[Federal Register Volume 69, Number 4 (Wednesday, January 7, 2004)]
[Proposed Rules]
[Pages 1078-1081]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-337]



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Part VIII





Department of Homeland Security





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Coast Guard



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33 CFR Part 151



Approval for Experimental Shipboard Installations of Ballast Water 
Treatment Systems; Shipboard Technology Evaluation Program; Proposed 
Rule and Notice

  Federal Register / Vol. 69, No. 4 / Wednesday, January 7, 2004 / 
Proposed Rules  

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 151

[USCG-2001-9267]
RIN 1625-AA66


Approval for Experimental Shipboard Installations of Ballast 
Water Treatment Systems

AGENCY: Coast Guard, DHS.

ACTION: Notice of withdrawal.

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SUMMARY: The Coast Guard is withdrawing its proposal to proceed with an 
interim rule establishing a program through which vessel owners can 
apply for approval of experimental ballast water treatment (BWT) 
systems installed and tested on board their operating vessels. Instead 
of a rulemaking, the Coast Guard will proceed with establishing this 
voluntary experimental approval program using a Coast Guard Circular. 
Details of the program are published in Coast Guard Navigation and 
Vessel Inspection Circular (NVIC) 01-04.

DATES: The project ``Approval for Experimental Shipboard Installations 
of Ballast Water Treatment Systems, RIN 1625-AA66, is withdrawn on 
January 7, 2004.

FOR FURTHER INFORMATION CONTACT: If you have questions on this Notice 
of Withdrawal, call Mr. Bivan Patnaik, Environmental Standards 
Division, Coast Guard, telephone 202-267-1744, E-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

    On May 22, 2001, we published a request for comments entitled 
``Approval for Experimental Shipboard Installations of Ballast Water 
Treatment Systems'' in the Federal Register (66 FR 28213). In this 
request for comments, we sought information on how to further develop 
ballast water treatment technologies and reduce the potential for 
introducing nonindigenous species (NIS) to the waters of the United 
States via discharged ballast water. We have also published our intent 
to issue an Interim Rule in the Unified Agenda entitled ``Approval for 
Experimental Shipboard Installations of Ballast Water Treatment 
Systems'' in the Federal Register, May 27, 2003, (68 FR 30340).

Withdrawal

    The Coast Guard has decided that the most efficient way of 
establishing this voluntary experimental approval program will be with 
the publication of a Coast Guard Circular. This will allow the Coast 
Guard to streamline the initiation process and proceed with the overall 
development of BWT technologies. Therefore, we are withdrawing this 
project from the rulemaking process. Additionally, we will use this 
withdrawal notice to respond to comments received in response to the 
May 22, 2001, request for comments. All comments and documents received 
in this docket will be available for use in future rulemakings.
    This action is taken under the authority of: 16 U.S.C. 4711; 
Department of Homeland Security Delegation No. 0170.1.

Discussion of Comments

    The Coast Guard received comments from 12 sources on the notice 
with request for comments. We received comments from ship owners, 
vendors, industry associations, an environmental group, the United 
States Maritime Administration, and Transport Canada.

General Comments

    The Coast Guard's notice with request for comments described basic 
procedures and conditions envisioned for the approval program. Four 
commenters expressed overall approval for the program's concept, but 
recommended that several details be strengthened and clarified. One 
commenter criticized the plan and proposed instead a detailed multi-
vessel installation project, claiming it would lower the risk of 
approving an ineffective technology. The latter suggestion indicates 
that we may not have been sufficiently clear about the basic purpose of 
the proposed program. The primary purpose of the experimental approval 
program is to provide assurance to ship owners involved in projects to 
test the effectiveness of prototype treatment systems under real-world, 
operational conditions. The commenter's counter-proposal seems more 
appropriate for evaluating the operation and maintenance aspects of an 
approved treatment system.
    One commenter suggested we also consider ways to counteract hull 
fouling, another source of NIS. The Coast Guard agrees that fouling of 
submerged surfaces of vessels both exterior and interior (e.g., sea 
water cooling systems) may be an important mechanism by which NIS are 
transported among ecosystems. Current regulations that apply to the 
Great Lakes mandate mid-ocean ballast water exchange or an alternate 
approved practice of minimizing the introduction of NIS. We believe, 
therefore, that it is important to establish the experimental approval 
program to facilitate the development of ballast water treatment 
systems. In any case, the structure of the experimental approval 
program will allow it to be used in the future for other technologies, 
such as those used to prevent the transport of organisms in fouling 
assemblages.

Comments on International Impact

    Three commenters noted that a program designed solely for the 
United States would have international ramifications. One commenter 
asked us to notify Transport Canada of experimental installations 
affecting the Great Lakes, and two other commenters urged an 
international approach to experimental installations, possibly through 
approval by the International Maritime Organization (IMO), in order to 
make a United States program more attractive to international shippers.
    We agree that close communication with pertinent Canadian agencies 
will be important and necessary for the shared waters of the Great 
Lakes. We also agree that a program acceptable to the international 
shipping community will have the greatest potential to facilitate 
significant advances in the development of effective technologies. The 
Coast Guard will keep the relevant Canadian and IMO entities fully 
informed of this program.

Comments on Standards

    Many commenters wanted to suggest, or wanted the Coast Guard to 
clarify, the quantitative standards by which a ballast water treatment 
technology would be evaluated under this program. Given that the intent 
of this experimental approval program is to facilitate the development 
of ballast water treatment systems in the absence of a standard, we 
initially felt it would be inappropriate to create a quantitative 
``benchmark'' that would act as a standard. However, following 
consideration of the comments on this issue, we agree that a set 
benchmark for entry into the Program will be useful and appropriate. 
Consequently, we will incorporate into the review process a minimum 
quantitative treatment efficacy, expressed as an effluent 
concentration, that proposed systems will be expected to meet. This 
will not be a ``hard and fast'' criterion, because the point of the 
Program is to facilitate the development of technology, and that goal 
is best served by a degree of flexibility on conditions for entry. 
Importantly, the quantitative benchmark we will incorporate will not 
substitute

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for a high degree of rigor, as established by peer review, in the 
design and implementation of proposed plans for the experimental 
evaluation of prototype ballast water treatment systems on-board 
operating vessels applying for acceptance in this Program.

Comments on the Approval Process

    Three commenters supported the concept of peer-review, although one 
commenter recommended that reviews by peer panels other than the one we 
describe below be accepted as well. We also received comments regarding 
the qualifications of panel members and problems with matching the 
review process with real world scheduling of commercial vessels.
    We agree that peer-review of the proposed test plans is essential 
for assuring that systems granted experimental approval are evaluated 
rigorously and scientifically. It is our intent that peer-review panels 
be composed of experienced researchers in a range of disciplines, such 
as environmental engineering, water disinfection, marine ecology, naval 
architecture, and marine engineering. To the extent possible, panels 
will include researchers with direct experience in conducting 
experimental tests of engineering, technologies, and practices on-board 
operating vessels, including ballast water treatment and ballast water 
exchange. The Coast Guard or its agent will assemble the panel 
according to explicit criteria for ensuring an appropriate mix and 
level of expertise and preventing conflicts of interest. It is 
important to make the reviews as uniform as possible, and this will be 
achieved through adherence to an explicit process, including standard 
review questions addressing specific issues. While it is feasible that 
independent reviews conducted outside the Coast Guard process could 
evaluate application materials in a comparable manner, there would be 
inevitable loss of control over the process and increased potential for 
conflicts of interest and lack of uniformity.
    Industry groups asked how rejected applications would be handled. 
Our intention is to fully justify and explain rejections, and to allow 
applicants to resubmit revised proposals without prejudice. Approval of 
the application will be the responsibility of the Coast Guard. In 
deciding whether to grant or deny approval, the Coast Guard will 
consider the findings of the peer-review panel regarding the supporting 
data and test plan. It must be realized that other criteria, such as 
those related to safety and conformity with all existing environmental 
regulations, could outweigh a favorable panel review of the study 
design. Finally, it is the Coast Guard's intention that this program 
facilitate the development of ballast water treatment technology, not 
hinder such efforts through capricious and arbitrary decisions.

Comments Regarding Criteria for Review

    Two commenters considered our documentation requirements for the 
testing process generally too complicated, too expensive, and not 
reflective of real-world field tests. We disagree that requiring 
comprehensive and scientifically credible test plans is not reflective 
of the ``real world''. Only when test plans are carefully designed and 
executed according to accepted practices of science and engineering 
will the resulting data provide meaningful information about the 
capabilities of treatment systems operated under shipboard conditions. 
It is true that carefully designed and implemented shipboard tests are 
likely to be expensive. However, the documentation required for review 
and to maintain approved status is not more than would be expected of a 
credible test and evaluation project.
    One commenter suggested that technologies should be approved for 
shipboard installation only after they pass full-scale prototype 
testing. Then, they should be installed on several ships (to provide 
data from different conditions and environments) rather than on a 
single vessel and that the Coast Guard should monitor results. The 
Coast Guard disagrees with this comment. The intent of the experimental 
approval program is to provide incentives to vessel owners to install 
and test experimental ballast water treatment systems onboard their 
operating vessels, not to approve ballast water treatment systems for 
general installation on several ships.
    Two commenters requested clarification about the Letter of 
Commitment and about the ability of the shipping industry to commit to 
projects within a 90-day review process. Withdrawal by any party of 
commitments to conduct an experimental evaluation according to the 
approved plan would be grounds for rescinding the approved status of 
the treatment system unless the remaining parties provide assurances 
that the contributions of the withdrawing party can be replaced. We 
believe that review of application packages will entail a significant 
commitment of resources by the government. Letters of Commitment from 
all parties involved in the experimental installations are necessary to 
minimize the possibility of expending public resources on 
insufficiently supported projects. With regard to the industry's 
ability to commit to projects with a 90-day review period, we strongly 
believe that experimental plans should reflect the attributes and 
operating circumstances of the vessels on which the experiments will be 
performed. The uncertainties of certain sectors of the shipping 
industry may prevent some ship owners from participating. It is our 
intent to be as flexible as possible, but we also believe that adequate 
review should not be compromised.
    Concerning residual concentrations of treatment chemicals, one 
commenter said that in multi-jurisdictional waters like the Great 
Lakes, we should require documentation that shows residual chemicals to 
be within the limits set by the most demanding jurisdiction. As stated 
in the notice with request for comments, applicants will have to 
provide evidence that their proposed systems meet all applicable 
regulatory requirements for protection of both the environment, and 
human health and safety.
    Our suggested procedure requires applicants to provide 
documentation from preliminary, small-scale experiments. One commenter 
criticized our use of the phrase ``smaller scale'' because it might 
unduly penalize developers who wish to make incremental improvements on 
existing or future full-scale experiments. Our intent is that 
applicants demonstrate that the treatment systems have been carefully 
evaluated in prior tests. While we have assumed that in many cases, 
these earlier tests will have used smaller scale versions of treatment 
systems than those proposed for shipboard installation, we recognize 
that this will not necessarily be so in all cases. The important 
consideration will be that the submitted evidence indicates the 
achievement of a consistently high level of treatment by the 
experimental system.
    Some commenters wanted to modify the ``suite of organisms'' 
proposed for demonstrating a prototype system's range of effectiveness, 
although to different ends. While one commenter suggested broadening 
the list by adding virus-like particles to the suite, another commenter 
called the suite too expansive and suggested we instead develop a 
shorter list of organisms of interest. One commenter said it is 
unlikely that any one technology would be effective across the entire 
suite, and we should therefore regard a technology that completely 
eliminates any one

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broad taxonomic category as initially sufficient.
    We strongly believe that shipboard tests should evaluate 
effectiveness over as wide a range of organisms as possible. 
Furthermore, at this time there are no agreed-upon surrogates or 
indicator species for the diverse array of organisms likely to be 
encountered by a vessel. Organisms of interest will most likely be 
useful in laboratory or dockside tests and may be an important 
component in eventual general approval testing. However, shipboard 
tests should assess effectiveness as broadly as possible to provide the 
best understanding of various ballast water management approaches.
    We proposed that applicants specify any conditions limiting the 
effectiveness of a treatment method on certain ships or routes. One 
commenter assumed the effectiveness of a treatment would not be 
affected by the ship's route. While we too anticipate that treatment 
systems will be developed for use under the broadest range of 
conditions, we do not wish to assume that route-specific treatment 
systems will have no place in the ballast water treatment market.
    One commenter said the representative sampling criterion places a 
great burden on the investigator to predict what test protocol will 
satisfy the Coast Guard. This commenter said that if the Coast Guard 
plans to enforce compliance by using a set of sampling protocols, it 
should develop that set of protocols now and let it be used for testing 
purposes by vendors and ship owners. This response indicates a 
misunderstanding of the intended purpose of the experimental approval 
program. The experimental approval program is intended to foster the 
shipboard evaluation of treatment systems, not to serve as part of the 
general regulatory certification process. Our requirement for 
representative sampling is intended to assure that project protocols in 
any tests are able to detect true treatment effects, not introduce 
unintentional confounding variables. Rather than impose a requirement 
to use a specific approach or design, we instead expect that credible 
study plans will address this issue.
    A group of commenters wanted us to clarify our statement that only 
a limited number of experimental systems would be approved. The group 
wanted to be sure we would not arbitrarily limit the number of test 
installations approved. We intend to limit the number of installations 
approved for any one experimental system, unless applicants can 
strongly justify that multiple ship installations are necessary and 
that sufficient resources are available to evaluate all units. The 
purpose of the program is not to facilitate the marketing of treatment 
systems, but to foster their development.

Comments Regarding Conditions of Approval

    One commenter said that except for some specific line or tanker 
trades, it is commercially unreasonable to restrict approval to 
specific routes. We agree, and our experimental approval program will 
not have such blanket restrictions. However, treatment systems 
developed for specific trade routes, if they occur, may be so 
conditioned. Further, study plans for experimental installations on 
vessels with geographically diverse trading patterns will be expected 
to reflect, and take advantage of, spatial and temporal variability.
    Two commenters agreed that approval for processes or systems shown 
to have adverse effects on the environment or human health should be 
revoked. One of the two commenters indicated that the stringent nature 
of the approval process makes blanket revocation unnecessary. Instead, 
case-by-case decisions could be made, taking into account vessel and 
route characteristics. We disagree because in general, blanket 
revocations are not anticipated for the simple reason that we do not 
foresee approving multiple installations of any one system. However, if 
evidence arises that an underlying unit process common to several 
systems has undesirable effects, then a wider revocation may be 
considered.
    Several commenters expressed concern about our reporting 
requirements and recommended instead that approved installations be 
required to incorporate monitoring and recording systems or be subject 
to random vessel visits (equated with ``real marketplace'' conditions). 
A shipper considered the proposed requirement that principal scientists 
and engineers attend technical workshops at their own expense a 
negative incentive. Our reporting requirements are intended to ensure 
that approved shipboard evaluations are conducted according to the 
agreed-upon study plan, as well as to verify that treatment systems are 
used and operated as required under the conditions of approval. We 
expect that performance-monitoring equipment will be integral 
components of treatment systems, and that system output and performance 
will be addressed in the reports. Vessel inspections, by the U.S. Coast 
Guard or its agents, will be part of the monitoring regime to which 
approved systems will be subject. We agree that requiring attendance at 
technical workshops may require advance planning and budgeting; 
however, we feel that such interactions among those testing systems and 
the resource trustees will be valuable. We will, however, look for ways 
in which to subsidize or offset the costs of participation.

Comments Regarding the Approval Period

    We received many comments pertaining to the proposed five-year 
approval period and ``grandfather'' clause. Several commenters signaled 
strong support for treating test systems as fully complying with 
ballast water treatment requirements for a period of years. One 
commenter called ``grandfathering'' a critical incentive for technology 
developers and vessel owners. However, several commenters asked for 
clarification regarding protection for installers in the event 
performance standards change during the test period. There was 
particular concern about making the approval of a ballast water 
treatment technology expire upon the updating of a standard. These 
specific comments touch on the primary intent of our experimental 
approval program, which is to foster research and development work on 
ballast water treatment systems under shipboard scales and conditions. 
We agree that uncertainty about the period for which approved systems 
will be accepted as meeting regulatory requirements will work counter 
to our intent. Therefore, the rule includes an explicit period of 
approval. Further, we intend to incorporate in the process for general 
approval of ballast water treatment systems a provision for considering 
data and information obtained during an experimental approval period. 
The installation approval process will be part of a proposed rulemaking 
on ballast water discharge standards. While the details remain to be 
resolved, the intent of this provision will be to avoid penalizing 
treatment system developers that have expended significant effort in 
meeting the requirements of the experimental approval program.
    Several commenters favored periods of approval longer than the five 
years we proposed and suggested instead that experimental systems be 
approved for periods of 10-12 years. We consider the five-year period 
of approval to be sufficient, but seek to clarify that the five-year 
period will begin at the point in time that a specific vessel would be 
required to manage its ballast water through the use of mid-ocean 
exchange or other ballast water management practices including 
treatment systems. For vessels that install experimental

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treatment systems prior to the establishment of a ballast water 
discharge regulation, the five-year period will not begin until the 
effective date for such a regulation.
    One commenter further recommended that approval should be 
conditional on making the experimental technology available for testing 
by credible agencies. Because our intent is to provide ship owners with 
assurance that experimental systems will be approved for a specific 
period of time, we respectfully disagree. For many, if not most of 
these systems, there may be only one prototype unit, and therefore it 
would be onerous to require that the developer and/or the ship owner 
provide additional units for use by others.
    It is also our intent that the review process will guarantee 
credible testing of approved systems. Further, we anticipate that the 
general approval of ballast water treatment systems will involve 
objective testing of such systems by independent evaluators. We see no 
need to require participants to make their experimental systems 
available to others because this program is intended for treatment 
systems under development.
    Several commenters expressed concern that a test vessel should be 
protected in the event a shipboard test program fails by giving the 
vessel some reasonable time to make retrofits without losing its 
approved status. They argued that letting the approval lapse if, after 
one year, the system had not been installed or testing had not begun, 
was unrealistic given the complexities of the shipping industry. 
Instead, these commenters recommended that an expiration date be set in 
a manner that accounts for the experiment's proposed timeline.
    We agree that there needs to be a high degree of flexibility to 
accommodate unavoidable scheduling or engineering problems. The review 
process, therefore, will contain a provision for negotiating schedules 
for implementation based on specific circumstances and for reacting to 
unexpected process failures or engineering problems.
    Some commenters asked us to consider ``grandfathering'' for those 
vessels that have already installed experimental ballast water 
management technology prior to implementation of a Coast Guard policy 
on testing. One commenter said that numerous cruise ships have already 
installed experimental technology and should be included in an 
incentive program so as not to be penalized for being proactive. The 
commenter advocated streamlining the application and approval process 
because the installation can already demonstrate results. We agree that 
owners who have already installed experimental equipment should not be 
penalized for their proactive efforts. Vessel owners with experimental 
systems installed prior to implementation of this program will be able 
to apply for approval. However, approval will be dependent on an 
evaluation of the experimental study plan and results to ensure that 
all approvals are subject to the same degree of rigorous review.

Miscellaneous Comments

    One commenter stressed the importance of increasing financial 
support for research and development of sampling and evaluation 
protocols.
    Another commenter recommended the Smithsonian Environmental 
Research Center as an excellent source of testing protocols.
    Three commenters discussed specific treatment methods in detail, 
and one of these also suggested criteria for any system design.
    While these are all notable comments with clear relation to the 
broad issue of experimental evaluation of treatment systems, they are 
not directly relevant to the issue of conditional Coast Guard approvals 
for experimental systems.
    We appreciate all comments received and will use them as we develop 
the Shipboard Technology Evaluation Program.

    Dated: December 16, 2003.
Thomas H. Collins,
Admiral, U.S. Coast Guard, Commandant.
[FR Doc. 04-337 Filed 1-6-04; 8:45 am]
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