[Federal Register Volume 59, Number 118 (Tuesday, June 21, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-15062]


[[Page Unknown]]

[Federal Register: June 21, 1994]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 151

[CGD 94-003]
RIN 2115-AE76

 

Ballast Water Management for Vessels Entering the Hudson River

AGENCY: Coast Guard, DOT.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes regulations to implement an amendment 
to the Nonindigenous Aquatic Nuisance Prevention and Control Act of 
1990 (the Act). The proposed regulations, if adopted, would require 
Ballast Water Management practices for each vessel entering the Hudson 
River, north of the George Washington Bridge, after operating on waters 
beyond the Exclusive Economic Zone.
    These rules would help to prevent the additional introduction of 
nonindigenous aquatic nuisance species into the Great Lakes through the 
ballast water of vessels operating on the Hudson River.

DATES: Comments must be received on or before August 22, 1994.

ADDRESSES: Comments may be mailed to the Executive Secretary, Marine 
Safety Council (G-LRA/3406) (CGD 94-003), U.S. Coast Guard 
Headquarters, 2100 Second Street SW., Washington, DC 20593-0001, or may 
be delivered to room 3406 at the same address between 8 a.m. and 3 
p.m., Monday through Friday, except Federal holidays. The telephone 
number is (202) 267-1477. Comments on collection-of-information 
requirements must be mailed also to the Office of Management and 
Budget, 725 17th Street NW., Washington, DC 20503, ATTN: Desk Officer, 
U.S. Coast Guard.
    The Executive Secretary maintains the public docket for this 
rulemaking. Comments will become part of this docket and will be 
available for inspection or copying at room 3406, U.S. Coast Guard 
Headquarters, between 8 a.m. and 3 p.m., Monday through Friday, except 
Federal holidays.

FOR FURTHER INFORMATION CONTACT: Lieutenant Jonathan C. Burton, Project 
Manager, Marine Environmental Protection Division (G-MEP-1), (202) 267-
6714.

SUPPLEMENTARY INFORMATION:

Request for Comments

    The Coast Guard encourages interested persons to participate in 
this rulemaking by submitting written data, views, or arguments. 
Persons submitting comments should include their names and addresses, 
identify this rulemaking (CGD 94-003) and the specific section of this 
proposal to which each comment applies, and give the reason for each 
comment. Please submit two copies of all comments and attachments in an 
unbound format, no larger than 8\1/2\ by 11 inches, suitable for 
copying and electronic filing. Persons wanting acknowledgment of 
receipt of comments should enclose stamped, self-addressed postcards or 
envelopes.
    The Coast Guard will consider all comments received during the 
comment period. It may change this proposal in view of the comments.
    The Coast Guard plans no public hearing. Persons may request a 
public hearing by writing to the Marine Safety Council at the address 
under ``ADDRESSES.'' The request should include the reasons why a 
hearing would be beneficial. If it determines that the opportunity for 
oral presentations will aid this rulemaking, the Coast Guard will hold 
a public hearing at a time and place announced by a later notice in the 
Federal Register.

Drafting Information

    The principal persons involved in drafting this document are 
Lieutenant Jonathan C. Burton, Project Manager, Marine Environmental 
Protection Division, and Ms. Helen Boutrous, Project Counsel, Office of 
Chief Counsel.

Background and Purpose

    Historical records suggest that over 100 non-native species have 
been introduced into the Great Lakes and its tributaries. The primary 
medium for their introduction is believed to be ballast water from 
vessels. Many vessels take on water in foreign harbors or in the near 
shore waters which are often rich in living organisms. When these 
vessels arrive to take on cargo, they discharge ballast water and any 
organisms contained in the water enter the local ecosystem. While many 
of these species do not survive in this new environment, those that do 
quickly adapt, and in some instances thrive, particularly where there 
are no natural predators.
    The Zebra Mussel provides a good example of the harmful effects of 
a newly introduced species. In 1988, this small bivalve mollusk native 
to the Black, Azov, and Caspian Seas in the Ukraine and southern 
Russia, was discovered in the Western Basin of Lake Erie. Scientists 
believe that it was introduced in 1986 by the discharge of freshwater 
ballast of a vessel from Northern Europe. Hundreds of millions of Zebra 
Mussels can now be found on and in pipes, screens, conduits, boat 
bottoms, floats, buoys, rocks, submerged objects, and native animals 
and plants. As a filter feeding organism, it removes vast quantities of 
microscopic organisms from the water, the same organisms that fish 
larvae and young fish rely upon for their food supply. It also 
completely covers rocks and other substances normally used by native 
fish for laying eggs. Since its introduction into the Great lakes the 
Zebra Mussel has reproduced and spread throughout the Great Lakes and 
its tributaries and has been found as far south as New Orleans.
    The Coast Guard issued ballast water control regulations on April 
8, 1993, for vessels entering the Great Lakes after operating beyond 
the exclusive economic zone (EEZ). Such vessels are required to 
exchange their ballast water beyond the EEZ. While the regulations are 
viewed as an excellent start toward addressing the nonindigenous 
aquatic nuisance species introduction problem, Congress now realizes 
that it is necessary to implement ballast water controls for vessels 
entering the Hudson River after operating beyond the EEZ. The Hudson 
River is connected to the Great Lakes through the New York State Barge 
Canal System which allows for the movement of commercial and 
recreational vessels throughout waterways of New York State and 
provides direct access to the Great Lakes. As a result of this 
connection, species released from vessel's ballast water into the 
Hudson River can migrate, or can be transferred by vessels navigating 
the canal system into the Great Lakes.

Solutions

    Congress has noted that high seas ballast exchange is ``not a 
panacea'' for prevention of unintentional introductions of 
nonindigenous aquatic species. Other means of infestation such as 
attachment to anchor chains and vessel hulls contribute to 
infiltration. Moreover, the effects of ballast water exchange on high 
seas and coastal ecosystems are not yet completely known. Nevertheless, 
ballast water exchange currently appears to be the most cost and labor 
effective means of reducing the probability of new infestations. 
Alternative approaches may be warranted in some situations, or may 
replace ballast exchange entirely, depending upon knowledge obtained 
through a Task Force set up by the Act.

International Recognition

    The need for control of the introduction of nonindigenous species 
has also been recognized by the international maritime community. The 
ballast water control regulations for vessels entering the Great Lakes 
that were issued by the Coast Guard on April 8, 1993, in large part, 
were based on ballast water control guidelines adopted by The Marine 
Environment Protection Committee of the International Maritime 
Organization at its 31st session in July 1991. The resolution (MEPC 
50(31)) which accompanied the issuance of the guidelines recommends 
that member countries issue guidelines for the control of nonindigenous 
species into their ports.

United States Legislation

    On November 4, 1993, Congress amended (Pub. L. 102-587) the 
Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 (the 
Act) (16 U.S.C. 4711(b)). This amendment extends the Act's 
applicability to vessels entering the Hudson River, north of the George 
Washington Bridge, after operating beyond the EEZ. The Act, as amended, 
attempts to prevent the spread of injurious nonindigenous species into 
the Great Lakes through the ballast water of these vessels. The Act 
mandates that the Coast Guard, in consultation with the Task Force 
created by the Act, issue regulations to prevent the introduction and 
spread of aquatic nuisance species in the Great Lakes through the 
ballast water of vessels entering a U.S. port, north of the George 
Washington Bridge, on the Hudson River, after operating beyond the EEZ.
    The current regulations contained in 33 CFR part 151, subpart C, 
issued under the Act, cover vessels entering the Great Lakes after 
operating beyond the EEZ and require the retention of ballast water or 
the exchange of ballast water beyond the EEZ, by vessels subject to the 
Act. Further, as authorized under the Act, those regulations permit the 
use of environmentally sound alternative ballast water management 
methods that the Coast Guard determines are as effective as ballast 
water exchange in preventing and controlling infestations of aquatic 
nuisance species, thereby providing the needed flexibility to approve 
additional ballast water management methods that, in the future, may 
prove to be even more effective than ballast water exchange. These 
requirements, as well as the other requirements contained in subpart C 
of part 151, would satisfy the requirements of the amendments to the 
Act if applied to vessels navigating on the Hudson River, north of the 
George Washington Bridge, after operating beyond the EEZ. Therefore, 
few changes to the regulations issued by the Coast Guard on April 8, 
1993, covering vessels entering a U.S. port on the Great Lakes after 
operating beyond the EEZ, are required to implement the requirements of 
the amendments to the Act.
    The Act provides for civil and criminal penalties (16 U.S.C. 
4711(c) and (d)). Any person who violates the regulations shall be 
liable for a civil penalty not to exceed $25,000. Each day of a 
continuing violation would constitute a separate violation. A vessel 
operated in violation of the regulations would be liable in rem for any 
civil penatly assessed for that violation. Any person who knowingly 
violates the regulations would be guilty of a class C felony. A class C 
felony is punishable by imprisonment of not more than 12 years (18 
U.S.C. 3581(b)(3)) and a fine of not more than $250,000 for an 
individual or not more than $500,000 for an organization (18 U.S.C. 
3571(c)(3)).
    In accordance with the Act, the Coast Guard proposes the 
regulations discussed below.

 Discussion of Proposed Rules

    This proposal, if adopted, would propose changes to subpart C of 33 
CFR part 151 to extend the applicability of the ballast water 
management requirements to vessels operating on the Hudson River, north 
of the George Washington Bridge, after operating on the waters beyond 
the EEZ.
    Proposed changes to Sec. 151.1504 would add ``the Captain of the 
Port, New York,'' to the definition of ``Captain of the Port (COTP)'' 
and add the ``Hudson River, north of the George Washington Bridge,'' to 
the definition of ``Voyage''.
    A proposed change to Sec. 151.1510(a)(1) would require that an 
exchange of ballast water be carried out on the waters beyond the EEZ, 
in a depth exceeding 2000 meters, prior to a vessel traveling on the 
Hudson River, north of the George Washington Bridge.
    A proposed change to Sec. 151.1510(a)(2) would authorize the COTP 
to seal the tanks of vessels subject to the Act, in which ballast water 
is retained, for the duration of the voyage within the Hudson River, 
north of the George Washington Bridge.
    By proposing to apply subpart C of part 151 to the vessels subject 
to the amendments to the Act, the Coast Guard is proposing that each of 
the requirements of subpart C, including collection-of-information 
requirements which will be discussed below, apply to vessels navigating 
on the Hudson River, north of the George Washington Bridge, after 
operating beyond the EEZ.

Regulatory Evaluation

    This proposal is not a significant regulatory action under section 
3(f) of Executive Order 12866 and does not require an assessment of 
potential costs and benefits under section 6(a)(3) of that order. It 
has not been reviewed by the Office of Management and Budget under that 
order. It is not significant under the regulatory policies and 
procedures of the Department of Transportation (DOT) (44 FR 11040; 
February 26, 1979).
    A draft Regulatory Evaluation under paragraph 10e of the regulatory 
policies and procedures of DOT has been prepared and is available in 
the docket for inspection or copying where indicated under 
``ADDRESSES.'' The Evaluation is summarized as follows.
    In 1992, 112 visits were made by vessels to the Hudson River, north 
of the George Washington Bridge, after operating beyond the EEZ. The 
most recent data available from the U.S. Army Corps of Engineers 
concerning Hudson River vessel traffic reveals that vessels operating 
on the Hudson River after operating beyond the EEZ are primarily 
foreign importer vessels. Vessels carrying cargo, such as vessels 
engaged in importing, are generally not carrying ballast water. 
Accordingly, the Coast Guard has identified no vessels that have 
actually discharged ballast into the Hudson River. Vessels that do not 
discharge ballast, do not have to exchange ballast water and would 
incur no costs due to the proposed regulations. Therefore, the only 
aspect of the proposed regulations that these vessels would be subject 
to is the recordkeeping requirements of 33 CFR 151.1516. It is 
estimated that it takes one half hour to complete. At the cost of 
$35.00 per half hour and assuming 120 visits by vessels subject to 
these regulations, the annual cost will be $4,200.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the 
Coast Guard must consider whether this proposal, if adopted, will have 
a significant economic impact on a substantial number of small 
entities. ``Small entities'' may include (1) small businesses and not-
for-profit organizations that are independently owned and operated and 
are not dominant in their fields and (2) governmental jurisdictions 
with populations of less than 50,000.
    Owners of vessels that would be engaging in ballast water 
management in the affected area are large corporations. No small 
entities have been identified as being affected. The economic affect on 
all entities will be minimal. No U.S. vessels have been identified as 
being subject to the proposed regulations. The total cost per vessel 
has been determined to be $35 per visit for each vessel with a total 
annual cost in 1995 to $4,200 for all vessels. Therefore, the Coast 
Guard certifies under 5 U.S.C. 605(b) that this proposal, if adopted, 
will not have a significant economic impact on a substantial number of 
small entities. If, however, you think that your business or 
organization qualifies as a small entity and that this proposal will 
have a significant economic impact on your business or organization, 
please submit a comment (see ADDRESSES) explaining why you think it 
qualifies and in what way and to what degree this proposal will 
economically affect it.

Collection of Information

    Under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.), the 
Office of Management and Budget (OMB) reviews each proposed rule that 
contains a collection-of-information requirement to determine whether 
the practical value of the information is worth the burden imposed by 
its collection. Collection-of-information requirements include 
reporting, recordkeeping, notification, and other, similar 
requirements.
    This proposal contains collection-of-information requirements in 
the following sections: Sec. 151.1516. The following particulars apply:

DOT No: 2115.
OMB Control No.: 2115-0598.
Administration: U.S. Coast Guard.
Title: Ballast Water Management for Vessels Entering the Hudson River
Need for Information: No other method exists for the Coast Guard to 
determine compliance with the regulations. Recording of ballast water 
management will allow for review of this compliance and aid in 
establishing the sources of species introduced through ballast water.
Proposed Use of Information: This information will be used to determine 
compliance with the regulations and for development of a statistical 
base for determining the possible sources of nonindigenous aquatic 
nuisance invasions.
Frequency of Response: Upon each entry into the Hudson River, north of 
the George Washington Bridge, after operating beyond the EEZ, certain 
information must be available to provide to the COTP.
Burden Estimate: 60 hours annually.
Respondents: Approximately 120 visits by foreign vessels will be 
subject to this requirement.
Form(s): No specific form is required by the proposed regulations.
Average Burden Hours per Respondent: .5 hour.

    The Coast Guard has submitted the requirements to OMB for review 
under section 3504(h) of the Paperwork Reduction Act. Persons 
submitting comments on the requirements should submit their comments 
both to OMB and to the Coast Guard where indicated under ADDRESSES.

Federalism

    The Coast Guard has analyzed this proposal under the principles and 
criteria contained in Executive Order 12612 and has determined that 
this proposal does not have sufficient federalism implications to 
warrant the preparation of a Federalism Assessment.
    The authority to issue regulations requiring ballast water 
management practices for vessels navigating the Hudson River, north of 
the George Washington Bridge, after operating beyond the EEZ, has been 
committed to the Coast Guard by the Act. Standardizing the minimum 
requirements for these vessels is necessary to effectively prevent 
further introductions of nonindigenous species. Therefore, if the rule 
becomes final, the Coast Guard intends it to preempt state and local 
regulations that are inconsistent with the requirements of this 
proposed rule. These regulations were developed in consultation with 
the Task Force which is charged with coordinating among, and providing 
technical assistance to, regional, State, and local entities regarding 
environmentally sound approaches to prevention and control of aquatic 
nuisance species.

Environment

    The Coast Guard considered the environmental impact of this 
proposal and concluded that preparation of an Environmental Impact 
Statement is not necessary. An Environmental Assessment and a draft 
Finding of No Significant Impact are available in the docket for 
inspection or copying where indicated under ADDRESSES. The exchange of 
ballast water in open ocean would benefit the Hudson River environment 
and the Great Lakes environment by helping to prevent potential 
infestations of nonindigenous species through ballast water emptied 
into the Hudson River north of the George Washington Bridge and 
transferred through the Hudson River and into the Great Lakes. 
Introduction of nonindigenous nuisance species through the ballast 
water of vessels has caused millions of dollars of damage to date in 
the Great Lakes area.
    Initial study has concluded that the amount of vessels' seawater-
ballast to be discharged into the Hudson River would constitute such a 
small volume that no change in the salinity or temperature levels would 
occur. Species contained in water collected from the open ocean are 
unlikely to survive a fresh water environment. Any nuisance species 
contained in the ballast water would not therefore, create a new 
infestation.
    While these regulations will help to prevent potential infestation 
of species introduced through the ballast water of vessels, data from 
the Army Corps of Engineers shows that no vessel traveled north of the 
George Washington Bridge in a light cargo load condition after 
operating beyond the EEZ. This indicates that these vessels carried no 
ballast water. Therefore, it is anticipated that few vessels will 
actually be discharging water into the Hudson River. Therefore, the 
Coast Guard has concluded that the proposed regulations would have no 
negative impact on the environment. The Coast Guard solicits comments 
on the potential environmental impact of the proposed regulations.

List of Subjects in 33 CFR Part 151

    Administrative practice and procedure, Oil pollution, Penalties, 
Reporting and recordkeeping requirements, Water pollution control.
    For the reasons set out in the preamble, the Coast Guard proposes 
to amend 33 CFR part 151, subpart C as follows:

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

* * * * *

Subpart C--Ballast Water Management for Control of Nonindigenous 
Species

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

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

    2. Section 151.1502 is revised to read as follows:


Sec. 151.1502  Applicability.

    This subpart applies to each vessel that carries ballast water and 
that after operating on the waters beyond the Exclusive Economic Zone 
during any part of its voyage enters the Snell Lock at Massena, New 
York, or navigates north of the George Washington Bridge on the Hudson 
River, regardless of other port calls in the United States or Canada 
during that voyage.
    3. In Sec. 151.1504, the definitions of Captain of the Port (COTP) 
and Voyage are revised to read as follows:


Sec. 151.1504  Definitions.

* * * * *
    Captain of the Port (COTP) means the Coast Guard officer designated 
as COTP of either the Buffalo, NY, Marine Inspection Zone and Captain 
of the Port Zone or the New York, NY, Captain of the Port Zone 
described in part 3 of this chapter or an official designated by the 
COTP.
* * * * *
    Voyage means any transit by a vessel destined for the Great Lakes 
or the Hudson River, north of the George Washington Bridge, from a port 
or place outside of the EEZ, including intermediate stops at a port or 
place within the EEZ.
    4. Section 151.1506 is revised to read as follows:


Sec. 151.1506  Restriction of operation.

    No vessel subject to the requirements of this subpart may be 
operated in the Great Lakes or the Hudson River, north of the George 
Washington Bridge, unless the master of the vessel has certified, in 
accordance with Sec. 151.1516, that the requirements of this subpart 
have been met.
    5. In Sec. 151.1510, paragraphs (a)(1) and (a)(2) are revised to 
read as follows:


Sec. 151.1510  Ballast water management.

    (a) * * *
    (1) Carry out an exchange of ballast water on waters beyond the 
EEZ, in a depth exceeding 2000 meters, prior to entry into the Snell 
Lock, at Massena, New York, or prior to navigating on the Hudson River, 
north of the George Washington Bridge, such that, at the conclusion of 
the exchange, any tank from which ballast water will be discharged into 
the Great Lakes contains water with a minimum salinity level of 30 
parts per thousand.
    (2) Retain the vessel's ballast water on board the vessel. If this 
method of ballast water management is employed, the COTP may seal any 
tank or hold containing ballast water on board the vessel for the 
duration of the voyage within the waters of the Great Lakes or the 
Hudson River, north of the George Washington Bridge.
* * * * *
    Dated: June 13, 1994.
Joseph J. Angelo,
Acting Chief, Office of Marine Safety, Security and Environmental 
Protection.
[FR Doc 94-15062 Filed 6-20-94; 8:45 am]
BILLING CODE 4910-14-M