40 C.F.R. § 139.2

Current through October 31, 2024

Section 139.2 - Definitions

The following definitions apply for the purposes of this part. Terms not defined in this section have the meaning as defined under the Clean Water Act (CWA) and applicable regulations.

Active discharge of biofouling means the discharge of biofouling from a vessel resulting from in-water cleaning activities.

Administrator means the Administrator of the Environmental Protection Agency.

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.

Aquatic nuisance species (ANS) means a nonindigenous species that threatens the diversity or abundance of a native species; the ecological stability of waters of the United States or the waters of the contiguous zone; or a commercial, agricultural, aquacultural, or recreational activity that is dependent on waters of the United States or the waters of the contiguous zone.

Ballast tank means any tank or hold on a vessel used for carrying ballast water, whether or not the tank or hold was designed for that purpose.

Ballast water means any water, to include suspended matter and other materials taken onboard a vessel, to control or maintain trim, draft, stability, or stresses of the vessel, regardless of the means by which any such water or suspended matter is carried; or taken onboard a vessel during the cleaning, maintenance, or other operation of a ballast tank or ballast water management system of the vessel. The term does not include any substance that is added to that water that is directly related to the operation of a properly functioning ballast water management system.

Ballast water exchange means the replacement of ballast water in a ballast tank using one of the following methods:

(1) Flow-through exchange, in which ballast water is flushed out by pumping in midocean water at the bottom of the tank if practicable, and continuously overflowing the tank from the top, until three full volumes of tank water have been changed.

(2) Empty and refill exchange, in which ballast water is pumped out until the pump loses suction, after which the ballast tank is refilled with water from the midocean.

Ballast water management system (BWMS) means any marine pollution control device (including all ballast water treatment equipment, ballast tanks, pipes, pumps, and all associated control and monitoring equipment) that processes ballast water to kill, render nonviable, or remove organisms; or to avoid the uptake or discharge of organisms.

Bioaccumulative means the failure to meet one or more of the criteria established in the definition of not bioaccumulative.

Biodegradable for the following classes of substances, means (all percentages are on a weight/weight concentration basis):

(1) For oils: At least 90% of the formulation (for any substances present above 0.1%) demonstrates, within 28 days, either the removal of at least 70% of dissolved organic carbon (DOC), production of at least 60% of the theoretical carbon dioxide, or consumption of at least 60% of the theoretical oxygen demand). Up to 5% of the formulation may be non-biodegradable but may not be bioaccumulative. The remaining 5% must be inherently biodegradable.

(2) For greases: At least 75% of the formulation (for any substances present above 0.1%) demonstrates, within 28 days, either the removal of at least 70% of DOC, production of at least 60% of the theoretical carbon dioxide, or consumption of at least 60% of the theoretical oxygen demand). Up to 25% of the formulation may be non-biodegradable or inherently biodegradable but may not be bioaccumulative.

(3) For soaps, cleaners, and detergents: A product that demonstrates, within 28 days, either the removal of at least 70% of DOC, production of at least 60% of the theoretical carbon dioxide, or consumption of at least 60% of the theoretical oxygen demand.

(4) For biocides: A compound or mixture that, within 28 days, demonstrates removal of at least 70% of DOC and production of at least 60% of the theoretical carbon dioxide.

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.

Broom clean means a condition in which care has been taken to prevent or eliminate any visible concentration of tank or cargo residues, so that any remaining tank or cargo residues consist only of dust, powder, or isolated and random pieces, none of which exceeds one inch in diameter.

Captain of the Port (COTP) Zone means such zone as established by the Secretary or Commandant of the Coast Guard pursuant to sections 501, 503, and 504 of title 14, United States Code, as reorganized in Title I of the Frank LoBiondo Coast Guard Authorization Act of 2018).

Commercial vessel means, except as the term is used in § 139.10(g), any vessel used in the business of transporting property for compensation or hire, or in transporting property in the business of the owner, lessee, or operator of the vessel. As used in § 139.10(g), the term commercial vessel means a vessel operating between:

(1) Two ports or places of destination within the Pacific Region; or

(2) A port or place of destination within the Pacific Region and a port or place of destination on the Pacific Coast of Canada or Mexico north of parallel 20 degrees north latitude, inclusive of the Gulf of California.

Constructed with respect to a vessel 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.

Contiguous zone means the entire zone established by the United States under Article 24 of the Convention on the Territorial Sea and the Contiguous Zone.

Discharge means discharge incidental to the normal operation of a vessel as defined in this section.

Discharge incidental to the normal operation of a vessel means a discharge, including:

(1) Graywater, bilgewater, cooling water, weather deck runoff, ballast water, oil water separator effluent, and any other pollutant discharge from the operation of a marine propulsion system, shipboard maneuvering system, crew habitability system, or installed major equipment, such as an aircraft carrier elevator or a catapult, or from a protective, preservative, or absorptive application to the hull of the vessel; and

(2) A discharge in connection with the testing, maintenance, and repair of a system described in clause (1):

(i) Whenever the vessel is waterborne; and does not include:

(A) A discharge of rubbish, trash, garbage, or other such material discharged overboard;

(B) An air emission resulting from the operation of a vessel propulsion system, motor driven equipment, or incinerator; or

(3) A discharge that is not covered by § 122.3 of this chapter (as in effect on February 10, 1996).

Discharge of oil in such quantities as may be harmful means any discharge of oil, including an oily mixture, in such quantities identified in 40 CFR 110.3 and excluding those discharges specified in 40 CFR 110.5 .

Empty ballast tank means a tank that has previously held ballast water that has been drained to the limit of the functional or operational capabilities of the tank (such as loss of pump suction); is recorded as empty on a vessel log; and may contain unpumpable residual ballast water and sediment.

Environmentally acceptable lubricant (EAL) means a lubricant or hydraulic fluid, including any oil or grease, that is "biodegradable," "minimally-toxic," and "not bioaccumulative," as these terms are defined in this section.

Exclusive Economic Zone ( EEZ ) means the area established by Presidential Proclamation Number 5030, dated March 10, 1983, that extends from the base line of the territorial sea of the United States seaward 200 nautical miles, and the equivalent zone of Canada.

Existing vessel means a vessel constructed, or where construction has begun, prior to the date identified in regulations promulgated by the Secretary as described in § 139.1(e).

Federally-protected waters means any waters of the United States or the waters of the contiguous zone subject to Federal protection, in whole or in part, for conservation purposes, located within any area listed in appendix A, as designated under:

(1) National Marine Sanctuaries designated under the National Marine Sanctuaries Act (16 U.S.C. 1431 et seq.);

(2) Marine National Monuments designated under the Antiquities Act of 1906;

(3) A unit of the National Park System, including but not limited to National Preserves and National Monuments, designated by the National Park Service within the U.S. Department of the Interior;

(4) A unit of the National Wildlife Refuge System, including Wetland Management Districts, Waterfowl Production Areas, National Game Preserves, Wildlife Management Areas, and National Fish and Wildlife Refuges designated under the National Wildlife Refuge System Administration Act of 1966 as amended by the National Wildlife Refuge System Improvement Act of 1997;

(5) National Wilderness Areas designated under the Wilderness Act of 1964 (16 U.S.C. 1131 - 1136 ); and

(6) Any component designated under the National Wild and Scenic Rivers Act of 1968, 16 U.S.C. 1273 .

Ferry means a vessel that is used on a regular schedule to:

(1) Provide transportation only between places than are not more than 300 miles apart; and

(2) Transport only:

(i) Passengers; or

(ii) Vehicles or railroad cars that are being used, or have been used, in transporting passengers or goods.

Fire protection equipment includes all components used for fire protection including but not limited to firemain systems, sprinkler systems, extinguishers, and firefighting agents such as foam.

Graywater means drainage from galley, shower, laundry, bath, water fountain, and sink drains, and other similar sources.

Great Lakes means Lake Ontario, Lake Erie, Lake Huron (including Lake Saint Clair), Lake Michigan, Lake Superior, and the connecting channels (Saint Mary's River, Saint Clair River, Detroit River, Niagara River, and Saint Lawrence River to the Canadian border), and includes all other bodies of water within the drainage basin of such lakes and connecting channels.

Great Lakes State means any of the states of Illinois, Indiana, Michigan, Minnesota, New York, Ohio, Pennsylvania, and Wisconsin.

Gross register tonnage (GRT) means the gross tonnage measurement of the vessel under the Regulatory Measurement System.

Gross tonnage (GT) means the gross tonnage measurement of the vessel under the Convention Measurement System.

Impaired waterbody means a waterbody identified by a State, tribe, or EPA pursuant to section 303(d) of the CWA as not meeting applicable State or Tribal water quality standards (these waters are called "water quality limited segments" under 40 CFR 130.2(j) ) and includes both waters with approved or established Total Maximum Daily Loads (TMDLs) and those for which a TMDL has not yet been approved or established.

Inherently biodegradable means the property of being able to be biodegraded when subjected to sunlight, water, and naturally occurring microbes to the following level: greater than 70% biodegraded after 28 days using Organization for Economic Cooperation and Development (OECD) Test Guidelines 302C or greater than 20% but less than 60% biodegraded after 28 days using OECD Test Guidelines 301 A-F.

Internal waters means:

(1) With respect to the United States, the waters shoreward of the territorial sea baseline, including waters of the Great Lakes extending to the maritime boundary with Canada; and

(2) With respect to any other nation, the waters shoreward of its territorial sea baseline, as recognized by the United States.

In-water cleaning with capture (IWCC) means the use and operation of a cleaning system for vessel surfaces that is designed to capture and transport coatings and biofouling organisms to an adjacent barge or shore-based facility for collection and processing.

In-water cleaning without capture means any in-water cleaning of vessel surfaces that does not use in-water cleaning with capture.

Live or living, notwithstanding any other provision of law (including regulations), does not:

(1) Include an organism that has been rendered nonviable; or

(2) Preclude the consideration of any method of measuring the concentration of organisms in ballast water that are capable of reproduction.

Macrofouling means biofouling caused by the attachment and subsequent growth of visible plants and animals on surfaces and structures immersed in or exposed to the aquatic environment. Macrofouling includes 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.

Major conversion means a conversion of an existing vessel:

(1) That substantially alters the dimensions or carrying capacity of the vessel; or

(2) That changes the type of the vessel; or

(3) The intent of which, in the opinion of the government of the country under whose authority the vessel is operating, is substantially to prolong its life; or

(4) Which otherwise so alters the vessel that, if it were a new vessel, it would become subject to relevant provisions of the International Convention for the Prevention of Pollution from Ships (MARPOL) not applicable to it as an existing vessel.

Marine Growth Prevention System (MGPS) means an anti-fouling system used for the prevention of biofouling accumulation in seawater piping systems and sea chests.

Marine Inspector means any person from the civilian or military branch of the Coast Guard assigned under the superintendence and direction of an Officer in Charge, Marine Inspection, or any other person as may be designated for the performance of duties with respect to inspection, enforcement, and administration of Subtitle II of Title 46, United States Code, Title 46 and Title 33 United States Code, and regulations issued under these statutes.

Marine pollution control device (MPCD) means any equipment or management practice (or combination of equipment and management practice) for installation and use onboard a vessel that is:

(1) Designed to receive, retain, treat, control, or discharge a discharge incidental to the normal operation of a vessel; and

(2) Determined by the Administrator and the Secretary to be the most effective equipment or management practice (or combination of equipment and a management practice) to reduce the environmental impacts of the discharge, consistent with the factors considered in developing the standards in this part.

Master means the officer having command of a vessel.

Microfouling means biofouling caused by bacteria, fungi, microalgae, protozoans, and other microscopic organisms on structures and surfaces immersed in or exposed to the aquatic environment that creates a biofilm, also called a slime layer.

Midocean means greater than 200 nautical miles (NM) from any shore, except when a ballast water exchange or saltwater flush outside of 50 NM is authorized in this part, then it means greater than 50 NM from any shore.

Minimally-toxic means, for lubricants (all percentages are on a weight/weight basis):

(1) If both the complete formulation and the main constituents (that is constituents making up greater than or equal to 5% of the complete formulation) are evaluated, then the acute aquatic toxicity of lubricants, other than greases and total loss lubricants, must be at least 100 mg/L and the LC50 of greases and total loss lubricants must be at least 1000 mg/L; or

(2) If each constituent is evaluated, rather than the complete formulation and main constituents, then for each constituent present above 0.1%: up to 20% of the formulation can have an LC50 greater than 10 mg/L but less than 100 mg/L and an NOEC greater than 1 mg/L but less than 10 mg/L; up to 5% of the formulation can have an LC50 greater than 1 mg/L but less than 10 mg/L and an NOEC greater than 0.1 mg/L but less than 1 mg/L; and up to 1% of the formulation can have an LC50 less than 1 mg/L and an NOEC less than 0.1 mg/L.

Minimally-toxic, phosphate-free, and biodegradable means properties of a substance or mixture of substances that:

(1) Have an acute aquatic toxicity value corresponding to a concentration greater than 10 ppm;

(2) Do not produce residuals with an LC50 less than 10 ppm;

(3) Are not bioaccumulative;

(4) Do not cause the pH of the receiving water to go below 6.0 or above 9.0;

(5) Contain, by weight, 0.5% or less of phosphates or derivatives of phosphate; and

(6) Are biodegradable.

Minimize means to reduce or eliminate to the extent achievable using any control measure that is technologically available and economically practicable and achievable and supported by demonstrated best management practices such that compliance can be documented in shipboard logs and plans.

New ferry means a ferry that is constructed after the effective date of USCG regulations promulgated pursuant to CWA section 312(p)(5)(A)(i).

New Laker means a vessel 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 Pointe-de-l'Ouest (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 constructed after the effective date of USCG regulations promulgated pursuant to CWA section 312(p)(5)(A)(i).

Niche areas means a subset of the submerged surface area on a vessel that may be more susceptible to biofouling than the main hull due to structural complexity, different or variable hydrodynamic forces, susceptibility to anti-fouling coating wear or damage, or inadequate or no protection by an anti-fouling system.

Not bioaccumulative means any of the following:

(1) The partition coefficient in the marine environment is log KOW less than 3 or greater than 7;

(2) The molecular mass is greater than 800 Daltons;

(3) The molecular diameter is greater than 1.5 nanometer;

(4) The bioconcentration factor (BCF) or bioaccumulation factor (BAF) is less than 100 L/kg; or

(5) The polymer with molecular weight fraction below 1,000 g/mol is less than 1%.

Oil means oil of any kind or in any form, including but not limited to any petroleum, fuel oil, sludge, oil refuse, and oil mixed with wastes other than dredged spoil.

Oily mixture means a mixture, in any form, with any oil content, including but not limited to:

(1) Slops from bilges;

(2) Slops from oil cargoes (such as cargo tank washings, oily waste, and oily refuse);

(3) Oil residue; and

(4) Oily ballast water from cargo or fuel oil tanks.

Oil-to-sea interface means any seal or surface on shipboard equipment where the design is such that oil or oily mixtures can escape directly into surrounding waters. Oil-to-sea interfaces are found on equipment that is subject to submersion as well as equipment above the surface line that extends overboard or is mounted to the exterior of the hull.

Organism means an animal, including fish and fish eggs and larvae; a plant; a pathogen; a microbe; a virus; a prokaryote (including any archean or bacterium); a fungus; and a protist.

Pacific Region means any Federal or State water adjacent to the State of Alaska, California, Hawaii, Oregon, or Washington; and extending from shore. The term includes the entire exclusive economic zone (as defined in section 1001 of the Oil Pollution Act of 1990 (33 U.S.C. 2701 )) adjacent to each Pacific Region State identified herein.

Passenger vessel means a vessel of at least 100 gross tons:

(1) Carrying more than 12 passengers, including at least one passenger for hire;

(2) That is chartered and carrying more than 12 passengers;

(3) That is a submersible vessel carrying at least one passenger for hire; or

(4) That is a ferry carrying a passenger.

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.

Port or place of destination means a port or place to which a vessel is bound to anchor, to moor, or be otherwise secured.

Reception facility refers to any fixed, floating, or mobile facility capable of receiving wastes and residues from vessels and fit for that purpose.

Render nonviable means, with respect to an organism in ballast water, the action of a ballast water management system that renders the organism permanently incapable of reproduction following treatment.

Saltwater flush means the addition of as much midocean water into each empty ballast tank of a vessel as is safe for the vessel and crew; and the mixing of the flush water with residual ballast water and sediment through the motion of the vessel; and the discharge of that mixed water, such that the resultant residual water remaining in the tank has the highest salinity possible; and is at least 30 parts per thousand. A saltwater flush may require more than one fill-mix-empty sequence, particularly if only small quantities of water can be safely taken onboard a vessel at one time.

Seagoing vessel means a vessel in commercial service that operates beyond either the boundary line established by 46 CFR part 7 or the St. Lawrence River west of a rhumb line drawn from Cap des Rosiers to Pointe-de-l'Ouest (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. It does not include a vessel that navigates exclusively on internal waters.

Seawater piping system means a system onboard a vessel that provides seawater for other vessel uses (e.g., ballast, engines, hydraulic systems, firefighting capacity, cleaning equipment, air conditioning, refrigeration, toilet systems) and includes any sea chest, grate, and similar appurtenances (e.g., strainers, filters, valves). Some components of a seawater piping system including sea chests, sea inlet pipes, and overboard discharges are also considered niche areas.

Secretary means the Secretary of the department in which the United States Coast Guard (USCG) is operating.

Small vessel or fishing vessel means a vessel with a vessel length that is less than 79 feet; or a fishing vessel, fish processing vessel, or fish tender vessel (as those terms are defined in section 2101 of title 46, United States Code), regardless of the vessel length.

Toxic or hazardous materials means any toxic pollutant as defined in 40 CFR 401.15 or any hazardous material as defined in 49 CFR 171.8 .

Underway means a vessel is not at anchor, or made fast to the shore, or aground.

Vessel General Permit (VGP) means the permit that is the subject of the notice of final permit issuance entitled "Final National Pollutant Discharge Elimination System (NPDES) General Permit for Discharges Incidental to the Normal Operation of a Vessel" ( Federal Register publication on April 12, 2013).

Vessel length means the horizontal distance between the foremost part of a vessel's stem to the aftermost part of its stern, excluding fittings and attachments.

Visible sheen means, with respect to oil and oily mixtures, a silvery or metallic sheen or gloss, increased reflectivity, visual color, iridescence, or an oil slick on the surface of the water.

Voyage means any transit by a vessel traveling from or destined for any United States port or place.

40 C.F.R. §139.2

89 FR 82131 , 11/8/2024