[Federal Register Volume 77, Number 57 (Friday, March 23, 2012)]
[Rules and Regulations]
[Pages 17254-17320]
[FR Doc No: 2012-6579]

Vol. 77

Friday,

No. 57

March 23, 2012

Part V

Department of Homeland Security

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Coast Guard

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33 CFR Part 151

46 CFR Part 162

 Standards for Living Organisms in Ships' Ballast Water Discharged in
U.S. Waters; Final Rule

Federal Register / Vol. 77 , No. 57 / Friday, March 23, 2012 / Rules
and Regulations

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 151

46 CFR Part 162

[Docket No. USCG-2001-10486]
RIN 1625-AA32

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

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is amending its regulations on ballast water
management by establishing a standard for the allowable concentration
of living organisms in ships' ballast water discharged in waters of the
United States. The Coast Guard is also amending its regulations for
engineering equipment by establishing an approval process for ballast
water management systems. These new regulations will aid in controlling
the introduction and spread of nonindigenous species from ships'
ballast water in waters of the United States.

DATES: This final rule is effective June 21, 2012 except for 33 CFR
151.1513 and 151.2036 which contains information collection
requirements that OMB has not approved. The Coast Guard will publish a
document in the Federal Register announcing the effective date.
Comments sent to the Office of Management and Budget (OMB) on
collection of information must reach OMB on or before May 22, 2012. The
incorporation by reference of certain publications listed in the rule
is approved by the Director of the Federal Register on June 21, 2012.

ADDRESSES: Comments and material received from the public, as well as
documents mentioned in this preamble as being available in the docket,
are part of docket USCG-2001-10486 and are available for inspection or
copying at the Docket Management Facility (M-30), U.S. Department of
Transportation, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays. You may also find this
docket on the Internet by going to http://www.regulations.gov,
inserting USCG-2001-10486 in the ``Keyword'' box, and then clicking
``Search.''
    Collection of Information Comments. If you have comments on the
collection of information discussed in section VII.D of this final
rule, you must send comments to the Office of Information and
Regulatory Affairs (OIRA), OMB. To ensure that OIRA receives your
comments on time, you should submit your comments through the preferred
methods of email to<EMAIL_ADDRESS>(include the docket
number and ``Attention: Desk Officer for Coast Guard, DHS'' in the
subject line of the email) or fax at<PHONE_NUMBER>. An alternate, though
slower, method is by U.S. mail to the OIRA, OMB, 725 17th Street NW.,
Washington, DC 20503, Attn: Desk Officer, U.S. Coast Guard.
    Viewing incorporation by reference material. You may inspect the
material incorporated by reference at U.S. Coast Guard Headquarters,
2100 2nd St. SW., Washington, DC 20593 between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays. The telephone number is
202-372-1433. Copies of the material are available as indicated in the
``Incorporation by Reference'' section of this preamble.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call or email Mr. John Morris, Project Manager, U.S. Coast Guard;
telephone<PHONE_NUMBER>, email<EMAIL_ADDRESS>If you have
questions on viewing or submitting material to the docket, call Renee
V. Wright, Program Manager, Docket Operations, telephone<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Table of Contents for Preamble

I. Abbreviations
II. Regulatory History
III. Basis and Purpose
IV. Background
V. Discussion of Comments and Changes
    A. Summary of Changes From the NPRM
    1. Deferral of Phase-Two Standard
    2. Practicability Reviews
    3. Applicability
    4. COTP Zone Exemption
    5. Removal of Ballast Water Reporting Form From CFR
    6. Adoption of ETV Protocol
    7. Alternate Management Systems and Foreign Approvals
    8. Delay of Compliance Date for New Vessels
    9. Other Changes
    B. Discussion of Comments
    1. Applicability
    2. Ballast Water Discharge Standard
    3. Ballast Water Management Systems
    4. Type-Approval Protocols
    5. Legal
    6. Regulatory Analysis and Initial Regulatory Flexibility
Analysis
    7. Draft Programmatic Environmental Impact Statement
    8. Beyond the Scope
VI. Incorporation by Reference
VII. Regulatory Analyses
    A. Regulatory Planning and Review
    B. Small Entities
    C. Assistance for Small Entities
    D. Collection of Information
    E. Federalism
    F. Unfunded Mandates Reform Act
    G. Taking of Private Property
    H. Civil Justice Reform
    I. Protection of Children
    J. Indian Tribal Governments
    K. Energy Effects
    L. Technical Standards
    M. Environment

I. Abbreviations

APA Administrative Procedure Act
APHIS U.S. Department of Agriculture's Animal and Plant Health
Inspection Service
AMS alternate management system
BWDS ballast water discharge standard(s)
BWE ballast water exchange
BWM ballast water management
BWMS ballast water management system(s)
cfu colony forming unit(s)
COTP Captain of the Port
CSLC California State Lands Commission
DPEIS Draft Programmatic Environmental Impact Statement
DSA Danish Shipowners' Association
EEZ U.S. Exclusive Economic Zone
EIS Environmental Impact Statement
EPA U.S. Environmental Protection Agency
ESA Endangered Species Act
ETV Environmental Technology Verification
FIFRA Federal Insecticide, Fungicide, and Rodenticide Act
FPEIS Final Programmatic Environmental Impact Statement
FR final rule
GRT gross register tons
GSI Great Ships Initiative
GT gross tons
IEC International Electrotechnical Commission
IL Independent Laboratory
IMO International Maritime Organization
IRFA Initial Regulatory Flexibility Analysis
ISO International Organization for Standardization
ITC International Convention on Tonnage Measurement of Ships, 1969
MSC Marine Safety Center
NANPCA Nonindigenous Aquatic Nuisance Prevention and Control Act of
1990
NARA National Archives and Records Administration
NBIC National Ballast Information Clearinghouse
NEPA National Environmental Policy Act
NFPA National Fire Protection Association
NIS nonindigenous species
NISA National Invasive Species Act of 1996
NPDES National Pollutant Discharge Elimination System
NPRM notice of proposed rulemaking
NRC National Research Council
OPA Oil Pollution Act of 1990, as amended
OMB Office of Management and Budget
PEIS Programmatic Environmental Impact Statement
PVA population viability analysis
PSU practical salinity unit
PWS RCAC Prince William Sound Regional Citizens' Advisory Council

RA Regulatory Analysis
ROS reduced operating status
SAB Science Advisory Board
SBA Small Business Administration
SNPRM supplemental notice of proposed rulemaking
STEP Shipboard Technology Evaluation Program
UV ultraviolet radiation
VGP Vessel General Permit
VHS Viral Hemorrhagic Septicemia

II. Regulatory History

    On August 28, 2009, the Coast Guard published a notice of proposed
rulemaking (NPRM) entitled ``Standards for Living Organisms in Ships'
Ballast Water Discharged in U.S. Waters'' in the Federal Register (74
FR 44632). In response, we received 662 letters to the docket for the
rulemaking, which contained 2,214 individual comments on the NPRM. We
summarize these comments in the preamble of this final rule (see V.B.
Discussion of Comments).
    We held six public meetings on the NPRM in the following locations:
Seattle, WA; New Orleans, LA; Chicago, IL; Washington, DC; Oakland, CA;
and New York, NY. Comments received at those meetings, both written and
oral, are also summarized in this preamble (see V.B. Discussion of
Comments).

III. Basis and Purpose

    The Nonindigenous Aquatic Nuisance Prevention and Control Act of
1990 (NANPCA), as amended by the National Invasive Species Act of 1996
(NISA), requires the Secretary of Homeland Security to ensure to the
maximum extent practicable that aquatic nuisance species are not
discharged into waters of the United States from vessels. 16 U.S.C.
4711(c)(2)(A). The statutes further stipulate that the Secretary may
approve the use of certain alternative ballast water management (BWM)
methods if she determines that those alternative methods are at least
as effective as ballast water exchange (BWE) in preventing and
controlling infestations of aquatic nuisance species. 16 U.S.C.
4711(c)(2)(D)(iii). The Secretary is further required to direct vessels
to carry out management practices necessary to reduce the probability
of unintentional discharges resulting from ship operations other than
ballast water discharge. 16 U.S.C. 4711(c)(2)(E).
    NISA also requires the Secretary to assess and, if dictated by that
assessment, to revise the Department's BWM regulations not less than
every 3 years based on the best scientific information available to her
at the time of that review, and potentially to the exclusion of some of
the BWM methods listed at 16 U.S.C. 4711(c)(2)(D). 16 U.S.C. 4711(e).
The Commandant of the Coast Guard carries out these functions and
authorities for the Secretary pursuant to a delegation of authority
charging the Coast Guard with establishing and enforcing regulations to
prevent the introduction and spread of aquatic nuisance species in the
waters of the United States through the ballast water of vessels.
Department of Homeland Security Delegation No. 0170.1(II.)(57).
    Determining whether an alternative method of BWM is as effective as
BWE is not an easy task. Results from several studies have shown the
effectiveness of BWE varies considerably and is dependent on vessel
type (design), exchange method, ballasting system configuration,
exchange location, and method of study. These variables make comparing
the effectiveness of an alternative BWM method to the effectiveness of
BWE extremely difficult. Some studies suggest that the efficacy of BWE
in reducing organism concentration is 80 to 99 percent per event (Hines
and Ruiz 2000; Rigby and Hallegraeff 1993; Smith et al. 1996; Taylor
and Bruce 2000; Zhang and Dickman 1999) although lower efficacies have
been reported (e.g., Dickman and Zhang 1999). Other studies demonstrate
that the volumetric efficiency of BWE ranges from 50 to 90 percent
(Battelle 2003; USCG 2001; Zhang and Dickman 1999).\1\ Thus, vessels
with very large starting concentrations of organisms in their ballast
tanks might still have large concentrations of organisms after BWE. In
addition, a significant number of vessels are constrained by design or
route from conducting BWE in compliance with existing regulations prior
to their arrival into waters of the United States.
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    \1\ Copies of these studies are available in Docket No. USCG-
2001-10486, and were available during the comment period following
publication of the NPRM for this rulemaking. Please see ADDRESSES
section of this rulemaking for accessibility information.
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    For these reasons, BWE is not well-suited as the basis for the
protective BWM programmatic regimen envisioned by NISA, even though it
has been a useful interim management practice and was a logical place
to start. We have concluded that, as an alternative method to using BWE
as the benchmark, establishing a standard for the concentration of
living organisms that can be discharged in ballast water will advance
the protective intent of NISA and simplify the process for Coast Guard
approval of ballast water management systems (BWMS). We have found no
other reasonable benchmarking approach.
    We have further concluded, through analysis of BWMS on vessels
enrolled or being reviewed for the Coast Guard Shipboard Technology
Evaluation Program (STEP) and other information before the Coast Guard
which is in the docket for this rulemaking, in accordance with the
factors set forth in 151.1511(c) and 151.2030(c) of this final rule,
that the specific ballast water discharge standard (BWDS) set forth in
this rule is practicable.
    Setting a BWDS promotes the development of innovative BWM
technologies, facilitates enforcement of the BWM regulations, and
assists in evaluating the effectiveness of the BWM program. Therefore,
in this rule, we amend 33 CFR part 151 by establishing a BWDS. We also
amend 46 CFR part 162 by adding an approval process for BWMS intended
for use onboard vessels to meet the BWDS.
    As part of that approval process, the Coast Guard will require the
use of Independent Laboratories (ILs) to perform the testing to be used
to support applications for approval. The Coast Guard has a long
history of recognizing the qualifications of ILs working under our
oversight. In 1979, the Coast Guard promulgated 46 CFR part 159,
establishing procedures and standards for accepting ILs for witnessing
or performing certain tests and conducting inspections for certain
equipment and materials requiring Coast Guard approval. 44 FR 73038
(December 17, 1979). The Coast Guard promulgated 46 CFR part 159 under
the authority in 46 U.S.C. 391a (1976) (Vessels carrying certain
cargoes in bulk).\2\ In 1983, Congress revised and recodified the
maritime laws of the United States and moved the relevant authority for
46 CFR

part 159 to new 46 U.S.C. 3306.\3\ Public Law 98-89 Partial Revision of
Title 45, U.S.C. ``Shipping''; House Report No. 98-338 (August 1,
1983), 1983 U.S.C.C.A.N. 924, 952-53.
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    \2\ 46 U.S.C. 391a stated ``(3) Rules and regulations[.] In
order to secure effective provision (A) for vessel safety, and (B)
for protection of the marine environment, the Secretary of the
department in which the Coast Guard is operating * * * shall
establish for the vessels to which this section applies such
additional rules and regulations as may be necessary with respect to
the design and construction, alteration, repair, and maintenance of
such vessels, including, * * * equipment * * * .'' The Coast Guard
determined that the use of ILs for witnessing or performing certain
tests was ``necessary'' to carry out its responsibilities under this
statutory section. In the NPRM proposing 46 CFR part 159, the Coast
Guard explained that ``the Coast Guard's marine inspection
responsibilities increased while the number of personnel available
to perform these inspections has not increased at a comparable
rate.'' (43 FR 49440, Oct. 23, 1978). The Coast Guard promulgated
part 159 to ``free some of the Coast Guard's limited field personnel
for other duties with no change in the quality of the approved
equipment or material.'' Id.; see also 44 FR 73038 (December 17,
1979) (Final rule document promulgating part 159).
    \3\ Section 3306 directs ``the Secretary shall prescribe
necessary regulations to ensure proper execution of, and to carry
out, this part [addressing inspection and regulation of vessels] in
the most effective manner for (1) The design, construction,
alteration, repair, and operation of those vessels [subject to
inspection] * * *; (2) lifesaving equipment and its use; (3)
firefighting equipment, its use, and precautionary measures to guard
against fire; (4) inspections and tests related to paragraphs (1),
(2), and (3) of this subsection; and (5) the use of vessel stores
and other supplies of a dangerous nature * * *.''
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    The authority for current 46 CFR part 159 is 46 U.S.C. 3306, which
``contains broad authority to prescribe regulations for proper
inspection and certification of vessels,'' (House Report No. 98-338
(August 1, 1983), 1983 U.S.C.C.A.N. 924, 954-53), including the
specific requirement to prescribe regulations to carry out the
statutory requirements ``in the most effective manner,'' (46 U.S.C.
3306(a)). The Coast Guard still finds the use of ILs in the Coast
Guard's approval process to be ``the most effective manner'' of
executing and carrying out its obligations under section 3306.

IV. Background

    A full discussion of the legislative and regulatory history of the
Coast Guard's actions to implement both NANPCA and NISA may be found in
the NPRM for this rule, published on August 28, 2009. 74 FR 44632,
44633.
    Vessels subject to today's final rule are also subject to the U.S.
Environmental Protection Agency (EPA) Vessel General Permit (VGP)
issued under section 402 of the Clean Water Act. The Coast Guard and
EPA continue to work closely together in the development of ballast
water discharge standards and to harmonize requirements, to the extent
feasible and appropriate, under their respective statutory mandates.
Under the CWA, EPA proposed the new draft VGP for public comment on
November 30, 2011, with a proposed effective date of December 2013.
    The draft EPA VGP contains discharge limits for a number of
discharges incidental to the normal operation of vessels operating in a
capacity as a means of transportation, including numeric limits for
ballast water discharges. The Coast Guard notes that the draft VGP
proposes to apply numeric treatment limits for ballast water discharges
to a broader class of vessels than this final rule. Like the 2008 VGP,
the draft 2013 VGP proposes some requirements that are broader in
applicability, require additional management requirements, and require
differing monitoring or other quality control requirements from today's
rulemaking. The 2008 VGP applied requirements to tankers in the
coastwise trade and required ballast water exchange for vessels engaged
in Pacific nearshore voyages, among other ballast water requirements
that differed from the Coast Guard regulation in effect in 2008. The
Coast Guard notes that EPA must consider the information in its record,
as well as the requirements of the Clean Water Act, as it finalizes the
VGP. Therefore, it is possible that the final VGP will contain
requirements that differ from those found in our rulemaking today.
    For more information on EPA's current VGP or its next draft VGP,
visit the EPA's Web site at: http://www.epa.gov/npdes/vessels. Nothing
in this final rule is intended to limit, in any way, actions the EPA
may take in the future with respect to regulation of ballast water
discharge in the EPA VGP under its Clean Water Act authorities. See,
e.g., 16 U.S.C. 4711(b)(2)(C) and 4711(c)(2)(J).

V. Discussion of Comments and Changes

A. Summary of Changes From the NPRM

    This final rule contains a number of changes from the rule proposed
by the NPRM (74 FR 44632 (August 28, 2009)). While we list in this
section all changes made to the rule since the NPRM, we are
highlighting several of these changes not only because they are
important, but also because a vast majority of the comments received in
the docket addressed at least one of these topics. Most of the changes
discussed below were made directly in response to those comments. A
full discussion of comments and Coast Guard responses is found in
section V.B. Discussion of Comments.
1. Deferral of Phase-Two Standard
    Most notably, this final rule does not include the NPRM's proposed
phase-two standard. This reflects a decision to move forward with the
phase-one standard while the Coast Guard continues to assess the
practicability of implementing a phase-two standard, gathers additional
data on technology available to meet the phase-two standard for various
vessel types, and develops a subsequent rule with an economic and
environmental analysis to support a phase-two standard. The decision to
remove this more stringent standard from this final rule should not be
interpreted as a sign that the Coast Guard is not committed to its
statutory responsibility to continually review the BWDS to increase the
protectiveness of the BWDS.
    Significantly, after this final rule was drafted, the EPA requested
its Science Advisory Board (SAB) to review and provide advice regarding
whether existing shipboard treatment technologies can reach specified
concentrations of organisms in vessel ballast water, how these
technologies might be improved in the future, and how to overcome
limitations in existing data (EPA SAB 2011). Information was identified
on 51 existing or developmental ballast water treatment technologies,
although detailed data were available for only 15 specific BWMS. The
SAB used this information as the source material for its assessment of
ballast water treatment performance and, as requested by the EPA, used
proposed ballast water discharge standards as the performance
benchmarks. Based on its evaluation of the available data, the SAB
concluded that the performance standards for discharge quality proposed
by IMO and the Coast Guard are currently measurable, based on data from
land-based and shipboard testing. However, current methods (and
associated detection limits) prevent testing of BWMS to any standard
more stringent than D-2/Phase 1 and make it impracticable for verifying
a standard 100 or 1,000 times more stringent. New or improved methods
will be required to increase detection limits sufficiently to
statistically evaluate a standard 10 times more stringent than IMO D-2/
Phase 1; such methods may be available in the near future. The SAB
concluded that establishment of a ballast water discharge limit at the
proposed Coast Guard Phase I/IMO discharge standard will result in a
substantial reduction in the concentration of living organisms in the
vast majority of ballast water discharges, compared to discharges of
ballast water managed by mid-ocean exchange or discharges of
unexchanged ballast water. The numeric limitations in today's final
rule represent the most stringent standards that BWMS currently safely,
effectively, credibly, and reliably meet (US EPA SAB, 2011.)
    The cost, benefit, and environmental impact analyses included in
the NPRM could not specifically assess all impacts related to the
phase-two standard (although the analyses did include an evaluation of
standards that are more stringent than the standard proposed herein as
practicable). Many commenters addressed this issue, noting that the
lack of analyses made it

impossible for them to comment on the phase-two standard in any
meaningful manner.
    To provide the public with as much information as possible on which
to base comments, the Coast Guard will develop additional analyses
regarding the potential costs, benefits, and environmental impacts of
the proposed phase-two standard or any standard higher than phase-one.
When these analyses are completed, the Coast Guard will make them
available for public comment, either via a notice of availability or in
conjunction with a subsequent rulemaking published in the Federal
Register.
    The Coast Guard still fully intends to issue a later rule that will
establish a more stringent phase-two discharge standard once the
additional research and analysis necessary to support this more
stringent standard has been completed. To demonstrate our commitment,
in the final rule text we are reserving the regulatory provisions where
the phase-two standard will be found, to show that the Coast Guard does
not view publication of this rule as completing the agency's work in
controlling the introduction and spread of NIS from ships' ballast
water.
2. Practicability Reviews
    The NPRM proposed an initial practicability review to be published
at least 3 years prior to the first compliance date under the BWDS
implementation schedule, with a subsequent review no later than 2 years
after the initial review. Because we have removed the phase-two
standard from this final rule, we have also removed the recurring
practicability reviews that were included in the NPRM. This final rule
establishes clearer guidelines and criteria considered for the
practicability review. Additionally, because the final rule defers
establishing a phase-two standard, we wanted to prevent the scenario in
which a finalized phase-two standard believed to be practicable when
established should not be implemented according to the established
timelines, either because it can be implemented sooner or because it
cannot be implemented by the deadline established. To accomplish this,
NISA requires regular reviews and strengthening of standards when
determined practicable, so completing a review will be part of any
future rulemaking. See 16 U.S.C. 4711(e).
    This final rule does include one practicability review provision,
which requires the Coast Guard to complete and publish the results of
its practicability review no later than January 1, 2016. This review
will draw a significant component of its information from the BWMS
approval application packages that the Coast Guard expects to evaluate
between the publication date of this final rule and the initial
implementation date. The Coast Guard's practicability review will look
at a variety of factors, including but not limited to economic factors
and the efficacy and environmental safety of available BWMS technology.
While we have listed a number of these factors in this final rule, we
have also included a provision allowing us to consider additional
factors. This is to ensure that the Coast Guard is not foreclosed from
considering any unforeseen issues.
    Some commenters argued against considering any factor other than
best available technology. Whether the commenters meant ``best
available technology'' as a term of art under the Clean Water Act or
merely the best technology available in the marketplace, the Coast
Guard acknowledges the importance of technology. However, the Coast
Guard's authority does not limit the matters of concern to technology.
Congress established a practicability standard in NISA; that standard
requires that the Coast Guard consider more than just technology. A
standard based solely on technology would be inconsistent with the
statute.
3. Applicability
    In the NPRM, we proposed requiring vessels discharging ballast
water into waters of the United States to comply with the BWDS. This
included vessels operating solely in coastwise trade and on the
internal waters of the United States. Those vessels are not required to
conduct a BWE under the existing Coast Guard regulations, and, as such,
the proposal was seen as an expansion of those regulations. A large
number of commenters questioned this expansion.
    Commenters raised a number of issues regarding the applicability of
the NPRM. These issues included uncertainty as to whether any of the
currently available BWMS could be successfully installed on non-
seagoing vessels, the cost of installation of BWMS on these industries,
and the benefit of requiring these vessels to install a BWMS.
    As a result of these comments, this final rule applies to two
groups of vessels discharging ballast water into waters of the United
States. The first group is comprised of those vessels currently
required to conduct BWE. The second group, which previously was not
required to conduct BWE, is comprised of seagoing vessels that do not
operate beyond the U.S. Exclusive Economic Zone (EEZ), that take on and
discharge ballast water in more than one Captain of the Port (COTP)
Zone, and are greater than 1,600 gross register tons (GRT) (3,000 gross
tons (GT) International Tonnage Convention (ITC)).
    The Coast Guard fully intends to expand the applicability of the
BWDS to all vessels not legislatively exempted that operate in U.S.
navigable waters or territorial sea, as we proposed in the NPRM, but we
have determined that additional analysis is necessary to support this
expansion. We also intend to conduct additional research as necessary.
We expect that this expansion will be part of the notice or other
rulemaking document that addresses the phase-two standard, and that
vessels covered by the expanded applicability will be required to
install a BWMS that meets at least the phase-one standard.
    In addition to the comments on applicability mentioned above, we
also received comments questioning why we proposed using the presence
of ballast tanks as the main applicability factor for BWMS
installation, instead of the actual discharge of ballast water. We
agree an important factor in deciding whether a vessel is required to
have a BWMS onboard should be the threat that vessel presents to
contributing to the threat of aquatic NIS. Vessels that pose a low
level of risk, either because they do not discharge ballast water at
all, discharge only to shoreside facilities, or discharge only water
that presents little threat (public drinking water), should not be
required to install a BWMS. For this reason, we revised 33 CFR 151.1510
and 151.2025 to (1) clarify that discharge of ballast water into waters
of the U.S. is a threshold requirement for installation of a BWMS, and
(2) include an additional BWM option for use of water from a U.S.
public water supply meeting certain EPA drinking water standards. We
have also slightly revised the applicability section in 33 CFR part 151
subpart C (Ballast Water Management for Control of Nonindigenous
Species in the Great Lakes and Hudson River). We inserted a provision
to clearly state that all vessels subject to subpart C are also subject
to 33 CFR part 151 subpart D (Ballast Water Management for Control of
Nonindigenous Species in Waters of the United States). This does not
reflect an actual change to the regulations, as the general
applicability provision in subpart D already applies to vessels subject
to subpart C. Subpart D requires that these vessels comply with
additional NIS reduction practices and the reporting and recordkeeping
requirements. We are adding the clarifying statement to subpart C in
order to ensure there is no confusion about the applicability of
subparts C and

D. We made other slight modifications to align the applicability
section of subpart C with that of subpart D, but these revisions do not
change the substantive requirements of either subpart.
4. COTP Zone Exemption
    Existing BWM regulations include a provision that exempts owners
and operators of vessels operating in only one COTP Zone from reporting
and recordkeeping requirements. 33 CFR 151.2010(b)(1). In the NPRM, we
intended to remove this exemption from the reporting and recordkeeping
requirements, but include an exemption from the BWDS for owners and
operators of these vessels (those operating in only one COTP Zone). We
explained this exemption by stating that ``it is unlikely that vessels
operating in only one COTP Zone would introduce invasive species (from
outside of that COTP Zone) into the waters of the COTP Zone.'' 74 FR
44634.
    Unfortunately, the proposed regulatory text included erroneous
cross references, did not actually exempt these vessels from the
intended provisions, and did not remove the current reporting and
recordkeeping exemption. This error confused many commenters. Other
commenters based their comments on our intentions as stated in the
preamble, and noted that COTP Zones are purely administrative in
nature, not established based on any ecological or biological bases,
and therefore are not appropriate boundaries to be used when addressing
invasive species.
    Because we have revised the applicability of this final rule, as
discussed above, the BWDS will not apply to vessels operating within
only one COTP Zone. However, we do intend to expand the applicability
of the BWM requirement to include all vessels operating in waters of
the United States that are not legislatively exempted, but have
determined that additional analysis is necessary to support such an
expansion. We also intend to conduct additional research as necessary.
The issue of whether there are distinct zones or areas where it might
be appropriate to include an exemption for vessels that do not leave
that zone or area is still open to consideration as part of a
subsequent notice or other rulemaking document.
    Many commenters supported the concept of geographic exemptions;
however, some objected to using COTP Zones as the basis for the
exemption. For this reason, the Coast Guard will investigate other
possible ways to create an exemption like this, using suggestions from
commenters and our Federal agency partners.
    We are also keeping intact the current exemption from recordkeeping
and reporting requirements for these vessels which operate exclusively
in one COTP Zone. We will, in the future, begin a separate rulemaking
project addressing BWM recordkeeping and reporting requirements, and
any changes to this exemption will be addressed in that project.
5. Removal of Ballast Water Reporting Form From CFR
    We have removed the Ballast Water Reporting Form (Office of
Management and Budget (OMB) Control No. 1625-0069) from the appendix to
33 CFR part 151 subpart D. This form is still the proper form to
satisfy the reporting requirements in 33 CFR 151.2070. We have revised
Sec.  151.2070 to reference the National Ballast Information
Clearinghouse (NBIC) Web site as the form's location. This change will
not have any effect on the public, as the form will still be available
and the requirement for filing the form is not being revised.
    We have removed this form from the CFR in order to streamline
future changes to the form. Any changes would need to comply with
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.),
which include providing notice to the public and opportunity for
comment. Additionally, the form is part of an OMB-approved collection
of information that must be renewed on a regular basis. These renewals
also include an opportunity for public notice and comment on the form
and the associated collection of information.
6. Adoption of Environmental Technology Verification (ETV) Protocol
    In the NPRM, we noted that our proposed BWMS approval process was
based, in part, on the draft Generic Protocol for the Verification of
Ballast Water Treatment Technologies developed under EPA's ETV Program.
74 FR 44640 (Aug. 28, 2009). Since the publication of the NPRM, EPA has
completed its development of this protocol, a process that included
laboratory testing, stakeholder reviews, and public comment. The
protocol may be found on the EPA Web site, under Research and
Development, Risk Management Research Publications.\4\ The Coast Guard
and EPA have been formal partners in the process of developing this
protocol. It has always been our intention to incorporate the final ETV
Protocol into our BWMS approval process, which we are doing via this
final rule.
---------------------------------------------------------------------------

    \4\ EPA/600/R-10/146, version 5.1 (September 2010). Available at
http://www.epa.gov/nrmrl/pubs/600r10146/600r10146.pdf.
---------------------------------------------------------------------------

    While this incorporation was not part of the proposal included in
the NPRM, we noted that the procedures in the NPRM were based on a
preliminary version of the ETV Protocol (74 FR 44634, 44640). While the
final ETV Protocol differs from earlier versions, the differences are
due both to consensus revisions during finalization of the protocol,
and to subsequent peer review and public comments. Some of the comments
we received on the NPRM specifically suggested that we use the final
ETV Protocol.
    For all of these reasons, the Coast Guard has determined that
incorporating the final ETV Protocol into this final rule is a logical
outgrowth of what was proposed in the NPRM, and that further notice and
comment on incorporating it by reference is not required.\5\ We have
revised the approval process regulations to incorporate the final ETV
Protocol, and have removed those portions of the regulation that were
made redundant by this incorporation.
---------------------------------------------------------------------------

    \5\ See Int'l Union, United Mine Workers of Amer. v. Mine Safety
and Health Admin., 626 F.3d 84, 95 (D.C. Cir. 2010) (``a final rule
will be deemed to be the logical outgrowth of a proposed rule if a
new round of notice and comment would not provide commenters with
their first occasion to offer new and different criticisms which the
agency might find convincing.'') (internal citations omitted).
---------------------------------------------------------------------------

7. Alternate Management System(s) (AMS) and Foreign Approvals
    The NPRM included a provision to allow foreign type-approved BWMS
to receive U.S. type approval subject to an equivalency determination.
We have removed that provision in this final rule; however, we still
allow manufacturers to use testing done to obtain type approval from a
foreign administration, and the data from that testing, to satisfy the
U.S. type-approval testing and application requirements if the Coast
Guard determines the testing to be equivalent to what is required by
our regulation. The language in 46 CFR 162.060-12 was revised; we have
included more detail as to what a manufacturer with a foreign-approved
BWMS must show in order to use their prior testing to satisfy our
approval requirements, rather than vaguely calling for the manufacturer
to show equivalency. Despite these revisions, the intent and effect of
the changes are substantially similar to what appeared in the NPRM. As
such, we view these changes as logical outgrowths of the

NPRM, and thus further notice and comment is not required.
    Despite the provision discussed in the previous paragraph, we are
aware that many foreign-approved BWMS will require additional testing
in addition to analysis under applicable U.S. environmental laws, such
as the National Environmental Policy Act (NEPA) and the Endangered
Species Act (ESA). This is due to differences between the international
approval regime and the approval protocol adopted in the final rule.
This will extend the amount of time required for foreign-approved
systems to gain U.S. approval, although the process to secure U.S.
approval should still be shorter than if the manufacturer were required
to repeat all testing already completed for obtaining type approval
from a foreign administration.
    Implementing the U.S. approval process will likely take at least 3
years. We do not anticipate having U.S. approved systems that have
satisfied the testing protocols required in 46 CFR subpart 162.060
prior to 2015.
    To ensure there are BWMS available for vessel installation and use
without having to delay the implementation schedule, and also to
provide an incentive for the early installation and use of BWMS instead
of relying exclusively on BWE, we have added a provision to 33 CFR
151.1510(a)(1), 151.2025(a)(3), and included a new provision (Sec.
151.2026) and definition (Sec.  151.1504) to allow for the temporary
acceptance of foreign-approved BWMS, providing the Coast Guard
determines that the BWMS is at least as effective as BWE. These
alternate management systems (AMS) must be approved by foreign
governments under the standards set forth in the International
Convention for the Control and Management of Ships Ballast Water and
Sediments (IMO BWM Convention), after it enters into force, or
consistent with relevant guidelines developed by the IMO. This
provision for AMS will also allow vessels with BWMS installed to meet
requirements of other administrations and/or the standards set forth in
the IMO BWM Convention to use such BWMS while operating in waters of
the United States. We further note that pursuant to Sec.  151.2025(e)
of this final rule, any vessel using an AMS must comply with the terms
and conditions of the VGP when operating in U.S. waters, including any
applicable discharge limitations.
    As with the process for U.S. approval of foreign-approved BWMS,
these temporary acceptance determinations will be subjected to reviews
under NEPA, ESA, and other environmental policy laws. However, we
expect the AMS process will require less time than the more extensive
type approval process, which will allow vessel owners to install BWMS
prior to the implementation dates contained in the regulation. These
earlier installations should result, at the earliest possible date, in
a reduction of the risk of ballast water introducing or spreading NIS,
as those vessels currently unable to conduct BWE due to safety concerns
or voyage constraints will instead be subjecting their ballast water to
some type of treatment before discharging it into the waters of the
United States.
    Use of an AMS will be allowed for up to 5 years after the vessel is
required to comply with the BWDS. The 5-year period should provide the
manufacturer or vendor with sufficient time to obtain U.S. approval,
either using the data from the tests already completed, or by
undergoing new tests designed specifically to comply with 46 CFR part
162.060.
8. Delay of Compliance Date for New Vessels
    Even with the provision for acceptance of foreign type approvals, a
process that is expected to be quicker than completing the full
schedule of land-based and shipboard tests, we anticipate there will
not be an adequate number of approved BWMS to allow vessel owners to
meet the NPRM's proposed compliance date for new vessels. For this
reason, we have pushed back the compliance date for new vessels to
install Coast Guard-approved BWMS from January 1, 2012, to December 1,
2013. Additionally, the December 1st date will align the compliance
date with the proposed effective date for the 2013 EPA VGP. We estimate
this deferral could delay the compliance date for up to 600 newly
constructed vessels.
    We have also added a provision to both 33 CFR part 151 subparts C
and D that will allow individual vessel owners to request that the
Coast Guard extend their compliance date if, despite the owner's
efforts, he or she cannot meet the published compliance dates. This
change is in response to commenters who argued that the compliance
timelines included in the NPRM were too aggressive.
9. Other Changes
    The Coast Guard made additional changes in response to comments,
and some of those changes warrant a summary here. The remaining changes
are listed at the end of this section and discussed further in section
V.B. Discussion of Comments.
    First, we are adding a requirement to 33 CFR 151.2075 for sampling
ports on each of the vessel's overboard ballast water discharge pipes.
This change is a response to commenters who requested stronger
enforcement and commenters who asked how enforcement would be achieved.
Without the inclusion of sampling ports, Coast Guard inspectors would
not be able to sample a vessel's ballast water without potentially
delaying the vessel for significant periods of time. Sampling is
necessary in order to determine if the BWMS is operating properly to
produce ballast water that meets the BWDS. The inclusion of sampling
ports is logical outgrowth of the NPRM because the Coast Guard must
have means to ensure compliance, and the NPRM included a provision
requiring vessel owners and operators to provide access to the Coast
Guard for sampling. Also, commenters asked how enforcement would be
achieved. Inclusion of this requirement improves Coast Guard
enforcement and responds to both groups of these commenters.
    Secondly, we received questions from commenters asking who should
operate the BWMS during the shipboard testing. We have clarified in 46
CFR 162.060-28 that it should be the vessel crew operating the BWMS.
This is most appropriate because the crewmembers are the ones who will
need to operate the BWMS after it receives U.S. type approval.
Additionally, having the crew operate the BWMS ensures that vendors and
manufacturers, who have a stake in the success of the BWMS, are not
able to influence the test results. This provision is a logical
outgrowth of the NPRM because the NPRM listed the vessel crew as one of
two groups that should operate the BWMS during testing. This change is
a clarification to show which of those listed entities should operate
the BWMS during land-based testing, and which should operate the BWMS
during shipboard testing.
    Finally, in response to comments, we reduced the time period
required for shipboard testing from 12 months to 6 months, removed the
requirement for testing to be in three distinct geographic regions, and
reduced the number of required, valid test cycles. Several commenters
requested these changes, noting that our proposed requirements were
unnecessary and too burdensome. We agree that the suggested changes
will still provide for adequate shipboard testing of BWMS, therefore,
we have made these changes to reduce the burden associated with
shipboard testing.
    The remaining changes made in response to comments were replacing

the term ``build date'' with ``constructed'', in order to better align
with the IMO BWM Convention and updating the civil penalty amounts to
reflect their adjustment in a recent Coast Guard final rule.
    The Coast Guard made several changes during the drafting of this
final rule to eliminate redundancy and streamline the regulatory text.
We revised the definitions section in 33 CFR part 151 subpart D by
removing those definitions that are already defined in part 151 subpart
C, as well as definitions for terms not used in part 151 subpart D. We
added definitions for several terms that were used in 46 CFR subpart
162.060, and we updated the incorporation by reference section in that
subpart to more clearly indicate those standards being incorporated
into this regulation.
    We deleted 33 CFR 151.2075(c), which referred to an assessment of
vessel compliance with the now obsolete voluntary national program.
That assessment has been completed for several years; therefore, it is
no longer necessary to refer to it in the regulations.
    We revised Sec.  151.1510(a)(1) to clarify when BWE must be
conducted. We also revised paragraphs (a)(3) and (d) of that section to
improve readability and clarify requirements. Similar revisions were
made in Sec.  151.2025, also to improve readability and clarify
requirements.
    We corrected the BWDS in both subparts C and D to align with the
IMO BWM Convention.
    We removed proposed 33 CFR 151.2045 ``Safety exceptions,'' as we
determined that those provisions were largely repetitive to what was
proposed in 33 CFR 151.2040, entitled ``Discharge of ballast water in
extraordinary circumstances.'' We moved the one non-repetitive
provision to Sec.  151.2040. As a result, Sec.  151.2040 now includes
the provision noting that nothing in the regulations relieves the
master, owner, agent, or person in charge of the vessel from any
responsibility, including the safety and stability of the vessel and
the safety of the crew and passengers.
    Throughout the regulatory text, we updated addresses for the Coast
Guard Marine Safety Center, also adding in an email address option. We
updated cross-references where necessary, and made changes to remove
passive tense from the requirements. These changes improve the
readability of the regulation, and clarify requirements.
    We made a number of non-substantive changes to the approval
procedures found in 46 CFR subpart 162.060. Like many of the changes we
are making, these changes improve the readability of the regulation,
and clarify requirements. We also revised the regulatory text that was
proposed in 46 CFR 162.060-40. In the NPRM, that section included all
requirements for ILs. In this final rule, we have split those
requirements into two sections (46 CFR 162.060-40 and 162.060-42). The
first section includes requirements for ILs applying for Coast Guard
designation; the second section now contains the responsibilities
imposed on ILs once they are designated by the Coast Guard.
    These changes result in more easily understandable regulations, but
do not make substantive changes. For this reason, the Coast Guard has
determined that further notice and comment on the changes is
unnecessary, pursuant to 5 U.S.C. 553(b).

B. Discussion of Comments

    We received 662 comment letters on our NPRM, which contained 2,214
individual comments. We have divided our discussion of these comments
into subject matter topics, and our responses are laid out in the
following sections.
1. Applicability
    One hundred and thirty four commenters addressed the applicability
of the proposed regulations. Of these, 39 requested an exemption based
on the segment of industry in which their vessel is engaged. These
industry segments include: towing vessels and barges; offshore energy
services support vessels; commercial fishing vessels; passenger
vessels; offshore floating platforms; and vessels operating solely in
the Great Lakes.
    Many commenters generally criticized the application of the BWDS to
their specific type of vessel. Forty eight commenters stated that
various aspects of the design or operation of their vessels make it
infeasible for them to practicably install a BWMS. The cited
constraints include lack of space, lack of ballast piping, insufficient
power available onboard, independent pumps and piping for each tank,
insufficient BW holding times and pumping capacities in excess of
current BWMS capabilities.
    As we have discussed in this preamble, we have revised the
applicability of this final rule so that the BWM requirements primarily
apply to vessels with ballast tanks operating in waters of the United
States after having operated outside of the EEZ (see V.B. Summary of
Changes from the NPRM). Certain other vessels that operate exclusively
in the EEZ and in more than one COTP Zone, and that meet certain size
thresholds that make them similar to vessels operating on international
routes are also required to comply. The Coast Guard, however, intends
to expand this applicability in the near future after further study and
will keep these commenters' requests in mind. We have also added, as
discussed above, a provision for vessel owners who are required to
comply with the BWDS but cannot do so for good reason (such as design
and operating conditions or unavailability of systems) to request a
delay in their compliance date.
Vessels Operating Solely in the Great Lakes
    Twenty one commenters asked that vessels operating solely in the
Great Lakes be treated differently from seagoing vessels due to the
constraints cited above. Those commenters also requested that they be
allowed to continue the best management practices currently in place
instead of being required to install BWMS.
    Conversely, 35 commenters urged the Coast Guard to regulate vessels
operating solely in the Great Lakes. Five commenters asked the Coast
Guard to hold vessels operating solely in the Great Lakes to the most
stringent BWDS possible. One of these commenters submitted a petition
with 8,905 individual signatures in support of stronger regulation of
vessels that operate exclusively in the Great Lakes.
    One commenter supported regulating vessels operating solely in the
Great Lakes but felt the regulatory priority should be on preventing
introductions of aquatic NIS by oceangoing vessels. Two commenters
supported expanded regulation of vessels operating solely in the Great
Lakes, but asked that the regulations take into account the unique
design and operating characteristics of these vessels. Twenty seven
additional commenters supported regulating this vessel population
without providing a specific reason.
    For the reasons we have discussed in this preamble, we are not
requiring vessels that operate exclusively in the Great Lakes to comply
with the BWDS in this final rule (see V.B. Summary of Changes from the
NPRM). The Coast Guard intends to re-examine this decision in the near
future, and will keep these commenters' requests in mind when
developing subsequent rulemakings.
Municipal Water as Ballast
    Twenty commenters urged the Coast Guard to exempt vessels from
having to treat their ballast water if the water was obtained from a
municipal water supply, as they believe this poses little risk of
introducing or spreading NIS in

waters of the United States. The commenters stated that this is a
common practice for inland towing vessels and/or barges, offshore
energy services, and small business interests, and is authorized under
existing Coast Guard policy.
    Fifteen commenters proposed that vessels should be allowed to use
municipal or potable water for ballast water. These commenters also
proposed that vessels should be permitted to discharge that water into
waters of the United States without having to use a Coast Guard-
approved BWMS or to meet the BWDS.
    The Coast Guard agrees that, in some situations, ballast water does
not pose a significant threat of introducing or spreading NIS. We have
some concerns about the variable quality of municipal water sources,
but believe that water that satisfies the standards of the Safe
Drinking Water Act (42 U.S.C. 300f-300j) should be acceptable for use
as ballast water without posing a significant threat of introducing or
spreading NIS. As a result, we have revised the regulation to allow for
use of water from a U.S. public water system (PWS) meeting the
requirements of the Safe Drinking Water Act as an alternative to
installing a BWMS meeting the BWDS. We note, however, that with the
exception of PWS water used under extraordinary circumstances in
accordance with 33 CFR 151.1515, a vessel must exclusively use PWS
water as ballast. Any mixture of water obtained from a source other
than a facility meeting the requirements of the Safe Drinking Water Act
will negate acceptability of water from a PWS as discharged ballast
water. This change is found in 33 CFR 151.1510(a)(4) and
151.2025(a)(2).
COTP Zones
    Seven commenters urged the Coast Guard to not grant regulatory
exemptions for vessels operating exclusively in a single COTP Zone.
They noted that these zones are not ecologically meaningful
subdivisions and asked that any boundaries be based on scientific
analysis of the risk of transferring invasive NIS.
    Conversely, 17 commenters urged the Coast Guard to provide
exemptions for vessels that operate exclusively in a single COTP Zone
or conduct all ballast operations in a single COTP Zone. They argued
that these practices would pose minimal environmental risk.
    Four commenters requested a correction to the regulatory text to
ensure that the proposed exemption for vessels operating exclusively in
one COTP Zone (33 CFR 151.2015) extends to the BWM requirements (33 CFR
151.2025), consistent with the description of this provision in the
preamble to the NPRM. One commenter called for the Coast Guard to
continue to exclude vessels operating exclusively within one COTP Zone
from the requirement to meet the BWDS.
    For the reasons discussed earlier in this preamble, the BWM
provisions of this final rule will not apply to vessels operating
exclusively in a single COTP Zone (see V.A. Summary of Changes from the
NPRM). The issue of whether there are distinct zones or areas other
than COTP Zones where it might be appropriate to include an exemption
for vessels that do not leave that zone or area remains open to
consideration. The Coast Guard will investigate other possible ways to
craft a geographic exemption, using suggestions from commenters and our
Federal agency partners. The Coast Guard has determined that, for now,
this is the best applicability delineation for the regulation based
upon the available information and the Coast Guard's needs in
effectively administering the ballast water program. The Coast Guard
intends to re-examine this decision in the near future, and we will
keep these commenters' requests in mind as we develop subsequent rules.
    This rulemaking project has highlighted the need for additional
research and analysis for ballast water regulatory efforts. A primary
source of data for this research and analysis is the Ballast Water
Reporting Form (available on the NBIC Web site at http://invasions.si.edu/nbic/submit.html), which vessels operating exclusively
within a single COTP Zone are currently exempted from completing. In
the future, the Coast Guard may initiate a separate rulemaking to
expand the number of vessels submitting ballast water reports so that
we can meet the statutory requirements for maintaining a clearinghouse
on national ballast water data, and to collect additional data for use
both in future regulations, and in future practicability reviews.
Great Lakes and Gulf of Mexico Ecosystems
    Twenty two commenters urged the Coast Guard to designate the waters
of the Ninth Coast Guard District as a single COTP Zone and exempt
vessels operating exclusively in that zone from BWM requirements. In
support of this position, the commenters noted that a ballast water
bill passed by the U.S. House of Representatives in 2008 determined
that the Great Lakes were an ``enclosed aquatic ecosystem'' and
exempted vessels that confine their operations to those waters from
installing BWMS.
    Ten commenters suggested that vessels operating exclusively in the
Gulf of Mexico be exempt from BWM requirements. In support of this
position, the commenters noted a high level of connectedness between
different areas of the Gulf of Mexico and the fact that the National
Oceanic and Atmospheric Administration considers the Gulf of Mexico to
be a single ``Large Marine Ecosystem'' based on ecological criteria.
    The Coast Guard acknowledges the issues raised in these comments
and will continue to work with the scientific community and regulatory
agencies to investigate the bases for establishing more ecologically
meaningful geographic zones for regulating ballast water operations.
Other Applicability
    Two commenters urged the Coast Guard to consider the use of land-
based or vessel/barge-based reception/treatment facilities. The Coast
Guard agrees that use of shore-based or barge-based treatment might
become a valid option for some vessels and has provided for this in the
final rule. We have done so by revising the language in the regulations
to make it clear that the BWDS only applies to those vessels falling
within the rule's applicability thresholds (vessels that also discharge
ballast water into waters of the United States). Those vessels
discharging to land-based or vessel/barge-based reception/treatment
facilities would not fall within this defined group, and therefore
would not be required to install a BWMS that meets the BWDS. Any
reception/treatment facilities used under this option would be subject
to applicable state and local laws, as well as NPDES permitting if the
treated water is discharged to waters of U.S.
    Four commenters requested that the Coast Guard exempt any vessel
that does not discharge ballast water in waters of the United States.
Three additional commenters argued that vessels not discharging ballast
water into the waters of the United States should not be subject to the
requirement to install BWMS.
    It was never the intention of the Coast Guard to require vessels to
install a BWMS if they do not discharge ballast water into waters of
the United States. We have clarified in this final rule that vessels
not discharging ballast water into the waters of the United States are
not required to install a BWMS. However, unless exempted, vessels are
still required to report their BWM

practices on their Ballast Water Reporting Form.
    One commenter suggested that applicability be based on a vessel's
ballast water capacity. The Coast Guard notes that applicability of the
rule is based, in part, on vessel ballast water capacity. While the
discharge standard does not vary by vessel type, the dates at which
vessels must meet the ballast water discharge standard if using a BWMS
are based on vessel ballast water capacity.
    As we move forward with expanding the applicability of this rule,
however, we will continue to consider multiple factors, including
ballast water capacity.
    One commenter recommended exempting offshore floating platforms
from the regulations, as these facilities rarely move. The Coast Guard
does not believe that a categorical exemption is warranted. Under this
final rule, an offshore floating platform would be exempted as long as
it conducts ballast operations exclusively within a single COTP Zone.
Additionally, we believe there are operational practices (e.g., offload
to a reception vessel) that will allow an offshore floating platform to
comply with the BWM regulations without having to install a BWMS.
    One commenter suggested exempting reduced operating status (ROS)
vessels that spend the majority of their time in layup or reduced crew
status and are activated for short times (Maritime Administration Ready
Reserve or Military Sealift Command vessels). The Coast Guard believes
that if a vessel is not operating, it should not be discharging ballast
water and there would be no requirements to meet when in ROS. In
addition, in the event an ROS vessel meets the definition of a vessel
of the Armed Forces under Section 312 of the Federal Water Pollution
Control Act (33 U.S.C. 1322), it would be exempt from this final rule
by section 151.2015(a)(191).
    One commenter asked that exemptions and exceptions in the rule be
consistent with the IMO BWM Convention. The Coast Guard believes that
the commenter was referring to exemptions to the requirement to meet a
BWDS that nation states could grant under the IMO BWM Convention once
it enters into force. It is the Coast Guard's position that all vessels
should take all practicable measures to ensure NIS are not discharged
into the waters of the United States from vessels through ballast
water; however, we note that we have included exemptions and exceptions
in this final rule that are consistent with both our statutory mandate
under NANPCA, as amended by NISA, and international law, including but
not limited to the IMO BWM Convention (which has not yet entered into
force). We will continue to develop our regulations and work with other
countries to protect our environment.
2. BWDS
General Concern
    Eighteen commenters submitted general concerns on the BWDS. Seven
commenters stated their general opposition to the NPRM and three
commenters stated their general support. Two commenters believed there
was insufficient scientific and technical support in the record for the
proposed regulation.
    Four commenters stated that the BWDS and implementation schedule
must be protective of the Great Lakes and one commenter expressed this
concern for all waters of the United States. One commenter requested
that the final regulations reflect reasonable and balanced programs
that harmonize the commercial importance and environmental value of the
Great Lakes.
    The Coast Guard acknowledges these general concerns. Many of these
concerns are echoed in more specific comments that we received, and
those are summarized and addressed previously in this preamble and in
the text that follows.
Support Concept
    Twelve commenters supported the concept of a numeric,
concentration-based BWDS, and three commenters said that such a BWDS
will create the necessary market conditions to encourage investment in
and development of technologies capable of achieving the objective of
this rule. The Coast Guard agrees with these comments, and believes
that setting a numeric, concentration-based BWDS in this final rule is
the best approach to reducing the threat of the introduction and spread
of NIS into the waters of the United States.
Stringency of Standard
    One commenter supported the idea of a U.S. BWDS that at least meets
the IMO BWM Convention Regulation D-2 discharge standard (IMO discharge
standard) and any subsequent standard improvements. Another commenter
stated that although they support the development of a BWDS like the
phase-two standard, they also believe that starting with the
achievable, measurable, and protective phase-one standard poses a much
lower risk to the environment than starting with a stricter standard
that is unachievable and immeasurable.
    Six commenters supported establishing a discharge standard that is
more stringent than the proposed phase-one standard, two of which also
said the implementation schedule would not be protective as quickly as
needed. Six commenters supported the proposed phase-two standard that
is equivalent to the most stringent State standards, currently 1,000
times more stringent than the IMO discharge standard. One commenter
said that the standard should be alternative 5 of the Draft
Programmatic Environmental Impact Statement (DPEIS), which is
essentially sterilization of ballast water.
    One commenter stated that they did not support the adoption of a
standard more stringent than the IMO discharge standard due to the
impracticability of performing the necessary measurements to approve
BWMS and test compliance.
    One commenter stated that no technology developers with whom they
have discussed treatment efficacy have been willing to provide
assurances that their BWMS could reliably meet the phase-two standard,
which is 1,000 times more stringent than the IMO discharge standard.
This commenter further disagreed with the California State Lands
Commission's (CSLC) conclusion that several BWMS have demonstrated the
potential to comply with California's performance standards for the
discharge of ballast water, and called for the Federal Government to
perform its own analysis when conducting the practicability review
prior to full implementation of the phase-two standard.
    One commenter noted that the Great Lakes are a drinking water
source and an irreplaceable freshwater natural resource. This commenter
stressed the importance of implementing strong environmental
regulations to protect such waters from the introduction of new NIS as
well as from the establishment of new populations of NIS that currently
exist within these waters.
    Two commenters noted what they termed a lack of sufficient
scientific and technical support in the record for the proposed
regulation.
    As we have noted in this preamble, this final rule is implementing
the phase-one standard, which is equivalent to the IMO discharge
standard, and deferring action on the phase-two standard until we can
complete more analyses and research into practicability (see V.A.
Summary of Changes from the NPRM).
    The EPA SAB study (EPA SAB 2010), issued after publication of the
NPRM for this rulemaking, provides support for our conclusion that
technology to

achieve the IMO discharge standard represents the limit of current
practicability. The SAB found that ``* * * five of 34 categories of
assessed BWMS achieved reductions in organism concentrations sufficient
to comply with the first standard proposed by the USCG (i.e., the
`Phase 1' standard).'' Further, the SAB also concluded that `` * * *
current test methods and detection limits preclude a complete
statistical assessment of whether a BWMS meets any standard more
stringent than Phase 1'' (U.S. EPA SAB, 2011). We agree with the
commenter who stated that implementing a less stringent, attainable
standard that provides at least as much protection as BWE as soon as
possible provides more protection than establishing a stricter standard
and continually postponing it or deferring enforcement until it is
achievable. We note the findings and recommendations of the National
Research Council's (NRC) Committee on Assessing Numeric Limits for
Living Organisms, which concluded that ``The current state of science
does not allow a quantitative evaluation of the relative merits of
various discharge standards in terms of invasion probability.'' The
Committee further recommended that ``(a)s a logical first step, a
benchmark discharge standard should be established that clearly reduces
concentrations of coastal organisms below current levels resulting from
ballast water exchange (such as the IMO D-2 standard).''
    While the Coast Guard agrees that it is necessary to have a
protective standard in place as quickly as possible, we have delayed
the initial implementation dates for newly constructed vessels to allow
for the implementation of the U.S. type-approval process. The Coast
Guard does not believe that it is possible to implement this process
any faster, and that such a deferral is inevitable.
    The Coast Guard disagrees with the commenters who stated there was
an insufficient record for the NPRM as a whole. While we have already
acknowledged that more analysis on the impacts of the phase-two
standard should be completed, both the economic and environmental
analyses that accompanied the NPRM contained information that, when
combined with our discussion of the proposed rule in the NPRM preamble,
provided reasonable justification for the NPRM.
Zero Discharge
    Fifteen commenters advocated for the establishment of a zero-
discharge standard, and said there should be no living organisms
allowed in ships' ballast water. Four commenters said that NISA
requires the Coast Guard to establish such a zero-discharge standard.
    Conversely, three commenters opposed setting a zero-discharge
standard, which they claimed would be operationally and practically
unachievable. One commenter stated that the current knowledge of
invasion biology seems to be insufficient to define no-risk discharge
criteria.
    Two commenters stated that the long-term goal should be zero
discharge of live organisms.
    The Coast Guard disagrees that NISA requires a zero-discharge
standard. NISA requires the Coast Guard to develop regulations that
prevent the introduction and spread of NIS to the maximum extent
practicable, and we have no data that support setting a zero-discharge
standard as being practicable. However, the Coast Guard is committed to
implementing the most stringent BWDS that can practicably be achieved.
As evidence of this, the Coast Guard has already indicated in this
preamble that in a subsequent publication, after additional analysis
and research, we intend to finalize the proposed phase-two standard or
any standard higher than phase-one, as well as the recurring
practicability reviews that were included in the NPRM, with the goal of
determining and achieving the most protective BWDS practicable (see
V.A. Summary of Changes From the NPRM).
Phase-One Standard
    Fourteen commenters stated their support for the phase-one standard
that is equivalent to the IMO discharge standard. One commenter
requested that the phase-one standard become the permanent standard for
the United States.
    The Coast Guard agrees with the commenters who supported the phase-
one standard, as we believe this standard is practicable, achievable,
and provides a level of protection that is at least as effective as
BWE. However, the Coast Guard also believes that future work, such as
that suggested by the EPA SAB (EPA SAB 2011) and the NRC Committee (NAS
2011), may result in a better understanding of the need for more
stringent standards and the development of improved technologies for
treating ballast water on vessels, and will continue to work toward
improving protective requirements in accordance with the directions and
authorities in NANPCA 90.
    Thirteen commenters opposed the phase-one standard on the grounds
that it was not sufficiently protective. One commenter proposed that
the phase-one standard be set at 10 times more stringent than the IMO
discharge standard, 5 commenters proposed that the phase-one standard
be set at 100 times more stringent than the IMO discharge standard, and
4 commenters proposed that the phase-one standard be set at 1,000 times
more stringent than the IMO discharge standard, which would be the
equivalent of the proposed phase-two standard.
    One commenter suggested dropping the phase-one standard and
immediately undertaking a practicability review of the phase-two
standard, which the commenter believed would result in an indefinite
deferral of the phase-two standard as non-practicable. One commenter
opposed the phase-one standard proposed in the NPRM without giving
specific reasons.
    The Coast Guard has found, based on the best scientific information
available to the Coast Guard (including the previously referenced EPA
SAB study on technologies and systems to minimize the impacts of
invasive species in vessel ballast water discharge (EPA SAB 2011)),
that there are currently no BWMS that have demonstrated the capability
to meet a standard more stringent than the phase-one standard.
Additionally, there are no available, standardized testing protocols
that can be used to demonstrate that a BWMS can meet a standard 100 or
1,000 times more stringent than the phase-one standard.
    Implementing both the phase-one and a more stringent but
unachievable standard in a single rulemaking would result in foregoing
the near-term protection this rulemaking provides. The Coast Guard
believes ensuring this near-term protection now is in line with our
statutory mandate from NANPCA, as amended by NISA. As we explained in
this preamble, we are not abandoning the phase-two standard (see V.A.
Summary of Changes from the NPRM). We are committed to implementing a
standard that provides the most protection that can practicably be
achieved.
    One commenter opposed the phase-one standard on the grounds that it
would be difficult to assess and therefore enforce. The Coast Guard
disagrees. The EPA has already issued its ETV Protocol, which is
incorporated by reference into this final rule and will be used to
assess a BWMS' success in meeting the BWDS. The Coast Guard's type-
approval process provides a strong means of verifying whether a BWMS
can likely achieve the BWDS when installed and operating. Finally,
Coast Guard port-state control officers will provide the final
enforcement check to

ensure that a BWMS is operating as it should to meet the BWDS.
    One commenter requested a modification to the phase-one standard to
account for organisms less than 10 micrometers in size. The Coast Guard
disagrees that this is necessary for the phase-one standard, as the IMO
discharge standard did not include this size category. We may consider
additional size categories for the phase-two standard.
    Two commenters requested that the phase-one standard be aligned
with the IMO discharge standard and other provisions of the IMO BWM
Convention. The Coast Guard believes that we have made the phase-one
standard as consistent as possible with the IMO discharge standard. We
have made a slight adjustment in our implementation schedule to allow
for practical realities involved in implementing a U.S. type-approval
program, but we have also included a provision to allow for BWMS that
have been approved by foreign administrations under the IMO BWM
Convention to be accepted on an interim basis (see discussion in V.A.
Summary of Changes from the NPRM).
Phase-Two Standard
    Thirteen commenters supported the phase-two standard as proposed in
the NPRM. One commenter stated that vessels would benefit by having to
install a BWMS only once at a potentially more protective standard. One
commented that adopting the phase-two standard would encourage
manufacturers to modify existing BWMS components and develop new
technologies that could meet multiple stringency standards.
    Conversely, 47 commenters opposed the phase-two standard as being
counterproductive on the grounds that there are no accepted test
protocols or BWMS that have been proven to meet any limits more
stringent than phase-one. Two commenters opposed the phase-two standard
because BWMS manufacturers have focused their research, development,
and certification efforts on the IMO discharge standard, and may not
have the resources to start over.
    One commenter requested that a size category for organisms less
than 10 micrometers be added to the phase-two standard. Two commenters
requested removing the phase-two standard for viruses due to the
impracticability of treating for viruses and the difficulty of testing
virus viability. One commenter stated there are no technologies,
scientific methods, or protocols to differentiate between active versus
inactive virus-like particles, which would make it impossible to
measure the efficacy of BWMS in achieving the proposed phase-two
standard for viruses.
    Two commenters said that the phase-two standard should only allow
for use of less stringent standards under temporary special exemption
cases (e.g., vessel types or discharge characteristics) as determined
by a technology review. One commenter suggested an interim measure like
Michigan's BWM regulation, which identified specific treatment
processes. The commenter believed that such an approach could be
implemented across the Great Lakes more quickly than the proposed
standards.
    Three commenters stated that the phase-two standard should be
delayed until instrumentation and methods are available to measure the
capability of BWMS to meet the standard. One commenter stated that the
phase-two standard is unnecessarily stringent for vessels that operate
in the Great Lakes. One commenter stated that the phase-two standard
should not have a defined value before the results of the
practicability review are known.
    One commenter opposed the phase-two standard for vessels that
operate solely on the Great Lakes, arguing that the large volumes of
treated water being discharged would essentially distill the Great
Lakes of essential organisms necessary for aquatic health.
    One commenter stated that one BWMS could meet multiple stringency
standards by adjustment of its operational parameters, although this
may depend on the treatment methodology of a particular system.
    One commenter recommended that phase-two technologies should be
based on conversions of the existing phase-one platforms.
    As we have discussed in this preamble, this final rule only
contains implementation requirements for the phase-one standard (see
V.A. Summary of Changes from the NPRM). We are taking all of the
comments we received on the phase-two standard into consideration as we
begin the process of completing economic and environmental analyses for
the phase-two standard, and will continue to consider these comments as
we draft a notice or other rulemaking document addressing the phase-two
standard.
Grandfather Period
    Seven commenters opposed any grandfather period. Two of these
commenters argued that vessels that install a phase-one system should
not be exempt from the phase-two standard. One of these commenters
requested that best available technology be required at all times,
which would eliminate the use of a grandfather period.
    One commenter stated that the grandfather period should be
decreased from 5 to 3 years, whereas two commenters argued that 5 years
was an appropriate grandfather period.
    Fifteen commenters stated that 5 years was not long enough for a
grandfather period. Twelve commenters stated that an installed BWMS
should be grandfathered for the useful life of the vessel, and 10
commenters stated that BWMS should be grandfathered for the effective
life of the system. Fourteen commenters stated that an installed BWMS
should be grandfathered for the life of either the vessel or BWMS,
whichever ends first.
    One commenter stated that the grandfather period should be
increased from 5 years to 10 years or the lifetime of the vessel, one
commenter stated that it should be increased to 15 years, two
commenters stated that it should be increased to 15 years or the life
of the vessel, and one commenter stated that vessels should be given a
specific date by which to upgrade once a phase-two standard is
established.
    As discussed in this preamble in V.A. Summary of Changes from the
NPRM, the Coast Guard is not including the phase-two standard in this
final rule. Because the final rule only includes the phase-one
standard, we have omitted the grandfather provision that we proposed in
the NPRM. We expect to reconsider the grandfather provision when we
address the proposed phase-two standard or any standard higher than
phase-one in a notice or other rulemaking document. We will keep these
comments in mind as we develop that proposal.
Practicability Review
    Thirty nine commenters supported a practicability review that is
sufficiently robust and comprehensive to determine whether a BWDS more
stringent than the phase-one standard is achievable. One of these
commenters said that the review should be limited to the testing and
certification requirements of the IMO BWM convention and guidelines.
Six commenters recommended that the practicability review ensure that
any phase-two standard is effective, measurable, technologically
feasible, commercially available, safe, and cost-effective for use with
the characteristics of the vessel.
    One commenter said the regulation should contain an express
statement that the Coast Guard will not make upward revisions of the
treatment

standard unless it is economically reasonable to do so, and that we
should include criteria for that determination. Another commenter said
that if and when a BWMS can achieve the phase-two standard of 1,000
times more stringent than the IMO discharge standard, no further
practicability reviews should be conducted with regard to achieving
even higher standards.
    Ten commenters said that a practicability review should be
conducted for the phase-one standard as well. Twenty three commenters
said that the reviews must verify there are BWMS that are suited to the
volumes, flow rates, and engine room specifications of Great Lakes
vessels before imposing the phase-one standard on these vessels.
    Six commenters agreed with the proposed 3-year cycle for
practicability reviews, seven recommended that the reviews be conducted
on a continuous basis, three recommended that the reviews be conducted
every year, one suggested a 3- to 5-year cycle, and three recommended a
5-year cycle.
    Six commenters wanted a firm deadline for practicability reviews.
Six others stated that the timing and scope should be accelerated from
2010 to 2012 to inform both the phase-two standard and the 2013 renewal
of the EPA VGP.
    Conversely, 19 commenters opposed any practicability review that
could indefinitely delay implementation of the final standard, calling
it a ``loophole.'' Eight of these commenters requested an electronic
docket and public comment period before any final determinations based
on practicability reviews are made. One commenter stated that moving
the practicability review would not allow time for vessels with a 2014
compliance date to implement technology that meets the phase-two
standard. Two commenters said there is no evidence presented in the
NPRM or DPEIS to justify claims that the phase-two standard is not
currently achievable, and therefore the practicability review is not
necessary.
    Three commenters requested a definition for ``practicability'' and
for the inclusion of specific content and format of the review. One
commenter said the rule should place an upper limit on how long the
implementation date can be extended at any given time. One commenter
stated that there should be a practicability review for vessels based
on the type of vessel and the geographic route(s) it serves, (i.e.,
ocean-going service, inland waters, Great Lakes, near coastal, etc.).
    As discussed in this preamble in V.A. Summary of Changes from the
NPRM, because we have removed the phase-two standard from this final
rule, we have also removed the recurring practicability reviews that
were included in the NPRM. We expect that regular assessments, per
NISA's ``[p]eriodic review and revision'' provisions, codified at 16
U.S.C. 4711(e), will be part of any future rulemaking process. This
will address the scenario in which a finalized phase-two standard
either cannot be implemented according to the established timelines, or
can be implemented more quickly than the established timeline.
    There is one practicability review provision included in this final
rule that requires the Coast Guard to complete and publically publish
the results of a practicability review no later than January 1, 2016.
This review will draw a significant component of its information from
the type-approval application packages that the Coast Guard expects to
evaluate between this final rule's publication date and the initial
implementation date. Further, the findings and recommendations of the
EPA SAB study (EPA SAB 2011) will usefully inform the development of
the practicability review. The Coast Guard will look at a variety of
factors, including but not limited to the efficacy and environmental
safety of available technology, and economic factors. While we have
listed a number of these factors in the rule, there is a provision
allowing for consideration of additional factors. We included this
provision because of the possibility that the Coast Guard may discover
additional factors that would be relevant to a decision on whether or
not it is practicable to increase the stringency of the BWDS.
    These changes address some of the comments summarized previously.
We will continue to keep comments related to the recurring
practicability reviews in mind as we develop a notice or other
rulemaking document implementing the phase-two standard. While we have
not included a practicability review prior to the implementation of the
phase-one standard, we have included a provision to allow vessel owners
and operators to request an extension of their compliance date if they
cannot practicably comply with the compliance date otherwise applicable
to their vessel. Summary information concerning all extension
decisions, including the name of the vessel and vessel owner, the term
of the extension, and the basis for the extension will be promptly
posted on the U.S. Coast Guard Maritime Information Exchange Web site
(CGMIX), currently located at [http://cgmix.uscg.mil/Default.aspx].
Implementation Schedule
    One commenter was opposed to extending the phase-two deadline
unless a future public comment period establishes that such an
extension is necessary to allow for practicable implementation of the
phase-two standard. Four commenters agreed with the proposed schedule
for implementation of both the phase-one and the phase-two standards.
    Eighty one commenters requested that the implementation schedule be
changed in some way. Eleven commenters stated that a BWDS should take
effect immediately, and one commenter said it should be implemented in
1 year. One commenter said the phase-two standard should take effect
immediately, while another said that 3 to 5 years is plenty of time.
Three commenters stated that the phase-two standard should take effect
by 2012 and one said it should take effect by 2016. Three commenters
opposed reliance on drydocking schedules in favor of hard deadlines for
compliance, unless justified by vessel-specific engineering constraints
or lack of availability.
    One commenter stated that existing vessels should be required to
schedule their first drydocking by 2012, and to comply with the phase-
one standard by 2014 unless the practicability review deems that
deadline unattainable. One commenter suggested installation at the
first dry dock after 2014. Two others suggested that a more appropriate
timeline for all new and existing vessels would be 2012 or 2014,
respectively.
    Thirty three commenters said that the phase-one standard should be
implemented by 2012 and the phase-two standard by 2016. Another
commenter agreed with this schedule but with a more stringent phase-one
standard. One commenter supported a phase-one standard 100 times more
stringent than the Coast Guard's proposal by 2012 and a phase-two
standard 1,000 times more stringent than phase one by 2016.
    Two commenters considered the schedule for implementation of the
proposed regulations to be too protracted, and called for
implementation of the phase-two standard at an earlier date than
proposed. These organizations did not support allowing shipowners so
much time between the implementation date and their first scheduled
drydock.
    Conversely, 26 commenters requested that the implementation
schedule be lengthened or allow more flexibility for vessel types or
specific geographic areas. Thirteen commenters said that the dates
should be delayed until

compatible BWMS are commercially available for their vessels and to
accommodate standard drydocking cycles of twice in 5 years. One
commenter said that vessels traveling to specific areas such as the
Great Lakes could comply with the 2014 date, but did not think this was
a realistic option to apply to vessels in all waters of the United
States.
    One commenter stated that the proposed schedule does not allow
enough time for vendors to develop BWMS capable of meeting the phase-
two standard, particularly since methods and facilities capable of
testing to the phase-two standard will need to be available in order to
develop such systems.
    One commenter stated that vessels confined to the Great Lakes will
not have sufficient shipyard availability to install equipment to meet
the BWDS on the proposed schedule. Four commenters stated that some
vessels operating in the Great Lakes have very short voyages (on the
order of hours). If BWMS available for such vessels are limited to
chemical systems with required minimum treatment times longer than the
voyages, then significant delays will occur in the transportation
chain. Two industry associations commented that the proposed schedule
was not feasible due to a lack of available BWMS and a shortage of
shipyard capacity for installation.
    The Coast Guard considered these comments. First, to accommodate
the implementation of the final rule in relation to delays encountered
in the rulemaking process, the Coast Guard has revised the
implementation schedule for the phase-one standard at 33 CFR
151.1512(b) and 151.2035(b) to provide new vessels the 2 years for
implementation as presented in the 2009 proposed rule. Addressing
concerns with the schedule more generally, while we agree with those
commenters who would like to see a requirement that BWMS be installed
on vessels as soon as possible, it is important to consider several
factors that impact the timeline during which approved BWMS can be
expected to be installed. These include the time required for the
United States to implement a BWMS approval process, for manufacturers
to establish production capacity, and for vessel owners to acquire and
install BWMS within their vessels' normal operational and maintenance
schedules. As a result, there will likely not be an adequate number of
approved BWMS to allow for acceleration of the implementation schedule
in the 2009 proposed rule. Phase-two and its implementation schedule
are not addressed in this final rule. As discussed in the ``Summary of
Changes from the NPRM'' section above, the Coast Guard will develop
additional analyses regarding the potential costs, benefits, and
environmental impacts of the proposed phase-two standard or any
standard higher than phase-one and intends to address the issue in
subsequent rulemaking document.
Language Clarification/Technical Change
    One commenter requested that the proposed BWDS include language
necessary for differentiation between living and nonliving organisms.
Another said that the standard should allow for the presence of
nonliving organisms since some treatment technologies act to kill
living organisms without necessarily removing them from the ballast
water.
    The Coast Guard acknowledges that the proposed BWDS is slightly
different in this respect from the IMO discharge standard, which uses
the term ``viable'' instead of ``living.'' It is important to note
that, while the text of the IMO BWM Convention refers to ``viable''
organisms, the G8 guidelines define ``viable'' as ``living.''
Therefore, the Coast Guard has decided that this issue is best
addressed in the BWMS approval process, and will not alter the standard
as suggested by these commenters. We note that the standard and
approval process do allow for the presence of nonliving organisms.
Additionally, we corrected a technical error present in the NPRM, which
mistakenly omitted the term ``living'' from the proposed 33 CFR
151.1511(a). This final rule corrects that omission.
    One commenter requested an addition to the BWM requirements in 33
CFR 151.2025(a)(1) that would read ``(i) Unless 151.2040(b) allows
otherwise, the BWMS must be used prior to any discharge of ballast
water to waters of the U.S. (ii) All treatment must be conducted in
accordance with the BWMS manufacturer's instructions and standard of
performance approved by the Coast Guard.''
    The Coast Guard disagrees that this addition is necessary. Vessel
owners/operators must comply with the BWDS for all ballast water
discharged following treatment with a BWMS, and follow the
manufacturer's Operation, Maintenance, and Safety Manual to maintain
their systems in proper working order.
    One commenter asked that a definition be provided for ``regular''
and ``regularly,'' as those terms are used in 33 CFR 151.2050, which
requires vessels owners or operators to clean their ballast tanks
regularly to remove sediments and to remove fouling organisms from
hull, piping, and tanks on a regular basis. The Coast Guard disagrees,
and believes that there should be some flexibility to schedule these
activities according to a vessel's specific circumstances.
    One commenter believes that portions of 33 CFR 151.2050 (additional
requirements) are intended to be discretionary rather than mandatory,
and should be separate categories. The Coast Guard disagrees. The Coast
Guard included the term ``minimize or avoid'' in 33 CFR 151.2050(b) to
ensure that vessel owners and operators always consider these
additional requirements, while allowing some flexibility according to a
vessel's specific circumstances.
    One commenter suggested adding a definition for ``test report'' at
46 CFR 162.060-3, as the term is used in multiple places. The Coast
Guard disagrees, as the Test Report is described in 46 CFR 162.060-34.
    One commenter suggested revising the proposed definition for
``hazardous location'' found in 46 CFR 162.060-3. The Coast Guard
agrees and revised the definition.
    One commenter suggested requiring contact information, in addition
to manufacturer's name, in 46 CFR 162.060-10(a)(1). This commenter also
suggested that the phrase ``Name and type of BWMS'' in 46 CFR 162.060-
10(a)(3) be revised to also require the mode of action or other
information. The Coast Guard partially agrees; we have added a
requirement for point of contact information for the manufacturer to 46
CFR 162.060-10. However, we have not made the requested change to 46
CFR 162.060-10(a)(3), as we believe this is already reflected in the
existing text.
    One commenter asked that the phrase ``novel processes'' in 46 CFR
162.060-10(e) be defined. The Coast Guard disagrees, because it does
not wish to preclude any innovative approaches in BWMS.
    One commenter asked whether the IL or manufacturer is required to
submit the Test Report to the Coast Guard Marine Safety Center (MSC) as
part of the approval process. The Coast Guard approval process places
responsibility on the manufacturer to submit all necessary materials to
the MSC, however, it is acceptable if the IL submits the report
directly to the MSC.
    One commenter was unsure what types of approvals are required under
46 CFR 162.060-14(a)(7), such as those from U.S. agencies, foreign
administrations, classification societies,

and other organizations. The Coast Guard's response is that 46 CFR
162.060-14(a)(7) pertains to approval of BWMS using active substances,
and that manufacturers are responsible for obtaining all required
approvals external to the Coast Guard's approval process. We anticipate
issuing guidance documents to aid manufacturers in complying with the
approval process.
    One commenter noted what appeared to be conflicting information as
to exactly which vessels this rule would apply to and whether all
vessels would be required to install BWMS. The Coast Guard responds
that these are separate but related questions. First, 33 CFR 151.1502
in the existing regulations and 33 CFR 151.2010 (Applicability) of this
final rule describe which vessels will be required to comply with 33
CFR part 151 subparts C and D, or subsections of them. This is a broad
description, as many vessels not required to install a BWMS will need
to comply with other requirements in 33 CFR part 151 subpart D, such as
recordkeeping requirements. Several groups of vessels are exempted from
BWM requirements under Sec.  151.2015.
    Secondly, 33 CFR 151.2025 (BWM requirements) of the final rule
identifies which vessels must install a BWMS that complies with the
BWDS, or manage their ballast water in another one of the methods
listed in that section.
    One commenter requested clarification of the requirement ``Records
any bypass of the BWMS'' at 46 CFR 162.060-20(b)(5). The commenter
noted that not all BWMS will be able to do this, as some bypasses may
be achievable using systems or components that are outside of the BWMS.
The Coast Guard agrees and has removed this provision.
Management Requirements
    Two commenters suggested that the practicability of on-shore or
vessel/barge-based ballast water treatment be explored. The Coast Guard
encourages the development of alternative treatment methods that would
allow some vessels to manage their ballast water without having to
install a BWMS. The phase-one standard in this final rule will only
apply to vessels that discharge ballast water into waters of the United
States. Vessel owner/operators discharging ballast water to a facility
onshore or to another vessel must ensure that all vessel piping and
supporting infrastructure up to the last manifold or valve immediately
before the dock manifold connection of the receiving facility or
similar appurtenance on a reception vessel prevents untreated ballast
water from being discharged into waters of the U.S.
    Once Ballast water is pumped to an on shore treatment facility or a
treatment vessel it would not be subject to 33 CFR part 151 subpart C
or D. However, under the CWA any resulting discharges from these on-
shore treatment facilities or treatment vessels are subject to the
National Pollutant Discharge Elimination System (NPDES) program.
Companies that intend to provide these services will be responsible for
complying with these and other local, state, and Federal laws and
regulations.
    One commenter suggested requiring BWMS in addition to, rather than
instead of, existing BWE requirements for ocean going vessels entering
the Great Lakes-St. Lawrence Seaway system. The Coast Guard disagrees.
Requiring both BWE and BWMS for oceangoing vessels entering the Great
Lakes was not proposed in the NPRM and therefore beyond the scope of
this rulemaking.
    One commenter stated that the allowance of BWE under the phase-one
standard is inconsistent with the goal of minimizing NIS introductions
and should be eliminated as an option. The Coast Guard agrees that BWE
should be eliminated as an option as soon as possible. The primary
purpose of NANPCA, as amended by NISA, is to ``prevent the
unintentional introduction and dispersal of nonindigenous species into
waters of the United States through ballast water management and other
requirements.'' 16 U.S.C. 4701(b). Permitting BWE to remain as a
permissible management technique in light of other, more protective
methods, would frustrate this clearly articulated statutory purpose and
lead to an absurd result. See Griffin v. Oceanic Contractors, Inc., 458
U.S. 564, 575, 102 S.Ct. 3245 (1982) (statutory interpretations ``which
would produce absurd results are to be avoided if alternative
interpretations consistent with the legislative purpose are
available.'') The Coast Guard is thus phasing out BWE as a BWM method
in favor of more protective methods to best prevent the introduction
and spread of NIS into waters of the U.S. consistent with this
statutory purpose.
    We also believe that existing vessels should be given a reasonable
period of time to come into compliance with the phase-one standard, and
that BWE should continue as a viable BWM alternative for a vessel until
the phase-one standard applies to that vessel. However, we note that
once a vessel is required to comply with the phase-one standard, BWE
will no longer be an acceptable routine management method.
    One commenter noted the U.S. Administration's goal of expanding
coastwise or short-sea shipping, and requested that BWE be added as a
management option for these vessels. The Coast Guard notes that its
existing regulations do not require coastwise vessels to conduct BWE
unless their voyage takes them more than 200 nautical miles from any
shore. For the final rule, we have revised 33 CFR 151.2015 to exempt
certain vessels from the BWM requirements and 33 CFR 151.2025 to
provide additional BWM options besides installing BWMS. These changes
are discussed above under the heading ``Applicability.''
    One commenter suggested retaining BWE for all vessels when
practicable, requiring a combination of best available technology and
BWE to improve BWMS performance, and requiring BWE as a minimal
treatment in case the BWMS fails. Another suggested the addition of
rules requiring BWE 50 nautical miles outside the continental baseline
for vessels conducting coastal voyages, implementation of a BWE
verification system, and allowance of BWE within 200 nautical miles
when a safety exemption would otherwise allow un-exchanged water to be
discharged at a State port. The Coast Guard disagrees, and believes
that phasing out BWE in favor of the BWM requirements in this final
rule will be at least as effective as BWE to prevent the introduction
of NIS into the waters of the United States. The Coast Guard notes that
under 33 CFR 151.2040(b), the COTP may allow the vessel to conduct BWE
as a management option if the BWMS fails to operate or the vessel's BWM
method is unexpectedly unavailable.
Preamble Text
    One commenter disagreed with the statement in the NPRM that ``The
effectiveness of BWE is highly variable, largely depending on the
specific vessel and voyage'' (74 FR 44663). The commenter added that
the Great Lakes Seaway Ballast Water Working Group's strict enforcement
of BWE requirements in the St. Lawrence Seaway is the main reason that
there have been no reports of the establishment of invasive species on
the Great Lakes since 2006.
    The Coast Guard acknowledges the bi-national success in achieving
high rates of regulatory compliance with existing BWE requirements.
However, we do not have evidence that this successful enforcement
necessarily proves the effectiveness of BWE, as there are also other
regulations and requirements

being enforced for vessels entering the St. Lawrence Seaway.
Enforcement
    Seventeen submitters commented on how the Coast Guard intends to
enforce the BWDS.
    Three commenters said there should be significant financial
penalties to provide incentives for industry to meet implementation
deadlines. The Coast Guard notes that the existing civil and criminal
penalties for 33 CFR part 151 subparts C and D are established by
statute and were not changed in the NPRM. They may now be found at 33
CFR 151.2080 of the final rule. After publication of the NPRM, in a
separate action, the Coast Guard made an adjustment to the civil
penalty tables found at 33 CFR 27.3. (75 FR 36273, 36278 (June 25,
2010)).
    Five commenters stated that the numeric discharge standard would
impose significant problems for compliance enforcement, particularly
when results need to be legally acceptable, because sufficient
techniques or equipment are not currently available to test ballast
water on the spot. The Coast Guard disagrees, and believes that setting
a practicable, numeric BWDS such as this final rule's BWDS, combined
with type approval of BWMS, will facilitate compliance enforcement.
    Another commenter said that a phase-two standard 1,000 times more
stringent than the phase-one standard will be virtually impossible to
enforce, and will significantly increase enforcement costs, and
possibly increase downtime for inspected vessels. The Coast Guard
agrees that implementation of the phase-two standard at this time could
be impracticable for several reasons, including enforcement, as
suggested by the commenter.
    Two commenters requested that a rigorous enforcement, inspection,
and monitoring program be developed to determine compliance, similar to
that currently being performed by the bi-national Great Lakes Seaway
Ballast Water Working Group for all vessels entering the St. Lawrence
Seaway. Three commenters requested routine or random testing of the
contents of a vessel's ballast tanks and ballast water discharge. One
commenter said this testing would be especially important for
oceangoing vessels that would discharge treated ballast water into
freshwater. Two commenters suggested testing for total residual
oxidants in ballast water as a way to determine the completion of
chemical treatment, and installing onboard sensors in vessels' ballast
tanks to measure chemical levels.
    Four commenters asked about port state control requirements. One
commenter requested that a limit of once in any calendar year must be
imposed on the number of times that a vessel can be tested to determine
whether its BWMS is working properly, and that onboard sensor data or
the captain's signed and sworn certification transmitted to the port
state authority should be sufficient. Another commenter said that
vessel-based BWMS would not enable the port state authority to monitor
ballast water. Two commenters stated that proper and effective sampling
and test protocols, as well as required facilities and proficiency,
still need to be established. One commenter requested specific
information indicating how the BWDS will be enforced after
implementation.
    The Coast Guard believes that the approval process for BWMS, found
in 46 CFR part 162.060 of this final rule, will provide a strong basis
from which enforcement actions can proceed based on review of the
records required to be kept on the vessel. These reviews will occur
during port and flag state control exams. We acknowledge that
compliance exam procedures for BWMS will be an important component of
enforcement, and such procedures are under development. As discussed in
the Summary of Changes section above, we have added a provision
requiring sampling ports in order to facilitate enforcement of the
BWDS.
Reporting and Recordkeeping
    One commenter requested that the Ballast Water Reporting Form and
reporting and recordkeeping requirements be revised to accommodate all
of the proposed BWM methods in advance of the phase-one standard taking
effect. The Coast Guard agrees, and will propose revisions to the
Ballast Water Reporting Form and instructions either through a separate
rulemaking project or in conjunction with the next scheduled renewal of
the collection by OMB.
    One commenter said the NBIC should be given regular dates for
reporting information that they obtain from submitted reports. The
Coast Guard notes that the NBIC already provides database information
to the public through its Web site. As more vessels use electronic
reporting, the NBIC is reducing delays in updating that Web site.
3. BWMS
General
    Two commenters addressed the safety exception in 33 CFR 151.2045.
The first commenter recommended that ``vessel design limitations''
should not be considered an ``extraordinary condition'' under which a
master or person in charge of a vessel would be exempt from the
requirement to use a BWM practice, including BWE, under certain
circumstances. The second commenter supported the inclusion of the
exception and interpreted it as allowing the discharge of ballast water
that fails to meet the BWDS under emergency circumstances.
    The Coast Guard believes that they may have misunderstood this
provision. Under NISA, masters or persons in charge of vessels are not
required to conduct BWE if the practice would be unsafe due to weather
or vessel design. 16 U.S.C. 4701(k)(1). We have included this provision
in the regulation, and it is an allowable exception to BWE only as long
as a vessel is allowed to use BWE. Additionally, we have removed
proposed 33 CFR 151.2045 Safety exceptions, as we determined that it
was largely repetitive to what was proposed in 33 CFR 151.2040
Discharge of ballast water in extraordinary circumstances. We moved the
one non-repetitive provision to Sec.  151.2040. As a result, Sec.
151.2040 now includes the provision noting that nothing in the
regulations relieves the master, owner, agent, or person in charge of
the vessel from any responsibility, including the safety and stability
of the vessel and the safety of the crew and passengers.
    Once a vessel is required to meet the BWDS, the general safety
provision in Sec.  151.2040 no longer applies. If the master or person
in charge of the vessel determines that operation of the BWMS would
endanger the vessel for some reason, the master or person in charge
must inform the COTP, prior to the vessel's arrival, that BWM has not
been conducted due to safety reasons. The COTP will evaluate the
situation and direct the vessel accordingly.
    One commenter considered the BWMS design and construction
requirements to be onerous and likely to result in systems being overly
complicated and expensive. The commenter called for the Coast Guard to
approve the use of very simple approaches, such as manually pouring
additives into tanks. The Coast Guard disagrees, and believes that all
BWMS must be carefully designed, constructed, and approved to protect
the vessel, the crew and passengers, and the environment. With respect
to the example, treatment of ballast water using chemicals designed to
kill organisms has the potential to adversely affect the safety of the
vessel, the crew and passengers, and the environment if

the chemicals and the manner of their use are not carefully evaluated
in advance and controlled and managed during use of the system.
    Seven commenters stated that there were serious constraints on the
feasibility of installing BWMS that require electrical service on tank
barges and tank ships. Several commenters cited Coast Guard regulations
for electrical equipment as an impediment to such installation (46 CFR
111.105-31(1)). Likewise, six vessel owners asserted that safety and
regulatory requirements prohibit the installation on tank barges of
BWMS that use electricity.
    The Coast Guard agrees that electrical requirements included in 46
CFR subpart 162.060 may make installation of BWMS more complicated on
certain vessels. However, if these requirements make it impossible for
a vessel owner to safely install a BWMS, they should qualify for an
extension of the compliance date, per 33 CFR 151.1513 or 151.2036. An
extension would provide additional time to determine how BWMS can be
safely installed. An extension would postpone installation costs for
affected vessels. Data is unavailable on the number of vessels that
would require extensions. We have not estimated the quantitative
impacts of extensions.
    One commenter proposed that the Coast Guard should require best
available technology and BWE as an interim measure if compliant BWMS
are not available by the implementation dates. The Coast Guard
disagrees that best available technology and BWE together should be
considered the de facto acceptable method of compliance. The Coast
Guard considers establishing a practicable and protective BWDS to be
the best approach for preventing the introduction of NIS by the wide
array of vessels that must discharge ballast water for safe operation.
    The Coast Guard believes that BWMS meeting the phase-one BWDS will
generally be available in time for vessel owners and operators to
comply with the implementation schedule in this final rule. For those
cases where this is not so, we have provided a provision in the
regulation that allows a master, owner, operator, agent, or person in
charge of a vessel to apply for an extension of the compliance date.
    One commenter asserted that BWE is sufficiently protective in
preventing introductions of invasive species. This commenter also
suggested that BWE should be an acceptable method of BWM if a vessel
can demonstrate through sampling and analysis that BWE can meet the
BWDS. Two commenters asserted that BWE is sufficiently protective in
preventing invasive species introductions to the Great Lakes. These
commenters further suggested that BWE should be an acceptable method of
BWM for vessels entering the Great Lakes.
    The Coast Guard disagrees that BWE is sufficiently protective
against introductions of invasive species. Vessels are not always able
to conduct BWE. While BWE has undoubtedly reduced the risk of
introductions compared to no BWM at all, the inherent variability in
the efficacy of BWE among vessels and even within vessels argues for
the consistent application of more effective BWM practices.
Additionally, as vessels on coastwise voyages are not required to
conduct BWE under Coast Guard regulations, a BWMS is also necessary to
ensure the prevention of the spread, and not just the introduction, of
NIS.
    One commenter questioned whether BWMS will effectively remove all
contaminants in ballast water and asserted that onboard treatment will
not be a viable option until that is the case. The commenter suggested
that, as an alternative, vessels could use multiple systems to address
all contaminants. The Coast Guard appreciates the commenter's concerns,
but disagrees that a BWMS required under this rule will have to remove
all potential contaminants in ballast water. NANPCA, as amended by
NISA, requires the Coast Guard to ensure, to the maximum extent
practicable, introductions of NIS are not discharged into the waters of
the United States from vessels, and does not pertain to vessel
discharges outside of that threat. The statute also requires that
certain methods of BWM used instead of BWE must be environmentally
sound. By requiring such systems to meet applicable EPA requirements
related to treatment chemicals and their disinfection by-products prior
to discharge, the Coast Guard will help ensure that treatment of
ballast water does not result in adverse environmental consequences.
The issue of non-organism contaminants in ballast water is also
addressed under the EPA VGP. By requiring BWMS to meet all applicable
EPA requirements prior to type approval, the Coast Guard will help
ensure that treatment of ballast water does not create adverse
consequences.
    One commenter questioned whether onboard treatment is the best
approach, given that IMO approval of BWMS is proceeding slowly. The
Coast Guard disagrees that the pace of BWMS type approval under the IMO
BWM Convention is proceeding slowly. In fact, we note that foreign
type-approved systems are available.
    One commenter questioned whether onboard systems were the best
approach for preventing the discharge of organisms and noted that,
unless a vessel is fitted with a backup system, the failure of the
onboard treatment system could result in the discharge of untreated
ballast. The Coast Guard notes that the rule has been revised to
clarify that vessel owners and operators have a range of options for
BWM, including use of BWMS, retention onboard, discharge to a shoreside
treatment facility, or use of a U.S. PWS meeting Safe Drinking Water
Act standards. We also note that the regulation requires BWMS to signal
an alert if there is a failure and for vessel owners to report failures
of the BWMS to the COTP at their place of destination. In such a
situation, the COTP may require the vessel to perform alternative BWM
practices before allowing the discharge of the ballast water.
Active Substances or Chemicals
    One commenter asserted that many currently available BWMS use
chemicals, and that these BWMS may result in contamination of ballasted
fish holds. The commenter further stated that the proposed regulation
must include exemptions for this circumstance. The Coast Guard agrees
that chemical contamination of ballasted fish holds may be a problem
with the use of a chemically-based BWMS. However, the Coast Guard is
aware of several systems that do not use chemicals, and believes that
owners and operators of fishing vessels will have sufficient options
for meeting the BWDS (e.g., ultraviolet/filtration). For those fishing
vessels that cannot install a BWMS onboard, we have provided a
provision in the regulation that allows a master, owner, operator,
agent, or person in charge of a vessel to apply for an extension of the
compliance date if they can document that, despite all efforts to meet
the BWDS requirements, compliance by that deadline is not possible.
    Three commenters called for clarification as to how the regulations
proposed in the NPRM would prevent the discharge of harmful active
substances resulting from the use of BWMS. The Coast Guard agrees that
the use of chemicals such as biocides to treat ballast water creates
the potential for unwanted discharges of such chemicals. All systems
using chemicals must be registered by EPA under the Federal
Insecticide, Fungicide, and Rodenticide Act (FIFRA), as applicable,
prior to consideration by the Coast

Guard for type approval. Discharges from vessels with systems using
non-pesticide chemicals (or pesticides that are generated solely by the
use of a device onboard the same vessel as the ballast water to be
treated) will be covered under the EPA VGP, which contains requirements
to meet discharge limits established by EPA for residuals and by-
products of chemicals used in ballast water treatment. All chemicals
used in BWMS requiring FIFRA registration will be registered with EPA
prior to applying for Coast Guard type-approval of the BWMS. One
commenter encouraged the Coast Guard to allow treatment of ballast
water with biocides to address specific species on specific routes
within the Great Lakes as an alternative method of compliance. The
Coast Guard appreciates this commenter's input, but disagrees with the
proposed approach. The identification, with appropriate specificity, of
the location and identity of every infestation within the Great Lakes
is not feasible, nor is the identification of the appropriate biocide
for each specific species. The Coast Guard has determined that the most
protective approach is to require the uniform treatment of ballast
water to reduce concentrations of all organisms prior to discharge.
Alternatives to BWMS
    Thirteen commenters disagreed with the requirement for all
applicable vessels to install BWMS, and called for the Coast Guard to
allow vessels the flexibility to use other approaches, such as
discharging to receiving vessels or to shoreside facilities. The Coast
Guard agrees. As discussed previously regarding the comments dealing
with applicability, we have revised our regulation to clarify that only
vessels discharging ballast water into waters of the United States are
required to comply with the BWDS requirements at 33 CFR 151.1510 and
151.2025 of this final rule. However, the dependence of the vessel on
the availability of appropriate reception facilities must be identified
in the vessel's BWM plan, along with the alternative management
practices that will be used if and when discharge to a reception
facility is not possible. Further, the lack of availability of adequate
reception facilities is not an acceptable reason for discharge of
ballast water that does not meet the BWDS into the waters of the United
States, and such a discharge will constitute a violation of this
regulation.
    One commenter stated that vessels should be required to discharge
to a shore-side treatment facility prior to entering the Great Lakes.
The Coast Guard disagrees that vessels should be required to discharge
to a shore-side facility. The Coast Guard believes it is important that
vessels have the flexibility to select the BWM practice that makes the
most sense for their specific circumstances. If vessel owners and
operators want to have the option of discharging to shore and
sufficient market exists for such an option, then it is likely that
such facilities will be created.
    One commenter stated that it may not be technically or economically
feasible for a vessel owner to retrofit existing vessels with an
approved BWMS, and recommended that the Coast Guard allow other BWM
options under such circumstances. As described in 33 CFR 151.2025 and
151.2026, ballast water management practices other than use of a Coast
Guard-approved BWMS will be allowed.
    Additionally, vessels will have the options of discharging to a
shoreside treatment facility or receiving vessel, if available, or
retaining ballast water onboard. The Coast Guard will evaluate claims
that BWMS and other allowed BWM practices are not available for
specific vessels and potentially extend the compliance date for those
vessels.
Foreign Type Approvals
    Eleven commenters discussed the Coast Guard's proposed provision
for the acceptance of foreign type approvals of BWMS. Four of the
commenters supported the Coast Guard's proposal that such acceptance
should be granted only when the foreign procedures are equivalent to
those of the Coast Guard. Conversely, six of the commenters stated that
the Coast Guard should accept foreign type-approvals without verifying
equivalency of testing protocols.
    The Coast Guard's approval process is intended to provide a level
of assurance that a BWMS is likely to work consistently, effectively
(i.e., meet the BWDS), and safely under shipboard conditions. Testing
conducted with insufficient rigor or under substantially less
challenging conditions will not provide that assurance. The Coast Guard
retains the prerogative to verify the equivalency of foreign type-
approval procedures before accepting such approvals.
    One commenter stated that since the phase-one BWDS is equivalent to
the IMO discharge standard, the Coast Guard must consider the protocol
in the G8 guidelines to be sufficiently strict. The Coast Guard
disagrees, and will assess each foreign administration's type-approval
procedures, including test protocols and quality assurance practices,
to determine whether the performance assessment conducted by the
foreign administration is equivalent to that of the Coast Guard and
complies with applicable U.S. domestic laws. We will evaluate, in
accordance with the standards in the revised 46 CFR 162.060, the data
and supporting information in approval applications submitted by
manufacturers whose BWMS have received foreign type approval. We will
not grant U.S. type approval to BWMS approved by foreign
administrations based on approval procedures that are substantively
less rigorous than the U.S. approval testing without additional testing
as necessary and appropriate for the specific circumstance.
    The Coast Guard recognizes some time will elapse between the
publication of this final rule and the availability of U.S. approved
BWMS. The Coast Guard believes that ballast water discharged into
waters of the United States should undergo some type of treatment
designed to reduce the risk of ballast water spreading NIS at the
earliest possible date, particularly for those vessels currently unable
to conduct BWE, as we believe this will provide greater reduction in
the risk of NIS being introduced or spread via ballast water.
Therefore, we have added a provision to the final rule to allow for a
temporary acceptance of a foreign administration's approval if it can
be shown that the foreign-approved BWMS is at least as effective as
BWE. This temporary acceptance will be granted for 5 years from the
date when the vessel on which the BWMS is installed is required to
comply with the BWDS.
    Two commenters requested that the rule include more details about
the procedures the Coast Guard will follow to make determinations
regarding the acceptance of foreign type approvals. The Coast Guard
agrees and has made changes to 46 CFR 162.060-12, which are discussed
in the Summary of Changes section above. The Coast Guard expects to
examine each foreign administration's type-approval report, which
should include the testing protocols used and the testing results, and
then make a determination as to whether the procedures and criteria
used were essentially equivalent in rigor and challenge to those of the
Coast Guard. Additionally, in order to grant U.S. type approval or the
temporary acceptance (as an AMS), the Coast Guard must comply with NEPA
and other applicable environmental laws.
    One of the commenters suggested that the Coast Guard use an
advisory panel of independent scientists and agency representatives to
conduct the

equivalency determinations for foreign administration's type-approval
programs. The Coast Guard will make use of appropriate expertise in
reviewing proposals for acceptance of foreign type approvals,
including, when necessary, consultation with other agencies and outside
experts.
    One commenter referenced the text in the NPRM preamble that states:
``Under today's proposal, foreign vessels equipped with and operating a
BWMS that has been approved by a foreign administration would be
allowed to use the BWMS for discharging ballast water into U.S. waters
if the Coast Guard determines that the foreign administration's