Title 26DEPARTMENT OF THE ENVIRONMENT

Subtitle 25 BALLAST WATER MANAGEMENT

Authority: Environment Article, §§5-5A-01 — 5-5A-08 and 5-1301,

Annotated Code of Maryland

Notice of Proposed Action

[02-128-P]

The Secretary of the Environment proposes to adopt new Regulations .01—.03

under a new chapter COMAR 26.25.01 General, adopt new Regulations .01—.05 under

a new chapter COMAR 26.25.02 Ballast Water Regulations for Vessels Entering from

Ports Outside the United States, and adopt new Regulations .01—.05 under a new

chapter COMAR 26.25.03 Ballast Water Regulations for Vessels Entering from Ports

Within the United States.

Statement of Purpose

The purpose of this action is to establish regulations that will increase the

protection of Maryland waters from the introduction of nonindigenous aquatic species by

ballast water discharge and increase the knowledge of how ballast water management

practices may affect the introduction of undesirable species to State waters. This action

regulates self-propelled ships in commerce of 300 gross tons or more. The regulations

incorporate federal guidelines for vessels entering Maryland waters from outside the

United States Exclusive Economic Zone (EEZ) and establish State guidelines, consistent

with federal guidelines, for vessels entering Maryland waters from voyages within the

EEZ (i.e. domestic voyages). These regulations establish voluntary ballast water

management guidelines, as well as requirements for submission of a mandatory ballast

water report form to the Maryland Department of the Environment (MDE) and the

National Ballast Information Clearinghouse (Smithsonian Environmental Research

Center). The required report form and instructions for all regulated vessels will be

provided by MDE. The report form is the same as that required by the United States

Coast Guard under federal regulations. Vessel operators and their shipping agents should

be aware that a different set of report form instructions is required for vessels entering

Maryland waters from voyages within the EEZ than for vessels entering from voyages

outside the EEZ. Vessel operators and their shipping agents should also be aware that

while some exemptions to the reporting requirement exist, voluntary submission of an

exemption claim to MDE is requested prior to departure in most cases (detailed in the

regulations). Submission of an exemption claim will reduce the need for compliance

verification procedures, thus minimizing the need for MDE audits of company records

and the associated burden on operators and agents. This will save the regulated industry

and MDE significant time and expense.

Comparison to Federal Standards There is a corresponding federal standard to this proposed regulation, but the proposed

regulation is not more restrictive or stringent.

Estimate of Economic Impact

I. Summary of Economic Impact. This action will have a direct effect on the issuing

agency by creating the need to hire one employee to manage project activities that

2

include the collection of ballast water report forms, filing of information with the

Smithsonian Environmental Research Center, and tracking vessel compliance. The

agency will also need to provide for management oversight, which involves the legal

review of regulations, compliance program development, and compliance activities. In

addition, ongoing operating expenses such as contractual services to handle data

management, provide ship arrival/departure information, and produce forms, instructions,

and brochures must be covered by the issuing agency. This action could impose

additional costs on vessels reporting on domestic voyages (e.g. vessels that would not

have already been subject to reporting requirements under federal law).

II. Types of Economic Impacts: Revenue (R+/R-)Expenditure (E+/E-) Magnitude

A. On issuing agency: (E+) $126,000

B. On other State agencies: NONE

C. On local governments: NONE

Benefit (+)

Cost (-) Magnitude

D. On regulated industries or trade groups: (-) $43,050

E. On other industries or trade groups: NONE

F. Direct and indirect effects on public: NONE

III. Assumptions: (Identified by Impact Letter and Number from Section II)

A. State expenditures are based on calculations for Fiscal Year 2002. Future

year expenditures will reflect full salary with 4.5 percent annual increases and 3

3

percent employee turnover, and 1 percent annual increases in ongoing operating

expenses.

Salaries and Fringe Benefits:

1 Full Time Employee, Management Level (Represents

staff time for management oversight) $60,000

1 Full Time Employee, Environmental Specialist $40,000

Operating Expenses:

Data Management $ 20,000

Outreach, including brochure production,

presentations, web page development, etc. $ 6,000

Total FY 2001 State Expenditures $126,000

D. This figure is based on federal estimates of reporting requirements in

combination with vessel arrival numbers for the Port of Baltimore. The Maryland

Port Administration reports that approximately 1,845 vessels entered the Port of

Baltimore in 1999. Approximately one-third of those vessels came directly from

foreign ports and, therefore, were subject to federal reporting requirements upon

arrival. There will be no measurable increase in costs due to this action for those

vessels. The remaining two-thirds (about 1,230 vessels) will be subject to State

reporting requirements providing they are self-propelled ships in commerce of 300

gross tons or more. Federal assessments of reporting requirements estimate costs of

approximately $35 per report. Assuming 100 percent compliance, the cost to the

4

shipping industry due to State regulations could be: 1,230 vessels x $35/vessel =

$43,050.

Economic Impact on Small Businesses

The proposed action has minimal or no impact on small businesses.

Opportunity for Public Comment

The Department of the Environment will hold a hearing concerning the adoption

of these regulations on May 6, 2002, at 10 a.m. in the TARSA Conference Room, 2500

Broening Highway. All interested persons are invited to attend and state their views. Any

hearing impaired person may request an interpreter to be present at the hearing by giving

5 working days notice to Deanna L. Miles-Brown, Regulations Coordinator at 410-631-

3173.

Comments may be sent to Deanna L. Miles-Brown, Regulations Coordinator,

2500 Broening Highway, Baltimore, Maryland 21224, or faxed at 410-631-3873, or

emailed to dmilesbrown@mde.state.md.us, or call 410-631-3173. Comments will be

accepted until the close of business on May 7, 2002.

26.25.01 General

.01 Purpose.

The purpose of this subtitle is to:

A. Increase knowledge about how ballast water practices may affect the

introduction of aquatic nuisance species;

5

B. Increase protection of State waters from the introduction of nonindigenous

species via ballast water discharges; and

C. Incorporate federal regulations for ballast water management and

reporting.

.02 Provisions and General Requirements.

A. The master, owner, operator, or person in charge of certain vessels, as

defined in Regulation .03 of this chapter, calling at Maryland ports shall

complete and submit a form to the Department and to the National Ballast

Water Information Clearinghouse detailing information about the vessel

and its ballast water management practices.

B. The master, owner, operator, or person in charge of certain vessels calling

at Maryland ports and qualifying for exempt status is requested to provide

written notification of the exemption claim to the Department in order to

reduce the need for compliance verification procedures.

C. By adoption of federal guidelines, the master, owner, operator, or person

in charge of certain vessels calling at Maryland ports and originating from

ports outside of the United States is requested to follow specified ballast

water management practices, including the exchange of ballast water

while in transit but before entering the United States Exclusive Economic

Zone.

D. By adoption of federal guidelines with modifications, the master, owner,

operator, or person in charge of certain vessels calling at Maryland ports

6

that have operated exclusively within the United States Exclusive

Economic Zone since their last port of departure is requested to follow

specified ballast water management practices and shall either:

(1) Employ one of the specified ballast water management practices

and report the management practice on the Ballast Water

Reporting Form; or

(2) Explain on the Ballast Water Reporting Form why no ballast

water management practice was employed.

.03 Definitions.

A. General.

(1) In this subtitle, the following terms have the meanings indicated.

(2) Unless otherwise stated in this section, the definitions stated in 33

CFR §§151.1504 and 160.203, and the United Nations Convention

of the Law of the Sea apply to this subtitle. Those definitions are

provided in §Bof this regulation as a convenience.

(3) If changes or additions in the federal definitions occur, those

changes are determinative.

B. Terms Defined.

(1) “Aquatic nuisance species” means a nonindigenous species that

threatens:

(a) The diversity or abundance of native species or the ecological stability

of infested waters; or

7

(b) Commercial, agricultural, aquacultural, or recreational activities

dependent on these waters.

(2) “Ballast tank” means a tank or hold on a vessel used for carrying

ballast water, whether or not the tank or hold was designed for that

purpose.

(3) “Ballast water” means water and suspended matter taken on board

a vessel to control or maintain trim, draft, stability, or stresses of

the vessel without regard to the manner in which it is carried.

(4) “Captain of the Port (COTP)” means the U.S. Coast Guard officer

designated as the COTP, or a person designated by that officer, for

the COTP zone listed in 33 CFR Part 3 that covers the first

Maryland port of destination.

(5) “Department” means the Maryland Department of the

Environment.

(6) “Empty/refill exchange” means to pump out the ballast water taken

on in ports or in estuarine or territorial waters until the tank is

empty (or as near to empty as the master or operator determines is

safe), then refilling it with mid-ocean water.

(7) “Exchange” means to replace the water in a ballast tank using

either flow through exchange, empty/refill exchange, or other

exchange methodology recommended or required by the United

States Coast Guard.

8

(8) “Exclusive Economic Zone (EEZ)” means the Exclusive Economic

Zone of the United States established by Proclamation Number

5030, dated March 10, 1983, and the equivalent zone of Canada.

(9) “Federal guidelines” means the provisions of 33 CFR Part 151,

Subpart D “Ballast Water Management for Control of

Nonindigenous Species”.

(10) “Flow through exchange” means to flush out ballast water by

pumping in mid-ocean water at the bottom of the tank and

continuously overflowing the tank from the top until three full

volumes of water have been changed to minimize the number of

original organisms remaining in the tank.

(11) “Gross tons” means the tonnage determined by the tonnage

authorities of a vessel’s flag state in accordance with the national

tonnage rules in force before the entry into force of the

International Convention on Tonnage Measurement of Ships, 1969

(Convention). For a vessel measured only under Annex I of the

Convention, gross tonnage means that tonnage. For a vessel

measured under both systems, the higher gross tonnage is the

tonnage used for the purposes of the 300-gross-ton threshold.

(12) “Including” or “includes” means including or includes by way of

illustration and not by limitation.

(13) "Innocent transit" means a vessel merely traversing the waters of

the State, i.e. not entering or departing a Maryland port.

9

(14) "Mid-ocean waters" means waters that are more than 200 nautical

miles from land and at least 2,000 meters (6,560 feet, 1,093

fathoms) deep.

(15) “Nonindigenous species” means any species or other viable

biological material that enters an ecosystem beyond its natural

range.

(16) “Open sea exchange” means an exchange that occurs outside of the

United States Exclusive Economic Zone, 200 or more nautical

miles offshore, and in waters that are in excess of 2,000 meters in

depth.

(17) “Operator” means any person including, but not limited to, an

owner, a demise- (bareboat-) charterer, or another contractor who

conducts, or is responsible for, the operation of a vessel.

(18) Person.

(a) “Person”

means an individual, receiver, trustee, guardian, personal

representative, fiduciary, or representative of any kind, and

any partnership, firm, association, corporation, or other

entity.

(b) "Person"

includes the federal government, this State, any county,

municipal corporation, or any other political subdivision of

this State or any of their units.

10

(19) “Port or place of departure” means a port or place in which a

vessel is anchored or moored.

(20) “Port or place of destination” means a port or place to which a

vessel is bound to anchor or moor.

(21) “Sediments” means any matter that settles out of ballast water

within a vessel.

(22) “State” means the State of Maryland.

(23) “Surface waters” means all the waters of the State that are not

ground waters.

(24) “Vessel” means a ship in commerce which is:

(a) Self-propelled;

(b) Of U.S. or foreign flag;

(c) Of 300 gross tons or more; and

(d) Equipped with ballast tanks or capable of carrying ballast

water.

(25) “Voyage” means any transit by a vessel coming from a port

outside the waters of the State destined for a Maryland port.

(26) “Waters of the State” means the surface waters within the

boundaries of this State subject to its jurisdiction, including that

part of the Atlantic Ocean within the boundaries of this State, the

Chesapeake Bay, and its tributaries.

26.25.02 Ballast Water Regulations for Vessels Entering from Ports Outside the

United States

11

.01 Scope.

A. The master, owner, operator, or person in charge of a vessel shall be

regulated by this chapter if that vessel:

(1) Matches the definition of vessel in COMAR 26.25.01.03B(24);

(2) Has a port of destination in the State;

(3) Is carrying ballast water into the waters of the State after operating

outside of the United States Exclusive Economic Zone since its last

port of departure; and

(4) Does not meet any of the exemption requirements as listed in §B or

C of this regulation.

B. A master, owner, operator, or person in charge of a vessel is exempt from

Regulations .02—.04 of this chapter if:

(1) The vessel is a United States Department of Defense or United

States Coast Guard vessel subject to the requirements of §1103 of

the National Invasive Species Act of 1996 (16 U.S.C. §4713), or

any vessel of the armed forces, as defined in the Federal Water

Pollution Control Act (33 U.S.C. §1322(a)) that is subject to the

Uniform National Discharge Standards for Vessels of the Armed

Forces (33 U.S.C. §1322 (n)); or

(2) The vessel is in innocent transit as defined in COMAR

26.25.01.03B(13).

12

C. A master, owner, operator, or person in charge of a vessel is exempt from

Regulations .03 and .04 of this chapter if:

(1) The vessel does not discharge ballast water or sediments into

the waters of the State;

(2) The vessel's ballast water or sediments:

(a) Will be discharged only at the

same location where the ballast water or sediments

originated; and

(b) Do not mix with ballast water or

sediments from areas other than from the high seas (open

sea exchange);

(3) The vessel is a

passenger vessel equipped with a functioning treatment system

that:

(a) Is designed to kill

aquatic organisms in the ballast water; and

(b) Operates as designed;

or

(4) The vessel is a crude oil tanker engaged in the coastwise trade.

.02 Exemption Claims.

A. A master, owner, operator, or person in charge of a vessel that is

exempt under Regulation .01C of this chapter may provide written

13

notification of the exemption claim to the Department before the vessel’s

departure from a State port by submitting a signed copy of the Ballast

Water Reporting Form containing the following information only:

(1) Complete the section entitled "1. Vessel

Information";

(2) Complete the section entitled "2. Voyage

Information"; and

(3) Write in the exemption or exemptions being

claimed under Regulation .01C of this chapter on the lines

provided in the area entitled "4. Ballast Water Management".

B. Exemption claim notifications requested under §A of this regulation may

be submitted to the Department by one of the following methods:

(1) United States Postal Service mail;

(2) Electronic mail; or

(3) Fax.

.03 Incorporation by Reference.

In this chapter, the federal guidelines for Ballast Water Management and Control

of Nonindigenous Species in Waters of the United States, 33 CFR Part 151 Subpart D, §§

2000—2065 (1999) are incorporated by reference with the following changes:

A. The term “vessel” is defined in COMAR 26.25.01.03B(24); and

B. 33 CFR §151.2015 is incorporated with the following changes:

14

(1) Wherever the words "innocent passage" appear substitute

"innocent transit";

(2) Delete the word "foreign";

(3) Wherever the words "territorial sea" appear substitute "waters of

the State";

(4) Wherever the words “United States” appear, substitute “State”; and

(5) Wherever the abbreviation "U.S." appears, substitute "Maryland".

.04 Report Form.

A. A copy of the completed federal Ballast Water Reporting Form shall be

sent to the Department, in addition to the federally named recipient.

B. The copy of the completed federal Ballast Water Reporting Form shall be

submitted to the Department by one of the following methods:

(1) United States Postal Service mail;

(2) Electronic mail; or

(3) Fax.

.05 Enforcement.

A. A vessel operator, either directly or through a shipping agent, who violates

the requirements of this chapter by failing to complete and return a Ballast

Water Reporting Form is subject to judicial enforcement and criminal

penalties, as provided under Environment Article, §§5-5A-07 and 5-1301,

Annotated Code of Maryland.

15

B. A person who violates the requirements of this chapter is subject to

judicial enforcement and criminal penalties under Environment Article,

§§5-5A-08 and 5-1301, Annotated Code of Maryland, if that person,

knowingly and with an intent to deceive:

(1) Fails to complete and return a Ballast Water Reporting Form; or

(2) Falsifies a Ballast Water Reporting Form.

C. A person who violates the requirements of this chapter on a second or

subsequent occasion is subject to judicial enforcement and criminal

penalties under Environment Article, §5-1301, Annotated Code of

Maryland.

26.25.03 Ballast Water Regulations for Vessels Entering from Ports Within the

United States

.01 Scope.

A. The master, owner, operator, or person in charge of a vessel shall be

regulated by this chapter if that vessel:

(1) Matches the definition of vessel in COMAR 26.25.01.03B(24);

(2) Has a port of destination in the State;

(3) Is carrying ballast water into the waters of the State after operating

solely within the United States Exclusive Economic Zone since its

last port of departure; and

(4) Does not meet any of the exemption requirements as listed in §B or

C of this regulation.

16

B. A master, owner, operator, or person in charge of a vessel is exempt from

Regulations .02—.04 of this chapter if:

(1) The vessel is a United States Department of Defense or United

States Coast Guard vessel subject to the requirements of §1103 of

the National Invasive Species Act of 1996 (16 U.S.C. §4713), or

any vessel of the armed forces, as defined in the Federal Water

Pollution Control Act (33 U.S.C. §1322(a)) that is subject to the

Uniform National Discharge Standards for Vessels of the Armed

Forces (33 U.S.C. §1322 (n)); or

(2) The vessel is in innocent transit as defined in COMAR

26.25.01.03B(13);

C. A master, owner, operator, or person in charge of a vessel is

exempt from Regulations .03 and .04 of this chapter if:

(1) The vessel does not discharge ballast water or sediments

into the waters of the State;

(2) The vessel's ballast water or sediments:

(a) Will be discharged only at the same location where

the ballast water or sediments originated; and

(b) Do not mix with ballast water or sediments from

areas other than from the high seas (open sea exchange);

(3) The vessel is a passenger vessel

equipped with a functioning treatment system that:

17

(a) Is designed to kill aquatic organisms

in the ballast water; and

(b) Operates as designed; or

(4) The vessel is a crude oil

tanker engaged in the coastwise trade.

.02 Exemption Claims.

A. A master, owner, operator, or person in charge of a vessel that is exempt

under Regulation .01C of this chapter may provide written notification of

the exemption claim to the Department before to the vessel’s departure

from a State port by submitting a signed copy of the Ballast Water

Reporting Form containing the following information only:

(1) Complete the section entitled "1. Vessel

Information";

(2) Complete the section entitled "2. Voyage

Information"; and

(3) Write in the exemption or exemptions being

claimed under Regulation .01C of this chapter on the lines

provided in the area entitled "4. Ballast Water Management".

B. Exemption claim notifications requested under §A

of this regulation may be submitted to the Department by any of the

following methods:

(1) United States Postal Service mail;

18

(2) Electronic mail; or

(3) Fax.

.03 Incorporation by Reference.

In this chapter, the federal guidelines for Ballast Water Management and Control

of Nonindigenous Species in Waters of the United States, 33 CFR Part 151, Subpart D,

§§2000—2065 (1999), are incorporated by reference with the following changes:

A. The term “vessel” is defined in COMAR 26.25.01.03B(24);

B. 33 CFR §151.2015 is incorporated with the following changes:

(1) Wherever the words "innocent passage" appear substitute "innocent

transit";

(2) Delete the word "foreign";

(3) Wherever the words "territorial sea" appear substitute "waters of the

State";

(4) Wherever the words “United States” appear, substitute “State”; and

(5) Wherever the abbreviation "U.S." appears, substitute "Maryland";

C. 33 CFR §151.2035(b) is incorporated with the following changes:

(1) Wherever the words “United States” appear, substitute “State”;

(2) Wherever the word “beyond” appears, substitute “exclusively

within”; and

(3) Omit 33 CFR §151.2035 (b)(1) and replace with: “(1) Exchange

ballast water, if practical, by leaving the EEZ and entering an area

no less than 200 nautical miles from any shore, and in waters more

19

than 2,000 meters (6,560 feet, 1,093 fathoms) deep, before entering

the waters of the State and do one of the following:

(a) If you leave the EEZ and exchange ballast water, you

shall report this on the Ballast Water Reporting Form;

or

(b) If you do not leave the EEZ and exchange ballast water,

you shall explain "why" in the area provided on the

Ballast Water Reporting Form”;

D. 33 CFR §151.2040 is incorporated with the following changes:

(1) Wherever the words “United States” appear, substitute “State”;

(2) Wherever the word “beyond” appears, substitute “exclusively

within”;

(3) Omit 33 CFR §151.2040(a) and (b);

(4) Omit 33 CFR §151.2040(c)(1)—(3); and

(5) Replace 33 CFR §151.2040(c)(4) with “Before the vessel departs

from the State port, you shall-“, with the remaining subdivisions of

the citation unchanged;

E. 33 CFR §151.2045 is incorporated with the following changes:

(1) Wherever the words “United States” appear, substitute “State”;

(2) Wherever the word “beyond” appears, substitute “exclusively

within”;

(3) Replace 33 CFR §151.2045(a)(2) with “Voyage information.

Include the date and port of arrival, vessel agent, last port and state

20

of call, and next port and state or country (if not the United States)

of call.”; and

(4) Replace 33 CFR §151.2045(a)(8)(iv) with “The federal Ballast

Water Reporting Form shall be filled out using unique instructions

provided by the Department.”;

F. 33 CFR §151.2050 is incorporated with the following changes:

(1) In 33 CFR §151.2050(b), after the acronym “COTP” appears,

include the words “and the Department”; and

(2) In 33 CFR §151.2050(c), after the acronym “NBIC” appears,

include the words “and the Department”.

.04 Report Form.

A. A copy of the completed federal Ballast Water Reporting Form shall be

sent to the Department, in addition to the federally named recipient.

B. The copy of the completed federal Ballast Water Reporting Form shall be

submitted to the Department by one of the following methods:

(1) United States Postal Service mail;

(2) Electronic mail; or

(3) Fax.

.05 Enforcement.

A. A vessel operator, either directly or through a shipping agent, who violates

the requirements of this chapter by failing to complete and return a Ballast

Water Reporting Form is subject to judicial enforcement and criminal

21

penalties, as provided under Environment Article, §§5-5A-07 and 5-1301,

Annotated Code of Maryland.

B. A person who violates the requirements of this chapter is subject to

judicial enforcement and criminal penalties under Environment Article,

§5-5A-08 and 5-1301, Annotated Code of Maryland, if that person,

knowingly and with an intent to deceive:

(1) Fails to complete and return a Ballast Water Reporting Form; or

(2) Falsifies a Ballast Water Reporting Form.

C. A person who violates the requirements of this chapter on a second or

subsequent occasion is subject to judicial enforcement and criminal

penalties under Environment Article, §5-1301, Annotated Code of

Maryland.

JANE NISHIDA

Secretary of the Environment

22