71788 Federal Register / Vol. 88, No. 200 / Wednesday, October 18, 2023 / Proposed Rules 

1 88 FR 60413 (Sept. 1, 2023). 

SUPPLEMENTARY INFORMATION: On 

September 1, 2023, the U.S. Copyright 

Office issued a notice of proposed 

rulemaking seeking comments from the 

public on questions regarding 

expanding the categories of electronic 

deposits in its regulation governing 

electronic deposits of published works 

submitted to the Office that have been 

selected for addition to the collections 

of the Library of Congress.1 The notice 

set an October 2, 2023 deadline for 

submitting initial comments and an 

October 16, 2023 deadline for reply 

comments. 

To ensure that members of the public 

have sufficient time to prepare 

responses to the Office, and to ensure 

that the Office can proceed on a timely 

basis with its inquiry of the issues 

identified in its notice with the benefit 

of a complete record, the Office is 

extending the reply comment period 

deadline as set forth here. Reply 

comments will now be due by 11:59 

p.m. Eastern Time on Tuesday, October 

30, 2023. 

Dated: October 12, 2023. 

Maria Strong, 

Associate Register of Copyrights and Director 

of Policy and International Affairs. 

[FR Doc. 2023–22930 Filed 10–17–23; 8:45 am] 

BILLING CODE 1410–30–P 

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. 

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 typeapproval 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: 

faulk.jack@epa.gov. 

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 TypeApproval 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 InWater 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 


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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. 

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-epadockets 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-andports/vessel-incidental-discharge-actvida-stakeholder-engagementopportunities. 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. 

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 postproposal 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 (mm) in minimum 

dimension: discharge must include less 

than 10 living organisms per cubic 

meter (m3) of ballast water. 

• For organisms less than 50 mm and 

greater than or equal to 10 mm: discharge 

must include less than 10 living 

organisms per milliliter (mL) of ballast 

water. 

• For indicator microorganisms: 

Æ Toxicogenic Vibrio cholerae 

(serotypes O1 and O139): a 

concentration of less than 1 colony 

forming unit (cfu) per 100 mL. 

Æ Escherichia coli: a concentration of 

less than 250 cfu per 100 mL. 

Æ 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 


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2The 2013 VGP included functionality, biological 

organism, and residual biocide and derivative 

monitoring for ballast water discharges from any 

BWMS. 

original IMO guidelines were unlikely 

to meet the USCG discharge standard 

and that testing during that typeapproval 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 typeapproval that requested USCG typeapproval 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 typeapproval test requirements (IMO, 2018) 

that address many of the issues that 

limited the reliability of the IMO typeapproval 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 typeapproval 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 welloperated 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 selfmonitoring 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 typeapproved). 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. 

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 typeapproval 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: 

Æ 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; 

Æ A more stringent numeric discharge 

standard would represent an 

insignificant improvement in treatment 

system effectiveness; 

Æ Limitations in the monitoring of 

organisms in ballast water do not 

support establishing a more stringent 

standard; and, 

Æ Comparing type-approval data for 

different systems would only be 

appropriate if all other variables were 


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3As of July 24, 2023, the USCG had typeapproved 51 BWMS (https://www.dco.uscg.mil/ 

Our-Organization/Assistant-Commandant-forPrevention-Policy-CG-5P/Commercial-Regulationsstandards-CG-5PS/Marine-Safety-Center-MSC/ 

Ballast-Water/). 

4A 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 typeapproval regulations at 46 CFR 162.060.5. 

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 landbased 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 nonconfidential/non-proprietary test data 

for the 37 BWMSs 3 that had been typeapproved 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 typeapproved 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. 

The data provided by the USCG 

included both land-based and shipboard 

testing results (uptake, discharge, and 

control) for all valid tests.4 For landbased testing, the USCG provided test 

results for organisms less than 50 mm 

and greater than or equal to 10 mm in 

minimum dimension (referred to here as 

the ‘‘medium’’ organism size class) and 

organisms greater than or equal to 50 mm 

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. 

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 sublaboratories. 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 USCGprovided 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 typeapproval 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 


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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 nondetects (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 typeapproval 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/m3, 

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 typeapproved 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/m3, not to be exceeded. 

It includes all BWMSs and 

amendments, and use MDLs as given to 

EPA by the USCG. 


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TABLE 1—STANDARD OF ORGANISM

CONCENTRATIONS IN TREATMENT

DISCHARGE SAMPLES

Organism size class Numeric discharge 

standard 

Large ......................... 6.01 organisms/m3. 

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/m3 for the large organism size class] 

Organism size class Amendment data included BWMSs 

narrowed MDLs used 

Numeric discharge 

standard 

(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, electrochlorination, 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 


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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 bottomdwelling 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., 


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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 foreignflagged, 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 typeapproved 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 


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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 anticorrosion 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 typeapproved 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 harmbased’’ 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 


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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 nonwater 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 typeapproved 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 typeapproved 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 typeapproved 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 typeapproved pasteurization system does 

not have a hold time. The USCG typeapproved 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 


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5The Great Ships Initiative was an industry-led 

collaborative effort to research problems of shipmediated 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. 

6This 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). 

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 typeapproval 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. 

In 2010, GSI tested the filtration and 

UV Alfa Laval PureBallast® 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 mm 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 mm 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 landbased 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® 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® 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. 

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 m3/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 

mm 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 m3 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 mm 

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 


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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 typeapproved 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. Electrochlorination 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 typeapproved 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 m3/hr up to 18,000 m3/ 

hr for the largest Lakers. The maximum 


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7The 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. 

8More information on the database can be found 

at: https://www.iwr.usace.army.mil/About/ 

Technical-Centers/WCSC-Waterborne-CommerceStatistics-Center-2/WCSC-Vessel-Characteristics/. 

9The 2020 file EPA used can be downloaded 

from: https://usace.contentdm.oclc.org/utils/getfile/ 

collection/p16021coll2/id/11922. 

capacity of current USCG type-approved 

UV BWMSs range from 500 to 6,000 m3/ 

hr. Current USCG type-approved 

chemical addition BWMSs have flow 

rate capacities ranging from 2,000 to 

16,200 m3/hr, with one system with 

capacity up to 200,000 m3. Currently, 

two USCG type-approved ozone BWMSs 

have a max flow rate capacity of 8,000 

m3/hr. The one USCG type-approved 

deoxygenation BWMS has a max flow 

rate capacity of 4,000 m3/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-tono 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). 

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: 

• 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 


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(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 


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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 VIDAmandated 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 


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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 forwardlooking 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 wellsettled 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. 


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10FR–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) 

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 reissue 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. 

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 


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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 antifouling 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. 


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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 InWater 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 antifouling 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 thirdparty 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, 


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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 


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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/lawsregulations/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. 


ddrumheller on DSK120RN23PROD with PROPOSALS1
Federal Register / Vol. 88, No. 200 / Wednesday, October 18, 2023 / Proposed Rules 71809 

11 In December 2019, the Little Shell Tribe of 

Chippewa Indians became the 574th federally 

recognized tribe. 

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. Preproposal 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 preproposal 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. 

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. 


ddrumheller on DSK120RN23PROD with PROPOSALS1
71810 Federal Register / Vol. 88, No. 200 / Wednesday, October 18, 2023 / Proposed Rules 

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® 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 ® 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.Rproject.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: 


ddrumheller on DSK120RN23PROD with PROPOSALS1
Federal Register / Vol. 88, No. 200 / Wednesday, October 18, 2023 / Proposed Rules 71811 

PART 139—DISCHARGES INCIDENTAL 

TO THE NORMAL OPERATION OF 

VESSELS 

■ 1. The authority citation for part 139 

is added to read as follows: 

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

■ 2. Amend § 139.2 by: 

■ a. Adding the definitions for ‘‘Active 

discharge of biofouling’’, ‘‘Anti-fouling 

coating’’, and ‘‘Anti-fouling system’’ in 

alphabetical order; 

■ b. Revising the definitions for 

‘‘Biofouling’’, and ‘‘Constructed’’; 

■ c. Adding the definitions for 

‘‘Macrofouling’’, ‘‘Microfouling’’, and 

‘‘New Laker’’; 

■ d. Revising the definition for ‘‘Niche 

areas’’; and 

■ e. Adding the definition for ‘‘Passive 

discharge of biofouling’’ in alphabetical 

order. 

The additions and revisions read as 

follows: 

§ 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 PointSud-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 antifouling 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. 

* * * * * 

■ 3. Amend § 139.10 by revising 

paragraph (c)(4) and by adding 

paragraph (c)(5) to read as follows: 

§ 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 typeapproved by the USCG. 

* * * * * 

■ 4. Amend § 139.21 by revising 

paragraph (e)(1) to read as follows: 

§ 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; 

* * * * * 

■ 5. Amend § 139.22 by: 

■ a. Revising paragraph (a); 

■ b. Redesignating paragraphs (b) and 

(c) as paragraphs (c) and (d); 

■ c. Adding a new paragraph (b); and 

■ d. Revising newly designated 

paragraph (d). 

The revisions and additions read as 

follows: 

§ 139.22 Hulls and associated niche areas. 

(a) Applicability. The requirements in 

paragraphs (b) through (d) of this 

section apply to the discharge of antifouling 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 antifouling 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 copperbased 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 antifouling coating that shows excessive 

cleaning actions (e.g., brush marks) or 


ddrumheller on DSK120RN23PROD with PROPOSALS1
71812 Federal Register / Vol. 88, No. 200 / Wednesday, October 18, 2023 / Proposed Rules 

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 § 139.40(i). 

[FR Doc. 2023–22879 Filed 10–17–23; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 622 

RIN 0648–BM46 

Fisheries of the Caribbean, Gulf of 

Mexico, and South Atlantic; Reef Fish 

Resources of the Gulf of Mexico; 

Amendment 56 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Announcement of availability of 

a fishery management plan amendment; 

request for comments. 

SUMMARY: The Gulf of Mexico Fishery 

Management Council (Council) has 

submitted Amendment 56 to the Fishery 

Management Plan (FMP) for the Reef 

Fish Resources of the Gulf of Mexico 

(Gulf) for review, approval, and 

implementation by NMFS. If approved 

by the Secretary of Commerce, 

Amendment 56 would revise stock 

status determination criteria for Gulf 

gag, establish a rebuilding plan, and 

revise catch limits. Amendment 56 

would also revise the sector allocations 

of the annual catch limit, revise 

recreational accountability measures 

(AMs), and revise the recreational 

fishing season. The purpose of this 

action is to implement a rebuilding plan 

for gag and to implement revised 

management measures to end 

overfishing and rebuild the stock. 

DATES: Written comments on 

Amendment 56 must be received no 

later than December 18, 2023. 

ADDRESSES: You may submit comments 

on Amendment 56 identified by 

‘‘NOAA–NMFS–2023–0103’’ by either 

of the following methods: 

• Electronic Submission: Submit all 

electronic public comments via the 

Federal e-Rulemaking Portal. Go to 

https://www.regulations.gov and enter 

‘‘NOAA–NMFS–2023–0103’’ in the 

Search box. Click the ‘‘Comment’’ icon, 

complete the required fields, and enter 

or attach your comments. 

• Mail: Submit all written comments 

to Dan Luers, NMFS Southeast Regional 

Office, 263 13th Avenue South, St. 

Petersburg, FL 33701. 

Instructions: Comments sent by any 

other method, to any other address or 

individual, or received after the end of 

the comment period may not be 

considered by NMFS. All comments 

received are a part of the public record 

and will generally be posted for public 

viewing on https://www.regulations.gov 

without change. All personal identifying 

information, e.g., name, address, 

confidential business information, or 

otherwise sensitive information 

submitted voluntarily by the sender will 

be publicly accessible. NMFS will 

accept anonymous comments—enter 

‘‘N/A’’ in the required fields if you wish 

to remain anonymous. 

An electronic copy of Amendment 56, 

which includes an environmental 

assessment, a fishery impact statement, 

a Regulatory Flexibility Act (RFA) 

analysis, and a regulatory impact 

review, may be obtained from the 

Southeast Regional Office website at 

https://www.fisheries.noaa.gov/action/ 

amendment-56-modifications-catchlimits-sector-allocation-andrecreational-fishing-seasons. 

FOR FURTHER INFORMATION CONTACT: Dan 

Luers, NMFS Southeast Regional Office, 

telephone: 727–824–5305, email: 

daniel.luers@noaa.gov. 

SUPPLEMENTARY INFORMATION: NMFS and 

the Council manage the Gulf reef fish 

fishery, which includes gag, under the 

FMP in Federal waters of the Gulf. The 

Council prepared the FMP and NMFS 

implements the FMP through 

regulations at 50 CFR part 622 under the 

authority of the Magnuson-Stevens 

Fishery Conservation and Management 

Act (Magnuson-Stevens Act). 

Background 

The Magnuson-Stevens Act requires 

NMFS and regional fishery management 

councils to prevent overfishing and 

achieve, on a continuing basis, the 

optimum yield (OY) from federally 

managed fish stocks. These mandates 

are intended to ensure fishery resources 

are managed for the greatest overall 

benefit to the nation, particularly with 

respect to providing food production 

and recreational opportunities, and 

protecting marine ecosystems. 

Unless otherwise noted, all weights in 

this notice are in gutted weight. 

Gag in the Gulf exclusive economic 

zone (EEZ) are found primarily in the 

eastern Gulf. Juvenile gag are estuarine 

dependent and are often found in 

shallow seagrass beds. As gag mature, 

they move to deeper offshore waters to 

live and spawn. Gag is managed as a 

single stock with commercial and 

recreational catch limits. The allocation 

of the stock annual catch limit (ACL) 

between the commercial and 

recreational sectors established in 

Amendment 30B to the FMP is currently 

39 percent commercial and 61 percent 

recreational. 

Commercial fishing for gag is 

managed under the individual fishing 

quota (IFQ) program for groupers and 

tilefishes (GT–IFQ program), which 

began January 1, 2010, upon 

implementation of the final rule for 

Amendment 29 to the FMP (74 FR 

44732, August 31, 2009; 75 FR 9116, 

March 1, 2010). Under the GT–IFQ 

program, the commercial quota for gag 

is set 23 percent below the gag 

commercial ACL, and NMFS distributes 

allocation (in pounds) of gag on January 

1 each year to those who hold shares (in 

percent) of the gag total commercial 

quota. Both gag and red grouper, 

another grouper species managed under 

the GT–IFQ program, have a commercial 

multi-use provision that allows a 

portion of the gag quota to be harvested 

under the red grouper allocation, and 

vice versa. As explained further in 

Amendment 56, the multi-use provision 

is based on the difference between the 

respective red grouper and gag ACLs 

and quotas. However, if gag is under a 

rebuilding plan, as would occur under 

Amendment 56, the percentage of red 

grouper multi-use allocation is equal to 

zero. Commercial harvest of gag is also 

restricted by area closures and a 

minimum size limit. 

NMFS and the Council manage the 

recreational harvest of gag with an ACL 

an annual catch target (ACT) set 

approximately 10 percent below the 

ACL, in-season and post-season AMs, 

seasonal and area closures, a minimum 

size limit, and daily bag and possession 

limits. 

The most recent stock assessment for 

gag was completed in 2021 through 

Southeast Data, Assessment, and 

Review 72 (SEDAR 72), and concluded 

that the gag stock is overfished is 

undergoing overfishing as of 2019. 

Compared to the previous assessment 

for gag, SEDAR 72 used several 

improved data sources, including 

corrections for the potential 

misidentification between black grouper 

and gag, which are similar looking 

species, to better quantify estimates of 

commercial discards. SEDAR 72 also 

utilized updated recreational catch and 

effort data from the Marine Recreational 


ddrumheller on DSK120RN23PROD with PROPOSALS1