[Federal Register Volume 88, Number 200 (Wednesday, October 18, 2023)]
[Proposed Rules]
[Pages 71788-71812]
[FR Doc No: 2023-22879]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 139

[EPA-HQ-OW-2019-0482; FRL-7218-03-OW]
RIN 2040-AF92

Vessel Incidental Discharge National Standards of Performance

AGENCY: Environmental Protection Agency (EPA).

ACTION: Supplemental notice of proposed rulemaking.

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SUMMARY: On October 26, 2020, the U.S. Environmental Protection Agency
(EPA) proposed under the Vessel Incidental Discharge Act (VIDA)
national standards of performance for marine pollution control devices
for discharges incidental to the normal operation of primarily non-
military and non-recreational vessels 79 feet in length and above into
the waters of the United States or the waters of the contiguous zone
(hereafter, ``the proposed rule''). This supplemental notice presents
ballast water management system type-approval data EPA received from
the U.S. Coast Guard (USCG) since the proposed rule and supplements the
proposed rule with supplemental regulatory options that EPA is
considering for discharges from ballast tanks, hulls and niche areas,
and graywater systems. These supplemental options are informed by
comments received during the first public comment period and subsequent
meetings with interested states, tribes, and other stakeholders held
between August and November 2021. EPA solicits public comment solely
about the information presented in this document; the Agency is not
soliciting public comment on any other aspects of the proposed rule
that are not addressed in this document. All comments on this document
and the comments on the proposed rule will be considered during the
development of the final rule.

DATES: Comments must be received on or before December 18, 2023.

ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OW-2019-0482, by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov/
(our preferred method). Follow the online instructions for submitting
comments.
     Mail: U.S. Environmental Protection Agency, EPA Docket
Center, Office of Water Docket, Mail Code 28221T, 1200 Pennsylvania
Avenue NW, Washington, DC 20460.
     Hand Delivery or Courier: EPA Docket Center, WJC West
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004.
The Docket Center's hours of operations are 8:30 a.m. to 4:30 p.m.,
Monday through Friday (except Federal Holidays).
    Instructions: All submissions received must include the Docket ID
No. for this rulemaking. Comments received may be posted without change
to https://www.regulations.gov/, including any personal information
provided. For detailed instructions on sending comments and additional
information on the rulemaking process, see the ``Public Participation''
heading of the SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Jack Faulk, Oceans, Wetlands, and
Communities Division, Office of Water (4504T), Environmental Protection
Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460; telephone
number:<PHONE_NUMBER>; email address: [email protected].

SUPPLEMENTARY INFORMATION: This supplementary information is organized
as follows:

I. Public Participation
II. Purpose of This Notice
III. Summary of Proposed Numeric Ballast Water Discharge Standard and
Newly Acquired Ballast Water Management System Type-Approval Data
    A. Summary of Proposed Numeric Ballast Water Discharge Standard
    1. International Maritime Organization (IMO) and USCG Ballast Water
Management System Type-Approval Data Proposed Rule Considerations
    2. Ballast Water Test Methods Do Not Allow for Establishing a More
Stringent or ``No Detectable Organisms'' Standard
    3. Monitoring Challenges Associated With Measuring Live Organisms
in Ballast Water
    B. Relevant Comments Received on Numeric Ballast Water Discharge
Standard
    C. Ballast Water Type-Approval Data Acquired Since the Proposed
Rule
    1. Data Validation and Processing
    2. Analysis of New Data
    D. The Need for Multiple BWMS Compliance Options
    E. Data Fail To Demonstrate a More Stringent Numeric Discharge
Standard is BAT
IV. Supplemental Regulatory Options
    A. Ballast Tanks--Best Management Practices for Ballast Water
Uptake
    1. Summary of Proposed Rule and Relevant Comments Received on
Ballast Water Uptake
    2. Supplemental Regulatory Option for Ballast Water Uptake
    B. Ballast Tanks--Equipment Standard for New Lakers
    1. Summary of Proposed Rule and Relevant Comments Received on
Vessels Operating Exclusively in the Great Lakes
    2. Equipment Standard Authority and Rationale
    3. Operational, Technical, and Economic Considerations of an
Equipment Standard for New Versus Existing Lakers
    4. Other Factors
    5. New Lakers
    C. Hulls and Associated Niche Areas
    1. Biofouling as a Discharge Incidental to the Normal Operation of
a Vessel
    2. Application of Requirements to Cleaning of Macrofouling and
Microfouling
    3. Applicability of Regulations to In-Water Cleaning Discharges
    4. Discharges From In-Water Cleaning and Capture (IWCC) Systems
    5. Terms To Describe Cleaning
    D. Graywater Systems
    1. Summary of Proposed Rule and Relevant Comments Received on
Graywater Systems

    2. Supplemental Regulatory Option for Graywater Systems
V. Solicitation of Comments
VI. Statutory and Executive Order Reviews
VII. References

I. Public Participation

A. Written Comments

    Submit your comments, identified by Docket ID No. EPA-HQ-OW-2019-
0482, at https://www.regulations.gov (our preferred method), or the
other methods identified in the ADDRESSES section. Once submitted,
comments cannot be edited or removed from the docket. EPA may publish
any comment received to its public docket. Do not submit any
information you consider to be Confidential Business Information (CBI),
Proprietary Business Information (PBI), or other information whose
disclosure is restricted by statute to EPA's docket at https://www.regulations.gov. Multimedia submissions (audio, video, etc.) must
be accompanied by a written comment. The written comment is considered
the official comment and should include discussion of all points you
wish to make. EPA will generally not consider comments or comment
contents located outside of the primary submission (i.e., on the web,
cloud, or other file sharing system). Please visit https://www.epa.gov/dockets/commenting-epa-dockets for additional submission methods; the
full EPA public comment policy; information about CBI, PBI, or
multimedia submissions; and general guidance on making effective
comments. EPA is soliciting comment on a subset of issues described in
the proposed rule and is not requesting comment on issues not discussed
in that document.

B. Virtual Public Meetings

    EPA will be hosting two virtual public meetings to introduce the
supplemental notice, highlight supplemental regulatory options that EPA
is considering for the final rule, and provide information on the
public comment submission process. The public meeting schedule and
additional details regarding the meetings will be announced on EPA's
website at https://www.epa.gov/vessels-marinas-and-ports/vessel-incidental-discharge-act-vida-stakeholder-engagement-opportunities. EPA
will present the same material at both meetings. Please note that the
virtual meetings will not be a platform for submitting comments.

II. Purpose of This Notice

    On October 26, 2020 (85 FR 67818), EPA proposed under the Vessel
Incidental Discharge Act (VIDA) national standards of performance for
marine pollution control devices for discharges incidental to the
normal operation of primarily non-military and non-recreational vessels
79 feet in length and above into the waters of the United States or the
waters of the contiguous zone.\1\ This document supplements the
proposed rule.
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    \1\ ``Discharges incidental to the normal operation of a
vessel'' are also referred to as ``incidental discharges'' or
``discharges'' in this rulemaking.
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    Since publishing the proposed rule, EPA re-engaged with the states
through the VIDA's Governors consultation process to discuss topics for
which the states expressed an interest in further collaboration and
conducted post-proposal outreach to states, tribes, and interested
stakeholders from environmental organizations and the regulated
community to obtain additional clarification regarding their concerns
with the proposed rule. EPA also obtained and analyzed a significant
amount of new data from the USCG related to ballast water management
system (BWMS) performance. With this document, EPA announces the
availability of these new data, provides its analysis of the data, and
solicits comment on supplemental regulatory options for the standards
and definitions applicable to ballast tanks, hull and niche areas, and
graywater systems. The supplemental regulatory options were developed
based on EPA's analysis of the public comments received on the proposed
rule and during additional post-proposal outreach. EPA solicits public
comments regarding the information and issues presented in this
document. EPA is not soliciting additional comment on other issues
raised in the proposed rule.

III. Summary of Proposed Numeric Ballast Water Discharge Standard and
Newly Acquired Ballast Water Management System Type-Approval Data

A. Summary of Proposed Numeric Ballast Water Discharge Standard

    In 2020, EPA proposed to continue, as part of the ballast water
discharge standard, the numeric discharge standard for biological
parameters (expressed as instantaneous maximums) found in the 2013
Vessel General Permit (VGP) and the USCG regulations promulgated on
March 23, 2012 (77 FR 17254) as follows:
     For organisms greater than or equal to 50 micrometers
([mu]m) in minimum dimension: discharge must include less than 10
living organisms per cubic meter (m\3\) of ballast water.
     For organisms less than 50 [mu]m and greater than or equal
to 10 [mu]m: discharge must include less than 10 living organisms per
milliliter (mL) of ballast water.
     For indicator microorganisms:
    [cir] Toxicogenic Vibrio cholerae (serotypes O1 and O139): a
concentration of less than 1 colony forming unit (cfu) per 100 mL.
    [cir] Escherichia coli: a concentration of less than 250 cfu per
100 mL.
    [cir] Intestinal enterococci: a concentration of less than 100 cfu
per 100 mL.
    In the proposed rule, EPA noted that the 2013 VGP requirements and
the USCG type-approval process are effective and promote the
development of highly efficient technologies despite ongoing challenges
associated with the installation, operation and maintenance, and
monitoring of those systems. The proposed rule additionally described
type-approval testing data quality concerns and challenges associated
with ballast water test methods and monitoring. Specifically, in 2016,
the USCG announced in the Federal Register the availability of its
Practicability Review, as established in 33 CFR 151.2030(c), finding
that technology and testing protocols cannot be practically implemented
to comply with a performance standard more stringent than that required
by the existing regulations (81 FR 29287, May 11, 2016) because there
were no data demonstrating that ballast water management systems
(BWMSs) could meet such a standard. As such, the USCG could not
evaluate whether testing protocols exist that can accurately measure
efficacy of treatment against a more stringent performance standard.
The following three subsections summarize the International Maritime
Organization (IMO) and USCG type-approval data considerations, testing
methodology limitations, and monitoring challenges described in the
proposed rule.
1. International Maritime Organization (IMO) and USCG Ballast Water
Management System Type-Approval Data Proposed Rule Considerations
    The proposed rule described the Agency's rationale for discounting
the IMO BWMS test data detailed in the 2011 Scientific Advisory Board
(SAB) report that the United States Court of Appeals for the Second
Circuit referenced in its decision on the 2013 VGP. See Nat. Res. Def.
Council v. U.S. EPA, 808 F.3d 556, 566-67 (2d Cir. 2015). EPA noted
that, after publication of the SAB report, the USCG found that systems
type-approved under the

original IMO guidelines were unlikely to meet the USCG discharge
standard and that testing during that type-approval did not necessarily
follow, or at least did not document, adequate quality assurance and
quality control (QA/QC) procedures. In fact, every BWMS vendor with an
IMO type-approval that requested USCG type-approval had to undergo a
new round of testing according to USCG standards to demonstrate system
performance meeting USCG type-approval requirements. The IMO has since
updated and codified new type-approval test requirements (IMO, 2018)
that address many of the issues that limited the reliability of the IMO
type-approval data assessed in the 2011 SAB report.
    Notwithstanding the data quality deficiencies of the IMO dataset,
the proposed rule included EPA's evaluation of three ultraviolet (UV)/
filtration systems from the 2011 SAB report that the Second Circuit
Court of Appeals identified as being able to meet a more stringent
standard (Hyde Marine Guardian, Optimarin, and Alfa Laval/Alfa Wall
Pure Ballast). Nat. Res. Def. Council v. U.S. Envtl. Prot. Agency., 808
F.3d 566, 570 n.11 (2d Cir. 2015). The proposed rule summarized how the
court mischaracterized the effectiveness of those three systems in
achieving a more stringent standard. Although there were some data from
these systems showing organism reductions greater than the proposed
standard, those differences were minor and within the margin of error
inherent in measuring aquatic organisms in the natural environment due
to the variability in ballast water uptake and testing. Hence, the data
cited by the Second Circuit Court of Appeals did not reflect
substantial improvement in organism removal beyond the proposed
standard.
    The proposed rule also described EPA's evaluation of BWMS USCG
type-approval data available to the Agency at the time. EPA stated that
a more stringent numeric discharge standard was not reliably achievable
because test results were within the same order of magnitude as the
proposed standard and fell within the margin of error expected due to
the great variability associated with the characteristics of ballast
water and challenges associated with monitoring, analyzing, and
enumerating organisms in the different size classes.
2. Ballast Water Test Methods Do Not Allow for Establishing a More
Stringent or ``No Detectable Organisms'' Standard
    The proposed rule described the practical and statistical
challenges associated with performing the tests that would be necessary
to show that a well-operated BWMS is able to reliably meet a more
stringent or ``no detectable organisms'' standard. There are no
performance data available at concentrations of less than one organism
per volume of ballast water for the two largest organism size classes.
The Agency noted that test methods (and associated method detection
limits) prevent demonstrating that any BWMS can achieve a standard more
stringent than the 2013 VGP numeric discharge limit. EPA highlighted
that, consistent with findings of the SAB, it was unreasonable to
assume that a test result showing zero living organisms using currently
available test methods demonstrates complete sterilization, if for no
other reason than a sample taken represents a very small portion of the
overall discharge and the collection of that sample may miss the few
live organisms present in the discharge. Collecting larger volumes of
ballast water to address this uncertainty also becomes impractical. For
example, the SAB estimated that anywhere from 120 to 600 cubic meters
of ballast water would have to be collected to adequately assess
whether the discharge meets a standard 10 times more stringent (U.S.
EPA, 2011).
3. Monitoring Challenges Associated With Measuring Live Organisms in
Ballast Water
    The proposed rule also described the challenges associated with
collecting and analyzing ballast water to detect and quantify organisms
at levels lower than the proposed standard. These challenges gave EPA
low confidence in the ability of a vessel to demonstrate compliance
with a lower numeric discharge standard. Even in the 2013 VGP, the
three-component self-monitoring program \2\ excluded monitoring for the
two largest organism size classes because of the extreme difficulties
with directly monitoring living organisms in ballast water discharges.
Rather, the 2013 VGP established a monitoring program that serves as an
indicator of system performance while operating as the system was
designed (and type-approved). The proposed rule pointed out that
demonstrating a higher level of treatment effectiveness would require
testing of a different parameter that can be monitored. This would
reasonably require a comprehensive monitoring program to gather
necessary data on which to perform the Best Available Technology
Economically Achievable (BAT) analysis. EPA generally sets a BAT
standard based on data demonstrating the candidate BAT technology's
performance, accounting for variability of a properly operating system.
Without a way to detect and quantify organisms at those levels, EPA
does not have a basis to evaluate the performance of the technology or
set limits that represent the performance.
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    \2\ The 2013 VGP included functionality, biological organism,
and residual biocide and derivative monitoring for ballast water
discharges from any BWMS.
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B. Relevant Comments Received on Numeric Ballast Water Discharge
Standard

    EPA received numerous comments on the proposed rule during the
public comment period and stakeholder meetings about its BAT analysis
for the numeric ballast water discharge standard. Commenters stated
that EPA only reviewed less than one-quarter of the USCG BWMS data and
that these data were supplied to EPA by an industry group with a
conflict of interest in the standard setting process. Other comments
expressed concerns that EPA:
     Used outdated information when it relied on the 2011 SAB
report and 2011 National Academy of Sciences' National Research Council
report;
     Rejected data from IMO type-approval testing based on an
incomplete, undocumented, and questionable ``independent review,'' and
that the USCG type-approval data EPA did review could very well have
the same QA/QC concerns as the IMO data;
     Established the standard first and then worked backwards
toward the 2013 VGP standard rather than evaluating the data to
determine what standard could be achieved independent of the existing
standard;
     Relied inappropriately on international consistency;
     Failed to consider whether a more stringent standard could
be met by reasonable and feasible modifications to existing BWMS
designs; and,
     Asserted incorrectly that:
    [cir] Available information does not justify a more stringent
numeric discharge standard, be it 100 times, 10 times, or even 2 to 9
times more stringent than the proposed standard;
    [cir] A more stringent numeric discharge standard would represent
an insignificant improvement in treatment system effectiveness;
    [cir] Limitations in the monitoring of organisms in ballast water
do not support establishing a more stringent standard; and,
    [cir] Comparing type-approval data for different systems would only
be appropriate if all other variables were

held constant or under complete control during the test.
    While EPA received comments on the proposed rule on several other
topics associated with establishing the ballast water discharge
standard, those comments are outside the scope of this supplemental
notice. Comments that are outside the scope of this document will be
addressed in the final rule.

C. Ballast Water Type-Approval Data Acquired Since the Proposed Rule

    As a result of concerns raised during the comment period that EPA
reviewed insufficient BWMS data, EPA requested USCG BWMS type-approval
data directly from the USCG. EPA requested that the data be provided in
a form that would allow EPA to conduct a transparent and comprehensive
assessment of the performance of BWMS and to share those data and EPA's
analysis of those data with the public. Acknowledging that the USCG
continues to receive new data packages, the Agency requested data for
all systems type-approved by the date of the proposed rule (85 FR
67818, October 26, 2020). EPA does not expect that more time or
additional applications would meaningfully alter the results of the
analysis. Additionally, recognizing the statutory deadline for
finalizing this standard and the significant effort required to
extract, transcribe, and validate test data, EPA focused on obtaining
the most important and relevant data to perform its BAT analysis. For
example, EPA determined that it was unnecessary to obtain data from the
USCG regarding the number and size of subsamples, or system operating
parameters such as flow rates, disinfectant dosages, or turbidity. The
complete set of USCG BWMS land-based and shipboard type-approval data
provided to EPA by the USCG and the Agency's comprehensive Ballast
Water BAT Data Analysis of these data are included in the docket for
this rulemaking (U.S. EPA, 2023).
    The USCG provided EPA with non-confidential/non-proprietary test
data for the 37 BWMSs \3\ that had been type-approved as of the date of
the proposed rule (85 FR 67818, October 26, 2020) as well as 16 sets of
amendment test data for those type-approved systems. EPA considered the
amendments as additional independent systems because the original BWMS
remains type-approved even when an amendment is submitted and approved
for that system. EPA excluded two sets of amendment data from the
analysis due to incomplete data. EPA also identified and excluded two
duplicate data sets from the analysis to prevent weighing the same
results twice in the statistical methodology. This resulted in a total
of 49 data sets for the statistical analysis.
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    \3\ As of July 24, 2023, the USCG had type-approved 51 BWMS
(https://www.dco.uscg.mil/Our-Organization/Assistant-Commandant-for-Prevention-Policy-CG-5P/Commercial-Regulations-standards-CG-5PS/Marine-Safety-Center-MSC/Ballast-Water/).
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    The data provided by the USCG included both land-based and
shipboard testing results (uptake, discharge, and control) for all
valid tests.\4\ For land-based testing, the USCG provided test results
for organisms less than 50 [mu]m and greater than or equal to 10 [mu]m
in minimum dimension (referred to here as the ``medium'' organism size
class) and organisms greater than or equal to 50 [mu]m in minimum
dimension (referred to here as the ``large'' organism size class), the
three small organism size class parameters, and other water quality
data, such as salinity and total suspended solids (TSS). For shipboard
testing, the USCG provided test results for medium and large organism
size classes and salinity.
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    \4\ A test is considered valid if it met all uptake and testing
challenge requirements of the ETV Protocol (EPA/600/R-10/146,
Generic Protocol for the Verification of Ballast Water Treatment
Technologies, version 5.1, (dated September 2010)), as incorporated
by reference in USCG BWMS type-approval regulations at 46 CFR
162.060.5.
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    The USCG masked the data to exclude information the USCG deems to
be proprietary, such as the vendor, make, and model of the BWMSs and
the type of treatment technology used by each BWMS. However, the USCG
developed a labeling system to allow EPA to analyze the performance
data and its treatment technology type classification for each BWMS
without disclosing the details of the BWMS or identifying the
technology.
    The data provided to EPA is the result of an approximately yearlong
effort by the USCG to transcribe information from BWMS type-approval
application test reports, standardize terms to facilitate analysis, and
perform a quality assurance review of the data provided by as many as
six USCG-approved independent laboratories, located in five different
countries, each supported by no fewer than six approved sub-
laboratories. Importantly, this means that the values are not all
reported with the same precision (i.e., the number of digits or
significant figures). This is especially relevant to values based on
calculations or averages, where the calculated value (e.g., 0.333 or
7341 organisms per milliliter) is reported at a higher precision than
could be supported based on the counting method. Values are reported
without confidence intervals, so the values represent a mean of a range
of likely estimates.
1. Data Validation and Processing
a. Data Validation
    EPA considers these USCG data to be relevant, accurate, reliable,
and representative, and the Agency performed a quality control review
of the data provided. EPA validated USCG-provided type-approval data to
ensure that these data are fit for use for calculating a numeric
discharge standard for the two largest organism classes (using Stata
software; StataCorp, 2021). Data validation consisted of checks for
completeness, range, and logic. Completeness checks included ensuring
that type-approval data included all valid test cycles (pass and fail),
each test cycle had both influent (challenge water, treatment uptake,
or control uptake) and effluent (treatment discharge) data that
included both medium and large organism size classes, and there was no
instance of multiple results for the same test cycle. Range and logic
checks confirmed the validity and magnitude of all treatment discharge
results that exceeded the discharge standard, that challenge water and
control or treatment uptake organism concentrations were greater than
discharge concentrations, and that uptake and control discharge
organism concentrations met the criteria for a minimum concentration of
living organisms, per Tables 4 and 7 of the EPA Environmental
Technology Verification Program's Generic Protocol for the Verification
of Ballast Water Treatment Technologies (``ETV Protocol'') (U.S. EPA,
2010).
    Most instances of incomplete data were resolved by USCG through
database corrections; however, some incomplete data could not be
resolved because the data were not reported in the test reports. BWMSs
with biological efficacy data available for only one organism size
class were excluded from this analysis since the data omissions
precluded EPA from assessing those systems' performance.
b. Data Processing
    EPA evaluated the USCG type-approval data and addressed extenuating
circumstances, including samples with missing results, no detected
organisms, and gaps in salinity classifications, to ensure consistent
analysis of the USCG type-approval data.
    In instances where organism concentration data were missing from
the testing results or marked as ``NR (not

reported),'' the sample/data were removed because their values were
unknown.
    For the samples/data sets with no detectable organisms in the
treated discharge, EPA represented these non-detects (NDs) as their
method detection limits (MDLs) that were determined and provided by the
USCG where available. The volume of water used in the analytical
methodology determines the MDL because units are in organisms per
volume of water. The USCG calculated MDLs based upon the test
facilities' written protocols that defined minimum sample volumes and
ranges of volumes analyzed. Specific volumes sampled and analyzed for
each analysis were not available, so the MDL for each sample was not
known. Because USCG transcribed type-approval data ``as written,'' NDs
were expressed using a variety of formats. EPA substituted, or imputed,
given organism concentrations with their corresponding MDL if the
original values were reported as ``0'' or non-numeric (such as ``Below
Detection Limit (BDL)''). Any detected values greater than zero but
below their given MDL were used as-is in this analysis. Further details
of this step are provided in the comprehensive Ballast Water BAT Data
Analysis in the docket for this rulemaking (U.S. EPA, 2023).
    The USCG provided land-based data to EPA categorized by salinity
type as marine, brackish, or fresh; however, the same categorization
was not provided for the shipboard data. Salinities in shipboard data
were provided as quantitative readings that EPA used to classify into
types defined by <1 Practical Salinity Unit (PSU) for fresh, >=28 PSU
for marine, and measurements in between for brackish. For shipboard
trials in which a salinity was provided for only the treatment
discharge sample, EPA applied that salinity to the uptake sample for
that trial because salinity values were consistent across samples for
all other trials that reported salinities for both uptake and
discharge. Shipboard trials without any reported salinity (in any of
the sampling locations) were omitted from this analysis because the
statistical methodology requires classification of sets by salinity
category.
2. Analysis of New Data
    EPA's analysis focused on the two largest organism size classes
(medium and large). These two size classes are the two key parameters
EPA uses to assess invasion potential from ballast water discharges and
for which EPA determined type-approval test data are adequate for
purposes of evaluating performance capabilities of these systems.
    EPA obtained USCG type-approval data for the three smallest
indicator microorganisms tested but did not assess those data as part
of this analysis because the data do not provide an appropriate basis
for calculating a numeric ballast water discharge standard for the two
largest organism class sizes, nor did EPA receive any comments on the
proposed rule standard for the indicator microorganisms.
    The Agency used the newly acquired data to analyze whether a
different standard from the proposed rule should be established for
medium and large organism size classes. EPA considered all BWMS type-
approval data provided by the USCG for these two organism size classes.
In all, EPA used 1,820 treatment discharge results from 49 BWMS type-
approval data sets. Type-approval applicants tested systems in two
platforms (land-based or shipboard; shipboard testing not required for
amendments) and in up to three salinity categories (marine, brackish,
or fresh). For purposes of this analysis, EPA classified the results
into 384 ``sets'' each defined by a unique combination of individual
BWMS, salinity category (fresh, brackish, or marine), organism size
class (medium or large), and test platform (land-based or shipboard).
    In performing the analysis, EPA defined sets of trials, tested for
correlations, identified a distribution shape and distribution
parameters, combined land-based and shipboard trials, identified best
available technology, and calculated the numeric discharge standard.
Analyses were performed using ``R'' software (R Core Team, 2023).
Although type-approval testing is based on counts of organisms and is
therefore discrete (i.e., results are integers), test facility
reporting of results were generally reported as averages of subsamples
and standardized to common water volumes of medium organisms/mL and
large organisms/m\3\, thus making the values continuous (that is, many
values reported as fractions of organisms per volume). After testing
several distributions, EPA determined the inverse Gaussian (IG)
distribution to be the shape that best described the most sets and
therefore was the distribution applied for the final analysis. Using
this distribution, EPA calculated the 99th percentile and mean of each
data set; the ratio of the two defined the variability factor (VF).
Means and VFs were summarized across all sets for each of the two
organism size classes. Further details are provided in the
comprehensive Ballast Water BAT Data Analysis in the docket for this
rulemaking (U.S. EPA, 2023).
    EPA considered whether BAT should be based on any specific
individual BWMS(s) or on any specific treatment technology type(s) into
which the USCG categorized these BWMSs. As noted above, EPA did not
have access to proprietary or business confidential information linking
these data to design and operating details of each type-approved system
to assess whether any of the systems should have been excluded from
EPA's analysis; thus, EPA used an inclusive approach that considered
data from all systems.
    EPA evaluated whether statistical differences in the treatment
effectiveness of BWMSs could help identify systems that perform
significantly better, such that they could be considered as the basis
for BAT. To do so, EPA compared treatment discharge concentrations of
the 49 BWMSs within six groups defined by the two common organism size
class and three salinity categories. Statistical tests showed
significant differences among systems within each group, but frequent
overlap in significances among systems prevented any clear
stratifications of ``best'' or ``worst'' system groupings. Furthermore,
the effectiveness of systems varied by organism size and/or salinity,
such that systems had different relative comparisons depending on the
group within which they were evaluated. For example, one system may
have had lower concentrations in one organism size class than the other
size class, making an overall determination of that system's treatment
effectiveness compared to other systems uncertain. The complexity of
these statistical results did not point to any clear identification of
system(s) that stood out as representing BAT.
    For limits calculations, EPA considered separating the three
salinity categories for separate standard calculations; however, means
and VFs, the two parameters used in the calculation of a numeric
discharge standard, were insignificantly different among salinities.
Therefore, EPA did not calculate a separate standard for each salinity
category.
    The results of this analysis are presented in Table 1 of this
preamble. The standard is defined as the organism size class mean
multiplied by the organism-size-class VF. This standard comprises the
results of the analysis in units of medium organisms/mL and large
organisms/m\3\, not to be exceeded. It includes all BWMSs and
amendments, and use MDLs as given to EPA by the USCG.

   Table 1--Standard of Organism Concentrations in Treatment Discharge
                                 Samples
------------------------------------------------------------------------
            Organism size class              Numeric discharge standard
------------------------------------------------------------------------
Large.....................................  6.01 organisms/m\3\.
Medium....................................  6.66 organisms/mL.
------------------------------------------------------------------------

    As described above, EPA's statistical analysis showed no clear
stratifications of ``best'' or ``worst'' system groupings. However, as
part of a sensitivity analysis, EPA compared mean discharge
concentrations for each system to identify those that performed poorly
in any of the six organism size/salinity category groups. EPA excluded
from consideration as ``best'' any of the 49 systems with a mean
discharge concentration in the worst 10th percentile for any of the six
groups. Among the 49 systems, 25 were never in the worst 10th
percentile for any of the six groups and were therefore identified as
``best.'' EPA calculated a national discharge standard for medium and
large organism size classes using all BWMSs, and again using only this
subset of ``best'' BWMSs, to quantify the impact of such a reduction in
number of systems. In addition to this narrowing of systems to just
those determined to be ``best,'' EPA also analyzed the impact of its
decision to combine the 14 BWMS amendment data with the 35 original
BWMS data sets. Finally, EPA analyzed the implications of using MDLs as
given to EPA by the USCG rather than selecting a baseline MDL,
acknowledging the considerable number of discharge concentrations
reported as below detection but with widely varying MDLs. Results of
the analyses for all combinations are shown in Table 2.

       Table 2--Sensitivity Analysis of Standard of Organism Concentrations in Treatment Discharge Samples
[Means and standards are in units of organisms/mL for the medium organism size class, and organisms/m\3\ for the
                                           large organism size class]
----------------------------------------------------------------------------------------------------------------
                                                                                Numeric discharge
                                     Amendment data                                                 standard
       Organism size class              included         BWMSs narrowed         MDLs used         (organisms/
                                                                                volume)
----------------------------------------------------------------------------------------------------------------
Large...........................  Yes................  All systems.......  Baseline..........               7.59
Large...........................  Yes................  Best only.........  As given..........               4.21
Large...........................  Yes................  Best only.........  Baseline..........               4.63
Large...........................  No.................  All systems.......  As given..........               6.28
Large...........................  No.................  All systems.......  Baseline..........               8.56
Large...........................  No.................  Best only.........  As given..........               4.76
Large...........................  No.................  Best only.........  Baseline..........               5.68
Medium..........................  Yes................  All systems.......  Baseline..........               6.94
Medium..........................  Yes................  Best only.........  As given..........               5.93
Medium..........................  Yes................  Best only.........  Baseline..........               6.76
Medium..........................  No.................  All systems.......  As given..........               9.28
Medium..........................  No.................  All systems.......  Baseline..........               9.65
Medium..........................  No.................  Best only.........  As given..........               9.87
Medium..........................  No.................  Best only.........  Baseline..........               9.78
----------------------------------------------------------------------------------------------------------------

    As shown, test results for both the baseline and sensitivity
analyses were within the same order of magnitude as the standard in the
proposed rule and fall within the margin of error expected due to the
variability associated with the characteristics of ballast water and
challenges associated with monitoring, analyzing, and enumerating
organisms in the different size classes.

D. The Need for Multiple BWMS Compliance Options

    The variety of operational and environmental conditions under which
BWMSs must operate supports EPA's position that it is critical that a
range of BWMSs be available to the global shipping industry to reduce
aquatic nuisance species (ANS) discharges. As described in the proposed
rule, vessels have different treatment needs due to the size of the
vessel, type of operations, and environmental challenges in different
waterbodies. Establishing a uniform national numeric discharge standard
and applying a type-approval process allows for the installation and
use of various BWMS disinfection technologies (including UV, electro-
chlorination, chemical addition, ozonation, deoxygenation,
pasteurization, and others) to meet various vessel needs and comply
with the BAT-based standard. Further, when selecting a BWMS, shipowners
also need to consider costs related to both capital and operational
expenditures, to include, among other things, financing, spare parts
and other supplies, energy demands, crew responsibilities and training,
and operation and maintenance activities. The combination of factors
described above has guided both the U.S. and IMO BWMS type-approval
process that establishes a procedure to ensure that a range of BWMSs
are available to meet specific vessel characteristics. Ease of
operation and maintenance requirements are also a consideration, with
the understanding that more complicated systems may lead to more
problems. As an example, shipowners may opt to select a single vendor
across the company's entire fleet to simplify fleetwide operation and
maintenance.
    In addition to meeting the discharge standard, the USCG type-
approval process separately requires that the BWMS be practicable
onboard a vessel (e.g., able to operate despite roll, pitch, and
vibration considerations), compatible with other onboard systems,
durable, and be supported by credible and sustainable system
manufacturers, suppliers, and servicers. For example, to be installed
on any U.S.-flagged vessel, the USCG must verify the system meets
certain installation and engineering requirements specified in 46 CFR
subchapters F and J. The majority of USCG type-approved BWMSs have not
been verified to comply with these requirements, so these systems are
not approved for use onboard U.S.-flagged vessels. EPA did not have the
information necessary to correlate BWMS test data with onboard
acceptance; therefore, some of the systems analyzed may not be approved
for use on U.S.-flagged vessels.
    Multiple BWMS compliance options are also beneficial to shipowners
with vessels subject to other requirements, most notably the IMO
International Convention for the Control and Management of Ships'
Ballast Water and Sediments (hereafter abbreviated as ``BWM
Convention'') and any member

state requirements promulgated pursuant to that state being a party to
the BWM Convention. A vessel that voyages internationally may be
subject to similar, but not necessarily identical, requirements that
may shape the selection of an appropriate BWMS. As described in the
proposed rule, over 75 percent of vessels discharging ballast water in
waters of the United States spent 25 percent or less of their time in
those waters, with more than 80 percent of these vessels also subject
to the BWM Convention.

E. Data Fail To Demonstrate a More Stringent Numeric Discharge Standard
Is BAT

    Public comments did not provide an alternative technology-based
solution to EPA's BAT analysis in the proposed rule that addresses the
breadth of issues associated with establishing a numeric ballast water
discharge standard. Some commenters appeared to suggest that EPA should
collect the universe of performance data, identify the perceived
single, or top few, best performing system(s), and impose that
perceived level of performance on the entirety of the universe of
potentially affected entities, without considering whether such a
system is workable for most vessels. EPA disagrees that such an
approach would be scientifically sound or grounded in the statutory
considerations of the Clean Water Act (CWA). Among other shortcomings
of that approach, test results that appear to indicate greater removal
of organisms are not an indication that any particular BWMS can achieve
a more stringent standard in all conditions. Rather, the test results
are the product of a variety of situations where BWMS manufacturers are
testing their systems in different environmental conditions and
locations around the world, all with the goal of obtaining type-
approval by demonstrating that the BWMS can consistently meet the 2013
VGP and 2012 USCG discharge standard. As such, EPA's analysis of the
newly obtained USCG BWMS type-approval data retains the proposed rule
rationale that the numeric ballast water discharge standard needs to
preserve a level of flexibility for the shipowner to select a
technology that is appropriate for the vessel.
    Based on the data analysis of the USCG type-approval data and the
need for multiple compliance options to suit different vessels and
circumstances, EPA is not proposing a different discharge standard for
consideration; however, the Agency is interested in obtaining feedback
on the Agency's analysis of the data provided by the USCG.

IV. Supplemental Regulatory Options

    Through this publication, EPA gives notice of supplemental
regulatory options under consideration for ballast tanks (best
management practices for ballast water uptake and an equipment standard
for New Lakers), hulls and associated niche areas, and graywater
systems and solicits public comments on these supplemental options.

A. Ballast Tanks--Best Management Practices for Ballast Water Uptake

1. Summary of Proposed Rule and Relevant Comments Received on Ballast
Water Uptake
    The proposed rule excludes the 2013 VGP and current USCG
requirement (33 CFR 151.2050(b)) for vessel operators to minimize or
avoid uptake of ballast water in the following areas and situations:
(a) areas known to have infestations or populations of harmful
organisms and pathogens (e.g., toxic algal blooms); (b) areas near
sewage outfalls; (c) areas near dredging operations; (d) areas where
tidal flushing is known to be poor or times when a tidal stream is
known to be turbid; (e) in darkness, when bottom-dwelling organisms may
rise in the water column; (f) where propellers may stir up the
sediment; and (g) areas with pods of whales, convergence zones, and
boundaries of major currents.
    EPA proposed to exclude these best management practices (BMPs) from
the rule based on information that became available suggesting such
measures are not practical to implement and enforce as individual
standards because these conditions are usually beyond the control of
the vessel operator during the uptake and discharge of ballast water.
Several commenters requested that these BMPs be retained, arguing they
are foundational, protective practices. Some commenters disagreed with
EPA's explanation that such measures are not practical to implement,
stating that vessel operators can be flexible, creative, and, given
appropriate and timely knowledge of the problem, can adjust vessel
operations to minimize or avoid environmental impacts from ballast
water discharges. For example, operators cannot control light
conditions but can plan their ballast water management to avoid or
minimize uptake in darkness. Similarly, some commenters stated that
although operators cannot control the location of sewage outfalls or
dredging operations, operators should be aware and attempt to avoid the
outfall locations and dredging operations. Commenters also stated that
technology is available to detect benthic depths that should allow
operators to avoid or minimize the uptake of ballast and disruption of
sediment in shallow waters. Additionally, some commenters stated that
the BMP requirement is not a prohibition and is not overly burdensome
to regulated vessels. Lastly, one commenter suggested that EPA could
incorporate BMPs as guidance for vessel operators to implement ``if
practical,'' rather than as mandatory requirements. Although commenters
expressed support for inclusion of these BMPs, EPA did not receive any
specific data or examples about how these BMPs have been or could be
implemented as regulatory requirements.
2. Supplemental Regulatory Option for Ballast Water Uptake
    In response to these comments, together with EPA and the USCG's
understanding of the continued implementation challenges, EPA is
considering a supplemental regulatory option to require vessel
operators to address and identify their uptake practices as part of the
ballast water management plans, a requirement of the 2013 VGP and USCG
regulation that was continued under the Agency's proposed rule. EPA
does not expect that this option would result in a change to the
compliance costs estimated in the Regulatory Impact Analysis
accompanying the proposed rule.
    Under this option, the required plan would describe the vessel-
specific BWMSs and practices that minimize or avoid uptake of organisms
and pathogens to further help reduce the spread of harmful organisms.
For example, plans could describe coordinating with local authorities
to identify areas/situations of concern and any opportunities to
mitigate potential problems. Demonstrating that these important
considerations were made by vessel operators could provide for
environmental protection but allow vessel operators to tailor measures
specific to their vessel operations and routes.
    This tailored approach is important for several reasons. First,
adherence to port area directives and schedules restricts the ability
of a vessel operator to determine the location and timing of ballast
water uptake in the most frequent ballasting areas (i.e., ports,
harbors, offshore mooring stations, lightering areas, and designated
entrance and exit sea lanes for a seaway). In addition, delays in
ballasting to avoid the specific area or situations described in the
BMP (e.g.,

darkness, dredging, or combined sewer overflow events) impact complex
port and cargo operations and safety and are not always available to a
vessel operator.
    Second, in the limited circumstances when a vessel operator can
adjust operations and control the location and timing of ballast water
uptake, the information about specific areas or situations described in
the BMP may not be readily known to the vessel operator. For example,
locations of dredging operations are transient and sewage outfalls are
not on navigational charts. The uptake practices described in the 2013
VGP and current USCG regulations were initially established by the IMO
more than 25 years ago (i.e., prior to commercially available treatment
systems) as considerations for port states to notify vessel operators
of areas and circumstances of concern where ballasting should be
avoided or minimized as vessels traveled around the world. Given that
more than 90 percent of vessels discharging ballast water in the United
States are foreign-flagged, these vessel operators may not be aware of
specific areas or situations beyond the information on navigational
charts and each vessel's instrumentation detecting benthic depth.
    Third, the uptake practices as described in the 2013 VGP and
current USCG regulations contain subjective, imprecise terms that make
them challenging to implement and enforce (e.g., areas ``near'' sewage
outfalls, areas ``known to have'' infestations, areas ``near'' dredging
operations, areas where tidal flushing is ``known to be poor'' or times
when a tidal stream is ``known to be turbid''). EPA is unaware of any
existing data and resources to support objectively defining the terms
or identifying these areas in each U.S. port, particularly in
international ports where most uptake occurs. As described below, the
VIDA contains several provisions that can help address areas and
situations with harmful organisms and pathogens and other water quality
concerns.
    Incorporating these practices as part of the ballast water
management plan is consistent with international vessel obligations
established under the IMO BWM Convention. A general obligation of the
BWM Convention (Article 2.8) is for Parties (i.e., nations that have
ratified the Convention) to encourage ships to avoid, as far as
possible, the uptake of ballast water with potentially harmful aquatic
organisms and pathogens, as well as sediments that may contain such
organisms. The BWM Convention requires vessels flying the flag of a
Party and any vessel operating in the jurisdictional waters of that
Party to have an approved ballast water management plan that takes into
account the IMO Guidelines for Ballast Water Management and Development
of Ballast Water Management Plans (commonly referred to as ``G4''). G4
provides guidelines for ballast water management and a ballast water
management plan and includes precautionary practices for vessel
operators specifying that every effort should be made to avoid the
uptake of potentially harmful organisms, pathogens, and sediment that
may contain such organisms. Importantly, the guidelines also point to
the role of the port States to notify vessel operators of areas where
uptake should be minimized, or ballast water should not be taken up (G4
Part A Guidelines for Ballast Water Management Section 2.2).
    To the extent that it becomes appropriate and necessary in the
future, the VIDA contains other provisions, outside the standard-
setting context, that empower EPA and the USCG to address specific
situations that may arise with harmful organisms and pathogens and
other water quality concerns. For example, EPA, working with the USCG
and states, can establish emergency orders requiring BMPs for regions
or categories of vessels to address specific concerns related to ANS or
water quality. CWA section 312(p)(4)(E)(i), 33 U.S.C. 1322(p)(4)(E)(i).
EPA solicits comment on this supplemental regulatory option to address
ballast water uptake concerns via a vessel's ballast water management
plan.

B. Ballast Tanks--Equipment Standard for New Lakers

1. Summary of Proposed Rule and Relevant Comments Received on Vessels
Operating Exclusively in the Great Lakes
    In 2020, EPA proposed to subcategorize vessels operating
exclusively on the Great Lakes, regardless of when they were built, and
exempt these vessels from the numeric ballast water discharge standard
but continue to require these vessels to implement certain best
management practices (BMPs). These vessels, commonly referred to as
``Lakers,'' were also subject to regulatory subcategorization under the
2013 VGP and were there defined as those that operate exclusively
upstream of the waters of the St. Lawrence River west of a rhumb line
drawn from Cap de Rosiers to West Point, Anticosti Island, and west of
a line along 63 W longitude from Anticosti Island to the north shore of
the St. Lawrence River. The proposed rule would be a change from the
VGP, which requires Lakers constructed after January 1, 2009 (post-2009
Lakers) to meet the numeric ballast water discharge standard. The
exemption of all Lakers (including post-2009 Lakers) in the proposed
rule was based on a lack of data demonstrating that any available
technology was economically achievable that could consistently meet a
numeric discharge standard due to the unique set of circumstances that
make ballast water management especially challenging for these vessels.
The challenges identified include issues related to the unique nature
of the waters of the Great Lakes including extremely low salinity and
high levels of suspended solids, turbidity, icing, filamentous
bacteria, and dissolved organic carbon from tannins and humic acid.
These environmental conditions can clog filters and inhibit BWMS
treatment effectiveness. These conditions pose unique challenges to
U.S. Lakers because, unlike other vessels operating in challenging
water conditions, U.S. Lakers cannot leave the Great Lakes and thus do
not have the option to perform ballast water exchange and saltwater
flushing. In addition, the operational profile (e.g., short voyages)
and design of these freshwater vessels (e.g., uncoated ballast tanks
and piping systems that cannot withstand corrosive ballast water
treatment chemicals) are not conducive to certain BWMSs. The proposed
rule noted that the few U.S. Lakers that have been built since 2009 are
not operating BWMSs to meet the numeric discharge standard due to these
challenges.
    In the proposed rule, EPA explained that it had considered an
equipment standard approach for all Lakers that would have required
Lakers to install, operate, and maintain a USCG type-approved BWMS, but
not to meet a numeric discharge standard. The proposed rule rejected
this approach, stating that such a requirement was not economically
achievable and significant uncertainty existed as to the availability
of technology to meet such a requirement based on the environmental,
operational and technical considerations as described above. The
proposed rule stated that the advantage to an equipment standard
approach is that, although treatment may not consistently meet a
numeric discharge standard due to the Great Lakes conditions, some
reduction in the discharge of organisms would likely occur.
    The proposed rule also addressed three alternative regulatory
options for Great Lakes vessels: require filtration

only, require open lake exchange of highly turbid water taken up in
river ports, and exempt the use of a BWMS for certain voyages when the
operational parameters of an installed BWMS cannot be met. The proposed
rule stated that these three alternatives would not reliably meet the
numeric discharge standard, and there was insufficient data at that
time to establish an alternative standard or requirement for Lakers
that would reduce discharges of organisms at a known effectiveness
level. The proposed rule stated that additional research is needed to
explore these options and pointed to Congress' acknowledgement that
practicable ballast water management solutions are needed for Lakers.
Specifically, the VIDA directed EPA to establish the Great Lakes and
Lake Champlain Invasive Species Program in part to develop such
solutions.
    The discharge of ballast water from vessels operating exclusively
on the Great Lakes was one of the most heavily commented-upon subjects
in the proposed rule. Many commenters opposed the exemption of Lakers
from the ballast water discharge standard. Specifically, many
commenters stated that the exemption of post-2009 Lakers in the
proposed rule was inconsistent with the VIDA requirement that the
discharge standards be no less stringent (with some exceptions) than
the requirements under the VGP that required post-2009 Lakers to meet
the numeric ballast water discharge standard.
    Several commenters urged EPA to evaluate and establish the
discharge standard based upon BAT for categories and classes of vessels
or to target specific taxa and high-risk voyages from lower lakes to
Lake Superior to reduce the discharge of organisms. Some commenters
stated that EPA should further consider a lesser standard or practice,
such as installation of a BWMS without that system having to meet the
discharge standard, or just components (e.g., filtration) of a full
system. Some commenters supported regulations similar to Canada's
equipment standard for ``deemed compliance.'' Some commenters argued
that the market for BWMSs will not develop, and future treatment will
not be possible, unless EPA and the USCG create an incentive for
additional systems and testing.
    One commenter stated that the only technology that can support
operations in the Great Lakes for an extended time would be UV-based
treatment because other technology types have operational limitations.
Another commenter requested that EPA reevaluate the finding that
chemical addition technologies cause excessive corrosion in uncoated
ballast tanks and that technologies using chlorine dioxide do not cause
excessive corrosion in uncoated carbon steel ballast tanks. Commenters
advocated for EPA to identify cost-effective application of available
treatments, such as lower doses and selective voyage application of
chlorine, despite a lack of anti-corrosion coating on the ballast water
tanks.
    Other commenters supported the proposed Laker exemption based on
the vessel technical and operational challenges identified in the
proposed rule. Commenters stated that current USCG type-approved BWMSs
do not meet the operational profiles of vessels operating exclusively
on the Great Lakes. Several commenters stated that BWMS manufacturers
have largely ignored testing their systems in the Great Lakes (the few
tests conducted failed to meet the numeric discharge standard) or
building BWMSs to meet the challenging waters and organism assemblages
and community composition in the Great Lakes. They stated that the high
cost of testing and small market for BWMS sales are not conducive to
increasing testing. Further, they stated that testing in freshwater in
other locations is dissimilar to the Great Lakes.
2. Equipment Standard Authority and Rationale
    After further deliberation, EPA is now considering a supplemental
regulatory option to establish an equipment standard for ballast water
discharges from New Lakers, described below as those Lakers built after
the effective date of the USCG rulemaking to implement EPA's discharge
standards. The requirement would potentially result in reduced
discharges of organisms, even if the numeric discharge standard cannot
be met. Given the unique characteristics of Lakers and the challenging
environmental conditions of the Great Lakes, EPA has been unable to
identify any available BWMS technology that would enable Lakers to
reliably achieve the numeric ballast water discharge standard. Lakers,
more so than seagoing and coastal vessels that operate in the Great
Lakes only for a portion of the year, have fewer contingency measures
available to address challenging environmental conditions of the Great
Lakes, notably because Lakers are unable to leave the Lakes to conduct
ballast water exchange and saltwater flushing.
    This document describes EPA's authority and rationale for
considering an equipment standard, Great Lakes BWMS testing data that
demonstrate organism reductions, and the equipment standard regulatory
option in relation to Canada's new ballast water regulation (Canada
Gazette, Part 11, Volume 155, Number 13, SOR/2021-120, June 4, 2021).
This document describes why EPA is now considering whether an equipment
standard for New Lakers may be technologically available, economically
achievable, and have acceptable non-water quality environmental
impacts. This document further describes why EPA is not considering an
equipment standard for existing Lakers, given in particular the
anticipated retrofit costs for existing vessels, the Great Lakes and
Lake Champlain Invasive Species Program, and the significance of the
VIDA's ``period of use'' (or BWMS legacy) provision at CWA section
312(p)(6)(C) which generally provides that when a regulated vessel
installs a USCG type-approved BWMS, the vessel will remain in
compliance for the life of that system.
a. Best Available Technology
    ``Best Available Technology'' generally represents the most
stringent technology-based standard under the CWA for controlling
direct discharge of toxic and nonconventional pollutants. Courts have
referred to this as the CWA's ``gold standard'' for controlling
discharges from existing sources. Southwestern Elec. Power Co. v. EPA,
920 F.3d 999, 1003 (5th Cir. 2019). More specifically, BAT represents
the best available, economically achievable performance of facilities
in the industrial subcategory or category. As the statutory phrase
intends, EPA considers the technological availability and the economic
achievability when it determines what level of control represents BAT.
    The BAT standard requires standards of performance ``to be based on
technological feasibility rather than on water quality.'' Southwestern
Elec. Power Co., 920 F.3d at 1005. It is ``technology-based rather than
harm-based'' insofar as it requires EPA to set standards that ``reflect
the capabilities of available pollution control technologies to prevent
or limit different discharges rather than the impact that those
discharges have on the waters.'' Texas Oil & Gas Ass'n v. U.S. E.P.A.,
161 F.3d 923, 927 (5th Cir. 1998) (citing E.I. du Pont de Nemours & Co.
v. Train, 430 U.S. 112, 130-31 (1977)). In other words, the VIDA tasks
EPA with setting a standard that reduces the discharge of pollutants to
the minimum level that existing available and economically achievable
technology can support. See Southwestern Elec. Power Co., 920 F.3d

at 1030 (BAT reflects ```a commitment of the maximum resources
economically possible to the ultimate goal of eliminating all polluting
discharges,' which was the intent of Congress in enacting BAT standards
in the first place.'' (quoting EPA v. Nat'l Crushed Stone Ass'n, 449
U.S. 64, 74 (1980))).
    Other statutory factors that EPA considers in assessing BAT are the
cost of achieving BAT effluent reductions, the age of equipment and
facilities involved, the process employed, potential process changes,
and non-water quality environmental impacts, including energy
requirements, and other factors as the Administrator deems appropriate.
CWA section 304(b)(2)(B), 33 U.S.C. 1314(b)(2)(B). The Agency retains
considerable discretion in assigning the weight to be accorded these
factors. Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1045 (D.C. Cir.
1978). Generally, EPA determines economic achievability based on the
effect of the cost of compliance with BAT limitations on overall
industry and subcategory financial conditions. BAT reflects the highest
performance in the industry and may reflect a higher level of
performance than is currently being achieved based on technology
transferred from a different subcategory or category, bench scale or
pilot facility studies, or foreign facilities. Southwestern Elec. Power
Co. v. EPA, 920 F.3d at 1006; American Paper Inst. v. Train, 543 F.2d
328, 353 (D.C. Cir. 1976); American Frozen Food Inst. v. Train, 539
F.2d 107, 132 (D.C. Cir. 1976). BAT may be based upon process changes
or internal controls, even when these technologies are not common
industry practice. See American Frozen Foods, 539 F.2d at 132, 140;
Reynolds Metals Co. v. EPA, 760 F.2d 549, 562 (4th Cir. 1985);
California & Hawaiian Sugar Co. v. EPA, 553 F.2d 280, 285-88 (2nd Cir.
1977).
b. USCG Type-Approved Ballast Water Management Systems
    As described in the proposed rule (Section VIII.B.1.v.A.1. Types of
Ballast Water Management Systems Determined to Represent BAT), the use
of type-approved BWMSs is a well-established and demonstrated process
for selection of technologies. EPA is considering an equipment standard
that would require the use of USCG type-approved BWMSs because this
process addresses BWMS design, installation, operation, and testing to
ensure that any type-approved system meets both performance and safety
standards. For example, USCG type-approval has specifications for use
of BWMSs on U.S.-flagged vessels that are relevant to U.S. Lakers,
including the requirements of 46 CFR subchapters F (Marine Engineering)
and J (Electrical Engineering) and requirements specifying whether the
BWMS can be installed in hazardous locations on the vessel, as defined
in USCG regulations at 46 CFR 111.105 or its foreign equivalent.
    The BWMS treatment technologies currently available typically use
one or more of three basic processes to achieve the numeric discharge
standard: physical separation (primarily filtration), disinfection, and
neutralization. The types of disinfection processes used in USCG type-
approved BWMSs broadly include UV radiation, electro-chlorination,
chemical addition, ozonation, pasteurization, and deoxygenation.
    Disinfection using UV radiation is currently the most common
disinfection technology used in BWMSs, with these systems typically
combined with filtration during ballasting to improve the efficiency of
disinfection. The USCG has type-approved 24 BWMSs using UV, 10 of which
are authorized for use on U.S.-flagged vessels. One advantage to using
UV BWMSs on Lakers is that these systems have short treatment hold
times that are most compatible with the voyages of common inter-lake
trade routes that are typically shorter than 72 hours (and even as
short as two hours). In fact, several of the newer USCG type-approved
UV BWMSs require no hold time or as few as 2.5 hours in freshwater.
    Electro-chlorination (or electrolysis) systems are the second most
common type of disinfection system used to treat ballast water.
However, these systems generate chlorine from saltwater, thus limiting
their use in freshwater environments. Bunkering synthetic seawater
solution as a salt source is likely impractical for the large
quantities of this solution needed and would come at the expense of
considerably reduced cargo-carrying capacity. Therefore, EPA does not
consider current USCG type-approved electro-chlorination BWMSs to be
technologically available to Laker vessels.
    Six BWMSs using chemical addition are USCG type-approved, three of
which are authorized for use on U.S.-flagged vessels because it has
been verified that the requirements as described in 46 CFR Subchapters
F (Marine Engineering) and J (Electrical Engineering) were met. USCG
type-approved chemical addition BWMS have hold times that range from 24
to 48 hours. Vessels with voyage routes shorter than the necessary hold
time would have to delay operations or increase voyage times, such as
by slow steaming, which could significantly disrupt established Great
Lakes transportation markets (MARAD, 2013).
    As of March 2023, USCG type-approved BWMSs also include two ozone
systems, one deoxygenation system, and one pasteurization system;
however, these systems are not approved for use on U.S.-flagged vessels
because they have not been verified to meet the requirements of 46 CFR
Subchapters F (Marine Engineering) and J (Electrical Engineering). The
USCG type-approved ozonation systems have a hold time of 24 hours. The
USCG type-approved pasteurization system does not have a hold time. The
USCG type-approved deoxygenation system has a hold time of 120 hours
that exceeds the vessel voyage routes of many Great Lakes vessels.
Thus, use of these systems, particularly the deoxygenation system,
likely would introduce significant delays in vessel operations, would
not be considered available for most Lakers, and is incompatible with
some Great Lakes shipping routes.
c. Equipment Standard Versus a Numeric Standard in Challenging
Environmental Conditions
    As noted in the proposed rule, the environmental conditions of the
Great Lakes challenge the operation of BWMSs to the point where
consistent compliance with a ballast water numeric standard for
organisms using a type-approved BWMS is infeasible for Lakers. Examples
of these challenging conditions include extremely low salinity and high
levels of suspended solids, turbidity, icing, filamentous bacteria, and
dissolved organic carbon from tannins and humic acid. These
environmental conditions pose unique challenges to U.S. Lakers because,
unlike other vessels operating in challenging water conditions, U.S.
Lakers cannot leave the Great Lakes and thus do not have the option to
perform ballast water exchange and saltwater flushing. There are many
ways in which the environmental conditions of the Great Lakes can
interfere with effective operation of a BWMS. For example, filamentous
bacteria and high turbidity can inhibit effective treatment by clogging
the filters that are also prone to clogging and freezing in the cold,
freshwater conditions of the Great Lakes. BWMSs that do not use filters
avoid these issues but may not be as effective in treating the
unfiltered water. In addition, areas and times of high turbidity and
high dissolved organic carbon from tannins and humic acid inhibit
effective UV transmittance.
    Land-based and shipboard testing of UV and chemical addition BWMSs
in

the Great Lakes have demonstrated a substantial reduction in organisms
even when the numeric discharge standard cannot be achieved (GSI, 2011;
GSI 2015; Bailey et al., 2023). An equipment standard could allow
vessels flexibility to operate BWMSs in challenging water conditions
through use of operational contingency measures, however, these
implementation details would be determined in the USCG regulations.
Although contingencies may be necessary in certain locations or at
certain times of the year in the Great Lakes, EPA expects that
continued operation of a BWMS consistent with an equipment standard
over the lifetime of a vessel would still provide reductions in the
discharge of organisms.
    EPA acknowledges that a numeric standard, were it technologically
achievable, would better ensure a specific level of pollution
reduction. However, absent the availability of ballast water management
technology for new vessels operating solely within the Great Lakes that
can reliably achieve such a numeric standard, EPA is considering an
equipment standard as an option to best align with the ``technology-
forcing'' nature of the BAT statutory standard. NRDC v. EPA, 822 F.2d
104, 123 (D.C. Cir. 1987); see also Southwestern Elec. Power Co., 920
F.3d at 1003 (``By requiring BAT, the Act forces implementation of
increasingly stringent pollution control methods.'').
d. U.S. Land-Based Testing in the Great Lakes
    The Great Ships Initiative (GSI) \5\ Land-Based Research,
Development, Testing and Evaluation Facility located in Duluth-Superior
Harbor on Lake Superior conducted testing of various BWMSs and their
components. GSI used freshwater from the Great Lakes to evaluate
performance of BWMSs at removing Great Lakes organisms within the size
ranges required in the VGP and USCG discharge standard using the USCG
and the IMO BWMS type-approval protocols. Although the BWMSs were
unable to consistently meet the numeric ballast water discharge
standard, GSI land-based testing of chemical addition and UV BWMSs
demonstrated a substantial reduction in living organisms, providing
further support for the equipment standard regulatory option.
---------------------------------------------------------------------------

    \5\ The Great Ships Initiative was an industry-led collaborative
effort to research problems of ship-mediated invasive species in the
Great Lakes Saint Lawrence Seaway System. The facility is now
operated by the Lake Superior Research Institute at the University
of Wisconsin-Superior.
---------------------------------------------------------------------------

    In 2010, GSI tested the filtration and UV Alfa Laval
PureBallast[supreg] Version 3 BWMS in Duluth-Superior Harbor using
ambient Great Lakes water. In all three trials, live organism densities
in the two regulated size classes in treated discharge were
significantly lower than in control discharge, but above the USCG
numeric discharge standard. Densities of organisms >=50 [mu]m size
class in treated discharge exceeded the USCG discharge standard of 10
live organisms per cubic meter by two to three orders of magnitude.
Live densities in the >=10 and <50 [micro]m size class exceeded the
USCG discharge standard by one to two orders of magnitude. The USCG
numeric discharge standards for the two regulated size classes were not
achieved, even though intake organism densities in the Great Lakes
harbor water were well below IMO and EPA's ETV Protocol challenge
conditions. GSI concluded that the system failed to achieve the USCG
numeric discharge standard due to the filters' ineffectiveness at
removing filamentous algae in Duluth-Superior Harbor water. In
addition, very low ambient UV transmittance of Duluth-Superior Harbor
water (naturally caused by tannins) at the time of testing likely
inhibited the effectiveness of the UV disinfection unit (GSI, 2011).
Although the numeric ballast water discharge standard was not met
during this land-based testing, substantial reductions in organisms
resulted from use of the UV BWMS.
    During September and October, 2014, GSI conducted land-based
testing of three prototype versions of the chlorine addition JFE
BallastAce[supreg] BWMS to evaluate not only the biological and
chemical performance against the USCG ballast water discharge standard,
but also the total residual oxidant (TRO) of the chemical system (GSI,
2015). Tests of all three prototypes showed a substantial reduction in
living organisms (99 percent relative to the control) even when the
discharge standard was not met. The JFE BallastAce BWMS, operated using
the TG BallastCleaner[supreg] at the higher target TRO concentration of
approximately 20 milligram per liter, achieved the USCG discharge
standard for living organisms after a two day hold time, although this
did result in elevated levels of disinfection byproducts. In 2018, the
JFE BallastAce was type-approved by USCG at the 20 milligram per liter
maximum active substance dose without toxicity concerns.\6\ As detailed
in EPA's Great Lakes Ballast Water research plan, described below,
additional land-based and shipboard testing is underway to further
evaluate the biological efficacy of BWMSs for Lakers.
---------------------------------------------------------------------------

    \6\ This system is not approved for use on U.S.-flagged vessels
because it does not meet the requirements of 46 CFR subchapter F
(marine engineering) and J (electrical engineering).
---------------------------------------------------------------------------

e. Canada's Shipboard Testing in the Great Lakes
    Between 2017 and 2022, Fisheries and Oceans Canada (DFO) sampled 12
international and Canadian domestic vessels operating in the Great
Lakes and St. Lawrence River (GLSLR) to determine the efficacy of BWMSs
at reducing the abundance of organisms in ballast water discharges
(Bailey et al., 2023). This sampling effort included three ballast
water discharge-only samples and eleven paired ballast water samples
during uptake and discharge. The majority of BWMSs on the sampled ships
used UV plus filtration BWMSs (10 out of 12 ships), from which four
samples were collected using the higher UV dose ``USCG mode,'' seven
samples were collected using the lower UV dose ``IMO mode,'' and one
sample from a UV BWMS did not have the mode recorded. Two ships used
chemical addition BWMSs. Two ships were sampled twice at different
source ports. Where ships had two BWMS, one system was selected for
sampling. The BWMS flow rate during testing was up to 1200 m\3\/hour
(hr).
    Generally, the results demonstrated a substantial reduction in the
number of living organisms for both organism size classes stipulated by
the ballast water numeric discharge standard. For the >=50 [mu]m size
class, results for two out of the three treated discharge-only samples
were below the standard, while one sample had an organism concentration
100 times higher than the standard. In the 11 paired samples, the
uptake concentrations ranged from 2,168 to 107,577 organisms per m\3\
with the corresponding discharges either meeting the standard or
achieving at least a 99 percent reduction in organisms compared to the
untreated uptake. Six of the treated discharge samples were below the
standard, one was close to that standard, and four were above the
standard, where ``close'' is defined as a result where the confidence
intervals of the count span above and below the standard.
    The results for the >=10 and <50 [mu]m organism size class showed
that the three treated discharge-only samples were below the standard.
For the 11 sets of paired samples, one uptake sample was already below
the standard, three uptake samples were close to the standard, and
seven uptake samples were above the standard ranging from 20 to 169
organisms per mL. For

comparison, USCG type-approval requires a minimum concentration of
1,000 organisms per mL. All paired, treated discharge samples were
below the standard and had >98 percent reduction in organism
concentration compared to the untreated uptake sample.
    DFO observed these BWMS treatment results aboard vessels between
May and November in locations where Canadian and international vessels
typically ballast in GLSLR waters. During these tests, BWMSs did not
encounter water with high turbidity, which may impact UV treatment and
filtration effectiveness.
f. Differences Between U.S. and Canadian Requirements and Laker Fleets
    In 2021, Canada finalized its ballast water discharge regulation
adopting the IMO's D-2 ballast water performance standard. Canada's
regulation provides that a vessel using a BWMS to meet the IMO D-2
numeric ballast water performance standard is deemed to have met that
standard in respect of ballast water taken on board in the Great Lakes
Basin or in the eastern waters of the St. Lawrence River if the
vessel's BWMS was installed before September 8, 2024. A vessel
constructed before January 1, 2009, that is operated exclusively in
waters under Canadian jurisdiction and U.S. waters of the Great Lakes
Basin or on the high seas is also deemed to have met the standard if
the BWMS was installed before September 8, 2030. These vessels must
operate and maintain an IMO-approved BWMS in accordance with the
manufacturer's instructions and meet other conditions. A vessel with a
BWMS installed after September 8, 2024, is required to meet the IMO D-2
numeric standard.
    Canada's requirements are based on its obligation as a Party to the
IMO BWM Convention, to which the U.S. is not a Party, and that differs
from the CWA legal framework in several key respects. Most importantly,
under the CWA's BAT standard, EPA is required to demonstrate that a
treatment technology is available and economically achievable before it
can be the basis for a discharge standard. Additionally, the IMO BWM
Convention includes a temporary experience building phase during which
vessels are not to be penalized for exceeding the D-2 numeric discharge
standard. Canada makes that experience building phase permanent in its
regulations for certain vessels that install a BWMS before September 8,
2024 (or by September 8, 2030, based on the criteria described above),
by requiring only an equipment standard and exempting these vessels
from the numeric discharge standard for the life of the installed BWMS
if the conditions set out in the regulations are met.
3. Operational, Technical, and Economic Considerations of an Equipment
Standard for New Versus Existing Lakers
    As a general principle, when promulgating technology-based
discharge requirements under the CWA, EPA may establish different
requirements for a subclass or subcategory within a point source
category where they are fundamentally different with respect to one of
the statutory factors specified in the Act. Chemical Mfrs. Ass'n v.
NRDC, 470 U.S. 119-22, 129-34 (1985). Pursuant to CWA section
312(p)(4)(C), the VIDA specifically authorizes the creation of
subcategories between new and existing vessels, as well as among
classes, types, and sizes of vessels. There are operational, technical,
and economic differences to consider for establishing an equipment
standard for new or existing Lakers.
a. Operational and Technical Considerations
    Most existing Lakers, particularly those built before the era of
ballast water management marked by the adoption of the IMO BWM
Convention (2004), were designed to rapidly uptake and discharge
ballast water with the express purpose of loading and unloading large
quantities of bulk cargo at very high rates and ballast water treatment
was not considered in their design. The complexities of treating
ballast water on existing Lakers include pumping and piping
reconfiguration, vessel stability and structural integrity issues, and
new power demands. In addition, the space to house the BWMS and
ancillary equipment, as well as the added weight of the retrofitted
equipment, would result in lost cargo capacity. Corrosion of uncoated
ballast tanks due to chemical addition BWMSs is another concern. U.S.
Lakers were designed to solely operate in fresh, low salinity water in
which corrosion is not a concern. Use of a chemical addition BWMS would
require coating the ballast tanks and piping at significant cost and
time out of service in dry dock, resulting in lost revenue for shipping
season. In addition, several of the larger existing Lakers load and
unload cargo and ballast at rates that are much higher than any of the
existing USCG type-approved BWMSs. While use of multiple systems is an
option, the complexity of ballasting increases as multiple systems are
operated simultaneously and within the structural design considerations
of the vessel.
    New Lakers, however, can design, plan, and construct in a manner to
overcome identified operational and technical challenges such as
corrosion, flow rate capacity, lack of space and lost cargo capacity,
and adequate power. New Lakers, unlike existing Lakers, could take
advantage of the engineering flexibility available during the initial
design and construction process to incorporate ballast water treatment
requirements. The information for each of these factors below supports
establishing an equipment standard for New Lakers and supports
rejecting the equipment standard for existing Lakers.
i. Corrosion
    Vessels that operate in brackish or ocean saline waters necessitate
tanks and piping with an anti-corrosive coating. Historically, the U.S.
Laker fleet has been built with uncoated steel ballast tanks because
the freshwater of the Great Lakes is not corrosive. Chemical addition,
ozone, and any BWMS that doses corrosive treatment chemicals into the
ballast water significantly increases the corrosion rates in uncoated
ballast tanks. Electro-chlorination BWMSs could increase corrosion
rates and require coated tanks. However, these systems are not
currently considered technologically available to Lakers because, as
described above, they require a supply of saltwater to generate
chlorine. On the other hand, UV BWMSs are non-corrosive and do not
require coated ballast tanks. According to the USCG (2013b) study,
``Investigation of Ballast Water Treatment's Effect on Corrosion,''
deoxygenation BWMSs also do not raise corrosion concerns in freshwater
(although it is a concern in saltwater) and may not require coated
ballast water tanks and piping. New Lakers can be designed and
constructed with coated tanks and piping to eliminate problems
associated with chemical addition, ozone, and any BWMS that may cause
corrosion.
ii. Flow Rate Capacity
    The capacity of a USCG type-approved BWMS selected for a Laker must
be compatible with the ballast needs of the vessel, particularly the
ballasting rate of the ballast pumps. Lakers, particularly self-
unloading Lakers, often have higher ballasting capacities and flow
rates than seagoing vessels. U.S. Laker ballast rates typically range
from 3,000 m\3\/hr up to 18,000 m\3\/hr for the largest Lakers. The
maximum

capacity of current USCG type-approved UV BWMSs range from 500 to 6,000
m\3\/hr. Current USCG type-approved chemical addition BWMSs have flow
rate capacities ranging from 2,000 to 16,200 m\3\/hr, with one system
with capacity up to 200,000 m\3\. Currently, two USCG type-approved
ozone BWMSs have a max flow rate capacity of 8,000 m\3\/hr. The one
USCG type-approved deoxygenation BWMS has a max flow rate capacity of
4,000 m\3\/hr. Some BWMSs have flow rate capacities that are compatible
with some Laker ballasting rates for normal cargo operations. Lakers
with higher ballasting capacities may require multiple BWMSs to provide
sufficient flow rate for normal cargo operations. However, to
accommodate the ballast rates of the largest Lakers in the U.S. fleet,
the number of BWMSs that would be required would create exceedingly
complex ballasting operations. In this case, an alternative BWMS
treatment type may be more appropriate. A New Laker could be designed
to allow for use of the appropriate type, size, and number of BWMSs
compatible with the vessel's projected ballasting rates.
iii. Lost Cargo Capacity
    Lakers are typically designed to maximize cargo capacity with
little-to-no space available in the engine room or around the self-
unloading equipment for a BWMS. New Lakers can be designed to provide
space for one or more BWMS and ancillary equipment in the area
typically designed for ballast tanks or cargo holds. The design could
account for any lower cargo hauling capacity and impact to the total
weight of the vessel.
iv. Increased Power
    The electrical capacity of Lakers is sized to accommodate the
loading and unloading equipment that is operational while the vessel is
in port. Typically, the self-unloading equipment would have to be
operated at the same time as the BWMS and would require increased
electrical capacity. A New Laker could be designed with additional
power output for the increased demand from operation of the BWMS and
additional pumping needs. BWMSs using filtration and UV disinfection
have the highest electrical demands of all BWMSs and must be accounted
for in the design. This document further describes energy demand in
Section IV.B.4 of this preamble, Other Factors.
b. Economic Considerations
i. Existing Lakers
    EPA does not have actual cost information to retrofit an existing
Laker to accommodate a BWMS; however, these costs can be estimated,
which is sufficient for the purposes of establishing BAT under the CWA.
See CMA v. EPA, 870 F.2d 177, 237-38 (5th Cir. 1989). Retrofitting an
existing Laker to add a BWMS is expensive, particularly for U.S. Lakers
that are regulated under Section 27 of the Merchant Marine Act of 1920
(more commonly referred to as ``the Jones Act'').\7\ A 2017 industry
report estimated the capital cost of installing BWMSs on the entire
existing U.S. Laker fleet of 75 vessels, including any necessary
retrofits to allow for installation and operation of these systems, at
approximately $649 million and an additional $9.7 million in annual
operating costs (Choice Ballast Solutions, 2017). Previously, the USCG
also estimated the cost of shipboard installation of BWMSs on Lakers
based on vessel type (USCG, 2013a). For comparison, the estimated
capital cost to retrofit each of the large, 1000-foot Lakers ranges
from as high as $34 million (Choice Ballast Solutions, 2017) to as low
as $11.3 million (USCG, 2013a). The retrofit capital cost estimates for
other U.S. Laker types including 690-806-foot converted bulkers to
self-unloaders, 500-800-foot newer build self-unloaders, and purpose-
built barges and tank barges range from approximately $2 million to
$4.5 million (Choice Ballast Solutions, 2017) to approximately $8.4
million (USCG, 2013a). Annual operating costs for the different types
of U.S. Lakers range from approximately $60,000 to $300,000 annually
per vessel (Choice Ballast Solutions, 2017).
---------------------------------------------------------------------------

    \7\ The Jones Act requires that a vessel trading between U.S.
ports must be U.S.-built, primarily U.S.-owned, U.S.-flagged, and
with a majority of the crew U.S. citizens. Under the Jones Act, a 50
percent U.S. tax is imposed for repairs on a U.S. vessel that are
conducted in a foreign shipyard. USCG, 2012 and King et al., 2009
compared domestic and foreign vessel BWMS retrofit costs. Additional
information is provided in the ``Economic Analysis of New Lakers for
the Supplemental Notice of Proposed Rulemaking for the Vessel
Incidental National Standards of Performance'' available in the
public docket for this rulemaking.
---------------------------------------------------------------------------

ii. New Lakers
    EPA is considering whether the equipment standard regulatory option
would be economically achievable for New Lakers. Courts have
interpreted economic achievability as a test of whether the regulations
can be ``reasonably borne'' by the industry as a whole. See Chem. Mfrs.
Ass'n v. EPA, 870 F.2d 177, 262 (5th Cir. 1989); BP Exploration & Oil
v. EPA, 66 F.3d 784, 799-800 (6th Cir. 1996); see also Nat'l Wildlife
Fed'n v. EPA, 286 F.3d 554, 570 (D.C. Cir. 2002). EPA conducted an
economic impact analysis for the equipment standard regulatory option
for New Lakers. A summary of that analysis is included in this
document, while the complete analysis is included in the docket for
this rulemaking. Based on the analysis, EPA projects that the New Laker
equipment standard would result in increased cost to the Laker vessel
community compared to the initial Regulatory Impact Analysis of the
proposed rule.
    The impacted industry for the equipment standard regulatory option
would include the firms that provide marine transportation using
vessels that only operate on the Great Lakes. To determine the baseline
conditions of this industry, EPA developed an inventory of existing
Lakers. The primary data source for this inventory is the Vessels
Characteristics Database managed by the U.S. Army Corps of Engineers
Waterborne Commerce Statistics Center (WCSC).\8\ The WCSC database
contains data on all U.S. vessels operating in the Waterborne
Transportation Lines of the United States, including the Great Lakes
System, the Mississippi River System and Gulf Intracoastal Waterway,
and the Atlantic, Gulf, and Pacific Coasts. The data is collected
annually on a calendar year basis by authority of 33 U.S.C. 555. EPA
used the most recent data from 2020 to create an inventory of all
Lakers.\9\ The data represents 44,663 vessels, including the individual
components of a barge that are individually counted. The WCSC database
provides EPA with the following information on each vessel:
---------------------------------------------------------------------------

    \8\ More information on the database can be found at: https://www.iwr.usace.army.mil/About/Technical-Centers/WCSC-Waterborne-Commerce-Statistics-Center-2/WCSC-Vessel-Characteristics/.
    \9\ The 2020 file EPA used can be downloaded from: https://usace.contentdm.oclc.org/utils/getfile/collection/p16021coll2/id/11922.

 Owner/Operator
 Gross/Net Tonnage
 CG Number (official vessel number assigned by the U.S. Coast
Guard)
 International Classification of Ships by Type code,
 Vessel Type, Construction and Characteristics code,
 Year built,
 Year rebuilt,
 City and state of operating headquarters, and
 Detailed variables on length, breadth, capacity, draft, and
equipment.

    EPA filtered the WCSC database to limit the vessels to existing
Lakers by only including vessels in Region 3

(Transportation Lines of the Great Lakes) and excluding vessels that
have a value of less than 1,600 Gross Register Tons (GRT). EPA also
excluded records in the WCSC database that are used to register
individual barges that are part of a larger vessel. The results of this
filtering resulted in an inventory of approximately 70 vessels. Because
the definition of ``constructed'' includes those vessels that have
undergone a major conversion, EPA used the WCSC data on existing Lakers
to identify both the number of Lakers either newly built or converted
over the past 10 to 20 years to analyze the cost and impacts of the
equipment standard regulatory option.
    Because the WCSC Vessels Characteristics data only go through 2020,
manual searches of each vessel were conducted using the Port State
Information eXchange (PSIX) system. EPA also looked up company names to
assess their current fleet and further exclude decommissioned vessels
and include new vessels.
(1) Cost Analysis
    EPA developed estimates of the capital cost and operation and
management cost of adding BWMSs to newly built Lakers to determine the
range of potential costs associated with the standard. Costs were based
on the use of UV disinfection plus filtration and chemical addition
BWMSs. These system types were selected since they have the highest
potential for use on a New Laker, given the constraints described in
Section IV.B.2.b. of this preamble, USCG Type-Approved Ballast Water
Management Systems (e.g., use of electro-chlorination BWMSs require
bunkering large quantities of synthetic seawater; the ozone,
deoxygenation, and pasteurization systems are not approved for use on
U.S.-flagged vessels, and the deoxygenation BWMS has a 120 hour hold
time that exceeds the vessel voyage routes of many Great Lakes
vessels). For purposes of this analysis, EPA assumed that the capital
cost of the BWMS is similar to the acquisition cost of that system.
This assumes installation would occur as part of the new vessel
construction and the required space, interface connections for the
ballast, and the electrical power systems can be efficiently included
in the design.
    To estimate the national costs of the equipment standard, EPA
assumed that the number of New Lakers built each year of the period of
analysis (25 years) is equal to the historical annual rate of New Laker
construction over the last 10 years. EPA made a similar assumption
regarding the number of Lakers that have undergone a major conversion.
EPA then used the range of capital and operation and maintenance cost
for New Laker BWMSs developed by EPA to estimate the annual cost of the
equipment standard over the period of analysis. The annual cost over
the useful life of the BWMS was estimated.
(2) Economic Impact Analysis
    The impact analysis for the equipment standard allows EPA to
determine if the standard is economically achievable for New Lakers. To
conduct this analysis, EPA compared the annualized cost associated with
installing and operating the BWMS to the annualized cost of building
and operating a New Laker. If the annualized cost of installing and
operating the BWMS on a New Laker is a small fraction of the annualized
cost of building and operating a New Laker, then EPA can be confident
that the equipment standard is economically achievable.
    EPA estimated the capital and operation and maintenance costs of
building and operating New Lakers by using physical and operational
characteristics of recently built Lakers. EPA used these estimates to
calculate a range of annualized operating costs over the useful life of
a New Laker. To do this, EPA determined the cost of capital faced by
the industry as well as an estimate of the useful life of a typical
Laker.
    EPA then re-calculated the annualized cost of the BWMS over its
useful life using the cost of capital faced by the industry. Finally,
EPA compared the annualized cost of the BWMS to the annualized cost of
the New Laker. The average annual cost of procuring and operating the
BWMS as a percentage of the average annual cost of building and
operating a newly built Laker ranges from 1.1 percent based on use of
chemical-addition BWMSs to 1.7 percent based on the use of UV BWMSs.
The average annual cost of procuring, installing, and operating the
BWMS as a percentage of the average annual cost of converting and
operating a converted Laker is 4.3 percent based on use of UV BWMSs.
Since the annual cost of procurement, installation, operation, and
maintenance of the BWMS is a small fraction of the annual cost of
operating a newly constructed or a convered Laker, EPA finds that the
equipment standard is economically achievable.
(3) Small Business Impacts Analysis
    The firms that own and operate Lakers fall within the NAICS code
483113--Coastal and Great Lakes Freight Transportation. According to
the Small Business Administration's Small Business Size Regulations as
established in 13 CFR 121.201, firms in this industry with fewer than
800 employees are considered small businesses. Therefore, EPA
determined the number of employees at each parent company in the
baseline industry profile. This allowed EPA to estimate the likelihood
of small businesses being potentially impacted by the New Laker
equipment standard. EPA determined that at least nine of the thirteen
owner/operator companies qualify as small under the current SBA
requirements. Those nine entities own slightly over half of all
currently operating Lakers. The equipment standard, however, only
applies to new or converted vessels and EPA has no information under
whose ownership any New Lakers might be constructed or converted.
Additionally, the cost impact of the equipment standard is relatively
small when compared to the cost of building/converting and operating a
Laker. Based on the above findings, EPA determined that the New Laker
equipment standard will likely not have a significant economic impact
on small entities. Although this regulatory option may impose equipment
requirements on any small entity that operates a vessel subject to the
standards, EPA does not believe that the projected cost burden would
exceed the conventional cost/thresholds used for small entity impact
screening analyses (costs greater than 1 percent and 3 percent of
annual revenue).
4. Other Factors
a. Non-Water Quality Environmental Impacts
    EPA has broad discretion to weigh the non-water quality
environmental impacts of a water pollution control technology. See.,
e.g., BP Exploration & Oil Inc., v. USEPA, 66 F.3d 784, 801-802 (6th
Cir. 1995); see also Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1045
(D.C. Cir. 1978) (Congress intended that EPA have discretion ``to
decide how to account for the consideration factors, and how much
weight to give each factor''). The potential non-water quality
environmental impacts of the operation of BWMSs on New Lakers include
increased energy demand, reduced cargo capacity resulting in more
voyages, and greater hold times resulting in more idling vessels.
    EPA expects the non-water quality environmental impacts of an
equipment standard to be limited when considering the number of vessels
already required to operate a BWMS on the Great Lakes. Over the last 20
years, six newly

constructed lakers were built (a rate of 0.3 Lakers per year). Based on
the 20-year period, the percentage of shipping vessels that would be
affected by an equipment standard for New Lakers is small.
Approximately 200 international seagoing vessels travel from outside of
the exclusive economic zone (EEZ) and through the St. Lawrence Seaway
in the Great Lakes annually. Approximately 84 vessels travel between
coastal and inland sites and ports in the Great Lakes. These non-water
quality environmental impacts are very small and acceptable when taking
fleet and new ship construction rates into account.
b. Binational Consistency
    Another factor considered by EPA is the value of moving toward
binational consistency with the Canadian regulatory program. Under the
CWA section 304(b), in establishing BAT, EPA may consider ``other
factors the Administrator deems appropriate.'' As described above, in
2021, Canada finalized its ballast water discharge regulation adopting
the IMO's D-2 ballast water performance standard, that is similar
numerically to EPA's proposed numeric discharge standard for ballast
water. However, Canada's regulation also provides that a vessel using a
BWMS to meet the IMO D-2 numeric ballast water performance standard for
ballast water taken on board in the Great Lakes Basin or in the eastern
waters of the St. Lawrence River is deemed to have met that standard if
the vessel's BWMS was installed before September 8, 2024. A vessel
constructed before January 1, 2009, that is operated exclusively in
waters under Canadian jurisdiction and U.S. waters of the Great Lakes
Basin or on the high seas is also deemed to have met the standard if
the BWMS was installed before September 8, 2030. Therefore, Canada is
relying on an equipment standard as a significant component of their
regulatory program for vessels ballasting in Great Lakes waters.
    The equipment standard regulatory option, while not fully aligning
the two countries' ballast water regulatory programs for the Great
Lakes Basin, would represent a step towards binational consistency. EPA
has heard from the regulated community that such consistency is
important for vessel companies engaged in binational trade and allows
them to better protect the shared Great Lakes waters. Although not a
dispositive consideration under the VIDA, EPA agrees that, for vessel
regulation, movement towards international consistency is desirable
insofar as it does not conflict with other statutory goals. EPA
considers this progress towards binational consistency to be an ``other
factor'' that the Administrator may deem appropriate to consider in
setting an appropriate standard under CWA section 304(b)(2)(B).
c. The VIDA's BWMS Legacy Clause Weighs Against Establishing an
Equipment Standard for All U.S. Lakers
    A significant factor that weighs against EPA establishing the
equipment standard for all Lakers is a desire to exercise caution
considering the VIDA's ``period of use'' (or BWMS legacy) provision at
CWA section 312(p)(6)(C). This provision provides generally that when a
regulated vessel installs a USCG type-approved BWMS, that vessel shall
be deemed to be in compliance so long as that system is maintained and
used in accordance with manufacturer specifications and continues to
meet the ballast water discharge standard applicable to the vessel at
the time of installation. There are certain exceptions to this BWMS
legacy provision, but EPA anticipates as a general matter that when a
vessel installs a BWMS to comply with a ballast water standard
applicable at the time of installation, that vessel may remain in
compliance even in the face of new or revised requirements for vessels
to achieve greater organism reductions in ballast water discharges.
Such an outcome appears consistent with the intent of this provision
that the Senate Report explains is to ``establish the period of use for
ballast water management system equipment to generally be the design
life of the equipment, provided that certain enumerated conditions are
met.'' Senate Report, at p. 13. EPA understands this provision to
reflect a desire by Congress to avoid imposing on regulated vessels the
need to undergo repeated, expensive retrofits in relatively rapid
succession as ballast water management technology improves over time.
    Given the long service lives of most U.S. Lakers, approximately 50
years, if an existing vessel underwent a costly retrofit and was
reconfigured to fit a current USCG type-approved system, the vessel
would remain in compliance for the life of that system regardless of
whether new and better technology becomes available. Retrofitting that
same vessel for a newer BWMS may require a different configuration that
could be cost prohibitive and impede the deployment of more effective
technologies that EPA expects to result from the ballast water research
conducted under the VIDA's Great Lakes and Lakes Champlain Invasive
Species Program (GLLCISP), as described below. Consequently, requiring
Lakers to install a BWMS now would limit the results of the VIDA-
mandated research to only the small universe of Lakers that would be
built after a future revision to any regulations finalized in this
rulemaking. EPA doubts this was Congress' intent in crafting the VIDA
BWMS legacy provision (CWA section 312(p)(6)(C)) and the GLLCISP
program to develop ballast water technologies for Lakers.
    Imposing an equipment standard on existing Lakers prematurely, in
combination with the VIDA's BWMS legacy provision, could impede the
deployment of advanced treatment technologies that EPA expects to
result from the VIDA's GLLCISP program. Considering the foregoing, EPA
proposes that the possible unintended consequence of impeding the
deployment of new BWMS technology is an ``other factor'' that the
Administrator deems appropriate to consider in setting an appropriate
standard under CWA section 304(b)(2)(B).
d. The VIDA's Great Lakes Research and Other Provisions
    The VIDA acknowledged the need for research on ballast water
management on Lakers through the establishment of the GLLCISP. One of
the main purposes of the program is for EPA to develop, achieve type-
approval for, and pilot shipboard or land-based BWMSs for Lakers. In
2020, EPA initiated what is now a seven-year Great Lakes Ballast Water
Research and Development plan with the goal of solving the challenges
of ballast water management for the existing Laker fleet. This research
is testing the efficacy of different BWMSs in Great Lakes waters and,
among other things, exploring pre-filtration and enhanced filter
systems, modifying existing type-approved BWMSs, testing improved UV
lamps, and assessing the feasibility of mobile or shore-based treatment
options as a supplement to onboard BWMSs. The research is also
exploring the implications of these modifications on cargo operations
and biological efficacy.
    The plan is also important to expand the market of BWMS
technologies in the Great Lakes. The size of the Laker fleet is small
compared to the 80,000 seagoing vessels worldwide that are now
purchasing and installing systems to meet the U.S. or IMO ballast water
discharge standards. Due to this small market size, BWMS vendors have
historically devoted limited resources to testing and advancing systems
that work onboard these vessels. The research

seeks to provide Laker owners and operators with more information for
selecting a commercially available system for Great Lakes use.
    Finally, this research may inform EPA's obligation under CWA
section 312(p)(4)(D)(i) to review the discharge standard at least every
five years and revise if appropriate. EPA's Great Lakes Ballast Water
Research and Development Program may provide a sound basis for
proposing a new or updated standard, particularly for existing Lakers
as well as Lakers built in the future.
    In addition to taking a forward-looking approach to research, EPA
is also considering the opportunities the VIDA provides for states to
develop enhanced Great Lakes requirements (CWA section 312(p)(10)(B)).
This provision establishes a process through which Governors of the
Great Lakes states can work together to develop an enhanced standard of
performance or other requirements with respect to any incidental
discharge, including ballast water. In all cases where Great Lakes
Governors propose an enhanced requirement, EPA and the USCG may only
reject the proposed requirement if it is less stringent than existing
standards or requirements, inconsistent with marine safety, or
inconsistent with applicable maritime and navigation laws and
regulations.
5. New Lakers
a. Subcategorization of New Lakers
    EPA is considering whether to create a regulatory subcategory for
New Lakers and a requirement to install, operate, and maintain a USCG
type-approved BWMS for ballast water discharges from these vessels to
reduce the discharge of organisms in the Great Lakes. EPA is
considering this subcategorization based on the important differences
between New Lakers and existing Lakers for the purposes of installing
and operating BWMSs. New Lakers, unlike existing Lakers, can take
advantage of the engineering flexibility available during the initial
design and construction process to incorporate ballast water treatment
capabilities. New Lakers can be designed and constructed to accommodate
a USCG type-approved BWMS and overcome certain operational and
technical challenges such as corrosion, flow rate capacity, lack of
space and lost cargo capacity, and adequate power. Due to these
technical advantages and the results of the economic analysis, EPA is
considering whether use of these systems on New Lakers may be
technologically available and economically achievable. An equipment
standard for New Lakers would also encourage continued development and
deployment of new ballast water treatment technologies suitable for use
in the Great Lakes. Ballast water treatment technologies continue to
evolve, and EPA expects that technological advancements in the design
of BWMSs will continue to improve their availability for use on the
Great Lakes.
    EPA is not considering an equipment standard for existing Lakers
due to the technical and operational challenges and anticipated
disproportionately high costs to retrofit BWMSs onto existing Lakers as
compared to New Lakers. Moreover, and significantly, EPA is exercising
caution considering the VIDA's BWMS legacy provision at CWA section
312(p)(6)(C), in that if the equipment standard were applied to the
existing Laker fleet, these vessels would be unlikely to benefit from
any improved technology from the ballast water research conducted under
the VIDA's GLLCISP. Additionally, EPA's seven-year Great Lakes Ballast
Water Research and Development plan is targeted to address the
complexities and improve the operation of BWMSs on existing Lakers.
This research may provide a sound basis for proposing a new or updated
standard, particularly for existing Lakers as well as Lakers built in
the future.
    EPA acknowledges that for the foreseeable future New Lakers will
constitute only a modest proportion of the broader Laker fleet, and
thus the equipment standard regulatory option would only apply to a
small number of Lakers. EPA further acknowledges that an equipment
standard for New Lakers would only eliminate a small percentage of
total organisms, and potential ANS, discharged within the Great Lakes.
EPA is considering an equipment standard for New Lakers notwithstanding
these limitations in part because of the well-settled principle of
administrative law that regulatory agencies may ``address [a] problem
incrementally'' and ``need not solve a problem in a single
rulemaking.'' Nat'l Postal Pol'y Council v. Postal Regul. Comm'n, 17
F.4th 1184, 1197 (D.C. Cir. 2021) (citing Mobil Oil Expl. & Producing
Se. Inc. v. United Distrib. Cos., 498 U.S. 211, 231 (1991)).
    EPA views a requirement to install BWMSs on New Lakers as an
incremental step and one that could ``result in reasonable further
progress'' towards the ultimate goal of eliminating the discharge of
untreated ballast water in the Great Lakes. 33 U.S.C. 1311(b)(2)(A).
Oceangoing vessels on the Great Lakes are already required to treat
ballast water discharges. The regulatory option being considered to
install BWMSs on New Lakers would further reduce the amount of
untreated ballast water discharged in the Great Lakes and leave
existing Lakers as the only source of untreated ballast water
discharges.
    EPA sees two primary benefits to potentially including the
equipment standard for New Lakers. First, EPA expects the equipment
standard for New Lakers would have the effect of capping the number of
vessels operating without a BWMS in the Great Lakes and would make
incremental progress towards the elimination of untreated ballast water
discharges in the Great Lakes. As such, EPA expects that the equipment
standard would lead to a reduction in the number of organisms
discharged and thus a reduction in propagule pressure (a key indicator
of ANS establishment (NRC, 2011)). The second primary benefit of the
equipment standard would be to promote greater experience among Lakers
operating BWMSs on the Great Lakes. EPA anticipates that the
experiences of New Lakers operating BMWSs, as well as the VIDA's long-
term research program to develop improved BMWS technologies for a
broader range of Lakers, will provide important information to support
a future update to the proposed standards of performance that could
address the full universe of Lakers. In this way, EPA views the
equipment standard for New Lakers as an incremental step towards a
longer term goal of achieving more significant reductions in the risk
of ANS transfer within and between the Great Lakes. EPA solicits the
public's input on the supplemental regulatory option to establish a
ballast water equipment standard solely for New Lakers.
b. Definition of a New Laker
    EPA is considering defining a ``New Laker'' as ``a bulk carrier
vessel that operates exclusively on the Great Lakes and that is
constructed after the effective date of USCG regulations promulgated
pursuant to CWA section 312(p)(5)(A)(i).'' The VIDA directs the USCG to
develop corresponding implementation requirements two years after EPA's
standards are finalized. As defined in the proposed rule,
``constructed'' in this context means a stage of construction when: (1)
the keel of a vessel is laid; or (2) construction identifiable with the
specific vessel begins; or (3) assembly of the vessel has commenced and
comprises at least 50 tons or one percent of the estimated mass of all
structural material, whichever is less; or (4) the vessel undergoes a
major conversion.

    EPA is considering this definition of New Laker based on the
timeframe EPA expects would be necessary for vessel owners to design a
vessel that accounts for both EPA and the USCG ballast water regulatory
responsibilities under the VIDA. The VIDA directs EPA to develop
national standards of performance, then the USCG to develop
corresponding implementing requirements to ensure, monitor, and enforce
compliance with the EPA standards. The USCG must also promulgate
requirements governing the design, construction, testing, approval,
installation, and use of marine pollution control devices (e.g., BWMSs)
to ensure compliance with the EPA national standards of performance.
Thus, it is critical for vessel owners to be able to wait until both
the EPA regulations and the USCG requirements are final to allow for
selection and installation of a BWMS consistent with those
requirements.
    EPA is considering this definition of New Laker as an alternative
to the new vessel date in the VGP of January 1, 2009, for several
reasons. First, in the 2013 VGP, EPA selected January 1, 2009, as the
cutoff date based on consistency with the IMO's 2004 BWM Convention
that used the 2009 date to distinguish vessel groups and establish
compliance dates. However, the BWM Convention did not enter into force
until 2017, at which point the IMO updated the compliance dates, such
that new build vessels are defined as those built after September 8,
2017, and are expected to meet the standard immediately. Ships
constructed before September 8, 2017, are expected to comply by
September 8, 2024.
    Second, the few U.S. Lakers that have been built since 2009 are not
operating BWMSs notwithstanding the 2013 VGP requirements to meet the
numeric discharge standard. These vessels received USCG extensions (33
CFR 151.1513 and 151.2036) to the compliance schedule of the numeric
discharge standard in USCG regulations at 33 CFR 151.1512(b), which is
the same as the numeric discharge standard implementation schedule in
the VGP. The USCG extensions can be issued up to five years or until
implementation of USCG regulations that change the discharge standard.
The USCG can re-issue these compliance date extensions. These vessels
are also covered by EPA's low enforcement response policy (U.S. EPA,
2013). The basis of this policy was due to the challenges of meeting
the numeric ballast water discharge standard for vessels operating
exclusively on the Great Lakes.
    Third, the 2015 decision from the United States Court of Appeals
for the Second Circuit, which remanded certain provisions of the 2013
VGP to EPA, took issue with the 2009 cutoff date. The Court stated that
``[P]ost-2009 Lakers face many of the same challenges and constraints
as pre-2009 Lakers, such as their short voyages, high pumping rates,
and freshwater environment . . . Thus, distinguishing pre-2009 and
post-2009 Lakers was arbitrary and capricious.'' Nat. Res. Def. Council
v. U.S. E.P.A., 808 F.3d 556, 577 (2d Cir. 2015). Considering this
decision, the proposed rule would eliminate the distinction between
pre- and post-2009 Lakers as compared to the 2013 VGP. However, this
document identifies important distinctions between existing Lakers and
New Lakers that have yet to be constructed. In particular, New Lakers
may be designed and constructed to account for and overcome certain
operational and technical challenges without the need for complicated
and expensive retrofits.
    The definition of ``New Laker'' in the equipment standard
regulatory option differs from that in Canada's 2021 ballast water
regulation. Under Canada's regulation, the ``newest'' vessels, those
with a BWMS installed after September 8, 2024, are required to meet the
IMO D-2 numeric ballast water discharge standard. A vessel with a BWMS
installed before September 8, 2024, is deemed to have met the standard
in respect to ballast water taken on board in the Great Lakes Basin or
in the eastern waters of the St. Lawrence River. A vessel constructed
before January 1, 2009, that is operated exclusively in waters under
Canadian jurisdiction and U.S. waters of the Great Lakes Basin or on
the high seas is also deemed to have met the standard if the BWMS was
installed before September 8, 2030. Although there may conceivably be
administrative advantages to using the same date in both the U.S. and
the Canadian regulations, the differences between the U.S. and Canadian
legal authorities and the physical, operational, and economic
conditions of their respective Laker fleets, as described in Section
IV.B.3 of this preamble, Operational, Technical, and Economic
Considerations of an Equipment Standard for New Versus Existing Lakers,
have prompted EPA to consider differentiating between existing and New
Lakers.
    EPA is soliciting the public's input on the appropriate definition
of New Laker for the purpose of establishing a ballast water equipment
standard, particularly whether there may be reason to prefer a cutoff
date for the New Lakers subcategory based on that in the 2013 VGP
(January 1, 2009) or some other date.

C. Hulls and Associated Niche Areas

    Vessel hulls are often coated with anti-fouling compounds to
prevent or inhibit the attachment and growth of biofouling organisms.
Vessel biofouling is the accumulation of aquatic organisms such as
microorganisms, plants, and animals on surfaces and structures immersed
in or exposed to the aquatic environment. Selection, application, and
maintenance of an appropriate coating type and thickness according to
vessel profile is critical to effective biofouling management, and
therefore prevention of the introduction and spread of ANS from the
vessel hull and associated niche areas.
    In the proposed rule, EPA included requirements to help reduce the
discharge of biofouling organisms from vessel equipment and systems,
notably from hulls and associated niche areas, by requiring vessel
operators to develop and follow a biofouling management plan and follow
specific in-water equipment and system cleaning protocols.
Additionally, EPA proposed to prohibit in-water cleaning of biofouling
on hulls and associated niche areas that exceed a U.S. Navy fouling
rating (FR) of FR-20,\10\ except when the fouling is local in origin
and cleaning does not result in the substantial removal of a biocidal
anti-fouling coating, as indicated by a plume or cloud of paint; or,
when an in-water cleaning and capture (IWCC) system is used that is
designed and operated to capture coatings and biofouling organisms,
filter biofouling organisms from the effluent, and minimize the release
of biocides. EPA recommended, but did not propose to require, the use
of IWCC systems for removal of local macrofouling.
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    \10\ FR-20 is considered soft fouling and is described as:
``Slime as dark green patches with yellow or brown colored areas
(advanced slime). Bare metal and painted surfaces may by be obscured
by the fouling.'' (U.S. Navy, 2006)
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    This document discusses five key issues raised during the public
comment period on the general applicability of the hull and associated
niche area requirements and cleaning of this equipment as proposed in
subsections 139.22(a) and (c). While EPA's proposed rule also included
biofouling requirements specific to hull and associated niche area
coatings and other incidental discharges such as seawater piping and
cathodic protection, EPA is only soliciting comments on the issues
discussed in this document. EPA does not expect that the options
discussed in

this document for hulls and niche areas would result in a change to the
compliance costs estimated in the Regulatory Impact Analysis
accompanying the proposed rule.
1. Biofouling as a Discharge Incidental to the Normal Operation of a
Vessel
    Vessel biofouling is the accumulation of aquatic organisms on hulls
and associated niche areas. Biofouling can include pathogens, as well
as microfouling and macrofouling. Biofouling organisms are discharged
from vessel surfaces both passively through sloughing and actively
through in-water cleaning activities. With this document, EPA is
considering adding definitions for ``passive discharge of biofouling''
and ``active discharge of biofouling.''
    During the public comment period, EPA received comments questioning
the Agency's legal authority to regulate the passive discharge of
biofouling as an incidental discharge under the VIDA. Some commenters
asserted that the plain language of the statutory definition of
``discharge incidental to the normal operation of a vessel'' does not
encompass the passive detachment of biofouling organisms from vessel
surfaces outside the context of active hull cleaning events. These
commenters objected that including the regulation of passive discharges
of biofouling would thus have the effect of preempting state authority
beyond Congressional intent. Commenters did not question EPA's
authority to regulate discharges from active hull-cleaning events.
    With this document, EPA is considering if the best interpretation