[Federal Register Volume 67, Number 42 (Monday, March 4, 2002)]
[Proposed Rules]
[Pages 9632-9638]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-5187]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 151

[USCG-2001-10486]
RIN 2115-AG21


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

AGENCY: Coast Guard, DOT.

ACTION: Advance notice of proposed rulemaking; request for comments.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard seeks comments on the development of a ballast 
water treatment goal, and an interim ballast water treatment standard. 
The Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 
and the National Invasive Species Act of 1996 require the Coast Guard 
to regulate ballast water management practices to prevent the discharge 
of shipborne ballast water from releasing harmful nonindigenous species 
into U.S. waters of the Great Lakes, and to issue voluntary guidelines 
to prevent the introduction of such species through ballast water 
operations in other waters of the U.S. These Acts further provide that 
the Coast Guard must assess compliance with the voluntary guidelines 
and if compliance is inadequate must issue regulations that make the 
guidelines mandatory. These guidelines and regulations must be based on 
open ocean ballast water exchange and/or environmentally sound 
alternatives that the Coast Guard determines to be at least as 
``effective'' as ballast water exchange in preventing and controlling 
infestations of aquatic nuisance species (ANS). The Coast Guard will 
use the public's comments to help define a ballast water treatment goal 
and standard, both of which are essential parts of determining whether 
alternative ballast water management methods are environmentally sound 
and at least as effective as open ocean ballast water exchange (BWE) in 
preventing and controlling infestations of ANS.

DATES: Comments and related material must reach the Coast Guard on or 
before June 3, 2002.

ADDRESSES: To make sure that 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.
    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 preamble 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 
on the Internet at http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: If you have questions about this 
notice, call Dr. Richard Everett, Project Manager, Office of Operating 
and Environmental Standards (G-MSO), Coast Guard, telephone 202-267-
0214. If you have questions on viewing or submitting material to the 
docket, call Dorothy Beard, Chief, Dockets, Department of 
Transportation, telephone 202-366-5149.

SUPPLEMENTARY INFORMATION:

Other NISA Rulemaking to Date

    This rulemaking follows the publication of the Final Rule (USCG-
1998-3423) on November 21, 2001 (66 FR 58381), for the Implementation 
of the National Invasive Species Act of 1996, that finalizes 
regulations for the Great Lakes ecosystems and voluntary ballast water 
management guidelines for all other waters of the United States, 
including reporting for nearly all vessels entering waters of the 
United States. Both rules follow the publication of the notice and 
request for comments for Potential Approaches To Setting Ballast Water 
Treatment Standards (USCG-2001-8737) on May 1, 2001, notice and request 
for comments on Approval for Experimental Shipboard Installations of 
Ballast Water Treatment Systems (USCG-2001-9267) on May 22, 2001, and 
the publication of notice of meetings; request for comments on The 
Ballast Water Management Program (USCG-2001-10062) on July 11, 2001.

Request for Comments

    The Coast Guard encourages interested persons to participate in 
this

[[Page 9633]]

rulemaking by submitting written data, views or arguments. Persons 
submitting comments should include their name and address, identify the 
docket number for this rulemaking (USCG-2001-10486), and the specific 
section of this proposal to which each comment applies, and give the 
reason for each comment. Please submit all comments and related 
material in an unbound format, no larger than 8\1/2\ by 11 inches, 
suitable for copying. Persons wanting acknowledgement of receipt of 
comments should enclose a stamped, self-addressed postcard or envelope. 
Don't submit the same comment or attachment more than once. Don't 
submit anything you consider to be confidential business information, 
as all comments are placed in the docket and are thus open to public 
inspection and duplication. The Coast Guard will consider all comments 
and material received during the comment period. We may change this 
proposed rule in view of them.

Public Meeting

    We have no plans for any public meetings, unless you request one. 
Some of the information that helped us prepare this notice came from 
the following meetings that have already been held: meetings of the 
Ballast Water and Shipping Committee (BWSC) of the Federal Aquatic 
Nuisance Species Task Force; the workshop on ballast water treatment 
standards sponsored by the Global Ballast Water Program (Globallast) of 
the International Maritime Organization (IMO) in March 2001; and two 
technical workshops we held in April and May 2001. If you want a 
meeting, you may request one by writing to the Docket Management 
Facility at the address under ADDRESSES. Explain why you think a 
meeting would be useful. If we determine that oral presentations would 
aid this rulemaking, we will hold a public hearing at a time, date, and 
place announced by later notice in the Federal Register.

Background and Purpose

    Congress, in the Nonindigenous Aquatic Nuisance Prevention and 
Control Act of 1990 (NANPCA), as amended by the National Invasive 
Species Act of 1996 (NISA), directs the Coast Guard to issue 
regulations and guidelines for ballast water management (BWM). The goal 
of BWM is to prevent discharged ballast water from introducing harmful 
nonindigenous species (NIS) to U.S. waters.
    Responding to NANPCA's directive, we published a final rule (58 FR 
18330, April 8, 1993). It mandated ballast water treatment (BWT) for 
the Great Lakes. These requirements appear in 33 CFR part 151, subpart 
C, and were later extended to include the Hudson River north of the 
George Washington Bridge (59 FR 67632, December 30, 1994), as required 
by the statute. In 1999, responding to NISA's directive, we published 
an interim rule (64 FR 26672, May 17, 1999) that sets voluntary BWM 
guidelines for all other U.S. waters, and BWM reporting requirements 
for most ships entering U.S. waters.
    NANPCA and NISA require BWT to be executed by mid-ocean ballast 
water exchange (BWE), or by a Coast Guard-approved alternative BWT 
method. The alternative BWT must be at least as effective as BWE in 
preventing and controlling infestations of aquatic nuisance species 
(ANS). Therefore, in order to evaluate the effectiveness of alternative 
BWT methods, the Coast Guard must first define for programmatic 
purposes what ``as effective as [BWE]'' means. The purpose of this 
notice, in part, is to present for public comment various approaches to 
clarifying this term.
    On May 1, 2001, we published a notice and request for public 
comments (66 FR 21807) that invited comment on four conceptual 
approaches to BWT standards for assessing relative effectiveness to 
BWE, and posed questions, all of which were developed in meetings of 
the BWSC. The comments we received revealed a wide range of opinion 
(see ``Comments on the May 1, 2001, Notice'' below), indicating the 
need for more discussion.
    The present notice reflects comments received in response to the 
May 1, 2001 notice. It also draws on information taken from the 
Globallast workshop (March 2001). Finally, it draws on discussions of 
the four conceptual BWT approaches by participants invited to the April 
and May 2001 Coast Guard workshops. (The report of the Globallast 
workshop is available at http://globallast.imo.org. Reports from the 
Coast Guard workshops, when completed, will be available at http://dms.dot.gov.)

Comments on the May 1, 2001, Notice

    We received 22 written responses to our May 1, 2001 request for 
comments, which set out 4 optional approaches for BWT standards, posed 
5 questions related to setting the standard, and posed 3 questions 
relating to implementation issues. We will summarize responses to the 
implementation questions when we propose a specific implementation 
approach and testing protocol at a later date. Here are the questions 
we asked about setting standards, along with a summary of the comments 
we received, and our response.
    1. Should a standard be based on BWE, best available technology 
[BAT], or the biological capacity of the receiving ecosystem? What are 
the arguments for, or against, each option? Thirteen respondents 
specifically addressed this question. Five commenters, all associated 
with the shipping industry, recommended that a quantification of the 
effectiveness of BWE be used to set the standard. All five also stated 
that the language of NISA dictates this approach. Four commenters 
favored a BAT approach. Four commenters favored a biological capacity 
approach.
    Participants in both the Globallast and Coast Guard workshops 
recommended against basing a ballast water treatment standard on the 
effectiveness, either theoretical or measured, of BWE. The Globallast 
report on the findings of the workshop stated: ``It is not appropriate 
to use equivalency to ballast water exchange as an effectiveness 
standard for evaluating and approving/accepting new ballast water 
treatment technologies, as the relationship between volumetric exchange 
and real biological effectiveness achieved by ballast water exchange is 
extremely poorly defined. This relationship cannot be established 
without extremely expensive empirical testing.'' Participants in the 
two Coast Guard workshops recommended that standards be based on the 
level of protection needed to prevent biological invasions. The 
recommendations are neither endorsed nor discredited by the Coast 
Guard.
    2. If BWE is the basis for a standard, what criterion should be 
used to quantify effectiveness: the theoretical effectiveness of 
exchange, the water volume exchanged (as estimated with physical/
chemical markers), the effectiveness in removing or killing all or 
specific groups of organisms, or something else; and why? Twelve 
commenters specifically addressed this question. None of the 12 thought 
that theoretical efficacy should be used. Three recommended using 
volumetric effectiveness, and five considered measured effectiveness in 
killing/removing organisms to be the most appropriate measure. One 
commenter thought that all three metrics should be used, and four 
commenters re-expressed their opinion that exchange should not be the 
basis for the standard.
    3. How specifically should the effectiveness of either BWE or best 
available technology be determined (i.e., for each vessel, vessel 
class, or across all

[[Page 9634]]

vessels) before setting a standard based on the capabilities of these 
processes? Ten respondents specifically addressed this question. One 
commenter recommended determining the effectiveness of exchange on a 
ship-by-ship basis, two thought effectiveness should be calculated for 
different ``risk classes'' of vessels or sectors of the shipping 
industry, one recommended that exchange be evaluated with hydrodynamic 
models before being evaluated on test vessels, and six advocated the 
use of a broad average effectiveness calculated across many types of 
vessels and trading patterns.
    4. What are the advantages and disadvantages of considering the 
probability of conducting a safe and effective BWE on every voyage when 
estimating the overall effectiveness of BWE? Eleven respondents 
specifically addressed this question. Six comments came from vendors of 
ballast water treatment systems or from public and private resource 
protection entities. Five of these said the probability of conducting 
an exchange must be considered at some level, in order to better 
represent BWE's ``real world'' capability. The sixth said we should 
take only completed exchanges into account, because class societies 
could not attest to the effectiveness of systems when safety exemptions 
were considered. All five shipping industry commenters also advocated 
looking only at completed exchanges, because too many variables affect 
whether or not a full exchange can be conducted. The Coast Guard 
considers the feasibility of conducting a mid-ocean exchange to be one 
of the significant issues in evaluating BWE.
    5. What are the advantages and disadvantages of expressing a BWT 
standard in terms of absolute concentrations of organisms versus the 
percent of inactivation or removal of organisms? Twelve respondents 
specifically addressed this question. Several expressed concern that if 
ballast water were taken on in a location with a very low 
concentration, the vessel might not have to use any treatment to meet a 
concentration standard. Conversely, several commenters argued that a 
high percentage reduction in organisms, when the initial concentration 
was very high, could still result in the discharge of a high 
concentration of organisms. These concerns should be kept in mind when 
commenting on the alternative standards presented below. It is 
important to note that, for purposes of testing the theoretical 
effectiveness of a technology, if testing is conducted using the 
highest expected natural concentrations of organisms as the 
concentrations in the test medium (as recommended by participants in 
the Globallast and the USCG workshops), the percent reduction approach 
effectively becomes a concentration approach. This is because the 
standard percent reduction (for example, 95%) of an absolute 
concentration produces an absolute concentration of remaining 
organisms. On the other hand, for purposes of assessing compliance with 
the standard at the level of an individual vessel, the two approaches 
could have very different results.

Further Comments Needed

    We seek more comments because the discussion of BWT standards has 
focused, until now, on the suitability of basing standards on existing 
technology, rather than on developing new technology that better meets 
the congressional intent of eliminating ballast water discharge as a 
source of harmful NIS.
    As we noted above, the governing statutes (NANCPA and NISA) specify 
the use of BWE and provide that any alternative form of BWT be at least 
as effective as BWE in preventing and controlling the spread of ANS. At 
present, no alternatives have been approved, in part, perhaps, because 
the effectiveness of the BWE benchmark itself is not well defined. 
Furthermore, concerns have been voiced that mid-ocean BWE is difficult 
to quantify in practice, cannot be safely performed on all transoceanic 
voyages, and by current definition cannot be conducted on voyages that 
take place within 200 miles of shore and in waters shallower than 2000 
meters deep.
    There are only limited scientific data on the effectiveness of BWE. 
A few empirical studies (see references: 5, 13, 14, 15, 18) listed in 
this notice, indicate that BWE results in the actual exchange of 88% to 
99% of the water carried in a ballast tank. The average result is quite 
close to the theoretical 95% efficiency of Flow-Through Exchange.
    However, knowing that we exchanged 88-99% of the water does not 
necessarily tell us we eliminated 88-99% of the danger of ANS remaining 
in the ballast tank. Some of the empirical studies (see references: 5, 
13, 14, 15, 18) also looked at that aspect of BWE. They found that BWE 
resulted in reducing the number of organisms by varying degrees, from 
39% to 99.9%, depending on the taxonomic groups and ships studied.
    The variability in this data reflects the fact that the studies 
involved different ships under experimentally uncontrolled conditions, 
used different methods of calculating the percentage of water 
exchanged, and used different taxonomic groups to evaluate BWE's 
effectiveness in reducing the presence of ANS.
    Technical experts at the Coast Guard and IMO workshops, and 
comments by the National Oceanic and Atmospheric Administration, agree 
that scientifically determining even the quantitative effectiveness of 
BWE (leaving aside its qualitative effectiveness) will be challenging.
    We think Congress viewed BWE as a practical but imperfect tool for 
treating ballast water, and wanted to ensure that approved alternatives 
would not be less effective than BWE is known to be. As currently 
practiced, BWE produces varying results and sometimes may remove as few 
as 39% of the possible harmful organisms from the ballast tank. BWE is 
affected by a number of variables, cannot be used on coastal voyages 
(as currently defined), and often cannot be used by a ship on any of 
it's voyages due to safety concerns.
    The Coast Guard is currently considering an approach in which an 
alternative BWT method would be judged to be at least as effective as 
BWE if it:
     Produces predictable results,
     Removes or inactivates a high proportion of organisms,
     Functions effectively under most operating conditions, and
     Moves toward a goal that expresses the congressional 
intent to eliminate ballast water discharge as a source of harmful NIS.
    In this notice, we are seeking comments that will help us define 
the standards and goals that would meet these criteria.

Issues for further comment

    Your comments are welcome on any aspect of this notice, including 
the submission of alternative goals or standards that were not 
presented in today's notice. The possible goals and standards presented 
here are intended to stimulate discussion that will ultimately lead to 
a standard for assessing BWT effectiveness that will have broad 
scientific and public support. We particularly seek your input on the 
``Questions'' we raise below. The Questions (Q1-Q6) refer to the 
following possible Goals (G1-G3) and Standards (S1-S4).

Possible Goals

    G1. No discharge of zooplankton and photosynthetic organisms 
(including holoplanktonic, meroplanktonic, and demersal zooplankton, 
phytoplankton and propagules of macroalgae and

[[Page 9635]]

aquatic angiosperms), inclusive of all life-stages. For bacteria, 
Enterococci and Escherichia coli will not exceed 35 per 100 ml and 126 
per 100 ml of treated water, respectively.
    G2. Treat for living organisms at least to the same extent as 
drinking water.
    G3. Ballast water treatment technologies would demonstrate, through 
direct comparison with ballast water exchange, that they are at least 
as effective as ballast water exchange in preventing and controlling 
infestations of aquatic nuisance species for the vessel's design and 
route.

Possible Standards

    S1. Achieve at least 95% removal, kill or inactivation of a 
representative species from each of six representative taxonomic 
groups: vertebrates, invertebrates (hard-shelled, soft shelled, soft-
bodied), phytoplankton, macro-algae. This level would be measured 
against ballast water intake for a defined set of standard biological, 
physical and chemical intake conditions. For each representative 
species, those conditions are:
     The highest expected natural concentration of organisms in 
the world as derived from available literature and
     A range of values for salinity, turbidity, temperature, 
pH, dissolved oxygen, particulate organic matter, and dissolved organic 
matter. (GLOBALLAST PROPOSAL ``A''.)
    S2. Remove, kill or inactivate all organisms larger than 100 
microns in size. (GLOBALLAST PROPOSAL ``B''.)
    S3. Remove 99% of all coastal holoplanktonic, meroplanktonic, and 
demersal zooplankton, inclusive of all life-stages (eggs, larvae, 
juveniles, and adults). Remove 95% of all photosynthetic organisms, 
including phytoplankton and propagules of macroalgae and aquatic 
angiosperms, inclusive of all life stages. Enterococci and Escherichia 
coli will not exceed 35 per 100 ml and 126 per 100 ml of treated water, 
respectively. (COAST GUARD WORKSHOP PROPOSAL ``A''.)
    S4. Discharge no organisms greater than 50 microns in size, and 
treat to meet federal criteria for contact recreation (currently 35 
Enterococci/ 100 ml for marine waters and 126 E. coli /100 ml for 
freshwaters). (COAST GUARD WORKSHOP PROPOSAL ``B''.)

    Note: The capability of current technology to remove or kill 
95%-99% of the zooplankton or phytoplankton, or to remove 100% of 
organisms larger than 50 or 100 microns, under the operational flow 
and volume conditions characteristic of most commercial ocean-going 
vessels, is not well established. Workshop participants felt these 
removal efficiencies are practical and realistic initial targets. 
BWT to these levels would provide increased protection compared to 
no BWT at all, or to BWE carried out only when vessel design and 
operating conditions permit.

Questions

    In answering the questions, please refer to Questions, Goals, and 
Standards by their designations (for example: Q1, G2, S3).
    The following questions refer to the goals (G1-G3) and standards 
(S1-S4) set out in ``Issues for Further Comment,'' above.
    Q1. Should the Coast Guard adopt G1, G2, G3, or some other goal 
(please specify) for BWT?
    Q2. Should the Coast Guard adopt any of the standards, S1-S4 as an 
interim BWT standard? (You also may propose alternative quantitative or 
qualitative standards.)
    Q3. Please provide information on the effectiveness of current 
technologies to meet any of the possible standards. Please comment, 
with supporting technical information if possible, on the workshop 
participants' assessment that these standards are ``practical and 
realistic initial targets''.
    Q4. General comments on how to structure any cost-benefit or cost-
effectiveness analysis that evaluates the above four possible 
standards. We are requesting comments on how the Coast Guard should 
measure the benefits to society of the above possible standards in 
either qualitative or quantitative terms. How would the benefits be 
measured considering each possible standard would continue to allow the 
introduction of invasive species, but at different rates? What would 
the costs be to industry in each of the four proposals? How would the 
cost to industry differ by possible standard?
    Q5. What impact would the above four standards have on small 
businesses that own and operate vessels?
    Q6. What potential environmental impacts would the goals or 
standards carry?

Issues for Future Consideration

    The possible goals and standards in today's notice set out basic 
biological parameters for the discharge of aquatic organisms ranging 
from bacteria to higher taxonomic groups and are intended to provide a 
starting point for discussion. If the framework for addressing BWT 
effectiveness that is discussed in this notice were adopted, the final 
standards would be derived from a process that incorporates the 
expertise of the scientific community.
    We know that many practical problems will need to be addressed in 
setting up a program for testing and approving BWT alternatives. We 
think it is premature to ask for comments on these issues until an 
approach (or at least an interim approach) for assessing BWT 
effectiveness is chosen, because many procedural aspects of the testing 
process will be dependent on the specific nature of the selected 
approach. However, we may ultimately need to address issues such as 
using standard indicators as evaluation tools, as participants in both 
Globallast and the Coast Guard workshops recommended. This would depend 
on:
     Identifying and validating species or physical/chemical 
metrics that can be used as practical and efficient standard 
indicators. This in turn would depend on:
     Improving sampling and analytic techniques by:
     Setting detection limits and degrees of statistical 
uncertainty for methods and protocols used to enumerate the abundance 
of organisms in treated ballast water, and on
     Setting standard testing conditions for the concentrations 
of indicators and a suite of physical and chemical parameters. For 
example, testing might be based on what the available literature shows 
to be the highest expected natural concentration in the world for each 
indicator species or variable under a range of conditions for other 
parameters. (This approach was recommended by participants in both the 
Globallast and USCG workshops.) The suite of parameters would include 
turbidity, dissolved and particulate organic material, salinity, pH, 
and temperature.

Preliminary Regulatory Evaluation

    At this early stage in the process, the Coast Guard cannot 
anticipate whether any proposed or final rules will be considered 
significant, economically or otherwise, under Executive Order 12866 or 
under the Department of Transportation regulatory policies and 
procedures [44 FR 11034, February 26, 1979]. At this time, the economic 
impact of any regulations that may result from this notice cannot be 
accurately determined. The Coast Guard plans to use comments received 
on this advance notice of proposed rulemaking to assess these economic 
impacts. We will then prepare either a regulatory assessment or a 
detailed regulatory evaluation as appropriate, which will be placed in 
the docket.
    To facilitate the comment process on this notice, Table 1 below 
presents cost information compiled from recent technical literature on 
ballast water technologies. Several points should be noted when 
reviewing this information.

[[Page 9636]]

First, these cost estimates are not all expressed in a constant unit. 
Comparisons of estimates across studies, therefore, should be conducted 
with caution. Second, cost estimates from the Cawthron (1998) and 
Agriculture, Fisheries, and Forestry--Australia (2001) reports are 
converted from Australian dollars based on exchange rates published 
October 16, 2001 ($0.5136 AUD = $1.00 US Dollar). Third, these cost 
estimates are not expressed in constant dollars; they have not been 
adjusted for inflation. Finally, these costs are derived primarily 
through experimental and pilot projects, not actual application in the 
field.
    At this time, the Coast Guard does not endorse any of these studies 
in any way; we have not yet conducted detailed cost-benefit analysis on 
this subject. We are making this information available to facilitate 
public discussion of the questions that we are posing above. We also 
welcome any comments and supporting documentation, pertaining to the 
cost estimates summarized below.

         Table 1.--Cost Estimates for Ballast Water Alternative Technologies From the Recent Literature
----------------------------------------------------------------------------------------------------------------
      Ref.                    Technology                         Cost                        Remark
----------------------------------------------------------------------------------------------------------------
1..............  Ballast water exchange..............  $4.79-$7.28 per cubic    Costs are reduced approximately
                                                        meter.                   50 percent if gravity
                                                                                 ballasting can be accomplished.
4..............  Ballast water exchange..............  $4,500 fuel cost per     56,000 tons of ballast water
                                                        exchange.                flow through 3 volumes; time
                                                                                 for exchange about 3 days.
4..............  Ballast water exchange..............  $3,100-$8,800 for fuel   Estimates for conditions on
                                                        and pump maintenance     container ships, bulk carriers,
                                                        per exchange.            and two types of tankers; 3
                                                                                 dilutions; time for exchange
                                                                                 ranged from 33 to 55 hours.
4..............  Ballast water exchange..............  $16,000-$80,000 total    Estimates for conditions on VLCC
                                                        cost of exchange.        and Suezmax bulker.
9..............  Ballast water exchange..............  Qualitative discussion   Time lost during transit.
                                                        of cost implications.
16.............  Ballast water exchange..............  $0.02-$0.10 per metric   Estimates based on study of
                                                        ton of ballast water.    California ports.
1..............  Onshore treatment facility..........  $0.66-$27.00 per cubic   Cost estimates driven by
                                                        meter.                   additional infrastructure
                                                                                 required in ports.
6..............  Onshore treatment facility..........  $1.4 billion for entire  Facility in Valdez, Alaska; only
                                                        treatment facility.      ballast water treatment
                                                                                 facility currently in use in
                                                                                 U.S.; covers 1,000 acres of
                                                                                 land, processes about 16m
                                                                                 gallons of ballast water daily.
6..............  Onshore treatment facility..........  $9m-19m for              Estimate based on port-based
                                                        infrastructure; $0.09-   facility located on land or a
                                                        $0.41 per metric ton     floating platform.
                                                        of ballast water
                                                        treated.
9..............  Onshore treatment facility..........  Qualitative discussion   Costs minimized in onshore
                                                        of cost implications.    facility located where vessels
                                                                                 are already required to stop
                                                                                 for customs and quarantine
                                                                                 inspection; time delay for
                                                                                 docking and deballasting.
16.............  Onshore treatment facility..........  $7.6m-$49.7m for         Estimates based on study of
                                                        infrastructure;          California ports.
                                                        $142,000-$223,000 for
                                                        annual maintenance;
                                                        $1.40-$8.30 per metric
                                                        ton of ballast water
                                                        treated.
1..............  Thermal treatment...................  $10.83-$17.52 per cubic  Heating/flushing process.
                                                        meter.
6..............  Thermal treatment...................  Qualitative discussion   Very expensive labor and
                                                        of cost implications.    materials cost to retrofit
                                                                                 heating coils in ballast tanks;
                                                                                 if additional heat generation
                                                                                 required then fuel consumption
                                                                                 increases.
11.............  Thermal treatment...................  $75,000-$275,000 per     Most cost effective in warmer
                                                        system.                  waters.
1..............  UV treatment........................  $31.66-$186.53 per       Low cost estimate represents UV
                                                        cubic meter.             used alone; high cost estimate
                                                                                 reflects combination with
                                                                                 hydrocyclone.
2..............  UV treatment........................  $10,200-$545,000 per     Cost estimates for 1,200 GPM and
                                                        system for               8,000 GPM systems.
                                                        infrastructure; $2,200-
                                                        $11,000 per system for
                                                        annual maintenance.
7..............  UV treatment........................  $250,000-$1m life-cycle  Study part of technology
                                                        per treatment system.    demonstration project.
9..............  UV treatment........................  Qualitative discussion   Capital investment very high;
                                                        of cost implications.    cost for installation and pipe
                                                                                 modifications.
1..............  Chemical treatment..................  $0.47-$77.88 per cubic   Estimate based only on operating
                                                        meter.                   cost.
7..............  Chemical treatment..................  $2m-$4m life-cycle per   Study part of technology
                                                        treatment system.        demonstration project.
9..............  Chemical treatment..................  Qualitative discussion   Installation and engineering of
                                                        of cost implications.    chemical dosing system is
                                                                                 expensive; low cost
                                                                                 effectiveness; large capital
                                                                                 investment.
9..............  Filtration..........................  Qualitative discussion   Large capital investment; cost
                                                        of cost implications.    of disposal of concentrated
                                                                                 filtrate.
8..............  Rapid response......................  $1.5m per strike.......  Australia, method involved
                                                                                 quarantine of the port and
                                                                                 destruction of organisms when
                                                                                 detected on a vessel in port.
----------------------------------------------------------------------------------------------------------------

    As with the cost information provided above, the Coast Guard does 
not currently endorse any of these studies in any way; we have not yet 
conducted our own detailed assessment of their methodologies and 
results. Rather, we are making this information available to facilitate 
public discussion of the questions that we are posing above. We

[[Page 9637]]

also welcome any comments, and supporting documentation pertaining to 
the damage estimates summarized below.

Aquatic Nuisance Species

    Adverse environmental and economic effects of some ANS have been 
documented in a number of studies. As with the cost information 
provided above, the Coast Guard does not currently endorse any of these 
studies in any way; we have not yet conducted our own detailed 
assessment of their methodologies and results. Rather, we are making 
this information available to facilitate public discussion of the 
questions that we are posing above. We also welcome any comments, and 
supporting documentation pertaining to the damage estimates summarized 
below.
    The most studied species, the zebra mussel, has affected the 
ecology and economy of the Great Lakes since introduction in the late 
1980s. Some scientists believe the mussel is responsible for ``profound 
changes in the lower food web of the Great Lakes'' and massive algal 
blooms (see reference: 3). Zebra mussels may clog intake pipes for 
industrial and municipal plants, and may cause extended shut downs in 
order to chemically treat the pipes. In the Great Lakes basin, the 
annual cost of zebra mussel control has been estimated at from $100 to 
$400 million. Dramatically altering the Great Lakes ecosystems, zebra 
mussels have now spread throughout the Mississippi River drainage 
basin, thousands of inland lakes, and are threatening the West Coast 
(see reference: 3). There is evidence that The San Francisco and 
Chesapeake Bays, Gulf of Mexico, and Hawaiian coral reef may be 
threatened by other non-indigenous fish, mollusks, crustaceans, and 
aquatic plants (see reference: 3). A 1999 report (see reference: 12) 
estimates that the environmental damage caused by non-indigenous 
species in the United States (both land and water) is $138 billion per 
year. The report further states that there are approximately 50,000 
foreign species and the number is increasing. It is estimated that 
about 42% of the species on the Threatened or Endangered species lists 
are at risk primarily because of non-indigenous species.
    The above damage estimate pertains to all non-indigenous species, 
both land and water. Table 2 below, adapted from the report (see 
reference: 12), presents estimates of the annual damages and costs of 
aquatic species in the United States.

   Table 2.--One Estimate of the Total Annual Cost of Aquatic Invasive
                     Species in Billions of Dollars
                           [See reference: 12]
------------------------------------------------------------------------
                           Species                             Total \1\
------------------------------------------------------------------------
Aquatic weeds...............................................      $0.110
Fish........................................................       1.000
Green crab..................................................       0.044
Zebra mussel................................................       5.000
Asian clam..................................................       1.000
Shipworm....................................................       0.205
                                                             -----------
    Total...................................................      7.359
------------------------------------------------------------------------
\1\ Total annual cost of species.

Small Entities

    We are unable, at this time, to determine whether, under the 
Regulatory Flexibility Act (5 U.S.C. 601-612), any regulations 
resulting from this ANPRM would have a significant economic impact on a 
substantial number of small entities. The term ``small entities'' 
comprises small businesses, not-for-profit organizations that are 
independently owned and operated and are not dominant in their fields, 
and governmental jurisdictions with populations of less than 50,000.
    If you think your business, organization, or governmental 
jurisdiction qualifies as a small entity and that a rule establishing 
standards for evaluating the effectiveness of BWT would have a 
significant economic impact on it, please submit a comment (see 
ADDRESSES) explaining why you think it qualifies and how and to what 
degree this rule would economically affect it.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Public Law 104-121), we want to assist small 
entities in understanding this ANPRM so that they can better evaluate 
its potential effects on them and participate in the rulemaking. If you 
believe that this ANPRM could lead to a final regulation that would 
affect your small business, organization, or governmental jurisdiction 
and you have questions concerning its provisions, please contact Dr. 
Richard Everett where listed under FOR FURTHER INFORMATION CONTACT, 
above.

Collection of Information

    Any final rule resulting from this ANPRM could call for a new 
collection of information under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501-3520.). At this time we are unable, however, to estimate 
the number of responders or the burden of responding on each responder. 
We will include our estimates of this information in a later notice of 
proposed rulemaking and allow for comments on those estimates before 
issuing a final rule. As always, you are not required to respond to an 
information collection unless it displays a valid OMB approval number.

Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on State or local 
governments and would either preempt State law or impose a substantial 
direct cost of compliance on them. We have not yet analyzed whether any 
rule resulting from this ANPRM would have implications for federalism, 
but we are aware of efforts by various states to stem invasive species 
in their waters. We will continue to consult with the states through 
the Ballast Water Working Group.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by a State, local, or tribal government, in 
the aggregate, or by the private sector of $100,000,000 or more in any 
one year. As stated above, we do not yet know the costs that would be 
associated with any rule resulting from this ANPRM. The Coast Guard 
will publish information regarding costs using the comments received on 
this ANPRM in a future publication.

Taking of Private Property

    We anticipate that any proposed rule would not effect a taking of 
private property or otherwise have taking implications under Executive 
Order 12630, Governmental Actions and Interference with 
Constitutionally Protected Property Rights.

Civil Justice Reform

    We anticipate that any proposed rule would meet the applicable 
standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil 
Justice Reform, to minimize litigation, eliminate ambiguity, and reduce 
burden.

Protection of Children

    We anticipate that any proposed rule will be analyzed under 
Executive Order 13045, Protection of Children from Environmental Health 
Risks and Safety Risks, and any such rule would not create an 
environmental risk to health or

[[Page 9638]]

risk to safety that might disproportionately affect children.

Indian Tribal Governments

    We anticipate that any proposed rule would not have tribal 
implications under Executive Order 13175, Consultation and Coordination 
with Indian Tribal Governments, because it would likely not have a 
substantial direct effect on one or more Indian tribes, on the 
relationship between the Federal Government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian tribes. However, we recognize that ANS may pose 
significant concerns for some tribal governments and are committed to 
working with tribes as we proceed with this rulemaking.
    To help the Coast Guard establish regular and meaningful 
consultation and collaboration with Indian and Alaskan Native tribes, 
we published a notice in the Federal Register (66 FR 36361, July 11, 
2001) requesting comments on how to best carry out the Order. We invite 
your comments on how any rule resulting from this ANPRM might impact 
tribal governments, even if that impact may not constitute a ``tribal 
implication'' under the Order, and how best to address the ANS concerns 
of the tribal governments.

Energy Effects

    We have not analyzed this ANPRM under Executive Order 13211, 
Actions Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have not determined whether it is a 
``significant energy action'' under that order because we do not know 
whether any resulting rule would be a ``significant regulatory action'' 
under Executive Order 12866. Once we determine the economic 
significance of any rule stemming from this ANPRM, we will determine 
whether a Statement of Energy Effects is required.

Environment

    The Coast Guard will consider the environmental impact of any 
proposed rule that results from this advance notice of proposed 
rulemaking. We will include either Environmental Assessment or 
Environmental Impact Statement in the docket for any such rulemaking as 
appropriate.

References

    1. Agriculture, Fisheries, and Forestry-Australia (AFFA). 2001. 
``Ballast Water Treatment to Minimize the Risks of Introducing 
Nonindigenous Marine Organisms into Australian Ports.'' Ballast Water 
Research Series, Report No. 13, January 2001.
    2. Battelle. 1998. ``Ballast Water Secondary Treatment Technology 
Review.'' Northeast Midwest Institute, August 24, 1998.
    3. Stephen B. Brandt, Director of the Great Lakes Environmental 
Research Laboratory. Testimony before the Committee on Science, U.S. 
House of Representatives, July 26, 2001. http://www.house.gov.science.ets/jul26/brandt/htm (September 18, 2001).
    4. Cawthron. 1998. ``Mid Ocean Ballast Water Exchange: Procedures, 
Effectiveness and Verification.'' Cawthron Report No. 468, December 
1998.
    5. Dickman, M. and F. Zhang, 1999. Mid-ocean exchange of container 
vessel ballast water. 2: effects of vessel type in the transport of 
diatoms and dinoflagellates from Manzanillo, Mexico, to Hong Kong, 
China. Mar. Ecol. Prog. Ser. 176: 253-262.
    6. Greenman, D., K. Mullen, and S. Parmar. 1997. ``Ballast Water 
Treatment Systems: A Feasibility Study.'' ANS Task Force Reports and 
Publications, December 17, 1997.
    7. Hurley, W.L., S.S. Schilling, and T.P. Mackey. Undated. 
``Contract Designs for Ballast Water Treatment Systems on Containership 
R.J. Pfeiffer and Tanker Polar Endeavor.'' Great Lakes Ballast 
Technology Demonstration Project. Undated.
    8. Kaiser, Jocelyn. 1999. ``Stemming the Tide of Invading 
Species.'' Science: 285:5435, September 17, 1999.
    9. Laughton, R., T. Moran, and G. Brown. 1992. ``A Review and 
Evaluation of Ballast Water Management and Treatment Option to Reduce 
the Potential for the Introduction of Non-native Species to the Great 
Lakes.'' www.pollutech.com/papers/p22.htm
    10. Locke, A. D., M. Reid, H. C. Van Leeuwen, W. G. Sprules, and J. 
T. Carlton, 1993. Ballast water exchange as a means of controlling 
dispersal of freshwater organisms by ships. Can. J. Fish. Aquatic Sci. 
50: 2086-2093.
    11. Maddox, T.L. 1998. ``The Thermal Treatment Methodology for 
Zebra Mussel Elimination.'' Abstract from the Eighth International 
Zebra Mussel and Other Nuisance Species Conference, March 1998.
    12. Pimental, David, Lori Lach, Rodolfo Zuniga, Doug Morrison. 
``Environmental and Economic Costs Associated with Non-Indigenous 
Species in the United States.'' June 12, 1999. http://
www.news.cornell.edu/releases/Jan99/species--costs.html (August 6, 
2001).
    13. Rigby, G. R. and G. M. Hallegraeff, 1994. The transfer and 
control of harmful marine organisms in shipping ballast water: Behavior 
of marine plankton and ballast water exchange trials on the MV ``Iron 
Whyalla''. J. Mar. Environ. Engineering 1: 91-110.
    14. Smith, L. D., M. J. Wonham, L. D. McCann, D. M. Reid, G. R. 
Ruiz, and J. T. Carlton, 1996. Shipping study II: Biological invasions 
by nonindigenous species in United States waters: Quantifying the role 
of ballast water and sediments, parts I and II. The National Sea Grant 
College Program/Connecticut Sea Grant Project R/ES-6, Report No. CG-D-
02-97, Government Accession No. AD-A321543. Department of 
Transportation, United States Coast Guard, Washington, DC, and Groton, 
Connecticut, 137 pp.
    15. Taylor, M. D. and E. J. Bruce, 2000. Mid Ocean Ballast Water 
Exchange: Shipboard Trials of Methods for Verifying Efficiency. 
Cawthron Report No. 524, Nelson, 59 pp.
    16. URS/Dames & Moore. 2000. ``Feasibility of Onshore Ballast Water 
Treatment at California Ports.'' California Association of Port 
Authorities, September 2000.
    17. Williams, R. J., F. B. Griffiths, E. J. Van der Wal, and J. 
Kelly, 1988. Cargo vessel ballast water as a vector for the transport 
of nonindigenous marine species. Estuar., Coastal & Shelf Sci. 26: 409-
420.
    18. Zhang, F. and M. Dickman, 1999. Mid-ocean exchange of container 
vessel ballast water. 1: Seasonal factors affecting the transport of 
harmful diatoms and dinoflagellates. Mar. Ecol. Prog. Ser. 176: 243-25.

    Dated: August 27, 2001.
Paul J. Pluta,
Rear Admiral, U.S. Coast Guard, Assistant Commandant for Marine Safety 
and Environmental Protection.

    Editorial Note:  This document was received at the Office of the 
Federal Register on February 28, 2002.

[FR Doc. 02-5187 Filed 2-28-02; 1:36 pm]
BILLING CODE 4910-15-P