, thatwas taken on in areas less than 200nautical miles from any shore or inwaters less than 2000 meters deep, intothe waters of the United States afteroperating beyond the EEZ:

(1) Exchange ballast water on thewaters beyond the EEZ, from an areamore than 200 nautical miles from anyshore, and in waters more than 2,000meters (6,560 feet, 1,093 fathoms) deep,before entering waters of the UnitedStates.

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

§ 151.2040 What are the mandatoryrequirements for vessels equipped withballast tanks that enter the waters of theUnited States after operating beyond theExclusive Economic Zone (EEZ)?* * * * *

(c) The master, owner, operator, agent,or person-in-charge of a vessel enteringthe waters of the United States afteroperating beyond the EEZ, unlessspecifically exempted by §§ 151.2010 or151.2015, must provide the informationrequired by § 151.2045 in electronic orwritten form to the Commandant, U.S.Coast Guard or the appropriate COTP asfollows:

(1) For a United States or CanadianFlag vessel bound for the Great Lakes.You must fax the required informationto the COTP Buffalo, MassenaDetachment (315-764-3283), at least 24hours before the vessel arrives inMontreal, Quebec.

(2) For a foreign flagged vessel boundfor the Great Lakes. You must-

(i) Fax the required information to theCOTP Buffalo, Massena Detachment(315-764-3283), at least 24 hours beforethe vessel arrives in Montreal, Quebec;or

(ii) Complete the ballast waterinformation section of the St. LawrenceSeaway required "Pre-entry Informationfrom Foreign Flagged Vessels Form"and submit it in accordance with theapplicable Seaway Notice.

(3) * * *(4) For a vessel not addressed in

paragraphs (c)(1), (c)(2), and (c)(3) ofthis section. Before the vessel arrives atthe first port of call in the waters of theUnited States, you must-

(i) * * *

(ii) Transmit the informationelectronically to the NBIC at http://invasions.si.edu/ballast.htm or e-mail itto [email protected]; or

(iii) * * *(iv) A single report that includes the

ballast discharge information for all U.S.ports that will be entered during thisvoyage will be accepted unless thevessel exits the EEZ during transits.

10. Add § 151.2041 to subpart D toread as follows:

§ 151.2041 Equivalent Reporting Methodsfor vessels other than those entering theGreat Lakes or Hudson River

(a) For ships required to report under§ 151.2040(c)(4) the Chief,Environmental Standards Division (G-MSO-4), acting for the AssistantCommandant for Marine Safety andEnvironmental Protection (G-M) may,upon receipt of a written request,consider and approve alternativemethods of reporting if:

(1) Such methods are at least aseffective as that required by§ 151.2040(c)(4); and

(2) Compliance with the requirementis economically or physicallyimpractical.

(i) The Chief, EnvironmentalStandards Division (G-MSO-4) willtake approval or disapproval action onthe request submitted in accordancewith paragraph (a) of this section within30 days of receipt of the request.

(ii) [Reserved].11. Amend § 151.2045 by revising the

section heading and paragraph (a)introductory text to read as follows:

§ 151.2045 What are the mandatoryrecordkeeping requirements for vesselsequipped with ballast tanks that enter thewaters of the United States after operatingbeyond the Exclusive Economic Zone(EEZ)?

(a) The master, owner, operator, orperson in charge of a vessel entering thewaters of the United States afteroperating beyond the EEZ, unlessspecifically exempted by §§ 151.2010 or151.2015 must keep written, recordsthat include the following information(Note: Ballast tank is any tank or holdthat carries ballast water regardless ofdesign):• * * * *

12. Amend Appendix to Subpart D ofPart 151 BALLAST WATERREPORTING FORM ANDINSTRUCTIONS FOR BALLASTWATER REPORTING FORM by revisingthe second page of the form to read asfollows:

BILLING CODE 4910-15-U



Where to send this form.

Vessels bound for Great Lakes:

United States or Canadian Flag vessel bound for the Great Lakes

Fax the form to the COTP Buffalo, Massena Detachment 315-764-3283 at least 24 hours before the vesselarrives in Montreal, Quebec.

Any other Flag vessel bound for the Great Lakes

Fax the form to the COTP Buffalo, Massena Detachment 315-764-3283 at least 24 hours before the vesselarrives in Montreal, Quebec, or;

Complete the ballast water information section of the St. Lawrence Seaway required "Pre-entryInformation from Foreign Flagged Vessels Form" and submit it in accordance with the applicable SeawayNotice.

Vessels bound for the Hudson River North Of George Washington Bridge

Vessel bound for the Hudson River north of the George Washington Bridge

Fax the form to the COTP New York at 718-354-4249 before the vessel enters the waters of the UnitedStates (12 miles from the baseline).

Vessels bound for all other United States Ports

Vessel bound for all ports within the waters of the United States other than the Great Lakes orHudson River north of the George Washington Bridge

Before the vessel arrives at the first port of call in the waters of the United States send the form by one ofthe three following methods:

* Mail the form to the U.S. Coast Guard, c/o Smithsonian Environmental ResearchCenter (SERC), P.O. Box 28, Edgewater, MD 21037-0028;

* Transmit the form electronically to the National Ballast Information Clearinghouse

(NBIC) at http://invasions.si.edu/ballast.htm or e-mail it to ballast(serc.si.edu; or

Fax the form to the Commandant, U.S. Coast Guard, c/o the NBIC at 301-261-4319.

If a information changes, send an amended form before the vessel departs the waters of the UnitedStates.

An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a validOMB control number. The Coast Guard estimates that the average burden for this report is 35 minutes. You may submit anycomments concerning the accuracy of this burden estimate or any suggestions for reducing the burden to: Commandant (G-MSO),U.S. Coast Guard, 2100 Second St. SW, Washington, DC 20593-0001, or Office of Management and Budget, Paperwork ReductionProject (2115-0598), Washington, DC 20503.


(,1 2 1/,1( · 2020. 4. 14. · on november 27, 1997, the imo marine environment protection...

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