Vessel Incidental Discharge National Standards of Performance, 71788-71812 [2023-22879]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 88, Number 200 (Wednesday, October 18, 2023)]
[Proposed Rules]
[Pages 71788-71812]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-22879]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 139

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


Vessel Incidental Discharge National Standards of Performance

AGENCY: Environmental Protection Agency (EPA).

ACTION: Supplemental notice of proposed rulemaking.

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

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

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

FOR FURTHER INFORMATION CONTACT: Jack Faulk, Oceans, Wetlands, and 
Communities Division, Office of Water (4504T), Environmental Protection 
Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460; telephone 
number: 202-564-0768; email address: [email protected].

SUPPLEMENTARY INFORMATION: This supplementary information is organized 
as follows:

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

[[Page 71789]]

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

I. Public Participation

A. Written Comments

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

B. Virtual Public Meetings

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

II. Purpose of This Notice

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

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

A. Summary of Proposed Numeric Ballast Water Discharge Standard

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

[[Page 71790]]

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

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

[[Page 71791]]

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

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

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

[[Page 71792]]

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

[[Page 71793]]



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

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

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

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

D. The Need for Multiple BWMS Compliance Options

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

[[Page 71794]]

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

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

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

IV. Supplemental Regulatory Options

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

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

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

[[Page 71795]]

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

B. Ballast Tanks--Equipment Standard for New Lakers

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

[[Page 71796]]

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

[[Page 71797]]

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

[[Page 71798]]

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

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

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

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

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

[[Page 71799]]

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

[[Page 71800]]

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

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

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

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

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

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

[[Page 71801]]

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

[[Page 71802]]

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

[[Page 71803]]

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

[[Page 71804]]

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

C. Hulls and Associated Niche Areas

    Vessel hulls are often coated with anti-fouling compounds to 
prevent or inhibit the attachment and growth of biofouling organisms. 
Vessel biofouling is the accumulation of aquatic organisms such as 
microorganisms, plants, and animals on surfaces and structures immersed 
in or exposed to the aquatic environment. Selection, application, and 
maintenance of an appropriate coating type and thickness according to 
vessel profile is critical to effective biofouling management, and 
therefore prevention of the introduction and spread of ANS from the 
vessel hull and associated niche areas.
    In the proposed rule, EPA included requirements to help reduce the 
discharge of biofouling organisms from vessel equipment and systems, 
notably from hulls and associated niche areas, by requiring vessel 
operators to develop and follow a biofouling management plan and follow 
specific in-water equipment and system cleaning protocols. 
Additionally, EPA proposed to prohibit in-water cleaning of biofouling 
on hulls and associated niche areas that exceed a U.S. Navy fouling 
rating (FR) of FR-20,\10\ except when the fouling is local in origin 
and cleaning does not result in the substantial removal of a biocidal 
anti-fouling coating, as indicated by a plume or cloud of paint; or, 
when an in-water cleaning and capture (IWCC) system is used that is 
designed and operated to capture coatings and biofouling organisms, 
filter biofouling organisms from the effluent, and minimize the release 
of biocides. EPA recommended, but did not propose to require, the use 
of IWCC systems for removal of local macrofouling.
---------------------------------------------------------------------------

    \10\ FR-20 is considered soft fouling and is described as: 
``Slime as dark green patches with yellow or brown colored areas 
(advanced slime). Bare metal and painted surfaces may by be obscured 
by the fouling.'' (U.S. Navy, 2006)
---------------------------------------------------------------------------

    This document discusses five key issues raised during the public 
comment period on the general applicability of the hull and associated 
niche area requirements and cleaning of this equipment as proposed in 
subsections 139.22(a) and (c). While EPA's proposed rule also included 
biofouling requirements specific to hull and associated niche area 
coatings and other incidental discharges such as seawater piping and 
cathodic protection, EPA is only soliciting comments on the issues 
discussed in this document. EPA does not expect that the options 
discussed in

[[Page 71805]]

this document for hulls and niche areas would result in a change to the 
compliance costs estimated in the Regulatory Impact Analysis 
accompanying the proposed rule.
1. Biofouling as a Discharge Incidental to the Normal Operation of a 
Vessel
    Vessel biofouling is the accumulation of aquatic organisms on hulls 
and associated niche areas. Biofouling can include pathogens, as well 
as microfouling and macrofouling. Biofouling organisms are discharged 
from vessel surfaces both passively through sloughing and actively 
through in-water cleaning activities. With this document, EPA is 
considering adding definitions for ``passive discharge of biofouling'' 
and ``active discharge of biofouling.''
    During the public comment period, EPA received comments questioning 
the Agency's legal authority to regulate the passive discharge of 
biofouling as an incidental discharge under the VIDA. Some commenters 
asserted that the plain language of the statutory definition of 
``discharge incidental to the normal operation of a vessel'' does not 
encompass the passive detachment of biofouling organisms from vessel 
surfaces outside the context of active hull cleaning events. These 
commenters objected that including the regulation of passive discharges 
of biofouling would thus have the effect of preempting state authority 
beyond Congressional intent. Commenters did not question EPA's 
authority to regulate discharges from active hull-cleaning events.
    With this document, EPA is considering if the best interpretation 
of CWA section 312(p) authorizes the Agency to regulate passive 
discharge of biofouling as a discharge incidental to the normal 
operation of a vessel under the VIDA. This interpretation is based on 
the plain language of the statute, as well as the statutory context and 
regulatory history. EPA understands the statutory definition of 
``discharge incidental to the normal operation of a vessel'' at CWA 
section 312(a)(12)(A), to include any incidental discharge (including 
passive discharge) of biofouling organisms from vessel equipment and 
systems for several reasons. First, passive biofouling releases are an 
ordinary accompanying circumstance of vessel operation and transit. 
Based on a plain reading of the CWA-defined term ``discharge incidental 
to the normal operation of a vessel,'' EPA interprets passive 
biofouling to be genuinely incidental to the normal operation of a 
vessel. Second, the statute does not limit what can be considered an 
incidental discharge to specific named discharges. Instead, CWA section 
312(a)(12)(A) explicitly uses the word ``including'' before introducing 
a list of discharges, which indicates that the list is illustrative and 
not exhaustive. See, e.g., In re Vill. Apothecary, Inc., 45 F.4th 940, 
947 (6th Cir. 2022) (``Although context matters, most courts read the 
word `include' to introduce a nonexhaustive list.'').
    Third, CWA section 312(a)(12)(A)(i) states that a discharge 
incidental to the normal operation of a vessel includes ``any other 
pollutant discharge from the operation of a marine propulsion system, 
shipboard maneuvering system, crew habitability system, or installed 
major equipment. . . .'' This language is best read to encompass 
passive biofouling discharges from the hull of a vessel because all 
such discharges are connected to operation of the listed equipment. For 
example, the shipboard maneuvering systems cannot ``operate'' without 
the hull. The CWA section 312(a)(12)(A)(i) definition also includes 
``any other pollutant discharge . . . from a protective, preservative, 
or absorptive application to the hull of the vessel.'' The same 
definition at subsection (A)(ii) includes ``a discharge in connection 
with the testing, maintenance, and repair of a system described in 
clause (i) whenever the vessel is waterborne.'' Read together, these 
provisions define a discharge incidental to the normal operation of a 
vessel, for the purposes of CWA section 312, to include ``a discharge 
in connection with the . . . maintenance[ ] and repair'' of any 
``protective, preservative, or absorptive application to the hull.'' 
The accumulation, growth, and discharge of biofouling organisms is 
intimately ``connected'' to the maintenance of ``protective'' and 
``preservative'' applications to the hull. Improper or inadequate 
maintenance of these applications (or coatings) leads to excessive 
growth of biofouling organisms and the attendant discharge of such 
organisms. A vessel is more likely to accumulate and discharge 
biofouling organisms if the hull coatings are not properly maintained 
and, even in a properly maintained vessel, biofouling organisms are 
ultimately discharged from the hull coatings as much as the hull 
itself.
    The statutory context and purpose further support the 
interpretation that passive biofouling is an incidental discharge. The 
VIDA was enacted to provide ``uniform national standards'' for vessel 
discharges, and EPA regulating passive biofouling under the VIDA would 
further that purpose by avoiding state-by-state variation. This is 
particularly appropriate for biofouling because EPA and the USCG 
participated in the Correspondence Group on Review of the Biofouling 
Guidelines (currently the 2011 Guidelines for the Control and 
Management of Ships' Biofouling to Minimize the Transfer of Aquatic 
Species (Resolution MEPC.207(62))), and thus possess the expertise to 
regulate this discharge. Only a handful of states have any programs to 
regulate biofouling, so excluding the passive discharge of biofouling 
from the rule risks leaving most states without any program to control 
such discharges. Additionally, the VIDA has a particular focus on ANS, 
as evidenced by the numerous specific references and provisions 
relating to ANS in the statutory text. See, e.g., CWA sections 
312(p)(1)(A), (2)(B), (4)(B)(i), (4)(E), & 6(E); 33 U.S.C. 
1322(p)(1)(A), (2)(B), (4)(B)(i), (4)(E), & 6(E). Because passive 
biofouling is a significant vector for the spread of ANS, it is likely 
that Congress would have expected the VIDA to control this discharge.
    With respect to the regulatory history, the VGP drew no distinction 
between active and passive discharges of biofouling. Thus, EPA 
regulated biofouling under the VGP by including management requirements 
to minimize the transport of biofouling organisms from vessel equipment 
and systems, primarily by requiring use and maintenance of an 
appropriate anti-fouling management system, including inspection, 
cleaning, and maintenance of the hull and associated niche areas. With 
limited exceptions, the VIDA requires that the standards be at least as 
stringent as the 2013 VGP requirements established under CWA section 
402. See CWA section 312(p)(4)(B)(iii), 33 U.S.C. 1322(p)(4)(B)(iii) 
(EPA standards); id. (5)(A)(ii) (USCG requirements). EPA's 
consideration of a supplemental option clarifying inclusion of the 
regulation of passive biofouling is consistent with the VGP and this 
VIDA requirement.
    For the above reasons, EPA is considering whether to regulate the 
passive discharge of biofouling from vessel equipment and systems as an 
incidental discharge in the final rule.
2. Application of Requirements to Cleaning of Macrofouling and 
Microfouling
    EPA received comments on the proposed rule that the Agency should 
promulgate biofouling standards that are as specific as possible to 
ensure compliance and enforcement. Commenters also requested that EPA 
make a distinction between macroscopic and microscopic biofouling and 
include definitions based on scientific literature.

[[Page 71806]]

Commenters also stated that the U.S. Navy's FR scale was inappropriate 
for assessing risk of introducing ANS, recommending that the terms 
``macrofouling'' and ``microfouling'' be used instead to delineate 
applicable requirements. In consideration of these comments, EPA is 
considering defining and using the terms ``macrofouling'' and 
``microfouling'' and dispensing with use of the U.S. Navy's FR scale as 
a tool for assigning level and extent of vessel biofouling.
3. Applicability of Regulations to In-Water Cleaning Discharges
    In the proposed rule, EPA did not discuss in detail the differences 
between in-water cleaning without capture and IWCC as it related to the 
proposed standards for the discharge of biofouling from vessels. Based 
on comments received, EPA is considering: (a) prohibiting any discharge 
from in-water cleaning of macrofouling without capture; and (b) 
establishing discharge requirements for in-water cleaning of 
microfouling of vessel hulls and associated niche areas. Also, EPA is 
considering requiring that hulls and associated niche areas be managed 
to minimize macrofouling, such as through cleaning of microfouling, and 
that any hull and associated niche area cleaning must minimize damage 
to the anti-fouling coating and follow applicable cleaning requirements 
found on the coating manufacturers' instructions and any applicable 
Federal Insecticide, Fungicide, and Rodenticide Act label. To 
facilitate these new options, EPA is considering several new and 
revised definitions for inclusion in the final rule. New definitions 
include ``active discharge of biofouling,'' ``anti-fouling coating,'' 
``anti-fouling system,'' and ``passive discharge of biofouling.'' New 
definitions for ``biofouling,'' ``macrofouling,'' ``microfouling,'' and 
``niche areas'' are also being considered and are based largely on 
definitions in the IMO's 2023 ``Revised Guidelines for the Control and 
Management of Ships' Biofouling to Minimize the Transfer of Invasive 
Aquatic Species.''
4. Discharges From In-Water Cleaning and Capture (IWCC) Systems
    IWCC discharges are the result of the use and operation of systems 
that are designed to capture coatings and biofouling organisms, filter 
biofouling organisms from the effluent, and minimize the release of 
biocides. These systems produce waste streams of captured debris that 
is transported topside by umbilical and pumped to an adjacent barge or 
dockside. The waste stream is then typically processed by a commercial 
in-water cleaning system service provider and then discharged into the 
receiving water or collected for disposal.
    EPA received comments on the proposed rule arguing that IWCC 
discharges did not fall within the scope of the VIDA definition of 
discharge incidental to the normal operation of a vessel, and therefore 
should not be included in the final standard. Specifically, commenters 
argued that discharges associated with IWCC came from sources 
associated with the third-party cleaning service rather than from the 
vessel itself, and that IWCC thus more resembled the shore-side 
discharge of treated ballast water that is exempted from the VIDA. 
These commenters urged that IWCC discharges should instead be regulated 
through appropriate National Pollutant Discharge Elimination System 
(NPDES) permitting authorities (e.g., state regulatory agencies), 
consistent with how the VIDA excludes discharges of ballast water to a 
reception facility from the uniform national standards of performance. 
Additionally, the VIDA instructed EPA to be generally consistent with 
the VGP in promulgating new standards (CWA section 312(p)(4)(B)(iii)), 
and the VGP did not interpret an IWCC discharge to be a discharge 
incidental to the normal operation of a vessel. This new approach being 
considered is analogous to the approach used for ballast water 
discharges to a reception facility, which EPA is explicitly instructed 
not to regulate under the VIDA. As such, EPA is now considering not 
including the discharge of effluent from IWCC systems as an incidental 
discharge in the final rule.
    Additionally, EPA acknowledges that this approach would differ from 
how IWCC discharges from vessels of the Armed Forces are regulated 
under the Uniform National Discharge Standards (UNDS; see 40 CFR 
1700.37). However, such differences are to be expected where there are 
different legal and factual circumstances attending the vessels 
regulated under each authority. Indeed, there are additional 
inconsistences that exist across the UNDS, the VGP, and the proposed 
rule for other discharges.
    Based on the comments and EPA's understanding that there are no 
permanent onboard IWCC systems commercially available for use, EPA is 
considering not including the discharge of treated effluent from IWCC 
technologies as a discharge incidental to the normal operation of a 
vessel. As such, these discharges would not be exempt from regulation 
under CWA section 312(p)(9)(C) and, therefore would require NPDES 
permit coverage akin to the discharge of treated ballast water from a 
barge-based or shore-based treatment facility. This would include any 
materials not captured and discharged as part of IWCC usage. Also, 
consistent with the proposal to exclude discharges from IWCC systems 
from these standards, EPA is considering removing the reference to IWCC 
systems from the prohibition of in-water cleaning of any copper-based 
hull coatings in any copper-impaired waterbody within the first 365 
days after application of that coating. Rather, the revision would 
prohibit any discharge from in-water cleaning without capture of any 
copper-based hull coatings in a copper-impaired waterbody within the 
first 365 days after application of that coating.
    Given that the approach considered here to exclude IWCC discharges 
from the final standard differs from what was initially proposed, EPA 
is seeking additional input to inform the final rule. Specifically, EPA 
is interested in feedback regarding the State-level technical, 
administrative, and resource capacity to implement such a NPDES 
permitting program for discharges or additional state regulatory 
options associated with IWCC systems.
5. Terms To Describe Cleaning
    EPA received comments that the terms ``frequent,'' ``gentle,'' 
``minimal,'' ``local in origin,'' ``plume or cloud of paint,'' and 
``minimize release of biocides'' with regards to hull and associated 
niche area cleaning are not well-defined and open for broad 
interpretation. Along these same lines, EPA received comments that the 
standards for cleaning in the proposed rule were vague, and as such, 
not protective against the discharge of organisms and water quality 
impacts. EPA considers the approach used in the proposed rule (i.e., 
describing cleaning as frequent and gentle with a goal of minimizing 
impacts to the coating) to be consistent with how cleaning is regulated 
in the VGP, and a best practice that would ensure the longevity and 
effectiveness of the coating while minimizing pollutant loading into 
the surrounding environment. EPA understands, however, that use of the 
terms ``local in origin'' and ``plume or cloud of paint'' may be 
challenging to implement and enforce, and as such, EPA is considering 
removing these concepts.

D. Graywater Systems

    Graywater is water drained or collected from showers, baths, sinks,

[[Page 71807]]

and laundry facilities. Graywater discharges can contain bacteria, 
pathogens, oil and grease, detergent and soap residue, metals (e.g., 
cadmium, chromium, lead, copper, zinc, silver, nickel, mercury), 
solids, and nutrients. To the extent that graywater is commingled with 
sewage, the VIDA subjects such discharge to all applicable requirements 
for both graywater and sewage. See CWA section 312(p)(2)(A)(ii), 33 
U.S.C. 1322(p)(2)(A)(ii).
1. Summary of Proposed Rule and Relevant Comments Received on Graywater 
Systems
    Among other graywater system requirements, EPA proposed that 
graywater discharges from certain vessels, including any new vessel of 
400 gross tons as measured under the Convention Measurement System of 
the International Convention on Tonnage Measurement of Ships (GT ITC) 
(400 GRT if GT ITC is not assigned) and above, would be prohibited 
unless the discharge meets numeric discharge standards for fecal 
coliform, biochemical oxygen demand, suspended solids, pH, and residual 
chlorine. EPA received comments from several industry stakeholders 
(American Petroleum Institute, American Waterways Operators, Crowley 
Maritime Corporation, and Offshore Marine Services Association) 
requesting that EPA consider exempting vessels that carry only a 
relatively small number of persons. Commenters reasoned that such 
vessels produce small volumes of graywater discharge and that the 
pollution reductions would be too negligible to justify the costs of 
treating graywater discharge. Commenters also asserted that requiring 
such vessels to comply with the numeric discharge standard is not 
supported by VGP data and that the requirement should be based on total 
personnel rather than tonnage, similar to the graywater monitoring 
requirements found in Section 2.2.15.2 of the 2013 VGP. Specifically, 
commenters argued that vessels that have a maximum crew capacity and 
overnight accommodations for fewer than 15 persons should be exempt 
from the rule's numeric discharge standard for graywater. Commenters 
also argued that the pollution reductions to be achieved from storage 
and pump out of graywater were negligible in comparison to the other 
environmental impacts that would result from the installation, 
maintenance, and operation of such systems, including increased energy 
usage and increased carbon emissions from burning fuel. Commenters also 
noted that the installation and use of graywater storage tanks could 
increase the need for ballasting operations, thereby increasing the 
discharge of pollutants through ballast water.
    EPA understands that vessels that carry fewer than 15 persons, 
regardless of vessel tonnage, would produce a lower volume of graywater 
discharges. The proposed rule noted that the volume of graywater 
generated and discharged by a vessel depends on the number of persons 
onboard and several proposed requirements are tied directly to that 
number. For example, under the proposed rule, the discharge of 
graywater from any new ferry authorized by the USCG to carry 250 or 
more persons would be required to meet the numeric discharge 
requirements. Additionally, graywater generation rates vary based on 
the types of activities onboard the vessel. For example, cruise ship 
passengers and crew are expected to generate higher volumes of 
graywater than the crew onboard cargo ships, towing vessels, or similar 
vessels. This is because passengers on cruise ships engaged in leisure 
activities tend to use galleys and accommodations (sinks and showers) 
to a greater extent for bathing, food preparation, and other such 
activities.
2. Supplemental Regulatory Option for Graywater Systems
    Due to the comments received, EPA is considering a supplemental 
option that changes the eligibility criteria to track the number of 
persons onboard a vessel more closely, in line with commenters' 
recommendation to limit the applicability only to new vessels of 400 GT 
and above that have a maximum capacity of 15 or more persons and 
provide overnight accommodations to those persons. Based on an assumed 
production rate of 30 to 85 gallons of graywater per person per day, 
the largest commercial vessels with 14 persons would produce between 
420 and 1,190 gallons of graywater per day. EPA expects that 400 GT 
vessels that have a maximum capacity and overnight accommodations for 
fewer than 15 persons, such as towing vessels, are likely generating 
graywater on the lower end of this estimate. Based on the comments 
received, EPA is considering whether exempting graywater discharges 
from these less populated vessels without overnight accommodations from 
meeting the otherwise applicable standard would be reasonable 
considering the relevant statutory factors for a technology-based 
standard. EPA projects that this exemption would result in increased 
cost savings to the vessel community compared to the initial Regulatory 
Impact Analysis of the proposed rule.
    EPA is aware of two technologies for reducing the discharge of 
pollutants through graywater: treatment and storage. As explained in 
the proposed rule, EPA recognizes that the option to install advanced 
wastewater treatment systems (AWTS) or sufficient storage may be 
unavailable for certain vessels for such reasons as cost, stability of 
the vessel, or space constraints. Additionally, treatment systems 
require a minimum number of persons onboard, as identified by the 
manufacturer, to generate a sufficient volume of wastewater for proper 
operation. As such, vessels carrying fewer persons may have fewer 
device options available. In the process of developing a 2011 EPA 
report titled ``Graywater Discharges from Vessels'' (Docket No. EPA-HQ-
OW-2019-0482-0368), contractors acting on EPA's behalf contacted 
several vessel operators representing a range of vessel classes to 
understand current graywater handling practices. Only the operator with 
the largest vessel--a medium cruise ship typically carrying 740 
passengers--reported treatment of graywater using an AWTS. In 
considering these factors, EPA did not propose that all vessels be 
required to treat graywater discharges according to the numeric 
discharge standards. Information on current graywater handling 
practices, device availability, and minimum number of persons required 
for operation is also available in the ``Graywater Discharges from 
Vessels'' report.
    Given the apparent unavailability of technologically practicable 
treatment options, EPA is considering whether it would be reasonable to 
require vessels of this type to install holding tanks (as needed) to 
store graywater. Commenters expressed concerns regarding the 
operational and logistical challenges associated with equipping holding 
tanks onboard minimally crewed vessels greater than 400 GT, such as 
towing vessels. Specific concerns included impacts to vessel stability, 
inadequate space for installation, and the need to regularly pump out 
the tanks despite limited availability of suitable facilities for 
offloading wastewater from commercial vessels. EPA understands that for 
vessels with multi-day voyages that primarily operate in nearshore 
waters, the required holding tanks would be large. Assuming a towing 
vessel with an average crew of six, generating 30 gallons per person 
per day, with a 14-day pumpout interval, a 2,520-gallon tank would be 
required. In the proposed rule, EPA solicited data and comments on the 
availability of

[[Page 71808]]

pumpout facilities for graywater. While few specifics were provided, 
commenters identified general deficiencies in the availability of 
suitable facilities for non-recreational vessels.
    Several commenters argued that installing holding capacity, with 
the ongoing costs of pumping out, could be economically burdensome. 
EPA's recent analysis of a mandatory sewage storage requirement for 
tugboats and similar vessels in Puget Sound amounted to an estimated 
6.8 percent increase in annual baseline operating costs for such 
vessels, not including the additional costs to purchase and install the 
tanks. This increase is due to the costs associated with facility use 
(pumpout fees), travel to access facilities (lost revenue and fuel 
costs), and time to pump out (lost revenue). Because graywater is 
generated in greater volumes on a per person per day basis than sewage, 
EPA would expect a greater increase in operating costs should tugboats 
and similar vessels be required to equip storage capacity to prevent 
overboard discharges.
    As part of this supplemental regulatory option, EPA modified the 
applicability criteria from ``400 GT ITC (400 GRT if GT ITC is not 
assigned)'' to ``400 GT.'' This modification is intended to align the 
language with existing regulations and the IMO.

V. Solicitation of Comments

    In this document, EPA solicits public comment on new data received 
since the proposed rule and a small number of supplemental options for 
specific discharges and/or systems.
    For the numeric ballast water discharge standard, EPA is not 
proposing a different standard than that in the proposed rule; however, 
EPA is seeking input on this issue and on the analysis of the new data.
    For ballast water uptake, EPA is considering a supplemental option 
to require vessel operators to address and identify their uptake 
practices as part of their ballast water management plan.
    For ballast water discharges from Lakers, EPA is considering a 
supplemental option to require an equipment standard for New Lakers. 
These vessels would be required to install and operate a BWMS that has 
been type-approved by the USCG. EPA proposes to define a New Laker as a 
bulk carrier that operates exclusively on the Great Lakes and that is 
constructed after the effective date of USCG regulations promulgated 
pursuit to CWA section 312(p)(5)(A)(i).
    For hulls and associated niche areas, EPA is considering whether 
to: (a) define the terms ``active discharge of biofouling,'' 
``microfouling,'' ``macrofouling,'' and ``passive discharge of 
biofouling;'' (b) prohibit any discharges from in-water cleaning 
without capture of macrofouling; (c) exclude discharges from IWCC 
activities from these regulations; and (d) eliminate use of terms such 
as ``local in origin'' and ``plume or cloud of paint'' when referring 
to cleaning activities and ``fouling rating'' to identify applicable 
cleaning requirements. Of note, a number of the revisions under 
consideration align with the recently adopted (July 2023) ``Revised 
Guidelines for the Control and Management of Ships' Biofouling to 
Minimize the Transfer of Invasive Aquatic Species.''
    For graywater systems, EPA is considering a supplemental option to 
limit the applicability of the requirement that discharges of graywater 
meet the numeric discharge standard to only those new vessels of 400 GT 
and above that have a maximum capacity of 15 or more persons and 
provide overnight accommodations to those persons, instead of all new 
vessels of 400 GT and above.
    EPA solicits public comments exclusively on the topics raised in 
this document and not on any other provisions of the proposed rule.

VI. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders 
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 14094: Modernizing Regulatory Review

    This action is a ``significant regulatory action'' as defined in 
Executive Order 12866, as amended by Executive Order 14094. 
Accordingly, EPA submitted this action to the Office of Management and 
Budget (OMB) for Executive Order 12866 review. Documentation of any 
changes made in response to Executive Order 12866 review is available 
in the docket. EPA prepared an analysis of the potential costs and 
benefits associated with this action. This analysis, ``Regulatory 
Impact Analysis of the Proposed Rulemaking'' (EPA-HQ-OW-2019-0482-
0589), is available in the docket. For each section of this 
supplemental notice of proposed rulemaking, EPA forecasted the 
anticipated effect on cost to the regulatory community, as compared to 
that identified in the Regulatory Impact Analysis and based on the 
supplemental regulatory option presented. The Regulatory Impact 
Analysis will be updated and finalized alongside the final rule.

B. Paperwork Reduction Act (PRA)

    This supplemental notice of proposed rulemaking does not impose any 
new information collection burden under the PRA. The information 
collection activities associated with EPA's 2020 notice of proposed 
rulemaking (85 FR 67818) were submitted for approval to the Office of 
Management and Budget (OMB) under the PRA and assigned OMB control 
number 2040-0303. You can find a copy of the Information Collection 
Request (ICR) in the docket for this rule. This supplemental notice of 
proposed rulemaking does not address the previously identified 
information collection activities nor would it result in changes to the 
previously submitted ICR.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. 
Although this action will impose requirements on any small entity that 
operates a vessel subject to the standards, EPA determined that the 
projected cost burden would not be significant. As described in this 
document, EPA has determined that, when compared to the Regulatory 
Impact Analysis of the 2020 proposed rule (EPA-OW-2019-0482-0589), the 
supplemental regulatory options being considered would result in no 
cost impact or a cost savings to the regulated community with the 
exception of the ballast water standard being considered for New 
Lakers. For New Lakers, EPA determined that the majority of companies 
potentially subject to the ballast water requirement qualify as small 
entities; however, EPA cannot predict under whose ownership a New Laker 
might be constructed or converted and subject to these requirements. 
However, the cost to comply with this new requirement is relatively 
small compared to the cost of building/converting and operating a New 
Laker. Details of the screening analysis for the new ballast water 
discharge standard being considered for New Lakers are presented in the 
``Economic Analysis of New Lakers for the Supplemental Notice of 
Proposed Rulemaking for the Vessel Incidental National Standards of 
Performance'' available in the public docket for this rulemaking.

[[Page 71809]]

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. The action imposes no enforceable duty on any state, 
local or tribal governments or the private sector.

E. Executive Order 13132: Federalism

    EPA has concluded that this action has federalism implications 
because it preempts state law. The VIDA added a new CWA section 
312(p)(9)(A) that specifies that, beginning on the effective date of 
the requirements promulgated by the Secretary established under CWA 
section 312(p)(5), no state, political subdivision of a state, or 
interstate agency may adopt or enforce any law, regulation, or other 
requirement with respect to an incidental discharge subject to 
regulation under the VIDA except insofar as such law, regulation, or 
other requirement is identical to or less stringent than the Federal 
regulations under the VIDA. Accordingly, EPA and the USCG conducted a 
Federalism consultation briefing on July 9, 2019, in Washington, DC to 
allow states and local officials to have meaningful and timely input 
into the development of the rulemaking (85 FR 67818).
    EPA provided an overview of the VIDA, described the interim 
requirements and the framework of future regulations, identified state 
provisions associated with the VIDA, and received comments and 
questions. The briefing was attended by representatives from the 
National Governors Association, the National Conference of State 
Legislatures, the U.S. Conference of Mayors, the County Executives of 
America, the National Association of Counties, the National League of 
Cities, Environmental Council of the States, the Association of Clean 
Water Administrators, the National Water Resources Association, the 
Association of Fish and Wildlife Agencies, the National Association of 
State Boating Law Administrators, the Western Governors Association, 
and the Western States Water Council. Pre-proposal comments were 
accepted from July 9, 2019 to September 9, 2019 and are described in 
conjunction with the Governors' Consultation comments. After the public 
comment period concluded for the proposed rule, EPA met with state 
representatives to discuss topics of interest between June and October 
2021 to inform this supplemental notice of proposed rulemaking.
    Additionally, pursuant to the terms of Executive Order 13132 and 
Agency policy, a federalism summary impact statement is required in the 
final rule. This will summarize not only the issues and concerns raised 
by state and local government commenters during the proposed rule's 
development, but also describe how and the extent to which the agency 
addressed those concerns. Further, as required by Section 8(a) of 
Executive Order 13132, EPA in the final rule will include a 
certification from its Federalism Official stating that EPA met the 
Executive Order's requirements in a meaningful and timely manner. A 
copy of this certification will be included in the public version of 
the official record once the action is finalized.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action has tribal implications. However, it will neither 
impose substantial direct compliance costs on federally recognized 
tribal governments, nor preempt tribal law. Tribes may be interested in 
this action because commercial vessels may operate in or near tribal 
waters. Additionally, EPA may be authorized to treat eligible federally 
recognized Tribes as a state (TAS) under section 309 of the CWA.
    EPA consulted with tribal officials under the EPA Policy on 
Consultation and Coordination with Indian Tribes early in the process 
of developing this regulation to permit them to have meaningful and 
timely input into its development. A summary of that consultation and 
coordination follows.
    EPA initiated a tribal consultation and coordination process for 
EPA's 2020 notice of proposed rulemaking (85 FR 67818) by sending a 
``Notice of Consultation and Coordination'' letter on June 18, 2019, to 
all 573 tribes that were federally recognized at the time.\11\ The 
letter invited tribal leaders and designated consultation 
representatives to participate in the tribal consultation and 
coordination process that lasted from July 11 to September 11, 2019. 
EPA held an informational webinar for tribal representatives on July 
11, 2019, to obtain meaningful and timely input during the development 
of the proposed rule. During the webinar, EPA provided an overview of 
the VIDA, described the interim requirements and the framework of 
future regulations, and identified tribal provisions associated with 
the VIDA. A total of nine tribal representatives participated in the 
webinar. EPA also provided an informational presentation on the VIDA 
during the Region 10 Regional Tribal Operations Committee (RTOC) call 
on July 18, 2019, as requested by the RTOC. During the consultation 
period, tribes and tribal organizations sent two pre-proposal comment 
letters to EPA as part of the consultation process. In addition, EPA 
held one consultation meeting with the leadership of a tribe, at the 
tribe's request, to obtain pre-proposal input and answer questions 
regarding the forthcoming rule.
---------------------------------------------------------------------------

    \11\ In December 2019, the Little Shell Tribe of Chippewa 
Indians became the 574th federally recognized tribe.
---------------------------------------------------------------------------

    EPA incorporated the feedback it received from tribal 
representatives in the proposed rule. Records of the tribal 
informational webinar, and a consultation summary of the written and 
verbal comments submitted by tribes are included in the public docket 
for this proposed rule. Several tribes requested additional 
consultation in comments submitted during the public comment period of 
the proposed rule. EPA offered additional consultation opportunities 
and met with tribal representatives of the Gun Lake Tribe and Chippewa 
Ottawa Resource Authority in September and October 2021, respectively.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that EPA has reason to believe may disproportionately affect children, 
per the definition of ``covered regulatory action'' in section 2-202 of 
the Executive Order.
    Therefore, this action is not subject to Executive Order 13045 
because it does not concern an environmental health risk or safety 
risk. Since this action does not concern human health, EPA's Policy on 
Children's Health also does not apply.

H. Executive Order 13211: Actions That Concern Regulations That 
Significantly Affect Energy Supply, Distribution, and Use

    This action is not a ``significant energy action'' because it is 
not likely to have a significant adverse effect on the supply, 
distribution or use of energy. EPA believes that any additional energy 
usage would be insignificant compared to the total energy usage of 
vessels and the total annual U.S. energy consumption.

[[Page 71810]]

I. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations and 
Executive Order 14096: Revitalizing our Nation's Commitment to 
Environmental Justice for All

    EPA believes that it is not practicable to assess whether the human 
health or environmental conditions that exist prior to this action 
result in disproportionate and adverse effects on communities with 
environmental justice concerns. While EPA was unable to perform a 
detailed environmental justice analysis because it lacks data on the 
exact location of vessels and their associated discharges, the 
rulemaking would increase the level of environmental protection for all 
affected populations without having any disproportionately high and 
adverse human health or environmental effects on any population, 
including any minority or low-income population. The Agency recognizes 
that the burdens of environmental pollution disproportionately fall on 
certain communities with environmental justice concerns. Overall, the 
Agency believes this rule would reduce the amount of pollution entering 
waterbodies from vessels through the minimization and control of 
discharges entering the waters of the U.S. and the contiguous zone that 
may contain pollutants such as aquatic nuisance species, nutrients, 
bacteria or pathogens, oil and grease, metals, as well as other toxic, 
nonconventional, and conventional pollutants (e.g., organic matter, 
bicarbonate, and suspended solids). This would yield human health 
benefits due to decreased exposure to these pollutants and improve the 
recreational utility of waterbodies where vessels would be subject to 
the proposed standards.

VII. References

Choice Ballast Solutions (CBS). (2017). Technical Engineering 
Analysis & Economic Feasibility for Ballast Water Management System 
(BWMS) Installation and Operation on board U.S. Flag Great Lakes 
Fleet (Lakers). Project Number 014766.
Bailey, S. A., Casas-Monroy, O., Kydd, J., Ogilvie, D., Rozon, R. 
M., and Yardley, S. (2023). Efficacy of ballast water management 
systems operating within the Great Lakes and St. Lawrence River 
(2017-2022). Can. Data Rep. Fish. Aquat. Sci. 1376: vi + 24 p.
First MR, Robbins-Wamsley SH, Riley SC, Grant JF, Molina V and Wier 
TP. (2022). None detected: What ``zero'' indicates in direct counts 
of aquatic microorganisms in treated ballast water. Front. Mar. Sci. 
9:1034386. doi: 10.3389/fmars.2022.1034386.
Great Ships Initiative (GSI). (2011). Final Report of the Land-
Based, Freshwater Testing of the Alfa Laval AB PureBallast[supreg] 
Ballast Water Treatment System. GSI/LB/F/A/2, pp 1-94.
Great Ships Initiative (GSI). (2015). Technical Report Land-Based 
Status Test of the JFE BallastAce [supreg] Ballast Water Management 
System and Components at the GSI Testing Facility. GSI/LB/QAQC/TR/
JFE, pp 1--146.
International Maritime Organization (IMO). (2004). International 
Convention for the Control and Management of Ships' Ballast Water 
and Sediments. BWM/CONF/36.
International Maritime Organization (IMO). (2018). Code for Approval 
of Ballast Water Management Systems, Resolution MEPC.300(72), April 
13, 2018.
King, D.M., M. Riggio, and P.T. Hagan. (2009). Preliminary Cost 
Analysis of Ballast Water Treatment Systems. Maritime Environmental 
Resource Center.
Kuznetsova, A., P.B. Brockhoff, and R.H.B. Christensen. (2017). R 
package, version 3.1-3. ``lmerTest Package: Tests in Linear Mixed 
Effects Models.'' Journal of Statistical Software 82.13:1-26. 
doi:10.18637/jss.v082.i13 https://doi.org/10.18637/jss.v082.i13.
MARAD. (2013). Status of the U.S.-Flag Great Lakes Water 
Transportation Industry.
National Research Council (NRC). (2011). Assessing the Relationship 
Between Propagule Pressure and Invasion Risk in Ballast Water. 
Washington, DC: The National Academies Press. https://doi.org/10.17226/13184.
R Core Team. (2023). R: A language and environment for statistical 
computing. Version 4.3.0. R Foundation for Statistical Computing, 
Vienna, Austria. https://www.R-project.org/.
Stasinopoulos, M.D., R.A. Rigby, and N. Mortan. (2018). 
``gamlss.cens: Fitting an interval response variable using 
`gamlss.family' distributions.'' R package version 5.0-1. https://CRAN.R-project.org/package=gamlss.cens.
Stasinopoulos, M.D. and R.A. Rigby. (2022). ``gamlss.dist: 
Distributions for generalized additive models for location scale and 
shape.'' R package version 6.0-5. https://CRAN.R-project.org/package=gamlss.dist.
StataCorp. (2021). Stata Statistical Software: Release 17. College 
Station, TX: StataCorp LLC.
U.S. Coast Guard (USCG). (2012). Standards for Living Organisms in 
Ships' Ballast Water Discharged in U.S. Waters. 36 CFR part 151 and 
46 CFR part 162 Docket No. USCG-2001-10486. RIN 1625-AA32. Final 
Rule Regulatory Analysis and Final Regulatory Flexibility Analysis.
U.S. Coast Guard (USCG). (2013a). Ballast Water Treatment, U.S. 
Great Lakes Bulk Carrier Engineering and Cost Study, Volume II: 
Analysis of On-Board Treatment Methods, Alternative Ballast Water 
Management Practices, and Implementation Costs. Acquisition 
Directorate. Report No. CG-D-12-13.
U.S. Coast Guard (USCG). (2013b). Investigation of Ballast Water 
Treatment's Effect on Corrosion. Acquisition Directorate. Report No. 
CG-D-03-15.
U.S. EPA. (2000). Development document for effluent limitations 
guidelines and standards for the centralized waste treatment 
industry. EPA-821-R-00-020. Washington, DC (August). https://www.epa.gov/sites/default/files/2015-06/documents/cwt_dd_2000.pdf.
U.S. EPA. (2002). Development document for final effluent imitations 
guidelines and standards for the iron and steel manufacturing point 
source category. EPA-821-R-02-004. Washington, DC (April). https://www.epa.gov/sites/default/files/2015-10/documents/ironsteel_dd_2002.pdf.
U.S. EPA. (2010). Generic protocol for the verification of ballast 
water treatment technology. U.S. Environmental Protection Agency, 
Washington, DC EPA-600-R-10-146.
U.S. EPA. (2011). Efficacy of Ballast Water Treatment Systems: A 
Report by the EPA Science Advisory Board. EPA-SAB-11-009.
U.S. EPA. (2013). Enforcement Response Policy for EPA's 2013 Vessel 
General Permit: Ballast Water Discharges and U.S. Coast Guard 
Extensions under 33 CFR part 151. https://www.epa.gov/sites/default/files/2015-08/documents/vesselgeneralpermit-erp.pdf.
U.S. EPA. (2015). Technical development document for the effluent 
limitations guidelines and standards for the steam electric power 
generating point source category. EPA-821-R-15-007. Washington, DC 
(September). https://www.epa.gov/sites/default/files/2015-10/documents/steam-electric-tdd_10-21-15.pdf.
U.S. EPA. (2023). Ballast Water BAT Data Analysis: Analysis of Newly 
Acquired U.S. Coast Guard Ballast Water Management System Type-
Approval Data to Assess System Performance. U.S. Environmental 
Protection Agency, Washington, DC. August 2023.
U.S. Navy. (2006). Naval Ships' Technical Manual. Chapter 81. 
Waterborne Underwater Hull Cleaning of Navy Ships, Revision 5. 
S9086-CQ-STM-010.

List of Subjects in 40 CFR Part 139

    Environmental protection, Commercial vessels, Coastal zone, 
Incidental discharges

Michael S. Regan,
Administrator.
    For the reasons set forth in the preamble, 40 CFR part 139, as 
proposed to be added at 85 FR 67818 (October 26, 2020), is proposed to 
be amended as follows:

[[Page 71811]]

PART 139--DISCHARGES INCIDENTAL TO THE NORMAL OPERATION OF VESSELS

0
1. The authority citation for part 139 is added to read as follows:

    Authority: 33 U.S.C. 1322, as amended.

0
2. Amend Sec.  139.2 by:
0
a. Adding the definitions for ``Active discharge of biofouling'', 
``Anti-fouling coating'', and ``Anti-fouling system'' in alphabetical 
order;
0
b. Revising the definitions for ``Biofouling'', and ``Constructed'';
0
c. Adding the definitions for ``Macrofouling'', ``Microfouling'', and 
``New Laker'';
0
d. Revising the definition for ``Niche areas''; and
0
e. Adding the definition for ``Passive discharge of biofouling'' in 
alphabetical order.
    The additions and revisions read as follows:


Sec.  139.2  Definitions.

    Active discharge of biofouling means the discharge of biofouling 
from a vessel resulting from in-water cleaning activities.
* * * * *
    Anti-fouling coating means a coating or paint designed to prevent, 
repel, or facilitate the detachment of biofouling from hull and niche 
areas that are typically or occasionally submerged.
    Anti-fouling system means a coating, paint, surface treatment, 
surface, or device that is used on a vessel to control or prevent 
attachment of organisms.
* * * * *
    Biofouling means the accumulation of aquatic organisms, such as 
microorganisms, plants, and animals on surfaces and structures immersed 
in or exposed to the aquatic environment. Biofouling can include 
pathogens in addition to microfouling and macrofouling.
* * * * *
    Constructed with respect to a vessel has the same meaning as 
defined at 33 CFR 151.2005 and means a stage of construction when one 
of the following occurs:
    (1) The keel of a vessel is laid;
    (2) Construction identifiable with the specific vessel begins;
    (3) Assembly of the vessel has commenced and comprises at least 50 
tons or 1 percent of the estimated mass of all structural material, 
whichever is less; or
    (4) The vessel undergoes a major conversion.
* * * * *
    Macrofouling means biofouling caused by the attachment and 
subsequent growth of visible plants and animals on structures and 
vessels immersed in or exposed to water. Macrofouling is large, 
distinct multicellular individual or colonial organisms visible to the 
human eye such as barnacles, tubeworms, mussels, fronds/filaments of 
algae, bryozoans, sea squirts and other large attached, encrusting, or 
mobile organisms.
* * * * *
    Microfouling means biofouling caused by bacteria, fungi, 
microalgae, protozoans, and other microscopic organisms that creates a 
biofilm, also called a slime layer.
* * * * *
    New Laker means a vessel that is 3,000 GT and above and that 
operates exclusively in the Great Lakes and the St. Lawrence River west 
of a rhumb line drawn from Cap des Rosiers to Point-Sud-Oeste (West 
Point), Anticosti Island, and west of a line along 63 W. longitude from 
Anticosti Island to the north shore of the St. Lawrence River and that 
is constructed after the effective date of USCG regulations promulgated 
pursuant to CWA section 312(p)(5)(A)(i).
    Niche areas means a subset of the submerged surface area on a 
vessel that may be more susceptible to biofouling than the main hull 
due to structural complexity, different or variable hydrodynamic 
forces, susceptibility to anti-fouling coating wear or damage, or 
inadequate or no protection by an anti-fouling system.
* * * * *
    Passive discharge of biofouling means the discharge of biofouling 
from a vessel (for example, sloughing) during a period in which the 
vessel is not undergoing active cleaning activities.
* * * * *
0
3. Amend Sec.  139.10 by revising paragraph (c)(4) and by adding 
paragraph (c)(5) to read as follows:


Sec.  139.10  Ballast tanks.

* * * * *
    (c) * * *
    (4) A ballast water management plan must be developed and followed 
to minimize the uptake and discharge of harmful aquatic organisms and 
pathogens. The plan must describe the vessel-specific ballast water 
management systems and practices necessary to comply with requirements 
in this section.
    (5) A New Laker that discharges ballast water must install, 
operate, and maintain a ballast water management system (BWMS) that has 
been type-approved by the USCG.
* * * * *
0
4. Amend Sec.  139.21 by revising paragraph (e)(1) to read as follows:


Sec.  139.21  Graywater systems.

* * * * *
    (e) * * *
    (1) Any new vessel of 400 GT and above that is certificated to 
carry 15 or more persons and provides overnight accommodations to those 
persons;
* * * * *
0
5. Amend Sec.  139.22 by:
0
a. Revising paragraph (a);
0
b. Redesignating paragraphs (b) and (c) as paragraphs (c) and (d);
0
c. Adding a new paragraph (b); and
0
d. Revising newly designated paragraph (d).
    The revisions and additions read as follows:


Sec.  139.22  Hulls and associated niche areas.

    (a) Applicability. The requirements in paragraphs (b) through (d) 
of this section apply to the discharge of anti-fouling coatings, 
biofouling organisms, and other materials from vessel hull surfaces and 
niche areas. Propeller cleaning or polishing is excluded from the 
requirements.
    (b) Transport and passive discharge. The transport of attached 
living organisms and passive discharge of biofouling must be minimized 
when traveling into waters of the U.S. or waters of the contiguous zone 
from outside the EEZ or between COTP zones. Management measures to 
minimize the transport of attached living organisms and the passive 
discharge of biofouling are described in paragraphs (c) and (d) of this 
section.
* * * * *
    (d) In-water cleaning. (1) Hulls and niche areas must be managed to 
minimize macrofouling, such as through cleaning of microfouling.
    (2) Any hull and niche area cleaning must minimize damage to the 
anti-fouling coating, minimize release of biocides, and follow 
applicable cleaning requirements found on the coating manufacturers' 
instructions and any applicable Federal Insecticide, Fungicide, and 
Rodenticide Act (FIFRA) label.
    (3) Any discharge from in-water cleaning without capture of 
macrofouling is prohibited.
    (4) Any discharge from in-water cleaning without capture of any 
copper-based hull coating in a copper-impaired water body within the 
first 365 days after application of that coating is prohibited.
    (5) In-water cleaning must not be conducted on any section of an 
anti-fouling coating that shows excessive cleaning actions (e.g., brush 
marks) or

[[Page 71812]]

blistering due to the internal failure of the paint system.
    (6) Any soap, cleaner, or detergent used on vessel surfaces, such 
as a scum line of the hull, must be minimally toxic, phosphate-free, 
and biodegradable.
    (7) Additional standards applicable to discharges from hulls and 
associated niche areas when a vessel is operating in federally 
protected waters are contained in Sec.  139.40(i).

[FR Doc. 2023-22879 Filed 10-17-23; 8:45 am]
BILLING CODE 6560-50-P