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Proposed Rule

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

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Information about this document as published in the Federal Register.

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AGENCY:

Coast Guard, DHS.

ACTION:

Notice of intent with request for comments.

SUMMARY:

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

DATES:

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

ADDRESSES:

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

(1) By mail to the Docket Management Facility (USCG-2001-10486), U.S. Department of Transportation, room PL-401, 400 Seventh Street, SW., Washington, DC 20590-0001.

(2) By delivery to room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.

(3) By fax to the Docket Management Facility at 202-493-2251.

(4) Electronically through the Web site for the Docket Management System at http://dms.dot.gov.

In choosing among these means, please give due regard to the recent difficulties and delays associated with the delivery of mail through the U.S. Postal Service to Federal facilities. Delivery methods 2-4 of those listed above are the preferred methods because security measures taken by the USPS and the USCG mail reception facilities may seriously damage or render unreadable comments sent via regular mail.

The Docket Management Facility maintains the public docket for this rulemaking. Comments and material received from the public, as well as documents mentioned in this notice as being available in the docket, will become part of this docket and will be available for inspection or copying at room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also find this docket at the following Web site address: http://dms.dot.gov.

Electronic forms of all comments received into any of our dockets can be searched by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor unit, etc) and is open to the public without restriction. You may review the Department of Transportation's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78), or you may visit http://dms.dot.gov/​.

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FOR FURTHER INFORMATION CONTACT:

For information concerning this PEIS, call Mr. Brad McKitrick, Office of Standards Evaluation and Development (G-MSR), U.S. Coast Guard, telephone 202-267-0995 or via e-mail bmckitrick@comdt.uscg.mil. If you have any questions on viewing or submitting Start Printed Page 55560material to the docket, call Andrea M. Jenkins, Program Manager, Docket Operations, Department of Transportation, telephone 202-366-0271.

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SUPPLEMENTARY INFORMATION:

Request for Comments

The Coast Guard encourages interested persons to submit written data, views, or comments. Persons submitting comments should please include their name and address and identify the docket number (USCG-2001-10486). You may submit your comments and material by mail, hand delivery, fax, or electronic means to the Docket Management Facility at the address under ADDRESSES; but please submit your comments and material by only one means. If you submit them by mail or hand delivery, submit them in an unbound format, no larger than 81/2 by 11 inches, suitable for copying and electronic filing. If you submit them by mail and would like to know they were received, please enclose a stamped, self-addressed postcard or envelope.

The Coast Guard invites comments and suggestions on the proposed scope and content of the PEIS, as well as on the ideal means for notifying and involving the public. The Coast Guard will consider all comments received during the comment period.

Coast Guard's Transition to Department of Homeland Security

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

Background

Under the National Invasive Species Act (NISA), Congress directed the Coast Guard to develop regulations to prevent the introduction and spread of nonindigenous species (NIS) in U.S. waters via ballast water discharge. According to the National Research Council (see reference 1), the uptake and discharge of ballast water is one of the largest pathways for the introduction and spread of aquatic NIS.

Living organisms can survive the process of being loaded into the ballast tanks, transported to different geographic locations, and released into a new environment (i.e. U.S. waters). The probability that NIS will survive once introduced into U.S. waters depends on a large number of poorly understood factors. While many of the transported NIS do not survive in U.S. waters, those that do may establish populations, spread beyond the point of introduction, and cause adverse changes in the recipient ecosystem. In many cases, there can be significant time lags between when a NIS becomes established as a reproducing population and when its distribution and abundance increase to the extent that it becomes a recognized pest.

Legislative and Regulatory History

Congress directed the Coast Guard to prevent the introductions of NIS from ballast water in the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 (NANPCA), as reauthorized, and amended by the National Invasive Species Act of 1996 (NISA). In response to this direction, the Coast Guard established a program of mandatory requirements and voluntary guidelines in Title 33 of the Code of Federal Regulations part 151. Acceptable ballast water management (BWM) methods include mid-ocean ballast water exchange (BWE), holding ballast water onboard, discharging ballast water to an approved reception facility, or use of an alternative Coast Guard approved BWM method. BWM is mandated for vessels entering the Great Lakes and the Hudson River but is voluntary in the rest of the U.S. waters.

On May 1, 2001, we published a notice and request for public comments (66 FR 21807) on four conceptual approaches to setting ballast water treatment (BWT) standards and on approaches for assessing the effectiveness of BWT relative to BWE. The comments we received revealed a wide range of opinion, indicating the need for more discussion. Subsequently, on March 4, 2002, we published an advance notice of proposed rulemaking and request for comments (67 FR 9632) on the development of a BWT standard. The Coast Guard is incorporating the information we received in response to the advanced notice into the proposed rulemaking.

Over the past two years, the Coast Guard has used several venues to explore options for BWT standards. These include technical discussions organized by: (1) The International Maritime Organization's (IMO) Global Ballast Water Program (Globallast); (2) the Ballast Water and Shipping Committee of the U.S. Aquatic Nuisance Species Task Force; and (3) the U.S. Coast Guard's Research and Development Center.

Although the initial Federal Register publications were phrased in terms of BWT standards, the critical issue has always been the quality of the ballast water actually discharged from vessels. Therefore, beginning with this notice the emphasis will be on requirements related to ballast water discharges. This is also in line with the development of ballast water discharge standards internationally.

At the international level, in September 1995, the IMO identified the NIS threat as a major issue confronting the international maritime community. To address the issue, the IMO issued voluntary guidelines titled, “International Guidelines for Preventing the Introduction of Unwanted Aquatic Organisms and Pathogens from Ships' Ballast Water and Sediment Discharges.” The IMO Marine Environment Protection Committee (MEPC) is currently developing an international, legally binding, instrument to mandate ballast water management, which would include an international standard for ballast water discharge.

Scoping

Preliminary investigations to define the scope of environmental issues that may be relevant to the proposed regulatory action indicate that there is the potential for both beneficial and adverse effects to the environment. The Coast Guard, in general, believes the proposed regulatory action's effects on the environment will be significantly beneficial. The Council on Environmental Quality's (CEQ) regulations for implementing the National Environmental Policy Act (NEPA) state that a significant environmental impact may exist even if an agency believes that the net balance of environmental effects are beneficial. Therefore, the Coast Guard has decided to prepare a PEIS.

The matter of establishing a ballast water discharge (BWD) standard for preventing the introduction of aquatic NIS involves two levels of environmental impact consideration: (1) An evaluation of the remaining probability of aquatic NIS introduction with the standard in place, as well as the associated potential for environmental consequences from introduction; and (2) the potential for environmental impacts from the use of particular management methods to meet the established standard. NISA calls for the use of environmentally sound [1] Start Printed Page 55561ballast water management methods. Although no ballast water methods have yet been demonstrated to work effectively and consistently on a single vessel, let alone across a range of vessel types and operating conditions, a number of methods are being actively investigated. These methods currently include, among others, mid-ocean exchange; filtration; hydrocyclonic separation; ultraviolet radiation; ultrasonic impulses; oxidizing chemical biocides such as ozone, chlorine dioxide, hypochlorite, and various electrolytically produced ions; non-oxidizing organic chemicals; deoxygenation, and micro-scale shear forces. Some of these methods, such as oxidizing chemicals, have a well known potential to result in unwanted residuals and disinfection-by-products (DBPs), and it is even possible that the physical methods might result in unwanted changes to the quality of discharged water. These residuals, DPBs, and changes to water quality may have adverse environmental impacts. This PEIS will address the potential environmental impacts from the varying levels of remaining organisms in discharged ballast water that meets the BWD standard. However, when BWM methods are developed to meet the BWD standard, follow-on environmental analyses to determine environmental soundness will be conducted on each proposed method brought forward for approval or certification.

This PEIS is being prepared as a “programmatic” EIS since the proposed regulatory action meets CEQ's definition of “a broad Federal action such as the adoption of agency programs or regulations” (40 CFR 1502.4(b)). The PEIS will focus on an evaluation of the general environmental impacts that may result from either taking No Action (defined as not establishing BWD standards) or taking Action (defined as choosing and mandating a BWD standard from among several possible levels of management). The PEIS will be prepared in accordance with NEPA, CEQ's “Regulations for Implementing the Procedural Provisions of NEPA,” and the established Coast Guard NEPA procedures and policies, as specified in, “National Environmental Policy Act: Implementing Procedures and Policy for Considering Environmental Impacts,” COMDTINST M16475.1D.

The proposed regulatory action is part of a national program of regulations intended to prevent the introduction and spread of NIS via discharged ballast water. Other active projects in the program include a rule to impose penalties for noncompliance with mandatory aspects of ballast water management (68 FR 523) and a rule that makes the current voluntary BWM program mandatory (68 FR 44691). In order to determine the potential effectiveness of experimental technologies designed to treat ballast water for the removal of NIS aboard ship, the Coast Guard will promote the installation of experimental technologies aboard ships. Each project has been or will be analyzed under NEPA at the appropriate and meaningful point during Coast Guard planning and decision making.

The PEIS will provide general environmental information on the proposed action and alternatives to Coast Guard decision-makers, other agencies, and the interested and affected public, and help to determine whether implementing a regulatory BWD standard has the potential for significant environmental impacts. The PEIS will also look at the potential direct and indirect environmental impacts of each alternative including not implementing a BWD standard (the “No action” alternative). In addition to complying with NEPA, obtaining the information in the PEIS will ensure that the Coast Guard makes fully informed decisions before choosing a final course of action. The Coast Guard intends to continue to involve the public in these later associated actions, as appropriate, and will also prepare further, more specific, environmental analyses and documentation as necessary. The Coast Guard considers this PEIS to be a first-tier environmental review and may prepare subsequent NEPA analyses and documentation for future individual actions and their site-specific impacts if such analyses are not adequately covered by this PEIS.

The U.S. Environmental Protection Agency, U.S. Department of Interior's Fish and Wildlife Service, and U.S. Department of Commerce's National Marine Fisheries Service will be participating in the PEIS preparation as a Cooperating Agencies in accordance with Title 40, Code of Federal Regulations, § 1501.6.

Purpose of Proposed Action

The purpose of the proposed action is to fulfill the need for a ballast water discharge (BWD) standard to prevent the introduction and spread of NIS via discharged ballast water. In the future, this standard will be used to fulfill the Coast Guard authority under NISA to approve BWM methods that are effective at helping to prevent the introduction and spread of NIS via discharged ballast water.

Under NISA, the minimum for this discharge standard is “at least as effective as ballast water exchange.” It is difficult to determine the effectiveness of BWE due in part to the wide variety of vessel designs, ballast tank structures, and voyages. In addition, the Coast Guard believes that to prevent the introduction and spread of NIS, the ballast water discharge standard must relate to biological effectiveness. Therefore, the Coast Guard is working to develop a ballast water discharge (BWD) standard based on the level of protection needed to prevent introductions and spread of NIS.

The development of a BWD standard presents a complex challenge. Technologies for removing NIS from ballast water are in the early stages of development. These technologies need to be complementary with existing vessels as well as future vessel designs. The BWD standard to be achieved by these technologies must be environmentally sound. Development of this BWD standard requires close collaboration between government agencies, the scientific community, water treatment experts, the shipping industry, and a wide range of stakeholders.

Proposed Action

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

Need for Action

Under NISA, Congress mandated that the Coast Guard establish guidelines on BWM. Initially established as voluntary guidelines, Congress directed the Secretary of Transportation to make the actions prescribed in the guidelines mandatory if shipping industry compliance with found to be insufficient.

The next Congressionally required step is making the voluntary BWM guidelines into a mandatory BWM program. The Coast Guard published an NPRM on a mandatory BWM program for all U.S. waters on July 30, 2003 (68 FR 44691). This program would emphasize BWE, due to the lack of availability of other BWM methods. However, most existing vessels are not designed to conduct BWE, and in some cases, depending on vessel design, age, load, and sea conditions, the practice can be unsafe. Further, BWE is not an option for vessels moving along coastlines, since BWE in coastal areas may increase the risk of bioinvasions. Finally, even when conducted, the Start Printed Page 55562effectiveness of BWE in removing NIS from ballast tanks can be quite variable. These drawbacks combine to make BWE less than desirable as a long-term approach to preventing introductions of NIS via ballast water discharges.

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

Alternatives

Reasonable alternatives that meet the established purpose and need will be evaluated and considered in detail. Currently the Coast Guard is examining a range of alternatives that vary in the degree to which the discharge of organisms would be prevented.

(1) Alternative 1: This alternative is the most stringent of all the alternatives in preventing the introduction of NIS. This alternative would comply with all current applicable environmental laws and other environmental mandates, and result in the discharge of no detectable viable organisms larger than 0.1 microns. This alternative would also require the removal or inactivation of all membrane-bound organisms (including bacteria), and most viruses, and would essentially require the sterilization of ballast water.

(2) Alternative 2: This alternative would fall between Alternative 1 and Alternative 3 in stringency. It would establish maximum acceptable discharge concentrations for various types of potential NIS—macrofauna, including fish and invertebrate zooplankton; heterotrophic and autotrophic protists (phytoplankton); and other microbes such as bacteria and viruses—to greatly reduce the risk of future introductions. Alternative 2 would also comply with all current applicable environmental laws and other environmental mandates. It would result in the discharge of no more than a particular number of viable individuals per liter of zooplankton greater than a cut-off size in microns and no more than a particular number of phytoplankton greater than a cut-off size, and discharge of a specified set of indicator microbes not to exceed specified concentrations. These standards could include the establishment of indicator species for use in approval and compliance testing. Concentration numbers have not been stated in the above description, as we are requesting comments from the public regarding the conceptual approach and the quantitative concentrations that should be specified. However the Coast Guard anticipates that the concentration number will fall between Alternative 1 and Alternative 3.

(3) Alternative 3: No Action. This alternative is the least stringent of the range of alternatives in preventing the introduction of NIS and would not establish a BWD standard. Instead, under the mandatory BWM program established according to the directives in NISA, it would be applicable to vessels equipped with ballast tanks entering U.S. waters after operating beyond the Exclusive Economic Zone (EEZ). As currently framed, the mandatory BWM program directs vessels to either conduct BWE or retain ballast water onboard or use a reception facility or another environmentally sound management method approved by the Coast Guard. Currently, few vessels have the ability to retain ballast water onboard and still conduct commercial activities, and no reception facility has been built to treat ballast water for removal of NIS. In addition, no environmentally sound methods to manage ballast water, other than BWE, have been approved by the Coast Guard. Thus, for the near future, the No Action alternative would mean that the primary mandatory BWM practice vessels would conduct is mid-ocean BWE when safe and feasible. Those vessel owners desiring to use some other ballast water management method would be required to demonstrate that the proposed method was at least as effective as BWE, on that vessel.

The Coast Guard is requesting input on any additional alternatives for analysis, any environmental concerns the public may have related to the alternatives for establishing a BWD standard, suggested analyses or methodologies for inclusion in the PEIS, and possible sources of relevant data or information.

Scope

The following environmental requirements have been tentatively identified for analysis in the PEIS and are presented to facilitate public comment during the scoping process of the PEIS. This list of requirements is neither intended to be all-inclusive nor to be a predetermined set of potential impacts. Additions to or deletions from the list of issues may occur as a result of the scoping process. The environmental requirements include the following:

(1) Endangered or Threatened Species: Potential impacts to endangered or threatened marine life and birds from each of the alternatives.

(2) Essential Fish Habitat: Potential effects to waters and substrate necessary to fish for spawning, breeding, feeding, or growth to maturity from each of the alternatives.

(3) Other Biological Habitats and Organisms: Potential impacts to aquatic vegetation and benthic organisms from each of the alternatives.

(4) Coastal and Marine Birds: Potential impacts to coastal marine and birds from each of the alternatives.

(5) Aquatic Resources: Potential effects to marine mammals, sea turtles, and fisheries species from each of the alternatives.

(6) Water Quality: Potential impact to water quality resulting from each of the alternatives.

(7) Air Quality: Potential impact to air quality resulting from each of the alternatives.

(8) Great Lakes/Hudson River environment/resources.

(9) Socio-economics: Potential impact to recreational activities (including fishing), tourism, commercial fisheries, commercial infrastructure (including power plants and water treatment facilities), maritime commerce, and subsistence activities due to each of the alternatives.

(10) Public Health and Safety: Potential impacts to public health and safety associated with each of the alternatives.

Public Meetings

Five public scoping meetings will be held during the public comment period of this notice. Notice of those meetings will be published in the Federal Register. All appropriate comments provided at the public scoping meetings, both written and oral, will be considered in the preparation of the Draft and Final PEIS and will become part of the public record (i.e., names, addresses, letters of comments, comments provided during the public meeting).Start Printed Page 55563

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

Reference

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

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Dated: September 17, 2003.

Joseph J. Angelo,

Director of Standards, Marine Safety, Security & Environmental Protection.

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Footnotes

1.  “Environmentally sound” methods, efforts, actions or programs means methods, efforts, actions or programs to prevent introductions or control infestations of aquatic nuisance species that minimize adverse impacts to the structure and function of an ecosystem and adverse effects on non-target organisms and ecosystems and emphasize integrated pest management techniques and nonchemical measures. The meaning of “environmentally sound” as described in this footnote pertains to all occurrences of the term in this notice.

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[FR Doc. 03-24138 Filed 9-25-03; 8:45 am]

BILLING CODE 4910-15-M