[Federal Register Volume 85, Number 207 (Monday, October 26, 2020)]
[Proposed Rules]
[Pages 67818-67903]
[FR Doc No: 2020-22385]

Vol. 85

Monday,

No. 207

October 26, 2020

Part II

Environmental Protection Agency

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40 CFR Part 139

Vessel Incidental Discharge National Standards of Performance; Proposed
Rule

Federal Register / Vol. 85, No. 207 / Monday, October 26, 2020 /
Proposed Rules

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 139

[EPA-HQ-OW-2019-0482; FRL-10015-54-OW]
RIN 2040-AF92

Vessel Incidental Discharge National Standards of Performance

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The U.S. Environmental Protection Agency (EPA) is publishing
for public comment a proposed rule under the Vessel Incidental
Discharge Act that would establish national standards of performance
for marine pollution control devices for discharges incidental to the
normal operation of primarily non-military and non-recreational vessels
79 feet in length and above into the waters of the United States or the
waters of the contiguous zone. The proposed national standards of
performance were developed in coordination with the U.S. Coast Guard
(USCG) and in consultation with interested Governors. The proposed
standards, once finalized and implemented through corresponding USCG
regulations addressing implementation, compliance, and enforcement,
would reduce the discharge of pollutants from vessels and streamline
the current patchwork of federal, state, and local vessel discharge
requirements. Additionally, EPA is proposing procedures for states to
follow if they choose to petition EPA to issue an emergency order, to
review any standard of performance, regulation, or policy, to request
additional requirements with respect to discharges in the Great Lakes,
or to apply to EPA to prohibit one or more types of vessel discharges
proposed for regulation in this rulemaking into specified waters to
provide greater environmental protection.

DATES: Comments must be received on or before November 25, 2020. Under
the Paperwork Reduction Act (PRA), comments on the information
collection provisions are best assured of consideration if the Office
of Management and Budget (OMB) receives a copy of your comments on or
before November 25, 2020.

ADDRESSES: Submit your comments to the public docket for this proposed
rule, identified by Docket No. EPA-HQ-OW-2019-0482, at https://www.regulations.gov. Follow the online instructions for submitting
comments. All submissions received must include the Docket ID No. for
this rulemaking. Comments received may be posted without change to
https://www.regulations.gov, including any personal information
provided. For detailed instructions on sending comments and additional
information on the rulemaking process, see the ``General Information''
heading of the SUPPLEMENTARY INFORMATION section of this document. Out
of an abundance of caution for members of the public and our staff, the
EPA Docket Center and Reading Room are closed to the public, with
limited exceptions, to reduce the risk of transmitting COVID-19. Our
Docket Center staff will continue to provide remote customer service
via email, phone, and webform. We encourage the public to submit
comments via https://www.regulations.gov or email, as there may be a
delay in processing mail and faxes. Hand deliveries and couriers may be
received by scheduled appointment only. For further information on EPA
Docket Center services and the current status, please visit us online
at https://www.epa.gov/dockets.

FOR FURTHER INFORMATION CONTACT: Jack Faulk at<PHONE_NUMBER>;
<EMAIL_ADDRESS>or Katherine Weiler at<PHONE_NUMBER>;
<EMAIL_ADDRESS>of the Oceans and Coastal Management Branch
(4504T), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue
NW, Washington, DC 20460.

SUPPLEMENTARY INFORMATION: This supplementary information is organized
as follows:

I. Public Participation
    A. How should I submit written comments?
II. Legal Authority
III. Executive Summary
IV. Background
    A. Clean Water Act
    B. Additional U.S. and International Authorities
    C. Environmental Impacts of Discharges for Which Technology-
Based Standards Would Be Established by This Rule
V. Scope of the Regulatory Action
    A. Waters
    B. Vessels
    C. Incidental Discharges
    D. Emergency and Safety Concerns
    E. Effective Date
VI. Stakeholder Engagement
    A. Informational Webinars and Public Listening Session
    B. Post-Proposal Public Meetings
    C. Consultation and Coordination With States
VII. Definitions
VIII. Development of National Discharge Standards of Performance
    A. Discharges Incidental to the Normal Operation of a Vessel--
General Standards
    1. General Operation and Maintenance
    2. Biofouling Management
    3. Oil Management
    4. Training and Education
    B. Discharges Incidental to the Normal Operation of a Vessel--
Specific Standards
    1. Ballast Tanks
    2. Bilges
    3. Boilers
    4. Cathodic Protection
    5. Chain Lockers
    6. Decks
    7. Desalination and Purification Systems
    8. Elevator Pits
    9. Exhaust Gas Emission Control Systems
    10. Fire Protection Equipment
    11. Gas Turbines
    12. Graywater Systems
    13. Hulls and Associated Niche Areas
    14. Inert Gas Systems
    15. Motor Gasoline and Compensating Systems
    16. Non-Oily Machinery
    17. Pools and Spas
    18. Refrigeration and Air Conditioning
    19. Seawater Piping
    20. Sonar Domes
    C. Discharges Incidental to the Normal Operation of a Vessel--
Federally-Protected Waters Requirements
    D. Discharges Incidental to the Normal Operation of a Vessel--
Previous VGP Discharges No Longer Requiring Control
IX. Procedures for States To Request Changes to Standards,
Regulations, or Policy Promulgated by the Administrator
    A. Petition by a Governor for the Administrator To Establish an
Emergency Order or Review a Standard, Regulation, or Policy
    B. Petition by a Governor for the Administrator To Establish
Enhanced Great Lakes System Requirements
    C. Application by a State for the Administrator To Establish a
State No-Discharge Zone
X. Implementation, Compliance, and Enforcement
XI. Regulatory Impact Analysis
XII. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Executive Order 13771: Reducing Regulation and Controlling
Regulatory Costs
    C. Paperwork Reduction Act
    D. Regulatory Flexibility Act
    E. Unfunded Mandates Reform Act
    F. Executive Order 13132: Federalism
    G. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
    H. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
    I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
    J. National Technology Transfer and Advancement Act
    K. Executive Order 12898: Federal Actions To Address
Environmental Justice in

Minority Populations and Low-Income Populations
XIII. References

I. Public Participation

A. How should I submit written comments?

    EPA solicits comment on the proposed rule during the public comment
period. Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2019-0482, at https://www.regulations.gov. Once submitted, comments
cannot be edited or removed from the docket. EPA may publish any
comment received to its public docket. Do not submit to EPA's docket at
https://www.regulations.gov any information you consider to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Multimedia submissions (audio,
video, etc.) must be accompanied by a written comment. The written
comment is considered the official comment and should include
discussion of all points you wish to make. To facilitate the processing
of comments, commenters are encouraged to organize their comments in a
manner that corresponds to the outline of this proposal; clearly
explain why they agree or disagree with the proposed language; suggest
alternative language; and include any technical or economic data to
support their comment. For comments to be considered during the
development of the final rule, comments must be received before the end
of the comment period.
    EPA will generally not consider comments or comment contents
located outside of the primary submission (i.e., on the web, cloud, or
other file sharing system). For additional submission methods, the full
EPA public comment policy, information about CBI or multimedia
submissions, and general guidance on making effective comments, please
visit https://www.epa.gov/dockets/commenting-epa-dockets.
    EPA is temporarily suspending its Docket Center and Reading Room
for public visitors, with limited exceptions, to reduce the risk of
transmitting COVID-19. Our Docket Center staff will continue to provide
remote customer service via email, phone, and webform. We encourage the
public to submit comments via https://www.regulations.gov as there may
be a delay in processing mail and faxes. Hand deliveries or couriers
will be received by scheduled appointment only. For further information
and updates on EPA Docket Center services, please visit us online at
https://www.epa.gov/dockets.
    EPA continues to carefully and continuously monitor information
from the Centers for Disease Control and Prevention (CDC), local area
health departments, and our Federal partners so that we can respond
rapidly as conditions change regarding COVID-19.

II. Legal Authority

    EPA proposes this rule under the authority of Clean Water Act
Sections 301, 304, 307, 308, 312, and 501 as amended by the Vessel
Incidental Discharge Act. 33 U.S.C. 1311, 1314, 1317, 1322, and 1361.

III. Executive Summary

    Discharges incidental to the normal operation of a vessel, also
referred to as ``incidental discharges'' or ``discharges'' in this
rulemaking, can have adverse impacts on aquatic ecosystems and other
potential impacts such as to human health through contamination of food
from aquaculture/shellfish harvesting areas because the discharges may
contain pollutants such as aquatic nuisance species (ANS), nutrients,
bacteria or pathogens (e.g., Escherichia coli and fecal coliform), oil
and grease, metals, as well as other toxic, nonconventional, and
conventional pollutants (e.g., organic matter, bicarbonate, and
suspended solids). These pollutants can have wide-ranging environmental
consequences that vary in degree depending on the type and number of
vessels operating in a waterbody and the nature and extent of the
discharge.
    The Clean Water Act (CWA), the Nonindigenous Aquatic Nuisance
Prevention and Control Act (NANPCA), the Act to Prevent Pollution from
Ships (APPS), and several other federal, state, local, and
international authorities have established over time various
requirements for both domestic and international vessels. To clarify
and streamline existing requirements, in December of 2018, the
President signed into law the Vessel Incidental Discharge Act (VIDA).
33 U.S.C. 1322(p). The VIDA established a new CWA Section 312(p) titled
``Uniform National Standards for Discharges Incidental to Normal
Operation of Vessels.'' The VIDA consolidates and restructures the
existing regulatory framework for non-military (vessels of the Armed
Forces) and non-recreational vessels; clarifies current and future
regulatory coverage for different types of vessels; and, requires EPA
and the USCG to establish national standards of performance for marine
pollution control devices and corresponding implementing regulations,
respectively, to prevent or reduce the discharge of pollutants from
vessels.
    More specifically, the new CWA Section 312(p) directs the
Administrator of EPA (Administrator) to develop national standards of
performance in consultation with interested Governors and with the
concurrence of the Secretary of the department in which the USCG is
operating (Secretary) by December 2020. With limited exceptions, the
VIDA requires that the standards be at least as stringent as EPA's 2013
National Pollutant Discharge Elimination System (NPDES) Vessel General
Permit (VGP) requirements established under CWA Section 402. See 33
U.S.C. 1322(p)(4)(B)(iii) (EPA standards); id. (5)(A)(ii) (USCG
requirements). The VIDA also requires that the standards be technology-
based using a similar approach to that outlined by the CWA for setting,
among other things, effluent limitation guidelines. Additionally, the
VIDA requires the USCG to develop corresponding implementation,
compliance, and enforcement regulations within two years after EPA
publishes the national standards of performance. The USCG implementing
regulations may also include requirements governing the design,
construction, testing, approval, installation, and use of devices to
achieve EPA national standards of performance. Importantly,
requirements of EPA's VGP and the USCG's requirements under Section 110
of NANPCA remain in place until these new EPA and USCG regulations
under CWA Section 312(p) are final, effective, and enforceable. In
addition, the VIDA repealed the 2014 EPA NPDES Small Vessel General
Permit (sVGP) and established that neither EPA nor the states shall
require an NPDES permit for any discharge incidental to the normal
operation of a vessel, other than ballast water, from a small vessel or
fishing vessel, effective immediately upon enactment of the VIDA.
    The proposed rule would establish both general and specific
discharge standards of performance for approximately 82,000
international and domestic non-military, non-recreational vessels
operating in the waters of the United States or the waters of the
contiguous zone. The types of vessels intended to be covered under the
proposed rule include, but are not limited to, public vessels of the
United States, fishing vessels (for ballast water only), passenger
vessels such as cruise ships and ferries, barges, tugs and tows,
offshore supply vessels, mobile offshore drilling units, tankers, bulk
carriers, cargo ships, container ships, and

research vessels. While most provisions are intended to apply to a wide
range of vessels, the VIDA specified that fishing vessels would only be
subject to ballast water provisions. 33 U.S.C. 1322(p)(2)(B)(i)(III).
    The general discharge standards of performance are designed to
apply to all vessels and incidental discharges covered by the rule, as
appropriate, and are organized into three categories: (1) General
Operation and Maintenance, (2) Biofouling Management, and (3) Oil
Management. The general discharge standards of performance are
preventative in nature and require best management practices (BMPs) to
minimize the introduction of pollutants into the discharges, as well as
the volume of discharges.
    The specific discharge standards of performance would establish
requirements for 20 separate discharges incidental to the normal
operation of a vessel from the following pieces of equipment and
systems: Ballast tanks, bilges, boilers, cathodic protection, chain
lockers, decks, desalination and purification systems, elevator pits,
exhaust gas emission control systems, fire protection equipment, gas
turbines, graywater systems, hulls and associated niche areas, inert
gas systems, motor gasoline and compensating systems, non-oily
machinery, pools and spas, refrigeration and air conditioning, seawater
piping, and sonar domes. These discharge-specific requirements are
based on best available technology economically achievable, best
conventional pollutant control technology, and best practicable
technology currently available, including the use of BMPs, to prevent
or reduce the discharge of pollutants into the waters of the United
States or the waters of the contiguous zone.
    Pursuant to the VIDA, the proposed discharge standards of
performance are proposed to be at least as stringent as the VGP, with
some exceptions discussed below. However, the proposed standards do not
incorporate the VGP requirements verbatim. EPA is proposing changes to
the VGP requirements to transition the permit requirements into
national technology-based standards of performance, improve clarity,
enhance enforceability and implementation, or incorporate new
information and technology. In some cases, this resulted in EPA
consolidating or renaming the VGP requirements to comport with the
VIDA. As proposed, the similarities and differences between the
requirements in the proposed discharge standards of performance and the
requirements in the VGP can be sorted into three distinct groups. The
first group consists of 13 proposed discharge standards that are
substantially the same as the requirements of the VGP: Boilers,
cathodic protection, chain lockers, decks, elevator pits, fire
protection equipment, gas turbines, inert gas systems, motor gasoline
and compensating systems, non-oily machinery, pools and spas,
refrigeration and air conditioning, and sonar domes. These 13 proposed
discharge standards encompass the intent and stringency of the VGP but
include other changes in response to the VIDA (e.g., extent of
regulated waters, consistency across discharge standards,
enforceability and legal precision, as well as minor clarifications).
The second group consists of two proposed discharge standards that are
consistent but slightly modified from the VGP to expand controls or
provide greater language clarifications: Bilges and desalination and
purification systems. The third group consists of five proposed
discharge standards which contain the greatest modifications from the
VGP: Ballast tanks, exhaust gas emission control systems, graywater,
hulls and associated niche areas, and seawater piping. In addition, EPA
is proposing to modify slightly the requirements as they apply in
federally-protected waters for five discharges: Chain lockers, decks,
hulls and associated niche areas, pools and spas, and seawater piping.
These modifications are being proposed to address specific VIDA
requirements as well as incorporate new information that has become
available since the issuance of the VGP.
    CWA Section 312(p) also directs EPA to establish additional
discharge requirements for vessels operating in certain bodies of
water, to include: The ``Great Lakes,'' the ``Pacific Region,'' and
waters subject to Federal protection, in whole or in part, for
conservation purposes (``federally-protected waters''). The proposed
rule would establish place-based requirements to further prevent or
reduce the discharge of pollutants into these waterbodies that may
contain unique ecosystems, support distinctive species of aquatic flora
and fauna, contend with more sensitive water quality issues, or
otherwise require greater protection.
    Finally, as required under CWA Section 312(p), EPA is proposing
specific procedural requirements for states seeking to petition EPA to
establish different discharge standards, issue emergency orders, or
establish no-discharge zones.
    This proposed rule, once finalized, will fulfill EPA's requirements
under CWA Section 312(p) to establish technology-based national
standards of performance for discharges incidental to the normal
operation of primarily non-military, non-recreational vessels 79 feet
in length and above. EPA solicits public comments on this proposal and
the associated regulatory impact analysis, which can be found in the
rulemaking docket.

IV. Background

A. Clean Water Act

    EPA's regulatory regime under the CWA to address vessel discharges
has changed over the years due to EPA regulations, court decisions, and
new legislation. The first sentence of the Federal Water Pollution
Control Act Amendments of 1972, commonly known as the CWA,\1\ states,
``[t]he objective of [the Act] is to restore and maintain the chemical,
physical, and biological integrity of the Nation's waters.'' 33 U.S.C.
1251(a). Section 301(a) of the CWA provides that ``the discharge of any
pollutant by any person shall be unlawful'' unless the discharge is in
compliance with certain other sections of the Act. 33 U.S.C. 1311(a).
Among its provisions, the CWA authorizes EPA and other federal agencies
to address the discharge of pollutants from vessels. As such, EPA
established regulations to address vessel discharges authorized under
CWA Section 311 (addressing oil), Section 312 (addressing sewage and
discharges incidental to the normal operation of a vessel of the Armed
Forces), and Section 402 (pursuant to which EPA established the NPDES
VGP).
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    \1\ The FWPCA is commonly referred to as the CWA following the
1977 amendments to the FWPCA. Public Law 95-217, 91 Stat. 1566
(1977). For ease of reference, the agencies will generally refer to
the FWPCA in this notice as the CWA or the Act.
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    From 1972 to 2005, EPA vessel regulations were primarily limited to
addressing the discharge of oil and sewage under CWA Sections 311 and
312, respectively. In December of 2003, a long-standing exclusion of
discharges incidental to the normal operation of vessels from the CWA
Section 402 NPDES permitting program became the subject of a lawsuit in
the U.S. District Court for the Northern District of California (Nw.
Envtl. Advocates v. U.S. Envtl. Prot. Agency, No. C-03-05760-SI, 2005
WL 756614). The lawsuit arose from EPA's September 2003 denial of a
January 1999 rulemaking petition submitted to EPA by parties concerned
about the effects of ballast water discharges. Prior to the lawsuit,
EPA, through a 1973 regulation, had excluded discharges incidental to
the normal

operation of vessels from the CWA Section 402 permitting program. See
38 FR 13528, May 22, 1973. The petition asked the Agency to repeal its
regulation at 40 CFR 122.3(a) that excludes certain discharges
incidental to the normal operation of vessels from the requirement to
obtain an NPDES permit. The petition asserted that vessels are ``point
sources'' requiring NPDES permits for discharges to U.S. waters; that
EPA lacks authority to exclude point source discharges from vessels
from the NPDES program; that ballast water must be regulated under the
NPDES program because it contains invasive plant and animal species as
well as other materials of concern (e.g., oil, chipped paint, sediment,
and toxins in ballast water sediment); and that enactment of CWA
Section 312(n) (Uniform National Discharge Standards, also known as the
UNDS program) in 1996 demonstrated Congress' rejection of the
exclusion.
    In March 2005, the court determined the exclusion exceeded the
Agency's authority under the CWA and subsequently in 2006 declared that
``[t]he blanket exemption for discharges incidental to the normal
operation of a vessel, contained in 40 CFR 122.3(a), shall be vacated
as of September 30, 2008.'' Nw. Envtl. Advocates v. U.S. Envtl. Prot.
Agency, C 03-05760 SI, 2006 WL 2669042, at *15 (N.D. Cal. Sept. 18,
2006), aff'd 537 F.3d 1006 (9th Cir. 2008). Shortly thereafter,
Congress enacted two pieces of legislation to exempt discharges
incidental to the normal operation of certain types of vessels from the
need to obtain a permit. The first of these, entitled the Clean Boating
Act of 2008 (Pub. L. 110-288, July 28, 2008), amended the CWA to
provide that discharges incidental to the normal operation of
recreational vessels are not subject to NPDES permitting, and created a
new regulatory regime to be implemented by EPA and the USCG under a new
CWA Section 312(o). The second piece of legislation provided for a
temporary moratorium on NPDES permitting for discharges, excluding
ballast water, subject to the 40 CFR 122.3(a) exclusion from (1)
commercial fishing vessels (as defined in 46 U.S.C. 2101 and regardless
of size) and (2) those other non-recreational vessels less than 79 feet
in length. S. 3298, Public Law 110-299 (July 31, 2008).
    In response to the court decision and the legislation, EPA issued
the first VGP in December 2008 for discharges incidental to the normal
operation of non-recreational, non-military vessels 79 feet in length
and above. See 73 FR 79473, December 29, 2008. Additionally, in
September 2014, EPA issued the sVGP for discharges from non-
recreational, non-military vessels less than 79 feet. See 79 FR 53702,
September 10, 2014. Upon expiration of the 2008 permit, EPA issued the
second VGP in 2013. See 78 FR 21938, April 12, 2013.
    After the EPA issuance of the VGP under the CWA and the USCG
promulgation of regulations under the NANPCA, the vessel community
expressed concerns regarding the lack of uniformity, duplication, and
confusion associated with the vessel regulatory regime. See Errata to
S. Rep. No. 115-89 (2019) [hereinafter VIDA Senate Report], at 3-5
(discussing these and similar concerns), available at https://www.congress.gov/115/crpt/srpt89/CRPT-115srpt89-ERRATA.pdf. In
response, members of Congress introduced various pieces of legislation
to modify and clarify the regulation and management of ballast water
and other incidental vessel discharges. In December 2018, President
Trump signed into law the Frank LoBiondo Coast Guard Authorization Act
of 2018, which included the VIDA. Public Law 115-282, tit. IX (2018)
(codified primarily at 33 U.S.C. 1322(p)). The VIDA restructures the
way EPA and the USCG regulate incidental vessel discharges from non-
military, non-recreational vessels and amended CWA Section 312 to
include a new Subsection (p) titled ``Uniform National Standards for
Discharges Incidental to Normal Operation of Vessels.'' CWA Section
312(p), among other things, repeals EPA's 2014 sVGP effectively
immediately and requires EPA and the USCG to develop new regulations to
replace the existing EPA VGP and USCG vessel discharge requirements.
The VIDA also specifies that, effectively immediately upon enactment of
the VIDA, neither EPA nor NPDES-authorize states may require, or in any
way modify, a permit under the NPDES program for any discharge
incidental to the normal operation of a vessel from a small vessel
(less than 79 feet in length) or fishing vessel (of any size).
    Specifically, CWA Section 312(p)(4) directs the Administrator, with
concurrence of the Secretary and in consultation with interested
Governors, to promulgate national standards of performance for marine
pollution control devices for each type of discharge incidental to the
normal operation of non-recreational and non-military vessels.\2\ CWA
Section 312(p)(5) also directs the Secretary to develop corresponding
implementing regulations to govern the implementation, compliance, and
enforcement of the national standards of performance. Additionally, CWA
Section 312(p) generally preempts states from establishing more
stringent discharge standards once the USCG implementing regulations
required under Section 312(p)(5)(A)-(C) are final, effective, and
enforceable. However, the VIDA includes several exceptions to this
expressed preemption (33 U.S.C. 1322(p)(9)(A)(ii)-(v); VIDA Senate
Report at 15 (discussing these exceptions)), a savings clause (33
U.S.C. 1322(p)(9)(A)(vi)), and provisions for states working directly
with EPA or the USCG to seek and obtain additional requirements,
including the establishment of no-discharge zones for one or more
incidental discharges (33 U.S.C. 1322(p)(10)(D)). Although not part of
CWA Section 312(p), the VIDA also establishes several programs to
address invasive species, including the establishment of the ``Great
Lakes and Lake Champlain Invasive Species Program'' research and
development program and the ``Coastal Aquatic Invasive Species
Mitigation Grant Program.''
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    \2\ CWA Section 312(b) provides authority for EPA to establish
federal standards of performance for sewage from vessels within the
meaning of ``sewage'' as defined in section 312(a)(6). Thus, the
discharge of sewage from vessels, is not included in this CWA
section 312(p) rulemaking, except when commingled with other
discharges incidental to the normal operation of a vessel, as
authorized in CWA section 312(p)(2)(A)(ii). EPA and the USCG
regulate sewage from vessels under CWA section 312(b) as codified in
40 CFR part 140 (marine sanitation device standard) and 33 CFR part
159 subparts A-D (requirements for the design, construction,
certification, installation, and operation of marine sanitation
devices).
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B. Additional U.S. and International Authorities

    During the development of the proposed rule, EPA reviewed other
U.S. laws and international authorities that address discharges
incidental to the normal operation of a vessel. The requirements
established under these authorities are currently being met and
implemented and therefore are technologically and economically
practicable and achievable. As appropriate, EPA considered these
requirements while developing this proposed rule.
    As expressly provided in the VIDA, this proposed rule would not
affect the requirements for vessels established under any other
provision of Federal law. 33 U.S.C. 1322(p)(9)(B). EPA provides a short
summary of these U.S. authorities as well as some international
authorities below.

International Convention for the Prevention of Pollution From Ships,
the Act To Prevent Pollution From Ships, and Implementing Regulations
    The International Convention for the Prevention of Pollution from
Ships (MARPOL 73/78) is an international treaty that regulates certain
discharges from vessels. MARPOL Annexes regulate different types of
vessel pollution; the United States is a party to Annexes I, II, III,
V, and VI. MARPOL is primarily implemented in the United States by
APPS, 33 U.S.C. 1901 et seq. The USCG is the lead agency for APPS
implementation and issued implementing regulations primarily found at
33 CFR part 151. Those requirements already apply to many of the
vessels covered by the proposed rule.
    APPS regulates the discharge of oil and oily mixtures, noxious
liquid substances, and garbage, including food wastes and plastic. With
respect to oil and oily mixtures, the USCG regulations at 33 CFR 151.10
prohibit ``any discharge of oil or oily mixtures into the sea from a
ship'' except when certain conditions are met, including a discharge
oil content of less than 15 parts per million (ppm) and that the ship
operates oily water separating equipment, a bilge monitor, a bilge
alarm, or a combination thereof.
    Substances regulated as noxious liquid substances under APPS are
divided into four categories based on their potential to harm marine
resources and human health. Under 46 CFR 153.1128, discharges of
noxious liquid substances residues at sea may only take place at least
12 nautical miles (NM) from the nearest land. Given this requirement,
the proposed rule would also prohibit the discharge of noxious liquid
substances within 12 NM from the nearest land.
    MARPOL Annex III addresses harmful substances in packaged form and
is implemented in the United States by the Hazardous Materials
Transportation Authorization Act of 1994, as amended (49 U.S.C. 5901 et
seq.), and regulations appearing at 46 CFR part 148 and 49 CFR part
176. The regulatory provisions establish labeling, packaging, and
stowage requirements for such materials to help avoid their accidental
loss or spillage during transport. The proposed rule does not regulate
loss or spillage of transported materials; however, the proposed rule
would establish BMPs to help reduce or prevent the loss of materials
and debris overboard.
Oil Pollution Act (33 U.S.C. 2701 et seq.)
    The Oil Pollution Act of 1990 and the associated USCG implementing
regulations at 33 CFR parts 155 and 157 also address oil and oily
mixture discharges from vessels. These regulations establish and
reinforce the 15 ppm discharge standard under APPS for oil and oily
mixtures for seagoing ships and require most vessels to have an oily
water separator. Oceangoing vessels of less than 400 gross tonnage as
measured under the Convention Measurement System of the International
Convention on Tonnage Measurement of Ships (GT ITC) (400 gross register
tonnage (GRT) if GT ITC is not assigned) must either have an approved
oily water separator or retain oily water mixtures on board for
disposal to an approved reception facility onshore. Oceangoing vessels
of 400 GT ITC (400 GRT if GT ITC is not assigned) and above, but less
than 10,000 GT ITC (10,000 GRT if GT ITC is not assigned), except
vessels that carry ballast water in their fuel oil tanks, must be
fitted with ``approved 15 parts per million (ppm) oily-water separating
equipment for the processing of oily mixtures from bilges or fuel oil
tank ballast.'' 33 CFR 155.360(a)(1). Oceangoing ships of 10,000 gross
tonnage and above and oceangoing ships of 400 gross tonnage and above
that carry ballast water in their fuel oil tanks, must be fitted with
approved 15 ppm oily water separating equipment for the processing of
oily mixtures from bilges or fuel oil tank ballast, a bilge alarm, and
a means for automatically stopping any discharge of oily mixture when
the oil content in the effluent exceeds 15 ppm. 33 CFR 155.370. 33 CFR
part 155 also references oil containment and cleanup equipment and
procedures for preventing and reacting to oil spills and discharges.
The proposed rule references or incorporates the existing requirements
for fuel and oil established under the Oil Pollution Act and APPS and
prohibits the discharge of oil greater than 15 ppm.
Clean Water Act Section 311 (33 U.S.C. 1321)
    CWA Section 311, Oil and Hazardous Substances Liability Act, states
that it is a policy of the United States that there should be no
discharges of oil or hazardous substances into the waters of the United
States, adjoining shorelines, and certain specified areas, except where
permitted under Federal regulations (e.g., the NPDES program). As such,
the Act prohibits the discharge of oil or hazardous substances into
these areas in such quantities as may be harmful. Further, the Act
states that the President shall, by regulation, determine those
quantities of oil and any hazardous substances that may be harmful if
discharged. EPA defines the discharge of oil in such quantities as may
be harmful as those that violate applicable water quality standards or
``cause a film or sheen upon or discoloration of the surface of the
water or adjoining shorelines or cause a sludge or emulsion to be
deposited beneath the surface of the water or upon adjoin shorelines.''
40 CFR 110.3. Sheen is clarified to mean ``an iridescent appearance on
the surface of the water.'' 40 CFR 110.1. The proposed rule would
prohibit the discharge of oil, including oily mixtures, in such
quantities as may be harmful.
Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 136 et
seq.).
    The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)
regulates the distribution, sale, and use of pesticides. One of the
primary components of FIFRA requires the registration and labeling of
all pesticides sold or distributed in the United States, ensuring that,
if pesticides are used in accordance with the specifications on the
label, they will not cause unreasonable adverse effects on humans or
the environment. The proposed rule would reiterate from the VGP that
any registered pesticide must be used in accordance with its FIFRA
label for all activities that result in a discharge into the waters of
the United States or the waters of the contiguous zone. The proposed
rule does not negate the requirements under FIFRA and its implementing
regulations to use registered pesticides consistent with the product's
labeling. In fact, the discharge of pesticides used in violation of
certain FIFRA requirements could also be a violation of these standards
and therefore a violation of the CWA (e.g., exceeding hull coating
application rates).
National Marine Sanctuaries Act (16 U.S.C. 1431 et seq. and
Implementing Regulations Found at 15 CFR Part 922 and 50 CFR Part 404)
    The National Marine Sanctuaries Act (NMSA) authorizes the
designation and management of National Marine Sanctuaries to protect
marine resources with conservation, education, historical, scientific,
and other special qualities. Under NMSA, additional restrictions and
requirements may be imposed on vessel operators who boat in and around
National Marine Sanctuaries. Consistent with the VGP, the proposed rule
would

establish additional restrictions and requirements for certain
discharges for vessels that operate in and around National Marine
Sanctuaries as these areas are included in the definition of federally-
protected waters in the proposed rule as designated in Appendix A of
Part 139. Pursuant to CWA Sections 312(9)(B) and (E), discharge
requirements established by regulations promulgated by the Secretary of
Commerce under the National Marine Sanctuaries Act would continue to
apply to waters under the control of the Secretary of Commerce (e.g.,
National Marine Sanctuaries) in addition to the standards and
requirements established in this proposed rule.

C. Environmental Impacts of Discharges for Which Technology-Based
Discharge Standards Would Be Established by This Rule

    Discharges incidental to the normal operation of vessels can have
significant adverse impacts on aquatic ecosystems and other potential
impacts such as to human health through contamination of food from
aquaculture/shellfish harvesting areas through the addition of
pollutants (e.g., metals, nutrients, bacteria, viruses, ANS). The
adverse environmental impacts vary considerably based on the type and
number of vessels, the size and location of the port or marina, and the
condition of the receiving waters. These adverse impacts are more
likely to occur when there are significant numbers of vessels operating
in receiving waters with limited circulation or if the receiving waters
are already impaired. As a result of this variation, protecting U.S.
waters from vessel-related activities poses unique challenges for
local, state, and federal governments. Targeted reduction of certain
discharges or constituents of concern can significantly benefit
receiving waters.
    The information below provides an overview of the environmental
impacts associated with the pollutants addressed in this proposed rule:
ANS, nutrients, pathogens (including Escherichia coli and fecal
coliform), oil and grease, metals, toxic and nonconventional pollutants
with toxic effects, and other nonconventional and conventional
pollutants.
Aquatic Nuisance Species (ANS)
    ANS are a persistent problem in U.S. coastal and inland waters. ANS
can include invasive plants, animals, and pathogens. The VIDA
specifically includes ANS in the category of nonconventional pollutants
to be regulated through the application of best available technology
and best practicable technology. 33 U.S.C. 1322(p)(4)(B)(i).
    ANS may be incidentally discharged or released from a vessel's
operations through a variety of vessel systems and equipment, including
but not limited to ballast water, sediment from ballast tanks, vessel
hulls and appendages, seawater piping, chain lockers, and anchor
chains. ANS pose severe threats to aquatic ecosystems, including
outcompeting native species, damaging habitat, changing food webs, and
altering the chemical and physical aquatic environment. Furthermore,
ANS can have profound and wide-ranging socioeconomic impacts, such as
damage to recreational and commercial fisheries, infrastructure, and
water-based recreation and tourism. Once established, it is extremely
challenging and costly to remove ANS and remediate the impacts. It has
become even more critical to control discharges of ANS from vessel
systems and equipment with the increase in ship traffic due to
globalization and increased trade.
Nutrients
    Nutrients, including nitrogen, phosphorus, and other micro-
nutrients, are constituents of incidental discharges from vessels.
Though often associated with discharges from sewage treatment
facilities and other sources such as runoff from agricultural and urban
stormwater sources, nutrients are also discharged from vessel sources
such as runoff from deck cleaning, graywater, and bilgewater.
    Increased nutrient discharges from anthropogenic sources are a
major source of water quality degradation throughout the United States
(U.S. Geological Survey, 1999). Generally, nutrient over-enrichment of
waterbodies adversely impacts biological diversity, fisheries, and
coral reef and seagrass ecosystems (National Research Council, 2000).
One of the most notable effects of nutrient over-enrichment is the
excess proliferation of plant life and ensuing eutrophication. A
eutrophic system has reduced levels of dissolved oxygen, increased
turbidity, and changes in the composition of aquatic flora and fauna.
Such conditions also fuel harmful algal blooms, which can have
significant adverse impacts on human health as well as aquatic life
(National Research Council, 2000; Woods Hole Oceanographic Institute,
2007).
Pathogens
    Pathogens are another constituent that can be found in discharges
from vessels, particularly in graywater and ballast water discharges.
Discharges of pathogens into waterbodies can adversely impact local
ecosystems, fisheries, and human health. Pathogens found in untreated
graywater are similar to, and in some cases may have a higher
concentration than, domestic sewage entering land-based wastewater
treatment plants (U.S. EPA, 2008). Specific pathogens of concern found
in graywater include Salmonella spp., Escherichia coli, enteroviruses,
hepatitis, and pathogenic protists (National Research Council, 1993).
Additional pathogen discharges have also been associated with
ballasting operations, including Escherichia coli, intestinal
enterococci, Vibrio cholerae, Clostridium perfringens, Salmonella spp.,
Cryptosporidium spp., Giardia spp., and a variety of viruses (Knight et
al., 1999; Reynolds et al., 1999; Zo et al., 1999). Pathogens can
potentially even be transported in unfilled ballast water tanks
(Johengen et al., 2005). Under the VIDA, bacterial and viral pathogens
can qualify as ``aquatic nuisance species.'' 33 U.S.C. 1312(p)(1)(A),
(Q), (R) (defining the related terms ``aquatic nuisance species,''
``nonindigenous species,'' and ``organism'').
Oil and Grease
    Vessels can discharge a variety of oils during normal operations,
including lubricating oils, hydraulic oils, and vegetable or organic
oils. A significant portion of the lubricants discharged from a vessel
during these normal operations directly enters the marine environment.
Some types of oil and grease can be highly toxic and carcinogenic, and
have been shown to alter the immune system, reproductive abilities, and
liver functions of many aquatic organisms (Ober, 2010). Broadly, the
toxicity of oil and grease to aquatic life is due to reduced oxygen
transport potential and an inability of organisms to metabolize and
excrete them once ingested, absorbed, or inhaled.
    The magnitude of impact of oils differs depending on the chemical
composition, method of exposure, concentration, and environmental
conditions (e.g., weather, salinity, temperature). It can therefore be
difficult to identify one single parameter responsible for negatively
impacting aquatic life. However, studies have shown that compounds with
hydrocarbon chains are consistently associated with harmful impacts.
Hydrocarbon chains contain strong hydrogen bonds, which do not readily
break down in water. Such oils can then accumulate in the tissues of
aquatic organisms and cause toxic effects.

    Aromatic hydrocarbon compounds, commonly present in fuels,
lubricants, and additives, are consistently associated with acute
toxicity and harmful effects in aquatic biota (Dupuis and Ucan-Marin,
2015). Impacts are observed in both developing and adult organisms, and
include reduced growth, enlarged livers, fin erosion, reproduction
impairment, and modifications to heartbeat and respiration rates
(Dupuis and Ucan-Marin, 2015). Laboratory experiments have shown that
fish embryos exposed to hydrocarbons exemplify symptoms collectively
referred to as blue sac disease (BSD). Symptoms of BSD range from
reduced growth and spinal abnormalities, to hemorrhages and mortality
(Dupuis and Ucan-Marin, 2015). Oils can also taint organisms that are
consumed by humans, resulting in economic impacts to fisheries and
potential human health effects.
    In establishing the VGP, EPA considered the research efforts
focused on the development of environmentally acceptable lubricants
(EALs). Production of EALs focuses on using chemicals with oxygen
atoms, which, unlike hydrocarbons, makes them water soluble. The
solubility of EALs increases their biodegradability, thereby decreasing
their accumulation in aquatic environments. The solubility of EALs also
makes it easier for aquatic life to metabolize and excrete these
chemicals (U.S. EPA, 2011). Overall, EALs reduce bioaccumulation
potential and toxic effects to aquatic life.
Metals
    Vessel discharges can contain metal constituents from a variety of
on-board sources, including graywater, bilgewater, exhaust gas emission
control systems, and firemain systems. While some metals, including
copper, nickel, and zinc, are known to be essential to organism
function when present at certain levels, many others, including
thallium and arsenic, are non-essential and/or are known to have only
adverse impacts. Even essential metals may harm organism function in
sufficiently elevated concentrations. Some metals may also
bioaccumulate in the tissues of aquatic organisms, intensifying toxic
effects. Through a process called biomagnification, concentrations of
some metals can increase up the food chain, leading to elevated levels
in commercially harvested fish species (U.S. EPA, 2007).
    Vessel hulls and appendages are frequently coated in metal-based
biocides to prevent
    biofouling. The most widely-used metal in biocides is copper. While
it is an essential nutrient, copper can be both acutely and chronically
toxic to fish, aquatic invertebrates, and aquatic plants at higher
concentrations. Elevated concentrations of copper can adversely impact
survivorship, growth, and reproduction of aquatic organisms (U.S. EPA,
2016). Copper can inhibit photosynthesis in plants and interfere with
enzyme function in both plants and animals in concentrations as low as
4 [micro]g/L (U.S. EPA, 2016).
Other Pollutants
    Vessel discharges can contain a variety of other toxic,
conventional, and nonconventional pollutants. This rule would help to
prevent and control the discharge of certain pollutants that have been
identified in the various discharges. For example, graywater can
contain phthalates phenols, and chlorine (U.S. EPA, 2008). These
compounds can cause a variety of adverse impacts on aquatic organisms
and human health. Phthalates are known to interfere with reproductive
health, liver, and kidney function in both animals and humans.
(Sekizawa et al., 2003; DiGangi et al., 2002). Chlorine can cause
respiratory problems, hemorrhaging, and acute mortality to aquatic
organisms even at relatively low concentrations (U.S. EPA, 2008).
    Vessel discharges may also contain certain biocides used in vessel
coatings, which can be harmful to aquatic organisms. For example,
cybutryne, also commonly known as Irgarol 1051, is a biocide that
functions by inhibiting the electron transport mechanism in algae, thus
inhibiting growth. Numerous studies indicate that cybutryne is both
acutely and chronically toxic to a range of marine organisms, and in
certain cases, more harmful than tributyltin (Carbery et al, 2006; Van
Wezel and Van Vlaardingen, 2004).
    Some vessel discharges are more acidic or basic than the receiving
waters, which can have a localized effect on pH (Alaska Department of
Environmental Conservation, 2007). For example, exhaust gas emission
control systems remove sulfur dioxide in exhaust gas and dissolve it in
washwater, where it is then ionized and produces an acidic washwater.
Research has shown that even minor changes in ambient pH can have
profound effects, such as developmental defects, reduced larval
survivorship, and decreased calcification of corals and shellfish (Oyen
et al., 1991; Zaniboni-Filho et al., 2009, Marubini and Atkinson,
1999).

V. Scope of the Regulatory Action

A. Waters

    The proposed rule would apply to incidental discharges from non-
military, non-recreational vessels operating in the waters of the
United States or the waters of the contiguous zone. 33 U.S.C.
1322(p)(8)(B). Sections 502(7), 502(8), and 502(9) of the CWA define
the terms ``navigable waters,'' ``territorial seas,'' and ``contiguous
zone,'' respectively. The term ``navigable waters'' means the waters of
the United States including inland waters and the territorial seas,
where the United States includes the 50 states, the District of
Columbia, the Commonwealth of Puerto Rico, the U.S. Virgin Islands,
Guam, American Samoa, the Commonwealth of the Northern Mariana Islands,
and the Trust Territories of the Pacific Islands. The term
``territorial seas'' means the belt of seas that extends three miles
seaward from the line of ordinary low water along the portion of the
coast in direct contact with the open sea and the line marking the
seaward limit of inland waters. The term ``contiguous zone'' means the
entire zone established or to be established by the United States under
Article 24 of the Convention of the Territorial Sea and the Contiguous
Zone.

B. Vessels

    The proposed rule would apply to discharges incidental to the
normal operation of a vessel as set forth in CWA Section 312(p)(2). The
proposed rule would not apply to discharges incidental to the normal
operation of a vessel of the Armed Forces subject to CWA Section
312(n); a recreational vessel subject to CWA Section 312(o); a small
vessel less than 79 feet in length or a fishing vessel, except that the
proposed rule would apply to any discharge of ballast water from a
small vessel or fishing vessel; or a floating craft that is permanently
moored to a pier, including a floating casino, hotel, restaurant, or
bar. The types of vessels intended to be covered under the proposed
rule include, but are not limited to, public vessels of the United
States, commercial fishing vessels (for ballast water only), passenger
vessels such as cruise ships and ferries, barges, tugs and tows,
offshore supply vessels, mobile offshore drilling units, tankers, bulk
carriers, cargo ships, container ships, and research vessels. EPA
estimates that the domestic and international vessel population that
would be subject to the proposed national standards of performance is
approximately 82,000 vessels. The proposed rule also would not apply to

a narrow category of ballast water discharges that Congress believed do
not pose a risk of spreading or introducing ANS (VIDA Senate Report, at
10), or to any discharges that result from (or contain material derived
from) an activity other than the normal operation of a vessel (33
U.S.C. 1322(p)(2)(B)(iii)). Unless otherwise provided by CWA Section
312(p), any incidental discharges excluded from regulation in the VIDA
remain subject to the pre-enactment status quo (e.g., State law, NPDES
permitting, etc.). VIDA Senate Report, at 10.
    The national standards of performance proposed herein apply equally
to new and existing vessels except in such cases where the proposed
rule expressly distinguishes between such vessels as authorized by CWA
Section 312(p)(4)(C)(ii).

C. Incidental Discharges

    EPA proposes to establish general as well as specific national
standards of performance for discharges incidental to the normal
operation of a vessel described in CWA Section 312(p)(2). The general
standards would be applicable to all vessels and incidental discharges
subject to the proposed rule to the extent that the requirements are
appropriate for each incidental discharge. The specific standards would
be applicable to specific incidental discharges from the normal
operation of the following types of vessel equipment and systems:
Ballast tanks, bilges, boilers, cathodic protection, chain lockers,
decks, desalination and purification systems, elevator pits, exhaust
gas emission control systems, fire protection equipment, gas turbines,
graywater systems, hulls and associated niche areas, inert gas systems,
motor gasoline and compensating systems, non-oily machinery, pools and
spas, refrigerators and air conditioners, seawater piping, and sonar
domes.

D. Emergency and Safety Concerns

    The VIDA recognizes that safety of life at sea and other emergency
situations not resulting from the negligence or malfeasance of the
vessel owner, operator, master, or person in charge may arise, and that
the prevention of loss of life or serious injury may require operations
that would not otherwise be consistent with these standards. Therefore,
it is reasonably likely that no person would be found to be in
violation of the proposed rule under the affirmative defense described
in CWA Section 312(p)(8)(C). The corresponding USCG implementing
regulations would include language to address vessel emergency and
safety considerations.

E. Effective Date

    The proposed national standards of performance, once finalized,
would become effective beginning on the date upon which the regulations
promulgated by the Secretary pursuant to CWA Section 312(p)(5)
governing the implementation, compliance, and enforcement of the
national standards of performance become final, effective, and
enforceable. Per CWA Section 312(p)(3)(c), as of that date, the
requirements of the VGP and all regulations promulgated by the
Secretary pursuant to Section 1101 of the NANPCA (16 U.S.C. 4711) (as
in effect on December 3, 2018), including the regulations contained in
subparts C and D of part 151 of title 33, Code of Federal Regulations,
and 46 CFR 162.060 (as in effect on December 3, 2018), shall be deemed
repealed and have no force or effect. Similarly, as of that same date,
any CWA Section 401 certification requirement in Part 6 of the 2013
VGP, shall be deemed repealed and have no force or effect.

VI. Stakeholder Engagement

    During the development of the proposed rule, EPA and the USCG
reached out to other federal agencies, states, tribes, non-governmental
organizations, and the maritime industry. Detailed documentation of the
stakeholder outreach prior to the proposal is in the public docket for
the proposed rulemaking. EPA also intends to hold stakeholder
engagement opportunities during the proposed rule public comment
period. General summaries of the outreach are included in this section
and in section XII. Statutory and Executive Order Reviews.

A. Informational Webinars and Public Listening Session

    EPA, in coordination with the USCG, hosted two informational
webinars on May 7 and 15, 2019 to enhance public awareness about the
VIDA and provide opportunity for engagement. During the webinars, EPA
and the USCG provided a general overview of the VIDA, discussed interim
and future discharge requirements, described future state and public
engagement opportunities, and answered clarifying questions raised by
the audience. The webinar recordings and presentation material are
available at https://www.epa.gov/vessels-marinas-and-ports/vessel-incidental-discharge-act-vida-engagement-opportunities.
    Additionally, EPA, in coordination with the USCG, hosted a public,
in-person listening session at the U.S. Merchant Marine Academy in New
York on May 29-30, 2019. At the listening session, EPA with the support
of the USCG, provided an overview of the VIDA, described the interim
requirements and the framework for the future regulations, and
conducted sessions on key vessel discharges to provide an opportunity
for public input. Fifty-two individuals from a variety of stakeholder
groups attended and provided input. Public input largely centered on
ballast water management systems, including testing methods and
monitoring requirements. Stakeholders requested harmonization of
domestic regulations with those of the International Maritime
Organization (IMO), such as standards for exhaust gas emission control
systems. Input was also received on challenges with compliance and
reporting under the VGP and the USCG ballast water regulations. The
meeting agenda and a summary of the comments received are available in
the public docket for this proposed rulemaking.

B. Post-Proposal Public Meetings

    During the public comment period for this proposed rule, EPA
intends to hold public meetings to provide an opportunity for
stakeholders to ask questions about the proposed rule and describe
procedures for submitting formal comments on the rule. Details for
these public meetings will be made available at https://www.epa.gov/vessels-marinas-and-ports/vessel-incidental-discharge-act-vida-engagement-opportunities.

C. Consultation and Coordination With States

1. Federalism Consultation
    Pursuant to the terms of Executive Order 13132, on July 9, 2019 in
Washington, DC, EPA and the USCG conducted a Federalism consultation
briefing to allow states and local officials to have meaningful and
timely input into EPA rulemaking for the development of the national
standards of performance. Additional information regarding the VIDA
Federalism Consultation can be found in section XII. Statutory and
Executive Order Reviews.
2. Governors Consultation
    CWA Section 312(p)(4)(A)(iii)(II) directs EPA to develop a process
for soliciting input from interested Governors to allow interested
Governors to inform the development of the national standards of
performance, including sharing information relevant to the process. On
July 10 and 18, 2019, EPA and the USCG, with the support and assistance
of the National

Governors Association, held meetings with Governor representatives to
provide an overview of the VIDA, discuss state authorities under the
VIDA, and solicit input on a process that would meet both the statutory
requirements and state needs. Based on this input, EPA developed its
``Governors' input process'' for this rulemaking. Thirteen states
(Alaska, California, Hawaii, Maryland, Michigan, Minnesota, New York,
North Carolina, Ohio, Puerto Rico, Virginia, Washington, and Wisconsin)
participated in the process as did representatives from the Western
Governors Association, the Pacific States Marine Fisheries Commission,
and the All Islands Coral Reef Committee.
    EPA developed the VIDA Governors' input process to outline EPA's
intended approach to engage with the states and address their expressed
interest for multiple enhanced engagement opportunities (possibly
regionally-based), additional details regarding the direction of the
proposed standards, and ultimately, more involvement in the development
of the national standards of performance.
    The Governors' input process included three regional, web-based
forums for Governors and their representatives to inform EPA on the
challenges and concerns associated with existing requirements under the
VGP and to discuss potential considerations for key discharges of
interest. The three regional, web-based forums were held on September
10 (Western States), September 12, (Great Lakes States) and September
19 (All States), 2019. During each forum subject-matter experts from
EPA provided a brief background on the VIDA followed by organized
discussions regarding the key discharges identified by the regional
representatives prior to the forum. During the organized discussions,
interested Governors' representatives commented on the presentation
content, shared applicable scientific or technical information, and
provided suggested options for EPA to consider during the development
of the national standards of performance. In addition to the verbal
input provided during the three regional, web-based forums, EPA
accepted written comments. Copies of those written comments are
included in the public docket for this proposed rule.
    Additionally, EPA held two follow-up calls with representatives
from the Great Lakes states on December 18, 2019. During each call, EPA
addressed the comments that had been submitted by Great Lakes states,
including comments on specific requirements of the VIDA, non-ballast
water discharges, and best available technology as it relates to
ballast water treatment systems. Representatives from Michigan, New
York, Wisconsin, Pennsylvania, Illinois, Minnesota, and Ohio attended
the calls.
    EPA also held a follow-up call with representatives from the West
Coast states on January 15, 2020. During the call, EPA addressed the
comments that had been submitted by West Coast states, including
comments on outreach and engagement, the best available technology
analysis for ballast water treatment systems, and regulation of
biofouling and in-water cleaning and capture devices. Representatives
from the states of California, Hawaii, Oregon, and Washington, as well
as representatives from the Pacific States Marine Fisheries Commission
and the Western Governors Association attended the call.
    In conjunction with the requirement to engage states in the
development of the proposed standards, CWA Section
312(p)(4)(A)(iii)(III) provides for governors to formally object to a
proposed national standard of performance. As detailed in CWA Section
312(p)(4)(A)(iii)(III), an interested Governor may submit to the
Administrator a written, detailed objection to the proposed national
standard of performance, describing the scientific, technical, and
operational factors that form the basis of the objection. Before
finalizing a national standard of performance for which there has been
an objection from one or more interested Governors, the Administrator
shall provide a written response to the objection detailing the
scientific, technical, or operational factors that form the basis for
that standard.
    To be considered an objection by the Administrator under CWA
Section 312(p)(4)(A)(iii)(III)(aa), an objection letter from the
Governor must:
     Be submitted in writing to the Administrator;
     Be signed by the Governor;
     Clearly state the proposed standard that is the subject of
the objection;
     Describe the scientific, technical, or operational factors
that indicate why the proposed standard does not represent the best
practicable control technology currently available (BPT), best
conventional pollutant control technology (BCT), and/or best available
technology economically achievable (BAT) to address the conventional
pollutants, toxic pollutants, and nonconventional pollutants contained
in the discharge; and
     Include the scientific, technical, or operational factors
that indicate what BPT, BCT, and BAT is available that should be
included in the proposed standard to address the conventional
pollutants, toxic pollutants, and nonconventional pollutants contained
in the discharge.
    In addition, to facilitate EPA's due consideration of any
objections within a timeframe that would enable EPA to meet its
statutory deadline for this rulemaking, EPA requests that any
Governor's objection be submitted within 60 days of the published
Notice of Proposed Rulemaking.
    Pursuant to CWA Section 312(p)(4)(A)(iii)(III)(bb), the
Administrator's response would:
     Be provided in writing to each interested Governor prior
to publication of the final rule;
     Be signed by the Administrator; and
     Include the scientific, technical, or operational factors
that form the basis for the proposed standard.
    3. Comments (Federalism Consultation and Governors' Consultation
Comments)
    During the engagement with states, EPA received pre-proposal
comments from states, governors, and governors' representatives. EPA
received comments submitted by representatives from Hawaii, Guam,
American Samoa, the Commonwealth of the Northern Mariana Islands,
Puerto Rico, U.S. Virgin Islands, Florida, California, Washington,
Oregon, Wisconsin, Michigan, Minnesota, and the Western Governors
Association. The pre-proposal comments primarily focused on ballast
water, biofouling, and the state engagement process. These comments can
be found in the public docket for this proposed rule.

VII. Definitions

    The proposed rule includes definitions for several statutory,
regulatory, and technical terms. These definitions apply solely for the
purposes of the proposed rule and do not affect the definition of any
similar terms used in any other context. By including these
definitions, EPA has, where possible, relied on existing definitions
from other laws, regulations, and the VGP to provide consistency with
existing requirements. Many of the proposed definitions are taken
either verbatim or with minor clarifying edits from the VIDA, the
legislation upon which this proposed rule is based. This includes
definitions for: ANS, ballast water, ballast water exchange, ballast
water management system, Captain of the Port (COTP) Zone, commercial
vessel--as that term is used for vessels operating within the Pacific
Region, empty ballast tank, Great Lakes State, internal waters, live or
living, marine pollution control device, organism, Pacific Region, port
or

place of destination, render nonviable, saltwater flush, Secretary,
small vessel or fishing vessel (and the term ``fishing vessel'' to
direct the reader to the definition of ``small vessel or fishing
vessel''), and VGP.
    To provide additional clarity for certain proposed standards, if
terms were not defined in the VIDA, the proposed rule includes
definitions from other sections of the CWA, USCG regulations, the VGP,
and other regulations. Additionally, EPA is proposing to include new
definitions for federally-protected waters, fouling rating, marine
growth prevention system, mid-ocean, and oil-to-sea interface. Terms
not defined in the proposed rule have the meaning defined under the CWA
and any applicable regulations.

VIII. Development of National Discharge Standards of Performance

    The CWA established a two-step process for implementation of
increasingly stringent limitations. The first step, to be accomplished
by July 1, 1977, required compliance with standards based on ``the
application of the best practicable control technology currently
available [BPT] as defined by the Administrator. . . .'' 33 U.S.C.
1311(b)(1)(A). The second step, to be accomplished by July 1, 1987,
required compliance with standards based on application of the ``best
available technology economically achievable [BAT] for such category or
class. . . .'' 33 U.S.C. 1311(b)(2)(A). The CWA, as amended in 1977,
replaced the BAT standard with a new standard, ``best conventional
pollutant control technology [BCT],'' but only for certain so-called
``conventional pollutants'' (i.e., total suspended solids, oil and
grease, biochemical oxygen demand (BOD5), fecal coliform,
and pH). 33 U.S.C. 1311(b)(2)(E) (1976 ed., Supp. III). Section
312(p)(4)(B)(i) of the VIDA requires the national standards of
performance promulgated for conventional pollutants, toxic pollutants,
and nonconventional pollutants (including ANS) be developed using the
same statutory framework as applied to the VGP. Specifically, the
national standards of performance developed under the VIDA for all
categories and classes of vessels must require the application of best
practicable control technology currently available (BPT) for
conventional, toxic, and nonconventional pollutants; best conventional
pollutant control technology (BCT) for conventional pollutants; and
best available technology economically achievable (BAT) for toxic and
nonconventional pollutants (including ANS), which will result in
reasonable progress toward the national goal of eliminating the
discharge of all pollutants. 33 U.S.C. 1322(p)(4)(B)(i). The VIDA
specifically adopts by reference the existing BPT, BCT, and BAT
standards defined elsewhere in the CWA at Sections 301(b) and 304(b).
33 U.S.C. 1322(p)(1)(F), (G), (I). CWA Section 312(p)(4)(B)(ii) also
directs EPA to use BMPs to control or abate any discharge incidental to
the normal operation of a vessel if numeric discharge standard
standards are infeasible or if the BMPs are reasonably necessary to
achieve the standards or to carry out the purpose of reducing and
eliminating the discharge of pollutants.
    In addition, CWA Section 312(p)(4)(B) establishes minimum
requirements for the national standards of performance such that, ``the
combination of any equipment or best management practice . . . shall
not be less stringent than'' the effluent limits and related
requirements established in parts 2.1, 2.2, or 5 of the VGP. 33 U.S.C.
1322(p)(4)(B)(iii). Thus, while the statute directs EPA to set the
national standards of performance at the level of BPT/BCT/BAT,
depending on the pollutant, it also creates a presumption that those
standards would provide protection at least equivalent to the VGP
requirements absent one of the exceptions at CWA Section
312(p)(4)(D)(ii)(II) for situations where either new information
becomes available that ``would have justified the application of a
less-stringent standard'' or ``if the Administrator determines that a
material technical mistake or misinterpretation of law occurred when
promulgating the existing standard.'' Absent one of those exceptions,
the statute directs that EPA ``shall not revise a standard of
performance . . . to be less stringent than an applicable existing
requirement.'' 33 U.S.C. 312(p)(4)(D)(ii)(I).
    EPA endeavored to identify instances where the BPT/BCT/BAT level of
control called for new, more stringent options for the national
standards of performance; however, where EPA identified no such new
information or options, EPA is continuing to rely on the BPT/BCT/BAT
analysis that led to the development of the VGP requirements. This
approach is consistent with EPA's obligations under CWA Section
312(p)(4) for the following reasons. The effluent limits that EPA
adopted in the VGP were already the product of a BPT/BCT/BAT analysis
described in the permit fact sheets for both the 2008 and 2013
iterations of the VGP and corresponding supporting materials. The text
of CWA Section 312(p)(4)(D)(ii) prohibits EPA from ``revis[ing] a
standard of performance. . . to be less stringent than an applicable
existing requirement.'' There is a narrow exception for instances where
EPA identifies absent new information or technical or legal error in
the VGP analysis. Absent such exception, the VIDA prohibits EPA from
identifying a less stringent option as BPT/BCT/BAT. Indeed, by
identifying the VGP as the minimum requirements for the national
standards of performance and then expressly identifying the
circumstances under which EPA could select a different, less stringent
standard (i.e., new information or error), the text and legislative
history of the VIDA show that Congress intended to preserve the
existing VGP requirements as a regulatory floor. VIDA Senate Report, at
12 (``The exceptions to this provision [for new information and
technical or legal error] would provide the sole basis for the
Administrator to weaken standards of performance compared to the legacy
VGP requirements. . . .''). Moreover, Congress did not intend for EPA
to depart from the considerations that informed the VGP. To the
contrary, although the VIDA is a permit-less regime, Congress defined
BPT, BCT, and BAT with ``intentional[] cross-reference[s]'' to where
those terms are used elsewhere in the CWA ``to ensure that the
Administrator makes identical considerations when setting the standards
of performance under CWA Section 312(p) as the Administrator was
previously required to do when setting technology-based effluent limits
for permits'' like in the VGP. VIDA Senate Report, at 11. It is
significant that Congress gave EPA only a two-year deadline to develop
the national standards of performance for marine pollution control
devices for each type of discharge incidental to the normal operation
of a vessel that is subject to regulation under the VIDA. The VGP
requirements address more than 30 such discharges and given the short
timeframe that Congress set forth for this task, EPA did not think it
was necessary or appropriate to re-analyze the marine pollution control
device standards for which there have not been meaningful changes in
technology or practice since EPA last undertook a BPT/BCT/BAT analysis.
In contrast to this initial promulgation of standards, Congress
established a significantly longer five-year cycle for review and, if
appropriate, future revision of the initial standards. 33 U.S.C.
1322(p)(4)(D)(i).
    While EPA is, for most of the discharges addressed in this

rulemaking, relying on the BPT/BCT/BAT analysis that was performed to
develop the VGP, EPA is not incorporating the VGP requirements
verbatim. In many cases, EPA proposes change to translate the VGP
discharge requirements into national standards of performance or
otherwise improve the clarity to enhance implementation and
enforceability. As the proposed changes do not materially differ from
the requirements established in the VGP, EPA can reasonably rely on the
BPT/BCT/BAT analysis that supported the VGP to develop the new proposed
standards under the VIDA.
    Where EPA research identified new alternatives or new options for
marine pollution control devices, EPA evaluated those options as
candidates for new BPT/BCT/BAT requirements. The CWA requires
consideration of BPT for conventional, toxic, and nonconventional
pollutants. CWA Section 304(a)(4) designates the following as
conventional pollutants: Biochemical oxygen demand, total suspended
solids, fecal coliform, pH, and any additional pollutants defined by
the Administrator as conventional. The Administrator designated oil and
grease as an additional conventional pollutant on July 30, 1979. 40 CFR
401.16. Toxic pollutants (e.g., toxic metals such as arsenic, mercury,
selenium, and chromium; toxic organic pollutants such as benzene,
benzo-a-pyrene, phenol, and napthalene) are those outlined in CWA
Section 307(a) and subsequently identified in EPA regulations at 40 CFR
401.15 and 40 CFR part 423 Appendix A. All other pollutants are
nonconventional.
    In determining BPT, under CWA Sections 301(b)(1)(A) and
304(b)(1)(B), and 40 CFR 125.3(d)(1), EPA evaluates several factors.
EPA first considers the cost of application of technology in relation
to the effluent reduction benefits. The Agency also considers the age
of equipment and facilities, the processes employed, engineering
aspects of various types of control technologies, process changes, non-
water quality environmental impacts (including energy requirements),
and such other factors as the Administrator deems appropriate. If,
however, existing performance is uniformly inadequate within an
industrial category, EPA may establish limitations based on higher
levels of control if the Agency determines that the technology is
available in another category or subcategory and can be practically
applied to this industrial category.
    The 1977 amendments to the CWA required EPA to identify effluent
reduction levels for conventional pollutants associated with BCT for
discharges from existing industrial point sources. 33 U.S.C.
1311(b)(2)(E); 1314(b)(4)(B); 40 CFR 125.3(d)(2). In addition to
considering the other factors specified in CWA Section 304(b)(4)(B) to
establish BCT requirements, EPA also considers a two-part ``cost-
reasonableness'' test. EPA explained its methodology for the
development of BCT requirements in 1986. See 51 FR 24974, July 9, 1986.
    For toxic pollutants and nonconventional pollutants, EPA
promulgates discharge standards based on BAT. 33 U.S.C. 1311(b)(2)(A);
1314(b)(2)(B); 40 CFR 125.3(d)(3). In establishing BAT, the technology
must be technologically ``available'' and ``economically achievable.''
The factors considered in assessing BAT include the cost of achieving
BAT effluent reductions, the age of equipment and facilities involved,
the process employed, potential process changes, non-water quality
environmental impacts, including energy requirements, and other such
factors as the Administrator deems appropriate. EPA retains
considerable discretion in assigning the weight accorded to these
factors. See Weyerhaeuser Co v. Costle, 590 F.2d 1011, 1045 (D.C. Cir.
1978). BAT discharge standards may be based on effluent reductions
attainable through changes in a facility's processes and operations.
Where existing performance is uniformly inadequate, BAT may reflect a
higher level of performance than is currently being achieved within a
subcategory based on technology transferred from a different
subcategory or category. Am. Paper Inst. 5 V. Train, 539 F.2d 328, 353
(D.C. Cir. 1976); Am. Frozen Food Inst. V. Train, 539 F.2d 107, 132
(D.C. Cir. 1976). BAT may be based upon process changes or internal
controls, even when these technologies are not common industry
practice.
    The proposed rule contains discharge standards that correspond to
required levels of technology-based control (BPT, BCT, BAT) for
discharges incidental to the normal operation of a vessel, as required
by the CWA. As noted above, some discharge standards have been
established by examining other existing laws and requirements (e.g.,
Oil Pollution Act, APPS, and the Clean Hull Act). Where these laws
already exist, it was deemed feasible for the operators to implement
these practices as part of the proposed standards because these are
demonstrated practices that EPA found to be technologically available
and economically practicable (BPT) or achievable (BAT). For example,
the proposed standards reaffirm requirements of the Clean Hull Act that
coating on vessel hulls must not contain TBT or any other organotin
compound used as a biocide. In some cases, such as with certain
discharges of oils, graywater from passenger vessels, and ballast
water, numeric discharge standards are being proposed. In assessing the
availability and achievability of the technologies discussed herein, in
addition to the rationale for the VGP effluent limits, EPA considered
studies and data from both domestic and international sources including
studies and data from foreign-flagged vessels as appropriate.
    Additionally, EPA is proposing that two of the VGP-named discharges
do not require specific discharge requirements beyond the general
discharge requirements in Subpart B. EPA acknowledges that discharges
from motor gasoline and compensating systems and inert gas systems are
indeed discharges incidental to the normal operation of a vessel;
however, EPA determined that the requirements outlined in the general
discharge standards section in Subpart B of the proposed rule are
sufficient and at least as stringent as the VGP.

A. Discharges Incidental to the Normal Operation of a Vessel--General
Standards

    This section describes the proposed national standards of
performance associated with the general discharge requirements proposed
in 40 CFR part 139, subpart B. These proposed standards are designed to
apply to all vessels and incidental discharges subject to the proposed
rule to the extent the requirements are appropriate for each incidental
discharge. These proposed standards are proactive and preventative in
nature and are designed to minimize the introduction of pollutants into
the waters of the United States and the waters of the contiguous zone.
These proposed standards are based on EPA's analysis of available and
relevant information, including available technical data, existing
statutes and regulations, statistical industry information, and
research studies included in the public docket for this proposed rule.
1. General Operation and Maintenance
    The first category of proposed national standards of performance
would establish requirements associated with the general operation and
maintenance vessel practices that are designed to eliminate or reduce
the discharge of pollutants. EPA considers these proposed requirements
to be consistent with the VGP requirements

and provides a consolidation of requirements from many subparts within
Part 2 of the VGP. The first requirement proposes that all discharges
covered under this rulemaking be minimized. For purposes of this
proposed rule and consistent with the technology-based requirements of
the CWA, EPA is proposing to clarify the term ``minimize'' to mean to
reduce or eliminate to the extent achievable using any control measure
that is technologically available and economically practicable and
achievable and supported by demonstrated BMPs such that compliance can
be documented in shipboard logs and plans as determined by the
Secretary (that is, the Secretary of the department in which the USCG
is operating). The ``minimize'' requirement is included pursuant to the
CWA Section 312(p)(2)(H) definition of BMP within the technology-based
BPT/BCT/BAT analysis. Minimizing discharges provides a reasonable
approach by which EPA, the regulated community, and the public can
determine and evaluate appropriate control measures for vessels to
control all specific discharges identified in 40 CFR part 139, subpart
B of this proposed rulemaking. To minimize discharges, operators should
consider the use of reception facilities, storage onboard the vessel,
or reduced production of pollutants to be discharged. For some vessel
discharges, such as for graywater, minimization of pollutants in those
discharges can be achieved without using highly engineered, complex
treatment systems. Other vessel discharges, such as ballast water, may
require more complex behavioral practices such as saltwater flushing or
ballast water exchange.
    The proposed general operation and management standard would also
include provisions from the VGP (Parts 2.2.2 and <IP_ADDRESS>) that are
intended to minimize the discharges from vessels to nearshore waters by
requiring, to the extent practicable, that vessels discharge while
underway and as far from shore as practical.
    The proposed general operation and management standard also would
include requirements that limit the types and quantities of materials
discharged. For one, EPA is clarifying that the addition of any
materials to an incidental discharge, other than for treatment of the
discharge, that is not incidental to the normal operation of the
vessel, is prohibited as is using dilution to meet any effluent
discharge standards. EPA is also proposing a requirement specifying
that only the amount of a material (e.g., disinfectant, cleaner,
biocide, coating, sacrificial anode) necessary to perform its intended
function is authorized to be used if its residue could be discharged
and that any such materials used do not contain biocides or toxic or
hazardous materials banned for use in the United States. Also, EPA is
proposing to prohibit the discharge of any material used that will be
subsequently discharged that contains any materials banned for use in
the United States. For any pesticide products (e.g., biocides, anti-
microbials) subject to FIFRA registration, vessel operators must follow
the FIFRA label for all activities that result in a discharge into the
waters of the United States or the waters of the contiguous zone.
    The presence or use of toxic or hazardous materials may be
necessary for the operation of vessels. For purposes of the proposed
rule, the term ``Toxic or Hazardous Materials'' means any toxic
pollutant identified in 40 CFR 401.15 or any hazardous material as
defined in 49 CFR 171.8. EPA is proposing requirements for how toxic or
hazardous materials are managed to minimize the potential for discharge
of these materials. Toxic or hazardous material containers must be
appropriately sealed, labeled, and secured, and located in an area of
the vessel that minimizes exposure to ocean spray and precipitation
consistent with vessel design. Materials that may not be considered
toxic in small concentrations could pose an environmental threat if
significant amounts are washed overboard, particularly in shallow or
impaired waters. Wastes should be managed in accordance with any
applicable local, state, and federal regulations, which are outside of
the scope of this proposed rule. For example, the Resource Conservation
and Recovery Act (RCRA) governs the generation, transportation,
storage, and disposal of solid and hazardous wastes.
    Therefore, the proposed rule would require that all vessel
operators practice good environmental stewardship by minimizing any
exposure of cargo or other onboard materials that may be inadvertently
discharged by containerizing or covering materials with a tarp, and
generally limiting any exposure of these materials to wind, rain, or
spray. The proposed rule acknowledges that these requirements would
apply unless the vessel operator reasonably determines this would
interfere with essential vessel operations or safety of the vessel or
doing so would violate any applicable regulations that establish
specifications for safe transportation, handling, carriage, and storage
of toxic or hazardous materials. Also, to avoid discharges and prevent
emergency or other dangerous situations, the proposed standard would
require that containers holding toxic or hazardous materials not be
overfilled and incompatible materials not be mixed in containers.
    Like the requirements related to toxic and hazardous materials, the
proposed standard would also require control measures to prevent or
minimize the overboard discharge of cargo, on-deck debris, garbage, and
residue and would prohibit the jettisoning of cargo or toxic or
hazardous materials. EPA proposal would also require vessel operators
to clean out cargo residues (i.e., broom clean or equivalent) from any
cargo compartment or tank prior to discharging washwater from such
areas overboard. EPA is proposing that these material management
measures be followed to minimize the discharge of pollutants.
    The proposed rule would also require vessel operators to maintain
their topside surface (i.e., outer surfaces above the waterline) in a
manner that minimizes the discharge of rust (and other corrosion by-
products), cleaning compounds, paint chips, non-skid material
fragments, and other materials associated with exterior topside surface
preservation. Additionally, this EPA standard proposes that coating
techniques selected for any topside surfaces must minimize the residual
paint and coating entering the water and that the discharge of any
unused paints and coatings is prohibited.
    The last proposed general operation and maintenance requirement
specifies that any equipment that is expected to release, drip, leak,
or spill oil or oily mixtures, fuel, or other toxic or hazardous
materials that may be discharged or drained or pumped to the bilge,
must be maintained regularly to minimize the discharge of pollutants.
As with other requirements in the proposed general operation and
maintenance standard, EPA considers this requirement to be consistent
with the bilgewater requirements in Part 2.2.2 of the VGP.
2. Biofouling Management
    Vessel biofouling is the accumulation of aquatic organisms such as
plants, animals, and micro-organisms on vessel equipment or systems
submerged or exposed to the aquatic environment. Biofouling can be
broadly separated into microfouling, which consists of microscopic
organisms including bacteria and diatoms, and macrofouling, which
consists of large, distinct multicellular organisms visible to the

human eye, such as barnacles, tubeworms, or fronds of algae. Studies
suggest that biofouling on vessel equipment and systems is one of the
main vectors for the introduction and spread of ANS (Drake and Lodge,
2007; Gollasch, 2002; Hewitt and Campbell, 2010; Hewitt et al., 2009).
Biofouling also produces drag on a vessel hull and protruding niche
areas, requiring greater fuel consumption and increased greenhouse gas
emissions. It can additionally result in hull corrosion and blockage of
internal piping, such as the engine cooling and firemain systems,
thereby degrading the integrity of the vessel structure and impeding
safe operation.
    EPA understands the statutory definition of ``discharge incidental
to the normal operation of a vessel'' (incidental discharge) at 33
U.S.C.1322(a)(12) to include any discharge of biofouling organisms from
vessel equipment and systems. Consistent with the VGP discharges of
biofouling organisms from vessel equipment and systems while the vessel
is immersed or exposed to the aquatic environment are incidental to the
normal operation of a vessel. Such discharges during normal operation
of the vessel include, but are not limited to, those from maintenance
and cleaning activities of hulls, niche areas, and associated coatings.
EPA included management requirements to minimize the discharge of
biofouling organisms from vessel equipment and systems in both the VGP
and the discharge regulations for the vessels of the Armed Forces. 33
U.S.C. 1322(n)). The VGP in Parts 2.2.23 and 4.1.3, respectively,
required that vessel operators minimize the transport of attached
living organisms and conduct annual inspections of the vessel hull,
including niche areas, for fouling organisms. Part 4.1.4 of the VGP
also required vessel operators to prepare drydock inspection reports
noting that the vessel hull and niche areas had been inspected for
attached living organisms and those organisms had been removed or
neutralized and make these reports available to EPA or an authorized
representative of EPA upon request. With one of the legislative
purposes of the VIDA being to establish uniform national incidental
discharge regulations that are as stringent as the VGP, except in those
circumstances specified by the VIDA in CWA Section
312(p)(4)(D)(ii)(II), EPA is proposing to include requirements for the
discharge of biofouling organisms from vessel equipment and systems in
this rulemaking.
    The proposed rule would require each vessel to develop and follow a
biofouling management plan with a goal to prevent macrofouling, thereby
minimizing the potential for the introduction and spread of ANS. A
biofouling management plan that would be consistent with the VGP and
fulfill the purpose of the proposed rule is one that provides a
holistic strategy that considers the operational profile of the vessel,
identifies the appropriate antifouling systems, and details the
biofouling management practices for specific areas of the vessel. The
details of the plan will be established by the Secretary, although the
plan elements must prioritize procedures and strategies to prevent
macrofouling.
    While the VGP does not explicitly require a biofouling management
plan, it requires the majority of the components of the proposed
biofouling management plan individually, such as the consideration of
vessel class, operations, and biocide release rates and components in
the selection of antifouling systems, an annual inspection of the
vessel hull and niche areas for assessment of biofouling organisms and
condition of anti-fouling paint, a drydock inspection report noting
that the vessel hull and niche areas have been inspected for biofouling
organisms and those organisms have been removed or neutralized,
reporting of cleaning schedules and methods, and appropriate disposal
of wastes generated during cleaning operations. Additionally, according
to the Clean Hull Act of 2009, every vessel engaging in one or more
international voyages is required to carry an antifouling system
certificate that contains the details of the antifouling system.
Moreover, under the National Invasive Species Act, the USCG requires
the individual in charge of any vessel equipped with ballast water
tanks that operates in the waters of the United States to maintain a
ballast water management plan that has been developed specifically for
the vessel and that will allow those responsible for the plan's
implementation to understand and follow the vessel's ballast water
management strategy and comply with the requirements. The ballast water
management plan must also include detailed biofouling maintenance and
sediment removal procedures (33 CFR 151.2050(g)(3)). According to
guidance issued by the USCG on these regulations, such procedures
constitute a ``Biofouling Management and Sediment Plan.'' Under this
guidance, the USCG advised that IMO Resolution Marine Environment
Protection Committee (MEPC) 207(62) provides a basis for developing and
implementing a vessel-specific biofouling management plan.
    Developing individual biofouling management plans for vessels is
important because vessels can vary widely in operational profile and,
therefore, in the extent and type of biofouling. EPA recognizes,
however, that vessels with similar operational profiles, such as
vessels that cross the same waterbodies, travel at similar speeds, and
share the same design, may also employ the same management measures,
such as selecting the same types of antifouling systems, and applying
the same inspection and cleaning schedules. EPA anticipates that fleet
owners may develop a biofouling management plan template that can be
readily adapted into a vessel-specific biofouling management plan.
3. Oil Management
    The proposed rule aims to minimize discharges of oil, including
oily mixtures. The proposed standard would require vessel operators to
use control and response measures to minimize and contain spills and
overflows during fueling, maintenance, and other vessel operations.
Also, the proposed standard specifies that the discharge of used or
spent oil no longer being used for its intended purpose would be
prohibited, including any used or spent oil that may be added to an
incidental discharge that is otherwise authorized to be discharged.
Discharges of small amounts of oil, including oily mixtures, incidental
to the normal operation of a vessel are permissible provided such
discharges comply with the otherwise applicable existing legal
requirements. For example, consistent with the CWA and as implemented
by the 2013 VGP, this standard would prohibit the discharge of oil in
such quantities as may be harmful, as defined in 40 CFR 110.3.
    Section 139.3 of the proposed rule specifies that, except as
expressly provided, nothing in this part would affect the applicability
of any other provision of Federal law as specified in several statutory
and regulatory citations. Two of those citations are to CWA Section 311
and to APPS. Those two laws address discharges of oil. Under CWA
Section 311, any oil, including oily mixtures, other than those
exempted in 40 CFR 110.5, may not be discharged in such quantities as
``may be harmful,'' which is defined to include those discharges that
violate applicable water quality standards or ``cause a film or sheen
upon or discoloration of the surface of the water or adjoining
shorelines or cause a sludge

or emulsion to be deposited beneath the surface of the water or upon
adjoining shorelines.'' Discharges that are not included in the
description of ``may be harmful'' include discharges of oil from a
properly functioning vessel engine (including an engine on a public
vessel) and any discharges of such oil accumulated in the bilges of a
vessel discharged in compliance with 33 CFR part 151, subpart A; other
discharges of oil permitted under MARPOL 73/78, Annex I, as provided in
33 CFR part 151, subpart A; and any discharge of oil explicitly
permitted by the Administrator in connection with research,
demonstration projects, or studies relating to the prevention, control,
or abatement of oil pollution. Regarding the APPS (33 U.S.C. 1901 et
seq.), the United States enacted it to implement the obligations under
MARPOL 73/78. The USCG is the lead agency for APPS implementation and
issued implementing regulations primarily found at 33 CFR part 151.
Those APPS requirements already apply to many of the vessels that would
be covered by the proposed rule. Among other things, APPS regulates the
discharge of oil and oily mixtures. Generally, these requirements
prohibit ``any discharge of oil or oily mixtures into the sea from a
ship'' except when certain conditions are met, including a discharge
oil content of less than 15 ppm and that the ship operates oily-water
separating equipment, an oil content monitor, a bilge alarm, or a
combination thereof.
    Additionally, the proposed rule would require measures during
fueling, maintenance and other vessel operations to control and respond
to spills and overflows, such as may occur from human error or improper
equipment use. These proposed requirements reinforce existing
requirements that require taking immediate and appropriate corrective
actions if an oil spill is observed as a result of vessel operations.
This includes maintaining appropriate spill containment and cleanup
materials onboard and using such immediately in the event of any spill.
    The proposed rule also includes requirements for oil-to-sea
interfaces. Specifically, the proposed standard would require use of
EALs for such oil-to-sea interfaces unless technically infeasible and
sets out a series of mandatory BMPs for minimizing lubricant discharges
during maintenance.
    Oil-to-sea interfaces are seals or surfaces on ship-board equipment
where the design is such that small quantities of oil can escape into
the surrounding sea during normal vessel operations. For example,
below-water seals frequently use lubricating oil mechanisms that
maintain higher pressure than the surrounding sea to ensure that no
seawater enters the system and compromises the unit's performance.
During normal operation, small quantities of lubricant oil in those
interfaces are released into surrounding waters. Above-deck equipment
can also have oil-to-sea interfaces when portions of the machinery
extend overboard, thereby allowing lubricant oil to be released
directly into surrounding waters. Constituents of conventional
hydraulic and lubricating oils vary by manufacturer, but may include
copper, tin, aluminum, nickel, and lead. In addition, traditional
mineral oils have a small biodegradation rate, a high potential for
bioaccumulation and a measurable toxicity towards marine organisms. In
the case of a controllable pitch propellers (CPP), up to 20 ounces of
such oils could be released for every CPP blade that is replaced, with
blade replacement occurring at drydock intervals or when the blade is
damaged. When the blade replacement includes removal of the blade port
cover (generally occurring infrequently, less than once per month), up
to five gallons of oil could be discharged into surrounding waters
unless the service is performed in drydock.
    Additionally, many ocean-going ships operate with oil-lubricated
stern tubes and use lubricating oils in much of the other machinery
both on-deck and underwater. Oil leakage from stern tubes, once
considered a part of normal ``operational consumption'' of oil, has
become an issue of global concern and is now treated as oil pollution.
A 2001 study commissioned by the European Commission DG Joint Research
Centre concluded that routine unauthorized operational discharges of
oil from ships into the Mediterranean Sea created more pollution than
accidental spills (Pavlakis et al., 2001). Similarly, an analysis of
data on oil consumption sourced from a lubricant supplier indicated
that daily stern tube lubricant consumption rates for different vessels
could range up to 20 liters per day (Etkin, 2010). This analysis
estimated that operational discharges (including stern tube leakage)
from vessels add between 36.9 million liters and 61 million liters of
lubricating oil into marine port waters annually.
    Vessels use lubricants in a wide variety of ship-board
applications. Examples of lubricated equipment with oil-to-sea
interfaces include:
     Stern tube: A stern tube is the casing or hole through the
hull of the vessel that enables the propeller shaft to connect the
vessel's engine to the propeller on the exterior of the vessel. Stern
tubes contain seals designed to keep the stern tube lubricant from
exiting the equipment array and being discharged to waters at the
exterior of the vessel's hull.
     Controllable pitch propeller: Variably-pitched propeller
blades are for changing the speed or direction of a vessel and
supplementing the main propulsion system. Controllable pitch propellers
also contain seals that prevent the lubricant from exiting the
equipment array.
     Rudder bearings: These bearings allow a vessel's rudder to
turn freely; they also use seals with an oil-to-sea interface.
     On-deck equipment: Hose handling cranes, hydraulic system
prov cranes, hydraulic cranes, and hydraulic stern ramps are examples
of machinery with the potential for above-water discharges of
lubricants. When vessels are underway, this equipment is often not
operational, and any lubricant losses are typically captured during
deck washdown and treated as part of deck washdown wastewater. However,
discharges can occur when portions of the machinery such as booms or
jibs, trolleys, cables, hoist gear, or derrick arms are in use and
extend over the side of vessel.
    The EAL portion of the proposal provides that the EAL would need to
meet three criteria; it must be ``biodegradable,'' ``minimally-toxic,''
and ``not bioaccumulative'' as defined in the proposed rule.
    The proposed standard for oil-to-sea interfaces is slightly
different from what was required for oil-to-sea interfaces in the VGP.
EPA is proposing four changes. First, for clarity, EPA moved the EAL
requirements to a general standard for oil management applicable to any
specific discharge that may have an oil-to-sea interface rather than a
specific discharge standard as was done in Part 2.2.9 of the VGP, and
eliminated the specific discharge category, identified in Part 2.2.9 of
the VGP as ``Controllable Pitch Propeller (CPP) and Thruster Hydraulic
Fluid and other Oil-to-sea Interfaces including Lubrication Discharges
from Paddle Wheel Propulsion, Stern Tubes, Thruster Bearings,
Stabilizers Rudder Bearings, Azimuth Thrusters, and Propulsion Pod
Lubrication and Wire Rope and Mechanical Equipment Subject to
Immersion.'' The change demonstrates that the standard covers all oil-
to-sea interfaces on vessels rather than just the interfaces listed in
the name of that section of the VGP. EPA notes that

certain types of seals used on below-deck equipment such as air seals
are based on designs that use an air gap or other mechanical features
to prevent oils from reaching waters at the exterior of the vessel's
hull. To the extent that these seals do not allow the lubricant to be
released under normal circumstances, they are not considered to be oil-
to-sea interfaces. Second, the VGP included specific criteria for
demonstrating that use of an EAL was ``technically infeasible.'' Under
the VIDA delineation of responsibilities between EPA and the USCG,
determinations of technical infeasibility regarding the use of an EAL
are most properly treated as a matter of implementation and as such,
would be addressed as part of the implementing regulations to be
developed by the USCG. Third, EPA made minor revisions to the wording
of the standard to clarify that the scope of this discharge category
extends to all types of equipment with direct oil-to-sea interfaces,
including any on-deck equipment where lubricant losses can occur when
portions of the machinery extend over the side of the hull. Fourth, the
VGP provided two ways that a lubricant could be classified as an EAL:
the EAL must be ``biodegradable,'' ``minimally-toxic,'' and ``not
bioaccumulative'' as defined in the VGP; or, the EAL must be labeled
under a defined list of labeling programs (e.g., the European Union's
European Ecolabel and Germany's Blue Angel). EPA is proposing to remove
the list of acceptable labeling programs acknowledging that the
requirements of these different labeling programs are established by
organizations for which neither EPA nor the USCG have control over any
modifications to the criteria these organizations may make to identify
acceptable products for labeling. The expectation is that all or most
of the labeling programs identified in the VGP meet the EAL criteria in
the proposed rule and as such would provide a comparable list of
options from which vessel operators could select appropriate
lubricants. This provides a clear delineation of expectations for any
institution interested in establishing a labeling program if that
program demonstrates products that are labeled based on criteria that
are at least as stringent as those in the proposed rule for
biodegradability, toxicity, and bioaccumulation.
    Although certification programs to label lubricants as
``environmentally acceptable lubricants'' have existed for some time,
the VGP was one of the first regulatory programs to require use of
EALs. Today, more than sixteen manufacturers produce EALs for the
global shipping community, giving vessel operators a wide array of
choices for optimizing lubricant technical performance. Most major
marine equipment manufacturers have approved EALs for use in their
machinery, and new equipment is being introduced commercially such as
air seals, composite bearings, electric motors, and synthetic line. The
market for EALs continues to expand around the world, particularly in
Europe where the use of such lubricants is promoted through a
combination of tax breaks, purchasing subsidies, and national and
international labeling programs.
    In the analysis EPA completed for the VGP, the Agency found that
product substitution of EALs for other lubricants in oil-to-sea
applications (unless technically infeasible) together with the required
BMPs for maintenance represents BAT. As the Agency described when it
issued the VGP, use of EALs in lieu of conventional formulations for
oil-to-sea interfaces can offer significantly reduced discharges of
pollutants of concern (U.S. EPA, 2011).
    As part of the BAT analysis for the VGP, EPA considered the
processes employed and potential process changes that might be
necessary for vessels to use EALs. As EPA explained at the time, EALs
are readily available and their use is economically achievable for most
applications (U.S. EPA, 2011). New vessels in particular can select
equipment during design and construction that is compatible with EALs.
Furthermore, vessel operators can design additional onboard storage
capacity for EALs if they choose to use traditional mineral-based oil
for engine lubrication (thereby needing two types of oils on-hand). The
extra storage capacity needed would be minor. EPA, however, continues
to believe that the use of EALs in all applications is not practicable
or achievable, therefore this proposed rule retains the provision from
the VGP oil-to-sea interface requirements that allows for a claim of
``technically infeasible.''
    The Agency considered several other approaches for regulating oil-
to-sea interfaces in the proposed rule. For one, the most recent
version of the European Ecolabel program has a modified definition of
what constitutes an ``environmentally acceptable lubricant'' in that it
now allows for ``small quantities'' (i.e., <0.1 percent) of
bioaccumulative substances in lubricant formulations. EPA considered
revising the definition of ``biodegradable'' to bring the terminology
more in line with current European Ecolabel requirements for a 10-day
test pass window rather than a 28-day test pass window for achieving
specific levels of degradation. EPA notes that stakeholders involved in
the European Ecolabel program felt strongly that this change in the
test pass window would significantly reduce the number of lubricant
formulations available on the market. To ensure widespread installation
and use of EALs by vessels that operate in the waters of the United
States or the waters of the contiguous zone, EPA is retaining the
definition of biodegradable as used in the VGP.
4. Training and Education
    The proposed rule does not include training and education
requirements. CWA Section 312(p)(5)(A)(ii)(III) requires the USCG to
promulgate training and educational requirements that are not less
stringent than those contained in the VGP.

B. Discharges Incidental to the Normal Operation of a Vessel--Specific
Standards

    This section describes the proposed national standards of
performance for discharges incidental to the normal operation of a
regulated vessel. The proposed national standards of performance would
apply to regulated vessels operating within the waters of the United
States or the waters of the contiguous zone. The proposed rule would
require that a discharge comprised of two or more regulated incidental
discharges must meet the national standards of performance established
for each of those commingled discharges.
1. Ballast Tanks
i. Applicability
    Ballast water is any water, suspended matter, and other materials
taken on-board a vessel to control or maintain trim, draught,
stability, or stresses of the vessel, regardless of the means by which
any such water or suspended matter is carried; or during the cleaning,
maintenance, or other operation of a ballast tank or ballast management
system of the vessel. The term ``ballast water'' does not include any
substance that is added to the water that is directly related to the
operation of a properly functioning ballast water management system. As
defined in the proposed standards, a ballast tank is any tank or hold
on a vessel used for carrying ballast water, regardless of whether the
tank or hold was designed for that purpose. Fresh water, sea water, or
ice carried onboard a vessel for food safety and product quality
purposes is not

considered ballast water and, as such, would not be subject to the
ballast water requirements in the proposed rule. Ballast water
discharge volumes and rates vary significantly by vessel type, ballast
tank capacity, and type of deballasting equipment for the universe of
vessels covered under the VGP and VIDA. Most passenger vessels have
ballast capacities of less than 5,000 cubic meters (approximately 1.3
million gallons) of water. Cargo/container ships generally have ballast
capacities of 5 to 20 thousand cubic meters (more than 1.3 to 5.3
million gallons) of water while some bulk carriers and tankers have
ballast capacities greater than 40 thousand cubic meters (over 10
million gallons) of water.
    Ballast water may contain toxic and nonconventional pollutants such
as rust inhibitors, epoxy coating materials, zinc or aluminum (from
anodes), iron, nickel, copper, bronze, silver, and other material or
sediment from inside the tanks, pipes, or other machinery. More
importantly, ballast water may also contain marine and freshwater
organisms that originate from where the water is collected. When
ballast water is discharged, these organisms may establish new
populations of ANS in the receiving waterbodies. Ballast water
discharged from vessels has been, and continues to be, a significant
environmental concern because it can introduce and spread ANS that
threaten the diversity and abundance of native species, threaten the
ecological stability of our Nation's waters, and threaten the
commercial, agricultural, aquacultural, and recreational use of those
waters.
    Currently, ballast water discharges are regulated by multiple
federal and state laws and regulations. The USCG regulates ballast
water discharges under the Nonindigenous Aquatic Nuisance Prevention
and Control Act of 1990 (NANPCA), and amendments thereto by the
National Invasive Species Act (NISA) of 1996 (33 CFR part 151 subparts
C and D). Starting in 2009, EPA regulated ballast water discharges
under the NPDES program authorized under CWA Section 402; however, the
VIDA requires that ballast water be regulated as an incidental
discharge under CWA Section 312. The VIDA set as a minimum baseline the
VGP/NPDES requirements previously developed under CWA Section 402.
Additionally, several states (California, Michigan, Minnesota, Ohio,
Oregon, Washington, and Wisconsin) previously used their certification
authorities under CWA Section 401 or under stand-alone state
authorities to impose additional, state-specific requirements that
would apply to commercial vessels operating within their state waters.
Such additional stand-alone State standards will no longer be
permissible under the VIDA once EPA has established national standards
and the USCG has promulgated implementing regulations that are final,
effective, and enforceable. [33 U.S.C. 1322(p)(9)(A)(i)].
    The proposed standards for ballast water reflect BAT and consider
the previous requirements established in the 2013 VGP and 33 CFR part
151 subparts C and D, the BAT factors as specified in Section 304(b) of
the Clean Water Act, as well as the new requirements established in the
VIDA. The analysis described herein is based largely on information
gathered and included in the public docket for this proposed rulemaking
and includes information on the United States and international
requirements surrounding ballast water discharges and the candidate
control technologies (both best management practices and treatment
technologies).
ii. Exclusions
    The proposed standards for ballast water apply to any vessel
equipped with one or more ballast tanks that operates in the waters of
the United States or waters of the contiguous zone, except as excluded
by statute or regulation. Pursuant to the VIDA in CWA Section
312(p)(2)(B)(ii), the proposed rule would exclude the following five
discharges from the CWA Section 312(p) ballast water standards.
A. Vessels That Continuously Take on and Discharge Ballast Water in a
Flow-Through System
    The proposed rule would exclude discharges of ballast water from a
vessel that continuously takes on and discharges ballast water in a
flow-through system, if the Administrator determines that the system
cannot materially contribute to the spread or introduction of an ANS
from ballast water into waters of the United States or the contiguous
zone, acknowledging that such a flow-through system may have additional
areas on the hull (e.g., niches) requiring more rigorous biofouling
management. EPA is unaware of any such vessels currently in commercial
operation, but theoretically a vessel could be designed to have ambient
water flow through the hull for vessel stability without retaining any
of that water in such a way that it would be transported. Should any
such vessel begin commercial operation, EPA expects that it would
evaluate the ballasting configuration to determine if the vessel meets
the statutory description, in which case it would be excluded from the
ballast water discharge standards. In that instance, the Administrator
would notify the vessel owner or operator of such a determination. [33
U.S.C. 1322(p)(2)(B)(ii)(I)]
B. Vessels in the National Defense Reserve Fleet Scheduled for Disposal
    The proposed rule would exclude discharges of ballast water from a
vessel that is in the National Defense Reserve Fleet that is scheduled
for disposal, if the vessel does not have an operable ballast water
management system.
C. Vessels Discharging Ballast Water Consisting Solely of Water Meeting
the Safe Drinking Water Act Requirements
    The existing USCG regulations (33 CFR 151.2025) allow vessels to
use, as ballast water, water from a U.S. public water system (PWS), as
defined in 40 CFR 141.2, that meets the requirements of the Safe
Drinking Water Act (SDWA) at 40 CFR parts 141 and 143. In plain terms,
this means finished, potable water as opposed to untreated water that
is owned or operated by a PWS but not necessarily potable. Those USCG
regulations specify that vessels using water from a PWS as ballast must
maintain a record of which PWS they received the water from as well as
a receipt, invoice, or other documentation from the PWS indicating that
water came from that system. Furthermore, vessels must certify that the
ballast tanks have either previously cleaned (including removing all
residual sediments) and not subsequently introduced ambient water, or
never introduced ambient water to those tanks and supply lines. The
existing EPA requirements in the VGP similarly allow vessels to use
water, not only from a U.S. public water system, but also from a
Canadian drinking water system, as defined in Health Canada's
Guidelines for Canadian Drinking Water Quality.
    As specified by Congress in the VIDA, the proposed rule would
exclude a vessel that discharges ballast water consisting solely of
water taken onboard from a public or commercial source that, at the
time the water is taken onboard, meets the applicable requirements of
the Safe Drinking Water Act (SDWA) (42 U.S.C. 300f et seq.) at 40 CFR
parts 141 and 143. As provided in the existing VGP, EPA proposes that
this exclusion also applies to water taken on board that meets Health
Canada's Guidelines for Canadian Drinking Water Quality because EPA has
evaluated these Guidelines and found them to be consistent with the
applicable requirements of the SDWA. Canada's drinking water treatment
processes

require a high degree of disinfection and, in many cases filtration,
which would make the likelihood of loading ANS into a vessel's ballast
tank highly unlikely. Further, as under existing requirements, EPA
proposes that this exclusion applies only if the ballast tanks have
either been previously cleaned (including removing all residual
sediments) and not subsequently loaded with ambient water; or, if the
ambient water has never been introduced to the ballast tanks and supply
lines. Note that EPA considered whether use of a potable water
generator installed onboard the vessel should be covered under this
exclusion; however, pursuant to CWA Section 312(p), this exclusion is
only available to ballast water that is taken onboard from a public or
commercial source that is compliant with SDWA requirements at the time
it is taken aboard the vessel (U.S. EPA, 2015).
D. Vessels Carrying All Permanent Ballast Water in Sealed Tanks
    The proposed rule would exclude discharges of ballast water from a
vessel that carries all permanent ballast water in sealed tanks that
are not subject to discharge. This exclusion is consistent with the
previous requirements of the VGP and was specified by Congress under
the VIDA.
    This exclusion is different from the proposed ballast water
exchange and saltwater flushing exemptions (described in VIII.B.1.ix.
Ballast Water Exchange and Saltwater Flushing) for ballast contained in
sealed tanks, which EPA proposes to be for ballast tanks that are not
permanently sealed.
E. Vessels Discharging Ballast Water Into a Reception Facility
    The proposed rule would exclude discharges of ballast water from a
vessel that only discharges ballast water into a reception facility
(which could include another vessel for the purpose of storing or
treating that ballast water). This exclusion would carry forward the
existing VGP requirements and USCG regulation (33 CFR 151.2025) that
allow discharges to a reception facility as an eligible ballast water
management method. In such instances, once the ballast water is
offloaded to a reception facility, that ballast water would be subject
to regulation if discharged from that facility. Consistent with the
rationale provided in the VGP fact sheet, EPA would continue to expect
that all vessel piping and supporting infrastructure up to the last
manifold or valve immediately before the reception facility manifold
connection, or similar appurtenance, prevent untreated ballast water
from being discharged. Any such discharge not meeting this requirement
would be expected to meet the discharge standards in the proposed rule.
iii. Exclusion Not Continued From Existing USCG Regulations for Crude
Oil Tankers
    Crude oil tankers engaged in coastwise trade are excluded from the
existing USCG regulation (33 CFR 151.2015(b)), consistent with Section
1101(c)(2)(L) of the National Invasive Species Act of 1996 (16 U.S.C.
4711). However, these same vessels are not excluded from meeting the
ballast water requirements in the VGP and are not exempted under the
VIDA. Therefore, pursuant to CWA Section 312(p)(4)(B)(iii), which
requires this proposed rule to be at least as stringent than specified
parts of the VGP, EPA proposes that crude oil tankers engaged in
coastwise trade not be excluded from meeting the ballast water
requirements set forth in the proposed rule. Such vessels are not
inherently unable to perform ballast water exchanges and other ANS
management practices that their currently non-exempt counterparts
routinely carry out. EPA expects this proposal to impose no additional
costs given that the requirements are presently in effect under the
VGP.
iv. Ballast Water Best Management Practices (BMPs)
    Pursuant to CWA Section 312(p)(4)(B)(ii), EPA is proposing BMPs to
control or abate ballast water discharges from all vessels equipped
with ballast tanks. Following the requirement of the VIDA that EPA
requirements must not be less stringent than the VGP unless a less
stringent requirement is justified, EPA proposes to retain many of the
BMPs in the VGP as they were designed to reduce the number of living
organisms taken up and discharged in ballast water. At present, these
BMPs are widely followed and implemented, thus technologically
available and economically achievable. They have no unacceptable non-
water quality environmental impacts (e.g., energy requirements, air
impacts, solid waste impacts, and changes in waters use). They are
proposed to be carried forward from both the existing EPA requirements
in the VGP and USCG regulations (33 CFR part 151 subpart D). Discussion
of BMPs not proposed to be carried forward from the VGP and USCG
regulations is included in VIII.B.1.iv.H. Best Management Practices Not
Continued from Existing Requirements. The proposed BMPs are described
below.
A. Clean Ballast Tanks Regularly
    As required under the VGP and USCG regulations, the proposed rule
would require ballast tanks to be flushed regularly and cleaned
thoroughly at every scheduled drydock to remove sediment and biofouling
organisms. Residual sediment left in ballast tanks can negatively
affect the ability of a vessel to meet discharge standards, even when a
ballast water management system (BWMS) is properly operated and
maintained. Such sediments may pose a risk of spreading ANS as
organisms can survive in ballast sediment for prolonged periods of time
in resting stages.
B. Use High Sea Suction
    Consistent with EPA requirements under the VGP, the proposed rule
would require that, when practicable and available, high sea suction
sea chests must be used when at a port or where clearance to the bottom
of the waterbody is less than 5 meters to the lower edge of the sea
chest. As an example of when use of high sea suction may not be
practicable is to avoid ice or algae, or other biofilm on the water
surface. This BMP minimizes the potential for uptake of bottom-dwelling
organisms, suspended solids, particulate organic carbon, and turbidity
into the ballast tanks.
C. Use Ballast Water Pumps When in a Port
    As previously required under the VGP, the proposed rule would
require that when practicable, ballast water must be discharged in port
using pumps rather than using gravity to drain tanks. This BMP has been
shown to increase the mortality rate of living organisms in the ballast
water during discharge, particularly zooplankton and other larger
organisms, that would otherwise be discharged, given the physical
action of the pumps (e.g., cavitation, entrainment, and/or
impingement).
D. Maintain Sea Chest Screens
    The proposed rule would require that the sea chest screen(s) must
be maintained and fully intact. This BMP is consistent with an EPA
requirement under the VGP for existing bulk carriers operating
exclusively in the Laurentian Great Lakes, also known as ``Lakers,''
but EPA proposes to expand it to all vessels with ballast tanks. These
screens are designed to keep the largest living organisms, such as
fish, as well as bacteria and viruses associated with these organisms,
out of ballast tanks.

This BMP may reduce the risk of spreading ANS. Adequately maintaining
sea chest screens is a simple technology-based practice that is
available, economically achievable, and beneficial to all vessels to
reduce the threat of ANS dispersal.
E. Prohibit Ballast Tank Cleaning Discharges
    As described above, the proposed rule would require ballast tanks
to be periodically flushed and cleaned to remove sediment and
biofouling organisms; however, the proposed rule also would prohibit
the discharge of residual sediment or water from ballast tank
cleanings. Rather, these wastes should be disposed of in accordance
with any applicable local, state, and federal regulations, which are
outside of the scope of this proposed rule.
F. Avoid Ballast Water Discharge or Uptake in Areas With Coral Reefs
    The proposed rule would require vessel owners and operators to
avoid the discharge or uptake of ballast water in areas with coral
reefs. This BMP is consistent with the VGP requirements. The VGP also
included similar prohibitions for ``marine sanctuaries, marine
preserves, marine parks, . . . or other waters'' listed in Appendix G.
The proposed rule also would prohibit the discharge and uptake of
ballast water in those areas but under a separate section of the
proposed rule specific to activities in federally-protected waters as