Marine Sanitation Devices (MSDs): No Discharge Zone (NDZ) for California State Marine Waters, 11401-11411 [2012-4469]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 77, Number 38 (Monday, February 27, 2012)]
[Rules and Regulations]
[Pages 11401-11411]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-4469]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 140

[EPA-R09-OW-2010-0438; FRL-9633-9]
RIN 2009-AA04


Marine Sanitation Devices (MSDs): No Discharge Zone (NDZ) for 
California State Marine Waters

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The U.S. Environmental Protection Agency (EPA) is establishing 
a No Discharge Zone (NDZ) for marine waters of the State of California 
for sewage discharges from: all large passenger vessels of 300 gross 
tons or greater; and from large oceangoing vessels of 300 gross tons or 
greater with available holding tank capacity or containing sewage 
generated while the vessel was outside of the marine waters of the 
State of California, pursuant to Section 312(f)(4)(A) of the Clean 
Water Act (CWA), 33 U.S.C. 1322(f)(4)(A). This action is being taken in 
response to an April 5, 2006, application from the California State 
Water Resources Control Board requesting establishment of this NDZ. 
Based on the State's application, EPA has determined that the 
protection and enhancement of the quality of California's marine waters 
requires the prohibition of sewage discharges from two classes of large 
vessels. For the purposes of today's rule, the marine waters of the 
State of California are defined as the territorial sea measured from 
the baseline, as determined in accordance with the Convention on the 
Territorial Sea and the Contiguous Zone, and extending seaward a 
distance of three miles and including all enclosed bays and estuaries 
subject to tidal influences from the Oregon border to the Mexican 
border. State marine waters extend three miles from State islands, 
including the Farallones and the Northern and Southern Channel Islands.

DATES: This final rule is effective March 28, 2012.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R09-OW-2010-0438. All documents in the docket are listed on the 
www.regulations.gov Web site. Although listed in the index, some 
information is not publicly available, e.g., confidential business 
information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the Internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available either 
electronically through www.regulations.gov or in hard copy at the Water 
Division, U.S. Environmental Protection Agency Region IX, 75 Hawthorne 
Street, San Francisco, CA 94105-3901. EPA requests that if at all 
possible, you contact the person listed in the FOR FURTHER INFORMATION 
CONTACT section to schedule an appointment. The Regional Office's 
business hours are Monday through Friday, 8:30 to 5, excluding Federal 
holidays.

FOR FURTHER INFORMATION CONTACT: Mr. Paul Amato at (415) 972-3847 or 
amato.paul@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background
II. Summary of Final Action
III. Response to Comments
    A. Overview
    B. Public Comments
    1. Protection of California's Coastal Resources
    2. Expansion of the Rule
    3. Scope and Applicability of CWA Section 312(f)(4)(A)
    4. Classes of Vessels
    5. Large Oceangoing Vessel Sewage Holding Capacity
    6. Applying a No Discharge Zone for All California Marine Waters
    7. Other General Comments
IV. Administrative Requirements

I. Background

    The proposed rule was published in the September 2, 2010, issue of 
the Federal Register (75 FR 53914). A 60-day comment period followed 
that ended on November 1, 2010, during which time EPA Region IX 
received approximately 2,020 comment letters and emails, including 16 
distinct letters and approximately 2,000 substantially identical 
letters. Section III addresses the comments.
    Clean Water Act Section 312, 33 U.S.C. 1322, (hereafter referred to 
as ``Section 312''), regulates the discharge of sewage from vessels 
into the navigable waters. Pollutants most frequently associated with 
sewage discharges include solids, nutrients, pathogens, petroleum 
products, heavy metals, pesticides, pharmaceuticals, and other 
potentially harmful compounds.\1\ Sewage discharges can contaminate 
shellfish beds, pollute drinking water supplies, harm fish and other 
aquatic wildlife, and cause damage to coral reefs. Direct contact with 
these pollutants can have serious human health effects, with children, 
the elderly, and individuals with compromised immune systems being most 
susceptible. Currently, California marine waters include 120 miles of 
coast that are listed as impaired for pathogens commonly associated 
with sewage.
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    \1\ The State of California's ``Application for Permission to 
Prohibit Sewage Discharges from Vessels in California's Waters 
Pursuant to Clean Water Act Section 312(f)(4)(A)'' at page 33 (Apr. 
5, 2006).
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    Clean Water Act Section 312(h) prohibits vessels equipped with 
installed toilet facilities from operating on the navigable waters 
(which include the three mile territorial seas), unless the vessel is 
equipped with an operable marine sanitation device (MSD), certified by 
the Coast Guard to meet applicable performance standards. 33 U.S.C. 
1322(h). The provisions of Section 312 are implemented jointly by EPA 
and the Coast Guard. EPA sets performance standards for MSDs and is 
involved in varying degrees in the establishment of NDZs for vessel 
sewage. 33 U.S.C. 1322(b) and (f). The Coast Guard is responsible for 
developing regulations governing the design, construction, 
certification, installation and operation of MSDs, consistent with 
EPA's performance standards. 33 U.S.C. 1322(b) and (g); see also 33 CFR 
part 159. The Coast Guard's responsibility includes certifying MSDs for 
installation on U.S. flagged vessels. Under some circumstances, vessel 
sewage discharges treated by an MSD

[[Page 11402]]

may contain higher concentrations of pollutants than discharges of 
treated sewage from land-based wastewater treatment plants and may 
cause or contribute to water quality impairments and impacts to 
sensitive marine habitats. In 2000, an Alaska Cruise Ship Initiative 
study sampled 21 cruise ships twice during the cruise season and found 
that 57 percent of the samples exceeded fecal coliform effluent limits 
and 78 percent exceeded suspended solids effluent limits for Type II 
MSDs.\2\ Only one sample met the standards for both. The Coast Guard 
inspected six of the vessels with high effluent concentrations and 
found that five were exceeding limits due to improper MSD operation or 
maintenance, resulting in issuance of civil penalties.\3\ EPA estimates 
that large passenger vessels and large oceangoing vessels generate 25.2 
million gallons of sewage each year while in California State marine 
waters a number that is projected to grow. Data was not available to 
quantify how much of this sewage is currently discharged while vessels 
are present in California marine waters; however, as shown in Table 1, 
EPA used existing data to estimate that the final rule will prohibit 
the discharge of 22.5 million of the 25.2 million gallons of sewage 
that large vessels could otherwise legally discharge into California 
State marine waters each year. Small vessels without holding capacity, 
which are not regulated by today's rule, generate an additional 2.8 
million gallons of sewage per year that can be legally discharged to 
California marine waters. A map of California State marine waters and 
the NDZ can be obtained or viewed at the EPA's Web site at https://www.epa.gov/region9/water/no-discharge/overview.html, or by calling 
(415) 972-3847.
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    \2\ Exceeding these limits is only a violation if the operator 
was not discharging through a properly operated and maintained MSD.
    \3\ Alaska Department of Environmental Conservation, ``Alaska 
Cruise Ship Initiative, Part 2 Report'' (2001), available at https://dec.alaska.gov/water/cruise_ships/cruiseinitiative.htm.

  Table 1--California Vessel Sewage Contributions and NDZ Prohibitions
------------------------------------------------------------------------
                                     Vessel sewage      Treated vessel
                                     generation in     sewage prohibited
          Sewage source              state waters         by this NDZ
                                    (gallons/year)      (gallons/year)
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Addressed by this rule
    Large Passenger Vessels.....  19.2 million......  19.2 million.
    Large Oceangoing Vessels      3.3 million *.....  3.3 million.
     with available holding
     capacity.
        Combined =..............  22.5 million......  22.5 million.
Not addressed by this rule
    Large Oceangoing Vessels      2.3 million *.....  No change.
     without holding capacity.
    Large Oceangoing Vessel       0.4 million.......  No change.
     discharges beyond holding
     tank capacity.
    Small Vessels without         2.8 million **....  No change.
     holding capacity.
        Combined =..............  5.5 million.......  No change.
------------------------------------------------------------------------
* The sewage generation per year for large oceangoing vessels in this
  table (totaling 6 million gallons = 3.3 million + 2.7 million) differs
  from the 3.4 million gallons per year estimated in the proposed rule
  because it is derived from more recent data and analysis indicating
  that the rate of sewage generation is higher than estimated for the
  proposed rule. The Chamber of Shipping of America (CSA) had conducted
  a vessel sewage data survey in response to EPA's July 12, 2010,
  ``Clean Water Act Section 312(b): Notice Seeking Stakeholder Input on
  Petition and Other Request to Revise the Performance Standards for
  Marine Sanitation Devices,'' 75 FR 39683. This data and its analysis
  can be found in the docket for this final rule at www.regulations.gov.
** EPA estimate based on State of California small vessel usage data in
  their January 27, 2009 Application Addendum.

    The State of California declared the importance of protecting 
coastal water from vessel sewage when it enacted the California Clean 
Coast Act of 2005 (Senate Bill (SB) 771) and related legislation in 
2003-2005 to limit pollution from large passenger and large oceangoing 
vessels. In enacting this legislation, the State found that 
California's coastal waters warrant the higher level of protection that 
should be provided through an NDZ. California's highly varied marine 
environments support high levels of biological diversity and habitat 
for several dozen species listed as endangered, threatened, or of 
concern under Federal or State law and include designated essential 
habitat for nearly 100 species of fish along most of California's 
coast. The unique values associated with California's coastal marine 
environment have been recognized through the creation of a network of 
more than 200 protected areas, reserves, sanctuaries, and monuments 
that together afford special resource protection status to the vast 
majority of California coastal waters including the four Federally 
designated National Marine Sanctuaries (Cordell Bank, Gulf of the 
Farallones, Monterey Bay, and Channel Islands) that combined occupy 
approximately one-third of the coastline. Waters along the California 
coastline support important economic, recreational, conservation, 
research, educational, and aesthetic values, and are becoming 
increasingly more important for potable water supply as desalinization 
measures are used to meet demands.
    CWA Section 312 generally preempts state regulation of the 
discharge of sewage from vessels: ``no state or political subdivision 
thereof shall adopt or enforce any statute or regulation of such state 
or political subdivision with respect to the design, manufacture, or 
installation or use of any [MSD] on any vessel subject to the provision 
of [CWA Section 312].'' 33 U.S.C. 1322(f)(1)(A). Under Section 312(f), 
however, a state may, in certain circumstances, request that EPA 
establish an NDZ for vessel sewage or, after required findings are made 
by EPA, establish such a zone themselves.
    There are three types of NDZ designations. First, under Section 
312(f)(3) states may designate portions or all of their waters as NDZs 
if the state determines that the protection and enhancement of the 
quality of the waters require greater environmental protection than 
provided by current Federal standards. However, no such prohibition 
applies to discharges until EPA determines that adequate facilities for 
the safe and sanitary removal and treatment of sewage from all vessels 
are reasonably available for the waters in the NDZ. Second, a state may 
apply under Section 312(f)(4)(A), as California did here, for an EPA 
determination that the protection and enhancement of the

[[Page 11403]]

quality of specified waters within such state requires a prohibition. 
In contrast to Section 312(f)(3) NDZ designations, Section 312(f)(4) 
does not require EPA to determine that adequate pump out facilities are 
reasonably available for all vessels. Upon its determination that the 
protection and enhancement of the quality of specified waters requires 
the prohibition, EPA shall by regulation completely prohibit the 
discharge from a vessel of any sewage (whether treated or not) into 
such waters. Lastly, a state may apply under Section 312(f)(4)(B) for 
EPA to establish, by regulation, a drinking water intake zone which 
prohibits the discharge of sewage into that zone. 33 U.S.C. 1322(f), 40 
CFR 140.4.
    The State of California, through the State Water Resources Control 
Board (State Board), applied to EPA for the establishment of an NDZ 
covering all California marine waters pursuant to Clean Water Act 
Section 312(f)(4)(A). As required by the California Clean Coast Act, 
the State Board's application requested a prohibition of sewage 
discharges from large passenger vessels and large oceangoing vessels 
with ``sufficient holding tank capacity'' to contain sewage while the 
vessels are within the marine waters of the State.
    With today's rule, the EPA Region IX Administrator grants this 
application.

II. Summary of Final Action

    EPA evaluated the State of California's CWA Section 312(f)(4)(A) 
application for the establishment of an NDZ throughout the marine 
waters of the State and other relevant information, and issued a notice 
of proposed rulemaking that would establish the requested NDZ based on 
the Agency's proposed determination that the protection and enhancement 
of the quality of these waters required it. EPA carefully considered 
the public comments on the proposed rule (available in the docket at 
www.regulations.gov), and concludes that nothing in these comments 
affects EPA's proposed determination that an NDZ is warranted for these 
waters. As discussed more fully below, EPA was convinced by some of the 
comments to make changes to the description of the class of covered 
large oceangoing vessels subject to the NDZ. The State has indicated 
that it finds these changes consistent with its NDZ petition.
    As discussed more fully in the preamble to the proposed rule, 
California marine waters support a variety of unique, nationally 
important and biologically significant environments that contribute to 
California's recreational, economic, and aesthetic values. EPA 
estimates that this rule will prohibit the discharge of approximately 
22.5 million gallons of treated vessel sewage per year that could 
otherwise enter California marine waters (EPA is unable to estimate how 
much of this treated sewage would actually enter California marine 
waters in the absence of this rule). This action will protect and 
enhance water quality, which will benefit human health by reducing the 
potential for exposure to pollutants from: recreational use of the 
waters, commercial fishing, shellfish bed operations, and water intakes 
for desalination plants. Similarly, this action will provide benefits 
to wildlife and their habitats.
    On September 2, 2010, EPA proposed an NDZ covering all California 
marine waters which would be applicable to large passenger vessels and 
to large oceangoing vessels with two days or more sewage holding 
capacity. Based on the comments received for the proposed rule, EPA has 
changed the description of the class of covered large oceangoing 
vessels so that it applies to all large oceangoing vessels that have 
not fully utilized available holding tank capacity or that contain 
sewage generated outside the NDZ. Revising the definition will provide 
greater protection and enhancement of the covered waters and make 
compliance more feasible. The reasons for this change are addressed in 
more detail in Section III.
    EPA is not changing the rule as it applies to passenger vessels, 
but has addressed a potential ambiguity by modifying the definition of 
``large oceangoing vessel'' to make clear that it excludes any vessel 
defined as a ``large passenger vessel.''
    Today's rule establishes an NDZ for the marine waters of the State 
of California that applies to two classes of vessels--(1) passenger 
vessels of 300 gross tons or more having berths or overnight 
accommodations, and (2) oceangoing vessels of 300 gross tons or more 
equipped with a holding tank which has not fully used the holding 
tank's capacity, or which contains more than de minimis amounts of 
sewage generated while the vessel was outside of the NDZ.\4\ Vessels 
within these two classes are completely prohibited from discharging any 
sewage (whether treated or not) within the NDZ.
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    \4\ A vessel is subject to this rule if it is of 300 gross tons 
or greater as measured under the International Convention on Tonnage 
Measurement of Ships, 1969, measurement system in 46 U.S.C. 14302, 
or the regulatory measurement system of 46 U.S.C. 14502 for vessels 
not measured under 46 U.S.C. 14302.
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    EPA expects today's rule will result in large oceangoing vessels 
with holding tanks maximizing use of their holding tank capacity while 
in the NDZ. In order to comply with the NDZ, a large oceangoing vessel 
with a holding tank will, in most cases, choose to empty its holding 
tank before entering California marine waters. While present in these 
waters, the vessel must refrain from discharging any sewage so long as 
it has any holding tank capacity. If the large oceangoing vessel 
reaches its holding tank capacity due only to sewage generated while in 
the NDZ, the vessel is no longer within the class of covered vessels 
and can discharge properly treated sewage in compliance with the NDZ. A 
vessel can choose to enter the NDZ without first emptying its holding 
tank, but then it may not discharge any sewage.
    EPA recognizes that de minimis amounts of sewage may remain in the 
holding tank of a vessel that has fully discharged before entering 
State waters, and therefore has clarified in the rule that such de 
minimis amounts do not prohibit the vessel from discharging in State 
waters once its holding tank capacity is fully used. A holding tank is 
``fully used'' when it has been filled to the point that safe and 
proper operation requires that it be discharged. EPA has also defined 
the term ``holding tank'' to make it clear that the rule does not 
intend for vessels' operators to use ballast tanks, or other tanks that 
have not been specifically designed, constructed, and fitted for 
holding sewage, to store sewage while vessels are operating in 
California marine waters.
    This NDZ will not alter the ten existing NDZs in California, all of 
which were enacted pursuant to CWA Section 312(f)(3). These prior NDZs 
cover a relatively small portion of California's total marine waters 
and remain in effect for all vessels' (not just large passenger and 
oceangoing vessels). In addition, certain sewage discharges from 
vessels are prohibited under National Oceanic and Atmospheric 
Administration (NOAA) regulations for the four California marine 
sanctuaries. Nothing in today's rule affects these regulations.

III. Response to Comments

    In response to the proposed rule, approximately 2,020 comment 
letters and emails were received including 16 distinct letters and 
approximately 2,000 substantially identical letters in support of the 
rule. Comments were provided by regulated entities, trade 
organizations, government officials, non-governmental organizations, 
and members of the public. The substantive comments are grouped 
together and addressed below.

[[Page 11404]]

A. Overview

    Most of the comment letters expressed support for this rule because 
it will help protect California's marine biological resources, 
recreational opportunities, and human health from vessel sewage. Some 
of these commenters said the rule was necessary: (1) Because there is a 
need for stronger standards to protect coastal resources from vessel 
sewage; and (2) it will improve California marine waters for commercial 
fisheries, tourism, aesthetics, science and research. Some supporting 
commenters further suggested that the rule should be expanded: (1) To 
include California marine waters out to 12 nautical miles from shore; 
(2) to include all vessels; (3) to further regulate landside sources of 
pollution; (4) to improve inspection and testing procedures; (5) to 
improve vessel discharge monitoring; and (6) to specify penalties for 
violators. One supportive commenter expressed concerns with the legal 
basis for regulating military vessels and one commenter suggested that 
EPA's economic analysis was incomplete because it did not adequately 
consider impacts on small businesses.
    Commenters opposed to the proposed rule expressed several concerns 
regarding its legal and scientific basis, which largely fall into these 
four categories of comments: (1) CWA Section 312(f)(4)(A) does not 
permit EPA to establish an NDZ applicable to a subset of vessels; (2) 
the proposed rule does not adequately support an NDZ for all of 
California marine waters; (3) the connection between vessel sewage and 
impacts to California waters has not been sufficiently demonstrated; 
and (4) the two-day holding capacity requirement for oceangoing vessels 
is arbitrary, inconsistent with CWA Section 312, and less protective 
than alternative approaches. The comments are addressed in detail 
below.

B. Public Comments

1. Protection of California's Coastal Resources
    Many commenters expressed support for EPA's conclusion that the NDZ 
is required to protect California's coastal waters from pollutants 
found in vessel sewage. Approximately 2,000 similar comment letters 
urged EPA to approve California's application and stated that the NDZ 
would protect California's fragile ocean and coastal ecosystem from 
vessel sewage and improve water quality for beaches, fishing, shellfish 
beds, and human health. Another letter signed by 19 members of 
California's Congressional Delegation expressed strong support for 
EPA's proposed rule. Several commenters expressed concerns with 
anticipated increases in sewage discharges due to the growing cruise 
ship industry and the number of large oceangoing vessels in California 
waters. In addition, commenters said the NDZ was needed to protect the 
water quality of State and federally protected areas and to address 
inadequate Federal discharge and monitoring requirements of a growing 
cruise and shipping industry with a documented history of illegal 
discharges. Economic benefits of improving California's coastal 
resources were also provided as a reason for creating the NDZ. Some 
commenters stated that the information in California's application to 
EPA was sufficient to demonstrate the need for the rule under CWA 
Section 312.
    The EPA agrees with these concerns about impacts to coastal water 
quality and is finalizing its determination that this NDZ is required 
to protect and enhance the quality of California marine waters. The 
information provided by the State and other sources demonstrates that 
California marine waters are a very important and sensitive resource 
that has been degraded by the discharge of sewage and would likely 
experience further degradation without the protections provided by this 
NDZ. This rule is expected to benefit California's fragile coastal 
resources by significantly reducing the discharge of pollutants that 
can occur in vessel sewage. Water quality data for vessel sewage is 
limited because monitoring is not required; however, EPA considered the 
2000 Alaska Cruise Ship Initiative sewage sampling data from 21 cruise 
ships with Type II MSDs in determining that treated vessel sewage 
discharges can still contain pollutants in concentrations that exceed 
current Federal Type II MSD effluent limits.\5\ Type II MSDs also do 
not remove nutrients and the biochemical oxygen demand loading which 
contribute to water quality degradation. Based on this information, and 
the likelihood that vessel traffic will continue to grow, EPA and the 
State of California have determined that even vessel sewage treated by 
an MSD that complies with CWA Section 312 standards may be a 
significant source of pollutants that have negative impacts on 
California's coastal resources.
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    \5\ As noted previously, such discharges may or may not be a 
regulatory violation, depending on whether or not they result from 
improper operation or maintenance of the device.
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2. Expansion of the Rule
    Some of the commenters recommended expanding the rule to increase 
protection of California's coastal resources. One commenter recommended 
that EPA expand the distance of the proposed NDZ from three to twelve 
nautical miles from shore because winds and currents constantly move 
the sewage and even three miles from shore is too close to protect 
coastal resources. The commenter noted that some other Federal laws, 
such as the National Marine Sanctuaries Act, the Marine Plastic 
Pollution Research and Control Act of 1987, and the Ocean Dumping Act, 
address pollution within the 12-mile contiguous zone.
    EPA recognizes that an NDZ does not impose a physical barrier to 
the movement of pollutants and understands the potential benefits of 
such an expansion, but the commenter's proposal would extend the NDZ 
beyond the limit of the CWA territorial seas, into the CWA contiguous 
zone, an area in which CWA Section 312 does not apply. See, e.g., CWA 
Section 312(b) (directing EPA to develop Federal standards of 
performance for MSDs discharging into ``navigable waters'') and CWA 
Sections 502(7) and (8) (defining ``navigable waters'' as including the 
``territorial seas'' which extend ``seaward a distance of three 
miles''). Any request for action under the authorities cited by the 
commenter--even if potentially available--is outside the scope of 
today's action on California's application for an NDZ applicable to its 
waters, pursuant to CWA Section 312. EPA also notes that the U.S. Coast 
Guard, which is charged with enforcing this NDZ under CWA Section 
312(k), measures the CWA's jurisdictional boundaries in ocean waters by 
using nautical miles. See, e.g., 33 U.S.C. part 2.
    A commenter who supports establishment of an NDZ stated that the 
rule should be expanded to apply to all vessels, instead of just the 
classes of vessels requested by California's legislation. EPA 
recognizes that prohibiting all vessels from discharging treated sewage 
in California marine waters may have broader benefits for water 
quality; however, the commenter did not provide information for the 
record demonstrating that such an expansion is required for the 
protection and enhancement of the quality of the specified waters. The 
State specifically requested, and provided information in support of, 
an NDZ limited to large passenger vessels and large cargo vessels with 
adequate holding capacity. EPA approached the State Board about 
expanding the application to include all vessels, but the State Board 
determined

[[Page 11405]]

this would be contrary to the Legislature's instructions to limit the 
scope of the prohibition to the two specified classes of vessels. The 
State Board provided further support for the distinction between large 
and small vessels in an October 13, 2006, supplement to its CWA Section 
312(f)(4)(A) application. The supplement cites a number of efforts 
directed at smaller vessels, including construction of pump-out 
facilities, educational outreach, and establishment of small NDZs under 
CWA Section 312(f)(3) in key harbor areas. The supplement also 
summarizes data from marina surveys of small vessels which showed that 
80 percent of the estimated 841,000 recreational vessels in California 
marine waters lack Type I or II MSDs, which means that they are already 
prohibited from discharging to marine waters by the CWA. EPA reviewed 
this material and determined that the State's approach was reasonable 
because it would control discharges from two significant classes of 
vessels which, together, generate most of the sewage that could be 
legally discharged into State waters, whereas neither the State, nor 
any commenters, submitted evidence showing that it would be necessary 
to prohibit all discharges from the remaining classes of vessels to 
provide for the protection and enhancement of the quality of the 
State's waters.
    One commenter asked EPA to consider regulating landside wastewater 
sources as well, including municipal discharge and wastewater treatment 
facilities, because they are a larger source of pollutants. EPA agrees 
that landside discharges are a more significant contributor to 
pollutants in coastal waters, but these discharges are outside the 
scope of today's rulemaking. Today's rule establishes an NDZ under CWA 
Section 312, which is limited to vessel sewage discharges only. 
Landside point-source discharges of pollutants are regulated through 
the National Pollution Discharge Elimination System (NPDES) under CWA 
Section 402, and nonpoint sources of pollution are regulated under CWA 
Section 319.
    A commenter also suggested improved inspections, sampling, 
monitoring, penalties and passenger fees as ways to improve the rule. 
Specifically, the commenter noted that the United States Coast Guard 
(Coast Guard) should have authority to conduct unannounced inspections 
of regulated vessels in light of several previously confirmed vessel 
sewage discharge violations. These activities are beyond the scope of 
today's Section 312(f)(4)(A) rulemaking. We note that the Coast Guard 
has existing authority to inspect vessels and assess penalties under 
CWA Sections 312(j)-(l), as well as its general law enforcement 
authorities. 33 U.S.C. 1322(j)-(l); see also 14 U.S.C. 89.
3. Scope and Applicability of CWA Section 312(f)(4)(A)
    Several commenters stated that CWA Section 312(f)(4)(A) requires a 
complete prohibition of discharges from all vessels upon the 
Administrator's determination that specified state waters require 
protection. These commenters stated that Section 312(f)(4) and 40 CFR 
140.4(b) do not permit application of an NDZ to select vessel classes 
and that EPA must act on the State's application by either imposing an 
NDZ applicable to all vessels, or by not establishing an NDZ at all. 
One commenter further stated that it is implicit in Section 
312(f)(4)(A) that NDZs are intended only for areas where sewage 
discharges are sufficiently impacting the marine ecosystem so as to 
justify banning them entirely.
    As noted in the Notice of Proposed Rulemaking, this is the first 
time an NDZ has been proposed for specific categories of vessels. EPA 
is issuing the rule, applicable to two classes of large vessels, based 
on: (1) The scope of the State's NDZ application; (2) the evidence 
supporting a discharge ban with this defined scope; (3) lack of 
information demonstrating that an expansion is required, and (4) EPA's 
interpretation that Section 312(f)(4)(A) authorizes EPA to promulgate 
an NDZ for specific classes of vessels where appropriate.
    The final rule is consistent with the State of California's 
application for an NDZ limited to all passenger vessels over 300 gross 
tons, and oceangoing vessels over 300 gross tons with sufficient 
holding tank capacity. The State legislature specifically directed the 
State Board to submit an application to EPA requesting an NDZ for only 
these two classes of vessels. As discussed above, EPA made its 
determination regarding the requested NDZ based on the record before 
it, which included information on sewage generation and the potential 
for sewage discharges to State waters from the subject classes of 
vessels and from other classes of vessels. The two subject classes of 
vessels are responsible for most of the sewage generated by vessels in 
California marine waters, an estimated 22.5 million gallons of 28 
million total gallons generated and potentially discharged each year. 
The information obtained by EPA did not show that extension of the rule 
to all vessels was required to protect and enhance the quality of the 
State's waters. The commenters also did not provide information which 
shows that it is necessary to include these other classes of vessels 
within the scope of the rule to protect and enhance the quality of 
these waters.
    Extending the rule to all vessels would also be unduly burdensome 
on the community of marine vessel owners and operators. By applying 
this rule to the two classes of large vessels, the vast majority of 
sewage discharges will be abated in these sensitive waters. As 
discussed previously, much of the vessel-generated sewage that is not 
covered by this rule is already required to be pumped out in harbor 
pump-out stations, or discharged outside the 3-mile limit of State 
marine waters, because most recreational and small commercial vessels 
lack a Type I or Type II MSD to treat their sewage. The remaining 
vessels without holding tanks (which are required by CWA Section 312 to 
treat their sewage with approved MSDs), account for a comparatively 
small portion of the total sewage generated in the State's marine 
waters.
    EPA considered the different structure and wording of the NDZ 
provisions to conclude that Section (f)(4)(A) allows for an NDZ limited 
to specific classes of vessels, where appropriate. EPA believes that 
the contrast between the language in the NDZ provisions in Sections 
312(f)(4)(A) and 312(f)(3) strongly suggest that Congress did not 
intend to foreclose the Agency from imposing an NDZ on a subset of 
vessels under the former where appropriate: Section 312(f)(4)(A) allows 
EPA to completely prohibit the discharge of any sewage from ``a 
vessel,'' whereas Section 312(f)(3) provides for the complete 
prohibition of discharge of any sewage from ``all vessels.'' If 
Congress had meant that all vessels must be subject to an NDZ under 
Section 312(f)(4)(A), it would have used the term ``all'' as it did in 
Section 312(f)(3). In addition, Congress' desire to authorize NDZ 
protection for special waters where necessary could be significantly 
frustrated if the Agency were to adopt the commenters' reading. After 
all, if EPA were to read the CWA to foreclose California's application, 
the State would be forced to choose between seeking a complete 
discharge ban that includes some vessels, which as a group do not 
contribute greatly to the sewage discharge problem yet might have 
difficulty complying, or taking no action to protect water quality from 
any vessel discharges. In view of the textual differences between 
Sections 312(f)(3) and 312(f)(4)(A), as well as the policy

[[Page 11406]]

considerations underlying Congress' enactment of those provisions, EPA 
reads Section 312(f)(4)(A) as permitting a state to seek an NDZ that is 
limited to specific classes of vessels.\6\
---------------------------------------------------------------------------

    \6\ Commenters who disagreed with this conclusion relied 
primarily on Congress' use of the terms ``completely'' and ``any'' 
in describing the scope of NDZs permitted under Section 
312(f)(4)(A). See 33 U.S.C. 1322(f)(4)(A) (providing that, upon 
making the required finding, the Administrator shall ``completely 
prohibit the discharge from a vessel of any sewage (whether treated 
or not) into such waters'') (emphasis added). While Congress' use of 
the terms ``completely'' and ``any'' by itself, might be conducive 
to a reading that the NDZ must apply to all vessels, this language 
refers to ``a vessel.'' These terms could simply have been used by 
Congress to indicate that the prohibition on discharge is absolute 
with respect to whatever vessel or class of vessels it applies to, 
rather than permitting a standard which allows covered vessels to 
discharge sewage that meets a specified treatment standard.
---------------------------------------------------------------------------

    Two commenters expressed concern that this rule could lead to the 
patchwork application of NDZ's between states or other jurisdiction 
based on vessel classes. The commenters believe that an NDZ that does 
not ban discharges from all vessels could lead to a lack of uniformity 
which would make the efficient operation of commercial vessels in U.S. 
waters very difficult. They stated that Congress created the NDZ 
program to address local water quality issues that deserved additional 
protections but that Congress also recognized a critical need for 
consistency across state lines. ``Uniformity and predictability of 
legal requirements was precisely the goal when Congress enacted CWA 
Section 312(f)(1) which preempts the states from creating such 
inconsistent legal requirements particularly with regard to the 
application of Section 312(f)(4) which does not require a determination 
of adequate shore reception facilities.''
    As the comments indicate, Section 312(f) reflects a balance between 
the Federal interest in uniform regulation of marine commerce and a 
state's interests in protection and enhancement of the quality of 
specified waters. EPA has previously approved ten NDZs in California, 
and NOAA has established prohibitions on the discharge of sewage from 
large vessels in waters within the boundaries of the four National 
Marine Sanctuaries along the California coast. Already, the discharge 
requirements for vessels operating along the California coast are not 
uniform. Today's rule will create a more uniform, well-defined boundary 
three miles from the California coast demarcating the NDZ for the 
covered classes of vessels.
    One of these commenters further stated that establishing an NDZ for 
vessel classes sets a ``dangerous precedent'' because Section 
312(f)(4)(A) does not require EPA to find that adequate pump-out 
facilities are reasonably available for all vessels, as is the case for 
state applications under Section 312(f)(3).
    EPA does not expect that today's action will lead to the 
establishment of unjustified NDZs in the future. As noted, Section 
312(f)(4)(A) does not require EPA to find that adequate pump-out 
facilities are available, but, unlike Section 312(f)(3), it requires 
EPA to determine whether a proposed NDZ is required for the protection 
and enhancement of the quality of specified waters. If a state is 
unable to demonstrate that the waters specified in a proposed NDZ 
warrant that protection, or that the necessary protection can be 
provided by an NDZ, the state will not obtain a discharge prohibition 
under Section 312(f)(4)(A). Under Section 312 (f)(3), only the state 
needs to determine whether the waters require protection, and EPA 
decides whether adequate pump-out facilities are reasonably available.
    Some commenters also suggested that the State should have sought 
EPA approval under CWA Section 312(f)(3), instead of 312(f)(4)(A). 
Section 312(f)(3) authorizes states to, ``completely prohibit the 
discharge from all vessels of any sewage'' in some or all of their 
waters, provided that EPA determines that adequate sewage handling 
facilities are reasonably available to ``all vessels'' operating in the 
affected waters.
    EPA does not decide which of these statutory provisions a state 
should use to apply for an NDZ. Having decided to apply under Section 
312(f)(4)(A), the State of California was required to meet the criteria 
of this provision, and EPA is required to determine whether or not they 
have done so. With this final rule, we find that they have.
4. Classes of Vessels
    Some commenters stated that there is no factual basis for 
distinguishing between large cargo vessels and smaller vessels with 
similar crew and passenger numbers because there would be no difference 
in the impacts of their sewage discharges on water quality. Some 
commenters also noted that the proposed rule had estimated that 
recreational vessels without holding tanks, as a class, have the 
potential to discharge more than twice the amount of sewage as covered 
cargo vessels.
    EPA recognizes that the size of a vessel is not always 
determinative of the amount of sewage it will generate or its potential 
to pollute State waters. We expect that some vessels below the 300 
gross tonnage threshold sometimes carry a similar number of crew and 
passengers as some of the covered large oceangoing vessels. However, as 
discussed above, California's application addressed vessels over 300 
gross tons, and the revised data show that smaller vessels without 
holding tanks, as a group, are a less significant source of sewage 
discharges within the NDZ than large oceangoing vessels (see Table 1). 
EPA believes that the State's approach to defining the vessel classes 
by tonnage is practical and understandable. Alternatives, such as 
defining vessel classes by crew and passenger numbers, would be more 
difficult to implement and enforce.
    Several commenters stated that EPA did not explain the legal basis 
for applying the NDZ to select classes of vessels. Some of these 
commenters also stated that EPA should renotice the rule for comment 
after explaining the legal justification for applying Section 
312(f)(4)(A) to limited classes of vessels.
    EPA is only required to reference the legal authority for the 
proposed rule. 5 U.S.C. 553(b)(2). The Notice of Proposed Rulemaking 
not only specified the legal basis for the proposed rule (CWA Section 
312(f)(4)(A) and 40 CFR 140.4), it explained EPA's rationale for 
proposing, for the first time, to limit the NDZ to certain vessel 
classes, and specifically invited the public to comment on this 
approach. The commenters' detailed analyses of the issue shows that the 
commenters had a sufficient understanding of the legal issues to 
question EPA's application of Section 312(f)(4)(A) to specific classes 
of vessels and offer specific arguments against the proposed approach. 
In this final rule preamble, EPA has, in response to these comments, 
explained its legal rationale for today's action.
5. Large Oceangoing Vessel Sewage Holding Capacity
    Some commenters suggested that the two-day holding capacity 
requirement for oceangoing vessels in the proposed rule was arbitrary 
and impractical because it had no environmental impact-based 
justification and would cause large oceangoing vessels to have to make 
extra trips beyond State waters to discharge sewage. Commenters also 
noted that the requirement could incentivize holding tank removal or 
reduction to avoid regulation, resulting in an increase in unregulated 
vessels and vessel discharges. One commenter suggested that there 
should be an exception for vessels that had installed improved 
treatment systems rather than large holding tanks. A couple of 
commenters suggested that there was a greater impact from the sewage

[[Page 11407]]

discharges of vessels not covered by the two-day holding capacity 
requirement.
    Most of the commenters who opposed the two-day holding capacity 
requirement recommended revising the rule to more closely reflect 
California's legislation, which defines the covered class of large 
oceangoing vessels as those with ``a holding tank of sufficient 
capacity'' to contain sewage while in the marine waters of the State. 
These commenters proposed changing the rule to require all vessels, to 
the extent they are coming from waters in which discharge is permitted, 
to arrive with sewage holding tanks that have been discharged to the 
greatest extent operationally practicable. In addition, under the 
commenters' suggested approach, all such vessels would be prohibited 
from discharging sewage within State waters to the extent that they 
have the capability to hold such sewage in a holding tank. These 
commenters stated that this approach would provide greater 
environmental benefit by regulating all vessels with holding tanks and 
result in a greater reduction in the amount of effluent discharged. In 
addition to written comments, representatives of the shipping industry 
met with EPA to discuss this approach during and after the proposed 
rule comment period.\7\ These representatives stated that this approach 
would increase compliance and be easier to enforce since the Coast 
Guard could check the discharge logs at the same time and in the same 
manner as it investigated compliance with other shipping industry 
regulations.
---------------------------------------------------------------------------

    \7\ Records of meetings between EPA and shipping industry 
representatives can be found in the docket for this rule at 
www.regulations.gov.
---------------------------------------------------------------------------

    Based on the information provided by the commenters and EPA's own 
evaluation of the sewage generation data, we agree that the proposed 
two-day holding tank definition may be impractical in some 
circumstances (e.g, causing some vessels to make additional trips from 
ports to discharge outside the NDZ and complicating port operations), 
might create an incentive for some vessel operators to remove existing 
holding capacity to avoid coverage by the rule, and, as discussed more 
fully below, would be less protective of coastal water quality than a 
rule that covers all large oceangoing vessels having any amount of 
holding capacity. As described in Section II, today's rule replaces the 
proposed two-day holding tank capacity definition with a vessel class 
definition which provides that only those large oceangoing vessels 
equipped with holding tanks which have fully utilized the capacity of 
those holding tanks while present in State waters may discharge any 
treated sewage. The Agency believes this approach better implements 
California's request in its application for an NDZ that applies to 
large oceangoing vessels equipped with ``a holding tank of sufficient 
capacity.'' Consistent with the State's application, the final rule 
remains limited to large vessels.
    Since the Notice of Proposed Rulemaking, EPA has acquired detailed 
2010 large vessel data from the Coast Guard and the Chamber of Shipping 
of America (CSA), available in the docket for this rule. Data from the 
Coast Guard include port arrival and departure dates and times, and 
vessel identification, characteristics, country of origin, owners and 
operators for all vessels calling on California ports in 2010. EPA used 
the Coast Guard data to better estimate port call frequency and 
durations for large vessels, as this information was more current and 
complete than the 2006 State Lands Trust Vessel Survey Data that EPA 
relied on for the proposed rule. The CSA vessel sewage data was 
compiled in response to EPA's Clean Water Act Section 312(b): Notice 
Seeking Stakeholder Input on Petition and Other Request to Revise the 
Performance Standards for Marine Sanitation Devices, 75 FR 39683, July 
12, 2010, and includes vessel, crew, sewage generation and holding 
capacity information for over 600 oceangoing vessels, of which 588 were 
300 gross tons or greater. EPA was able to use this data to better 
estimate sewage generation rates and holding capacities for large 
oceangoing vessels because the holding capacity information is more 
detailed and reliable and includes the number of days of holding 
capacity and daily sewage generation rates for each vessel. EPA used 
the new data to compare the volumes of treated vessel sewage that would 
be prohibited from discharge into State marine waters under the 
proposed rule and this final rule.
    Without direct data for vessel sewage discharges in State waters, 
EPA used the 2006 State Lands data and 2010 Coast Guard and CSA data, 
to estimate the volumes of sewage generated by the different classes of 
vessels while present in California waters. An analysis of the Coast 
Guard and CSA data indicate that the median daily sewage generation 
rate per person for large oceangoing vessels is 16 gallons, which is 
almost twice as much as the estimate for large passenger vessels.\8\ 
CSA sewage volume data ranged significantly and is attributed to crew 
size variation and likely to systems that process both sewage and 
graywater; regardless, this remains the best available data for large 
oceangoing vessels. The 2006 State Lands data continues to be the best 
source of information for large passenger vessels, therefore, EPA's 
estimated sewage generation rate for these vessels remains 8.4 gallons 
per person, per day as was used in the proposed rule. EPA used these 
sewage generation estimates, data on the number and length of vessel 
port calls, and the range of vessel sewage tank holding capacities, to 
compare the scope of coverage of today's rule against the scope of 
coverage for the proposed rule. The Coast Guard and CSA data, and EPA's 
analysis and analytical methods are included in the docket for this 
rule. EPA's analysis determined that today's rule would regulate 62 
percent of large oceangoing vessels, or approximately twelve percent 
more than the two-day holding capacity criteria of the proposed rule, 
because all large oceangoing vessels with holding tank capacity, 
including those with less than two days, would now fall under the rule. 
Based on CSA data, approximately 50 percent of vessels reporting had 
less than two days holding capacity. This increase would prohibit 
approximately nine percent more treated sewage, or over 780,000 
gallons, from being discharged into California marine waters, as 
compared to the two-day holding capacity requirement in the proposed 
rule.\9\
---------------------------------------------------------------------------

    \8\ For the proposed rule, EPA did not have data on cargo ship 
sewage generation rates, so the Agency used passenger ship data from 
the December 29, 2008 Cruise Ship Discharge Assessment Report to 
estimate the sewage generation rate for large non-passenger 
oceangoing vessels at 8.4 gallons per person, per day. The Coast 
Guard and CSA is more reliable because it includes specific sewage 
generation data for large oceangoing vessels.
    \9\ The older data used in developing the proposed rule would 
also show that the final rule prohibits more sewage discharges, and 
is therefore more protective of water quality, but the extent of the 
difference would be less because EPA's original estimate of daily 
sewage generation was lower.
---------------------------------------------------------------------------

    Today's rule also addresses the point raised by some commenters 
that the proposed two-day holding capacity rule would have excluded 
more large oceangoing vessels from the NDZ than it covered. As 
described above, today's rule will apply to approximately 62 percent of 
the large oceangoing vessels calling on California ports (those with 
holding tanks), instead of only 50 percent with two-day capacity using 
the originally proposed two-day holding capacity criteria. As a result 
today's rule will prohibit the discharge of approximately 3.3 million 
gallons of sewage per year, compared to the

[[Page 11408]]

estimated 2.7 million gallons of sewage that may continue to be 
discharged by vessels with no holding capacity or vessels that exceed 
the maximum holding capacity of their tanks. (See Table 1.)
    Since this approach is consistent with the State's application for 
an NDZ, more protective of California marine waters, more operationally 
feasible, and more likely to lead to better compliance, EPA has 
eliminated the proposed two-day holding tank capacity criteria and 
associated definitions, and restructured the rule to require that all 
large oceangoing vessels with holding tanks fully utilize their holding 
tank capacity while in State marine waters. EPA has presented this 
approach to the State, and the State agrees that the final rule is an 
appropriate approach to implementing ``sufficient holding tank 
capacity.''
    Today's final rule does not adopt the commenters' specific proposed 
language, but it has substantially the same effect on large oceangoing 
vessels. Most covered vessel operators are expected to choose to enter 
State waters with empty holding tanks to be certain that they will fall 
outside the class of vessels subject to the NDZ if they fully use their 
holding capacity. In some instances, where a vessel with substantial 
holding capacity will be in State waters for a short time, this may not 
be necessary. However, any large oceangoing vessel which might reach 
its holding capacity while in State marine waters is expected to choose 
to empty its tanks before entering State marine waters. In addition, 
EPA did not incorporate the commenters' proposed language requiring 
holding tanks to be ``discharged to the greatest extent operationally 
practicable'' because this is addressed by the ``more than de minimis 
amounts of sewage'' provision in the final rule.
    The rule also does not distinguish between large passenger vessels 
with certified MSDs and those with advanced waste treatment systems, as 
one commenter proposed, because Section 312(f)(4)(A) expressly 
prohibits distinctions between vessel discharges based on the level of 
treatment (the regulation must ``completely prohibit the discharge from 
a vessel of any sewage (whether treated or not) into such water'').
5. Applying a No Discharge Zone for All California Marine Waters
    Many commenters suggested that there is an insufficient nexus 
between vessel sewage and the entirety of California marine waters to 
designate an NDZ for all of the State's coastal waters. Some commenters 
suggested that there is insufficient data to support an NDZ at all. 
Three commenters stated that a prohibition under CWA Section 
312(f)(4)(A) and 40 CFR 140.4(b) requires science-based evidence that 
vessel sewage discharges are impacting specific waters in the proposed 
NDZ and that the State and EPA had not provided sufficient evidence of 
the impacts. One stated that the determination of the proper area to be 
included in an NDZ requires a quantitative and qualitative 
consideration of the relationship between the discharge for which the 
regulation is being considered and the water quality characteristics 
(both baseline levels and water quality standards) of the ``specified'' 
waters covered by the State's application. Some commenters stated that 
under 40 CFR 140.4(b), an NDZ could only be established where a 
prohibition on vessel discharges is needed to attain applicable water 
quality standards for the specific waters to be protected. Commenters 
suggested that impacts to water quality could not be measured without 
knowing the volume and spatial and temporal distribution of the 
discharges, or without ranking the contribution of the vessel 
discharges in relation to other sources of marine pollution. A 
commenter also stated that the diversity of California marine waters 
and the differing levels of impacts from oceangoing vessels to the 
waters make ``lumping'' them together into one NDZ illogical.
    Pursuant to CWA Section 312(f)(4)(A), EPA evaluated the waters that 
the State specified for NDZ coverage. At the outset, it is important to 
note that the statutory standard for when EPA must impose an NDZ under 
CWA 312(f)(4)(A) is where the Administrator determines ``that the 
protection and enhancement of the quality of specified waters within 
such state requires such a prohibition.'' Contrary to what was 
suggested by commenters, nothing in the statute requires a 
demonstration focused on specific state water quality standards.\10\
---------------------------------------------------------------------------

    \10\ EPA recognizes that its CWA section 312(f)(4)(A) 
regulations include a reference to state water quality standards, in 
the context of addressing a decision by the Administrator to expand 
or reduce the scope of a State's requested NDZ, but that is not an 
issue in this designation. In any event, this reference predates 
amendments to CWA 312(f)(4)(A) which eliminated any need for EPA to 
determine whether an NDZ was necessary to protect applicable water 
quality standards, to the language in the statute today.
---------------------------------------------------------------------------

    Based on the information contained in the record for today's rule, 
EPA finds that the NDZ requested in the State's application is required 
for all of California's marine waters. This information demonstrates 
that significant portions of California marine waters are biologically 
important and sensitive, that large vessel sewage discharges are a 
significant source of marine pollution which is distributed widely 
throughout State waters, and that these discharges contribute to the 
degradation of the State waters. From the Mexican border to the Oregon 
border, California marine waters include 889 recreational areas, 200 
aquatic sanctuaries, over 100 state marine protected areas, including 
34 locations designated as State Water Quality Protection Areas for 
unique biological values and or fragility, four National Marine 
Sanctuaries, other national and state parks, commercial and 
recreational fisheries, shellfish growing areas and essential fish 
habitat. These waters support important economic, recreational, 
conservation, research, educational, and aesthetic values, and are 
becoming increasingly important for potable water supply as 
desalinization measures are being proposed and used to meet drinking 
water demands. California has also listed 120 miles of its coastal 
waters as impaired for pathogens commonly associated with sewage.\11\
---------------------------------------------------------------------------

    \11\ These pathogens originate from both land-based and water-
based sources.
---------------------------------------------------------------------------

    Specially designated areas found throughout California's coastal 
waters are part of a larger connected oceanographic unit that is 
essential habitat for a wide range of important marine species. The 
entire length of California's coastal waters is influenced by the 
California Current system, an eastern boundary current that forms the 
eastern portion of the North Pacific subtropical gyre. While this broad 
current moves southward off the continental shelf, seasonal coastal 
upwelling (driven primarily by coastal winds), as well as 
countercurrents and eddies (smaller scale cyclonic flows), contribute 
to mixing of continental shelf water with offshore ocean waters. The 
population dynamics, genetic structure, and biogeography of many 
coastal marine species are highly influenced by and dependent on this 
oceanographic connectivity. These waters provide important migration 
routes, feeding grounds, and breeding sites for many marine mammal 
species, including blue whales, gray whales, dolphins, porpoises, 
California sea lions, fur seals, and Northern elephant seals, as well 
as migratory and resident sea bird species, including petrels, 
cormorants, albatross, terns, shearwaters, pelicans, and auklets.
    Because most of California's coastal waters are recognized as 
possessing

[[Page 11409]]

special significance, the degree of connectivity and mixing throughout 
these coastal waters requires that the NDZ extend to all of 
California's marine waters. As some commenters noted, discharged sewage 
moves easily through coastal waters and can impair water quality in 
protected areas even if it is released outside those areas. By 
establishing the NDZ for all of California marine waters, instead of 
select areas of special concern, today's rule will provide the required 
protection of water quality. In addition, it will be easier for vessel 
operators to understand the scope of the designation and be able to 
comply with the rule.
    In light of the extensive array of important marine resources 
located throughout California's coastal waters, their connection to the 
California Current system, and the presence of the two covered classes 
of large vessels in many parts of these waters having the potential to 
discharge 22.5 million gallons of sewage per year, EPA does not believe 
that Section 312(f)(4)(A) requires it to divide the proposed NDZ into 
individual segments and conduct site-specific evaluations of these 
segments to determine the extent to which vessel sewage discharges are 
impacting each. None of the commenters identified specific segments of 
the NDZ that they proposed to exclude from designation.\12\ The 
information provided in the State's application, the proposed rule and 
supporting comments demonstrate that an NDZ encompassing all California 
marine waters is required to protect and enhance the quality of 
California marine waters which warrant special protection under CWA 
Section 312(f)(4)(A) because of their unique qualities and diverse 
resources.
---------------------------------------------------------------------------

    \12\ As noted previously, these commenters stated that EPA 
should deny the State's request for establishment of an NDZ for all 
California marine waters.
---------------------------------------------------------------------------

7. Other General Comments
    One commenter, while in support of the vessel sewage prohibition, 
expressed concerns with the legal basis for regulating military vessels 
under the rule stating that Section 553(a)(1) of the Administrative 
Procedure Act prohibits an agency from regulating military matters. 
Section 553(a)(1) exempts rulemakings involving military functions from 
having to comply with the Administrative Procedure Act's notice and 
comment procedures, but does not exempt military functions from all 
Federal regulations. Pursuant to Section 312(d) of the CWA, certain 
military vessels are covered by today's rulemaking according to the 
second applicability provision, i.e., any military vessel that is a 
``large oceangoing vessel equipped with a holding tank which has not 
fully used the holding tank's capacity, or which contains more than de 
minimis amounts of sewage generated while the vessel was outside of the 
marine waters of the State of California.'' Under CWA section 312(d), 
however, the Secretary of Defense has exercised the authority to exempt 
specific vessels or classes of vessels from compliance in the interest 
of national security. The Secretary of Defense promulgated Department 
of Defense (DoD) 4715.06-R1 ``Regulations on Vessels Owned or Operated 
by the Department of Defense'' (January 2005), at p.8, sections 
C.1.3.1.1 through C.1.3.1.4, which explain the circumstances under 
which DoD has exempted its vessels from the sewage discharge 
requirements of Section 312, including for example, circumstances in 
which compliance would excessively and unreasonably detract from the 
vessel's military characteristics, effectiveness, or safety, and not be 
in the interest of national security. This DoD regulation states that 
commanding officers and/or vessel masters of exempted vessels are 
nonetheless required to limit sewage discharges into U.S. navigable 
waters, territorial seas, and NDZs to the maximum extent practicable 
without endangering the health, safety, or welfare of the crew or other 
personnel aboard.
    The commenter also stated that the economic analysis for the rule 
required under the Regulatory Flexibility Act was incomplete because it 
did not consider ``potentially devastating'' impacts to small shore-
side businesses in the event regulated large passenger vessels spent 
fewer days at ports while transiting beyond the NDZ to discharge. The 
Regulatory Flexibility Act only requires agencies to consider economic 
impacts on small entities to which the rule will apply. See, e.g., 
Cement Kiln Recycling Coalition v. EPA, 255 F.3d 855 (DC Cir. 2001), 5 
U.S.C. 603(b)(3). This rule will not apply to ``small shore-side 
businesses'' and thus EPA was not required to consider the potential 
indirect impacts of the rule on those businesses. Nevertheless, EPA 
does not anticipate the rule will result in cruise ships spending fewer 
days at California ports than they would otherwise. The comment letter 
from Cruise Lines International Association, which represents 26 cruise 
lines, stated that their members have implemented the California 
legislative restrictions that formed the basis for the rule since the 
State legislation was enacted.
    Another commenter suggested that Federal regulation of sewage 
discharges from vessels preempts state regulation. Section 312(f)(1)(A) 
of the CWA specifies no state or political subdivision thereof shall 
adopt or enforce any statute or regulation of such state or political 
subdivision with respect to the design, manufacture, or installation or 
use of any marine sanitation device on any vessel subject to the 
provisions of this section; however, the other subsections of 312(f) 
specifically authorize states to apply to EPA for establishment of 
NDZs.

IV. Administrative Requirements

Plain Language

    In compliance with the principles in the President's Memorandum of 
June 1, 1998 (63 FR 31885), regarding plain language, this preamble and 
the Final Rule are written using plain language.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    Under Executive Order 12866 (58 FR 51735, Oct. 4, 1993), this 
action is a ``significant regulatory action.'' Accordingly, EPA 
submitted this action to the Office of Management and Budget (OMB) for 
review under EO 12866 and 13563 (76 FR 3821, Jan. 21, 2011) and any 
changes made in response to OMB recommendations have been documented in 
the docket for this action (docket number EPA-R09-OW-2010-0438).
    EPA prepared an analysis of the potential costs associated with 
this action to determine whether the final rule would have an annual 
effect on the economy of $100 million or more, or adversely affect in a 
material way the economy or a sector of the economy. Vessels that are 
equipped with MSDs and that navigate throughout California waters are 
already subject to the EPA MSD Standard at 40 CFR part 140 and the 
Coast Guard MSD Regulations at 33 CFR part 159. These standards 
prohibit the overboard discharge of untreated vessel sewage in state 
waters and require that vessels with installed toilets be equipped with 
Coast Guard certified MSDs which either retain sewage or treat sewage 
to the applicable standards. See, 40 CFR 140.3; 33 CFR 159.7. There are 
three types of MSDs, but only Type II and Type III MSDs are used by the 
vessels affected by this rule.
    Vessels subject to this final rule include all large passenger 
vessels of 300 gross tons or more and oceangoing

[[Page 11410]]

vessels of 300 gross tons or more equipped with sewage holding tanks. 
The proposed rule relied on 2008 data for large passenger vessel calls 
to estimate that up to 40 percent of the large passenger vessels may 
need to retrofit their holding tanks, at an estimated cost of $200,000 
per vessel, to ensure they had adequate holding capacity while 
operating in State waters. The total estimated one-time capital cost 
for the existing fleet of large passenger vessels calling on California 
ports was estimated to be $3.8 million. To estimate operation and 
maintenance costs, EPA assumed that most of the cost would be labor to 
operate and occasionally inspect new or retrofitted tanks. 
Conservatively assuming each ship would budget one hour per week for 
tank operation and maintenance at approximately $50 per hour, we 
estimated approximately $2,600 per year, per ship, or approximately 
$50,000 per year for operation and maintenance costs.
    Approximately 62 percent of the large oceangoing vessels have 
sewage holding tanks and, therefore, are subject to this final rule. 
For the proposed rule, EPA evaluated the potential costs of voluntarily 
retrofitting holding tanks on some vessels to increase capacity or, 
alternatively, making extra trips beyond State marine waters to 
discharge sewage. However, the final rule does not require owners to 
retrofit any large oceangoing vessels or make extra trips to discharge 
outside of the NDZ to discharge sewage, and therefore we do not 
anticipate that it will impose additional costs on these vessel 
operators.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
Burden is defined at 5 CFR 1320.3(b). Since today's rule would not 
establish or modify any information and recordkeeping requirements, it 
is not subject to the requirements of the Paperwork Reduction Act.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small 
entities, small entity is defined as: (1) A small business as defined 
by the Small Business Administration's (SBA) regulations at 13 CFR 
121.201; (2) a small governmental jurisdiction that is a government of 
a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of the final rule on small 
entities, EPA certifies that this action will not have a significant 
economic impact on a substantial number of small entities. The small 
entities subject to the requirements of this final rule fall under Deep 
Sea Freight Transportation (NAICS Code 483111) and Deep Sea Passenger 
Transportation (NAICS 483112) classifications.\13\ The U.S. Small 
Business Administration size standard for these businesses is 500 or 
fewer employees. To determine the size of companies that own large 
passenger and large oceangoing vessels that call at California ports, 
the EPA reviewed owner profiles for all large passenger vessels and 
several oceangoing vessels that responded to the State's 2006 vessel 
survey. Based on this review, it was determined that no large passenger 
and oceangoing vessels that call at California ports are owned by 
companies that employ 500 or fewer people.
---------------------------------------------------------------------------

    \13\ U.S. Small Business Administration Table of Small Business 
Size Standards, North American Industry Classification System 
(NAICS), www.sba.gov/size.
---------------------------------------------------------------------------

D. Unfunded Mandates Reform Act

    This final rule does not contain a Federal mandate that may result 
in expenditures of $100 million or more for state, local, and tribal 
governments, in the aggregate, or the private sector in any one year, 
as demonstrated above in section A, Executive Order 12866: Regulatory 
Planning and Review.
    Because the final rule contains no regulatory requirements that 
might significantly or uniquely affect small governments, it is also 
not subject to the requirements of Section 203 of the Act. Small 
governments are subject to the same requirements as other entities 
whose duties result from this final rule and they have the same ability 
as other entities to retain and pump out treated sewage or discharge 
outside of the designated zones.

E. Executive Order 13132: Federalism

    This action does not have Federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132. Section 312(f) of the CWA generally 
preempts state regulation of sewage discharges in state waters. An NDZ 
allows the state to seek protection of its state waters that it would 
otherwise be preempted from providing on its own. The State of 
California is requesting that EPA take action to designate all State 
marine waters as an NDZ under CWA Section 312(f)(4)(A), and EPA's 
action in this final rule is responsive to this request. Therefore, 
Executive Order 13132 does not apply to this action.

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

    This action does not have any known tribal implications, as 
specified in Executive Order 13175 (65 FR 67249, Nov. 9, 2000). The 
only expected impact on tribal rights or responsibilities is the 
improvement of ocean water quality. EPA has notified all California 
tribes with coastal reservations of this action and received no 
comments.

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

    The order applies to economically significant rules under E.O. 
12866 that concern an environmental health or safety risk that EPA has 
reason to believe may disproportionately affect children. This action 
is not subject to EO 13045 (62 FR 19885, Apr. 23, 1997) because it is 
not economically significant as defined in EO 12866.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This action is not a ``significant energy action'' as defined in 
Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent

[[Page 11411]]

with applicable law or otherwise impractical. Voluntary consensus 
standards are technical standards (e.g., materials specifications, test 
methods, sampling procedures, and business practices) that are 
developed or adopted by voluntary consensus standards bodies. NTTAA 
directs EPA to provide Congress, through OMB, explanations when the 
Agency decides not to use available and applicable voluntary consensus 
standards.
    This final rule does not involve technical standards. Therefore, 
EPA did not consider the use of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this final rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it increases 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 final rule will further regulate and reduce 
pollutants from sewage in California marine waters thus reducing the 
risk of exposure to all populations, including those covered under this 
Executive order.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A Major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective March 28, 2012.

Lists of Subjects in 40 CFR Part 140

    Environmental protection, Sewage disposal, Vessels.

    Dated: February 9, 2012.
Jared Blumenfeld,
Regional Administrator, Region IX.

    For the reasons stated in the preamble, EPA amends 40 CFR part 140 
as follows:

PART 140--[AMENDED]

0
1. The authority citation for part 140 continues to read as follows:

    Authority:  33 U.S.C. 1322.


0
2. Section 140.4 is amended by adding paragraph (b)(2) to read as 
follows:


Sec.  140.4  Complete prohibition.

* * * * *
    (b) * * *
    (2)(i) For the marine waters of the State of California, the 
following vessels are completely prohibited from discharging any sewage 
(whether treated or not):
    (A) A large passenger vessel;
    (B) A large oceangoing vessel equipped with a holding tank which 
has not fully used the holding tank's capacity, or which contains more 
than de minimis amounts of sewage generated while the vessel was 
outside of the marine waters of the State of California.
    (ii) For purposes of paragraph (b)(2) of this section:
    (A) ``Marine waters of the State of California'' means the 
territorial sea measured from the baseline as determined in accordance 
with the Convention on the Territorial Sea and the Contiguous Zone and 
extending seaward a distance of three miles, and all enclosed bays and 
estuaries subject to tidal influences from the Oregon border (41.999325 
North Latitude, 124.212110 West Longitude, decimal degrees, NAD 1983) 
to the Mexican border (32.471231 North Latitude, 117.137814 West 
Longitude, decimal degrees, NAD 1983). A map illustrating these waters 
can be obtained from EPA or viewed at https://www.epa.gov/region9/water/no-discharge/overview.html.
    (B) A ``large passenger vessel'' means a passenger vessel, as 
defined in section 2101(22) of title 46, United States Code, of 300 
gross tons or more, as measured under the International Convention on 
Tonnage Measurement of Ships, 1969, measurement system in 46 U.S.C. 
14302, or the regulatory measurement system of 46 U.S.C. 14502 for 
vessels not measured under 46 U.S.C. 14302, that has berths or 
overnight accommodations for passengers.
    (C) A ``large oceangoing vessel'' means a private, commercial, 
government, or military vessel of 300 gross tons or more, as measured 
under the International Convention on Tonnage Measurement of Ships, 
1969, measurement system in 46 U.S.C. 14302, or the regulatory 
measurement system of 46 U.S.C. 14502 for vessels not measured under 46 
U.S.C.14302, that is not a large passenger vessel.
    (D) A ``holding tank'' means a tank specifically designed, 
constructed, and fitted for the retention of treated or untreated 
sewage, that has been designated and approved by the ship's flag 
Administration on the ship's stability plan; a designated ballast tank 
is not a holding tank for this purpose.
* * * * *
[FR Doc. 2012-4469 Filed 2-24-12; 8:45 am]
BILLING CODE 6560-50-P