Current through Register 2024 Notice Reg. No. 38, September 20, 2024
[NOTE: This section is not presently being enforced by the
Air Resources Board because of a court injunction against enforcement of this
section. See Pacific Merchant Shipping Ass'n v. Goldstene (9th
Cir. 2008) 517 F.3d 1108. Consistent with the court's ruling, this section will
only be enforced if the Air Resources Board obtains authorization to do so from
the United States Environmental Protection Agency.]
(b) Applicability.
(1) Except as provided in subsection (c),
this section applies to any person who owns, operates, charters, rents, or
leases any ocean-going vessel that operates in any of the Regulated California
Waters, which include all of the following:
(A) all California internal waters;
(B) all California estuarine
waters;
(C) all California ports,
roadsteads, and terminal facilities (collectively "ports");
(D) all waters within 3 nautical miles of the
California baseline, starting at the California-Oregon border and ending at the
California-Mexico border at the Pacific Ocean, inclusive;
(E) all waters within 12 nautical miles of
the California baseline, starting at the California-Oregon border and ending at
the California-Mexico border at the Pacific Ocean, inclusive;
(F) all waters within 24 nautical miles of
the California baseline, starting at the California-Oregon border to 34.43
degrees North, 121.12 degrees West, inclusive; and
(G) all waters within the area, not including
islands, between the California baseline and a line starting at 34.43 degrees
North, 121.12 degrees West; thence to 33.50 degrees North, 118.58 degrees West;
thence to 32.65 degrees North, 117.81 degrees West; and ending at the
California-Mexico border at the Pacific Ocean, inclusive.
(2) Except as provided in subsection (c),
this section applies to tanker and nontanker ocean-going vessels that are
flagged in, registered in, entitled to fly the flag of, or otherwise operating
under the authority of the United States ("U.S.-flagged") or any other country
("foreign-flagged").
(3) Nothing in
this section shall be construed to amend, repeal, modify, or change in any way
any applicable U.S. Coast Guard requirements. Any person subject to this
section shall be responsible for ensuring compliance with both U.S. Coast Guard
regulations and the requirements of this section, including but not limited to,
obtaining any necessary approvals, exemptions, or orders from the U.S. Coast
Guard.
(c) Exemptions.
(1) The requirements of this section do not
apply to ocean-going vessel voyages that are comprised of continuous and
expeditious navigation through any of the Regulated California Waters for the
purpose of traversing such bodies of water without entering California internal
or estuarine waters or calling at a port, roadstead, or terminal facility.
"Continuous and expeditious navigation" includes stopping and anchoring only to
the extent such stopping and anchoring are required by the U.S. Coast Guard;
rendered necessary by force majeure or distress; or made for the purpose of
rendering assistance to persons, ships, or aircraft in danger or distress. This
exemption does not apply to the passage of an ocean-going vessel that engages
in any of the prejudicial activities specified in United Nations Convention on
the Law of the Seas (UNCLOS) 1982, Article 19, subpart 2. Further,
notwithstanding any Coast Guard mandated stops or stops due to force majeure or
the rendering of assistance, this exemption does not apply to a vessel that was
otherwise scheduled or intended to enter California internal or estuarine
waters or call at a port, roadstead or terminal facility.
(2) The requirements of this section do not
apply to slow-speed two-stroke diesel engines as defined in subsection
(d).
(3) The requirements of this
section do not apply to auxiliary engines on-board ocean-going vessels owned or
operated by any branch of local, state, federal government, or by a foreign
government, when such vessels are operated within the Regulated California
Waters on government non-commercial service. However, such vessels are
encouraged to act in a manner consistent, so far as is reasonable and
practicable, with this section.
(4)
The requirements of this section do not apply to auxiliary engines while
operating on liquefied natural gas or compressed natural gas.
(5) The requirements of this section,
including the payment of Noncompliance Fees as provided in subsection (h), do
not apply to the master of the vessel ("master") if the master reasonably and
actually determines that compliance with this section would endanger the safety
of the vessel, its crew, its cargo or its passengers because of severe weather
conditions, equipment failure, fuel contamination, or other extraordinary
reasons beyond the master's reasonable control. This exemption applies only as
long as and to the extent necessary to secure the safety of the vessel, its
crew, its cargo, or its passengers and provided that;
(A) the master takes all reasonable
precautions after the conditions necessitating the exemption have ended to
avoid or minimize repeated claims of exemption under this subsection;
(B) the master notifies the Executive Officer
of a safety exemption claim within 24 hours after the end of each such episode
(i.e., the period of time during which the emergency conditions exist that
necessitate the safety exemption claim, as provided in paragraph (5) above);
and
(C) the master submits to the
Executive Officer, within 4 working days after the notification in paragraph
(B) above, all documentation necessary to establish the conditions
necessitating the safety exemption and the date(s), local time, and position of
the vessel (longitude and latitude) in Regulated California Waters at the
beginning and end of the time period during which a safety exemption is claimed
under this subsection. All documentation required under this paragraph shall be
provided in English.
(d) Definitions.
For purposes of this section, the following definitions
apply:
(1) "ASTM" means ASTM
International.
(2) "Auxiliary
engine" means an engine on an ocean-going vessel designed primarily to provide
power for uses other than propulsion, except that all diesel-electric engines
shall be considered "auxiliary diesel engines" for purposes of this
regulation.
(3) "Baseline" means
the mean lower low water line along the California coast, as shown on the
following National Oceanic and Atmospheric Administration (NOAA) Nautical
Charts as authored by the NOAA Office of Coast Survey, which are incorporated
herein by reference:
(A) Chart 18600, Trinidad
Head to Cape Blanco (January 2002);
(B) Chart 18620, Point Arena to Trinidad Head
(June 2002);
(C) Chart 18640, San
Francisco to Point Arena (August 2005);
(D) Chart 18680, Point Sur to San Francisco
(June 2005);
(E) Chart 18700, Point
Conception to Point Sur (July 2003);
(F) Chart 18720, Point Dume to Purisima Point
(January 2005); and
(G) Chart
18740, San Diego to Santa Rosa Island (April 2005).
(4) "Compliance Period" means the calendar
year or other continuous period during which an approved Alternative Control of
Emissions (ACE) plan is or will be in effect as specified in subsection
(g).
(5) "Diesel Engine" means an
internal combustion, compression-ignition (CI) engine with operating
characteristics significantly similar to the theoretical diesel combustion
cycle. The regulation of power by controlling fuel supply in lieu of a throttle
is indicative of a compression ignition engine.
(6) "Diesel Particulate Matter" means the
particles found in the exhaust of diesel engines, which may agglomerate and
adsorb other species to form structures of complex physical and chemical
properties.
(7) "Diesel-electric
engine" means a diesel engine connected to a generator that is used as a source
of electricity for propulsion or other uses.
(8) "Emission Control Strategy" means any
device, system, or strategy employed to reduce emissions from a diesel engine,
including, but not limited to, utilization of shore-side electrical power,
diesel oxidation catalysts, selective catalytic reduction systems, diesel
particulate filters, alternative diesel fuels, water emulsified fuels, lower
sulfur fuels, and any combination of the above.
(9) "Estuarine Waters" means an arm of the
sea or ocean that extends inland to meet the mouth of a river.
(10) "Executive Officer" means the executive
officer of the Air Resources Board (ARB), or his or her designee.
(11) "Hydrocarbon (HC)" means the sum of all
hydrocarbon air pollutants.
(12)
"Internal Waters" means any navigable river or waterway within the State of
California.
(13) "IMO" means the
International Maritime Organization.
(14) "ISO" means the International
Organization for Standardization.
(15) "Marine Diesel Oil" means any fuel that
meets all the specifications for DMB grades as defined in Table I of
International Standard ISO 8217, as revised in 2005, which is incorporated
herein by reference.
(16) "Marine
Gas Oil" means any fuel that meets all the specifications for DMX or DMA grades
as defined in Table I of International Standard ISO 8217, as revised in 2005,
which is incorporated herein by reference.
(17) "Master" means the person who operates a
vessel or is otherwise in charge of the vessel's operations.
(18) "Military Vessel" means any ship, boat,
watercraft, or other contrivance used for any purpose on water, and owned or
operated by the armed services.
(19) "Nitrogen Oxides (NOx)" means compounds
of nitric oxide (NO), nitrogen dioxide (NO2), and other oxides of nitrogen,
which are typically created during combustion processes and are major
contributors to smog formation and acid deposition.
(20) "Non-Methane Hydrocarbons (NMHC)" means
the sum of all hydrocarbon air pollutants except methane.
(21) "Ocean-going Vessel" means a commercial,
government, or military vessel meeting any one of the following criteria:
(A) a vessel with a "registry" (foreign
trade) endorsement on its United States Coast Guard certificate of
documentation, or a vessel that is registered under the flag of a country other
than the United States;
(B) a
vessel greater than or equal to 400 feet in length overall (LOA) as defined in
50 CFR §
679.2, as adopted June 19, 1996;
(C) a vessel greater than or equal to 10,000
gross tons (GT ITC) pursuant to the convention measurement (international
system) as defined in 46 CFR
69.51 -.61, as adopted September 12, 1989;
or
(D) a vessel propelled by a
marine compression ignition engine with a per-cylinder displacement of greater
than or equal to 30 liters.
(22) "Operate" means steering or otherwise
running the vessel or its functions while the vessel is underway, moored,
anchored, or at dock.
(23) "Own"
means having all the incidents of ownership, including the legal title, of a
vessel whether or not that person lends, rents, or pledges the vessel; having
or being entitled to the possession of a vessel as the purchaser under a
conditional sale contract; or being the mortgagor of a vessel.
(24) "Particulate Matter" means any airborne
finely divided material, except uncombined water, which exists as a liquid or
solid at standard conditions (e.g., dust, smoke, mist, fumes or
smog).
(25) "Person" includes all
of the following:
(A) any person, firm,
association, organization, partnership, business trust, corporation, limited
liability company, or company;
(B)
any state or local governmental agency or public district, or any officer or
employee thereof;
(C) the United
States or its agencies, to the extent authorized by federal
law.
(26) "Regulated
California Waters" means all of the following:
(A) all California internal waters;
(B) all California estuarine
waters;
(C) all California ports,
roadsteads, and terminal facilities (collectively "ports");
(D) all waters within 3 nautical miles of the
California baseline, starting at the California-Oregon border and ending at the
California-Mexico border at the Pacific Ocean, inclusive;
(E) all waters within 12 nautical miles of
the California baseline, starting at the California-Oregon border and ending at
the California-Mexico border at the Pacific Ocean, inclusive;
(F) all waters within 24 nautical miles of
the California baseline, starting at the California-Oregon border to 34.43
degrees North, 121.12 degrees West, inclusive; and
(G) all waters within the area, not including
any islands, between the California baseline and a line starting at 34.43
degrees North, 121.12 degrees West; thence to 33.50 degrees North, 118.58
degrees West; thence to 32.65 degrees North, 117.81 degrees West; and ending at
the California-Mexico border at the Pacific Ocean,
inclusive.
(27)
"Roadstead" means any facility that is used for the loading, unloading, and
anchoring of ships.
(28) "Slow
Speed Engine" means an engine with a rated speed of 150 revolutions per minute
or less.
(29) "Sulfur Oxides" means
compounds of sulfur dioxide (SO2), and other oxides of
sulfur, which are typically created during combustion of sulfur containing
fuels.
(30) "Tanker" means a
self-propelled vessel constructed or adapted primarily to carry, or that
carries, oil or hazardous material in bulk as cargo or cargo residue.
(31) "Two-stroke Engine" means an internal
combustion engine which operates on a two stroke cycle where the cycle of
operation completes in one revolution of the crankshaft.
(32) "Vessel" means any tugboat, tanker,
freighter, passenger ship, barge, or other boat, ship, or watercraft, except
those used primarily for recreation and any of the following:
(A) a seaplane on the water;
(B) a watercraft specifically designed to
operate on a permanently fixed course, the movement of which is restricted to a
fixed track or arm to which the watercraft is attached or by which the
watercraft is controlled.
(f) Violations.
(1) Any person who is subject to this section
and commits a violation of any provision, standard, criteria or requirement in
this section is subject to the penalties, injunctive relief, and other remedies
specified in Health and Safety Code, section
42400
et seq.; other applicable sections in the Health and Safety Code; and other
applicable provisions as provided under California law for each violation.
Nothing in this section shall be construed to limit or otherwise affect any
applicable penalties or other remedies available under federal law.
(2) Any failure to meet any provision,
standard, criteria or requirement in this section, including but not limited to
the applicable emission limits; recordkeeping requirements; Noncompliance Fee
provision; and Alternative Control of Emissions (ACE) provision, including the
requirements of any approved ACE plans, shall constitute a single, separate
violation of this section for each hour that a person operates an ocean-going
vessel within the Regulated California Waters until such provision, standard,
criteria or requirement has been met.
(3) Any person who is subject to this section
is liable for meeting the requirements of this section, notwithstanding any
contractual arrangement that person may have with any
third-parties.
(g)
Alternative Control of Emissions (ACE) Plan In Lieu of Meeting Subsection
(e)(1).
For purposes of this subsection, the terms "ACE" and "ACE
plan" shall have the same meaning, unless otherwise noted.
(1) Requirements.
(A) The purpose of this subsection is to
allow any person ("person" or "applicant") the option of complying with the
requirements of this subsection (g) in lieu of the requirements of subsection
(e)(1). Under this subsection (g), alternative emission control strategies can
be implemented in lieu of meeting the requirements of subsection (e)(1),
provided the alternative strategies result in emissions of diesel PM, NOx, and
SOx from the auxiliary diesel engines that are no greater than the emissions
that would have occurred under subsection (e)(1), over the applicable
compliance period.
(B) An applicant
wishing to participate in an ACE may include one or more vessels in the ACE,
but the applicant shall only include vessels that the person owns or operates
under their direct control. For purposes of this subsection, "direct control"
shall include, but not be limited to, vessels for which the applicant has a
contract, lease, or other arrangement with a third-party for the third-party to
operate the vessel.
(C) No vessel
shall be included in more than one ACE plan.
(D) No ACE plan shall have a compliance
period greater than 1 calendar year or a continuous 12-month period. Except as
provided in paragraph (E) below, upon completion of a compliance period, an
approved ACE plan shall continue to be in effect for another compliance period
of equal length, provided the following are met:
1. the applicant provides updated information
for all elements of the approved ACE plan to the Executive Officer at least 30
days prior to the end of the first compliance period; and
2. the updated information demonstrates that
compliance with this subsection will continue for the next compliance
period.
(E) No ACE plan
shall be extended for another compliance period if:
1. the Executive Officer has determined that
violations of the ACE provisions have occurred and the Executive Officer
revokes the ACE plan as specified in subsection (g)(3);
2. the applicant elects to cancel an approved
ACE plan. Applicants who cancel operation under an approved ACE are subject to
the emission requirements of subsection (e)(1) and all other requirements of
this section upon the effective date of the cancellation. An ACE plan that is
cancelled prior to the end of its approved compliance period shall have its
compliance period adjusted to end at the effective date of cancellation;
or
3. the applicant proposes to
substantially change the alternative emission control strategies in their
approved ACE plan, as determined by the Executive Officer. Applicants proposing
to substantially change the alternative emission control strategies in their
ACE plan shall be subject to the application process for new applications, as
specified in subsection (g)(2).
(F) In addition to other requirements
specified in this subsection (g), no proposed ACE plan shall be approved unless
the applicant demonstrates to the satisfaction of the Executive Officer all of
the following:
1. the alternative emission
control strategies under the proposed ACE plan will result in emissions of
diesel PM, NOx, and SOx from the auxiliary diesel engines that are no greater
than the emissions that would have occurred under subsection (e)(1) over the
applicable compliance period; and
2. surplus emission reductions achieved at
one port will not result in increased emissions at a second port, relative to
the emissions that would have occurred at the second port prior to
implementation of this section.
(G) Emission control strategy is as defined
in subsection (d)(8).
(H) The ACE
plan application demonstrating compliance with this subsection shall contain,
at a minimum, the following information:
1.
the company name, address, and contact information;
2. the vessel(s) name, country flag, and IMO
identification number;
3. the make,
model, serial numbers and other information that uniquely identify each engine
on the affected vessel(s) subject to the ACE;
4. documentation, calculations, emissions
test data, or other information that demonstrates that the emission reductions
from the auxiliary engines subject to the ACE will be equivalent to or greater
than the emission reductions that would have been achieved upon compliance with
subsection (e)(1). The emission reductions shall be calculated for diesel PM,
NOx, and SOx, and shall be expressed in pounds of each pollutant;
5. information on the California ports
expected to be visited by the affected vessel(s) during the compliance period
that the ACE will be in effect, the anticipated dates of those visits, and the
potential planned oversea routes to and from these ports; and
6. the proposed recordkeeping, reporting,
monitoring, and testing procedures that the applicant plans to use to
demonstrate continued compliance with the ACE.
(I) Emission reduction calculations used to
demonstrate equivalence with the requirements of subsection (e)(1) shall
include only diesel PM, NOx, and SOx emissions from auxiliary engines operating
within any of the Regulated California Waters.
(J) Use of Shore-Side Power.
1. Except as otherwise provided in this
subsection (g)(1)(J), vessels in an ACE that utilize shore-side power in lieu
of their auxiliary diesel engines while at dockside shall be considered to meet
the emission reduction requirements of the ACE during:
a. all travel within Regulated California
Waters from a previous port to the California port terminal where shore-side
power is used;
b. time spent
secured ("docked") at the California port terminal where shore-side power is
used; and
c. all travel within
Regulated California Waters from the California port where shore-side power is
utilized to the next port visited.
2. For the purposes of paragraph 1 above,
"utilizing shore-side power" means:
a.
connecting to electricity supplied by a utility company, or another source with
emissions per unit of delivered energy equivalent to or lower than the January
1, 2007 levels specified in title 17, CCR, sections 94200-94214, "Distributed
Generation Certification Program;" and
b. shutting down all auxiliary engines
subject to this control measure no later than one hour after the vessel is
secured at the port terminal, and continuously thereafter until no more than
one hour prior to when the vessel leaves the terminal.
3. Except as otherwise provided in paragraph
5 below, if a vessel operating under an approved ACE visits two California
ports in succession, and the vessel utilizes shore-side power at the first port
but not at the second port visited, the vessel shall not be considered to meet
the emission reduction requirements of the ACE during the time it is docked at
the second port and any subsequent travel within Regulated California Waters
from this port.
4. Except as
otherwise provided in paragraph 5 below, if a vessel operating under an
approved ACE visits two California ports in succession, and the vessel utilizes
shore-side power at the second port but not at the first port visited, the
vessel shall not be considered to meet the emission reduction requirements of
the ACE during travel within Regulated California Waters to this first port or
during the time the vessel is docked at the first port. Travel from the first
port to the second port where shore-side power is utilized shall be deemed to
meet the emission reduction requirements of the ACE.
5. The provisions in paragraphs 3 and 4 above
notwithstanding, if a passenger cruise vessel operating under an approved ACE
visits a California port, utilizes shore-side power at that port, then leaves
that port and moors (i.e., drops anchor) at another offshore location away from
a port, roadstead or terminal facility (e.g., Catalina Island or off Monterey),
the mooring stop shall not be deemed as a second port visit. However, a person
subject to this provision shall meet the emission limits in subsection (e)(1)
for all auxiliary diesel engines on the passenger cruise vessel (i.e., all
diesel-electric engines) during the entire time the vessel is
moored.
(K) Any person
subject to an approved ACE shall maintain operating records in a manner and
form as specified by the Executive Officer in the approved ACE. Required
records may include, but are not limited to, information on fuel usage, routes,
port calls, maintenance procedures, and emissions test results. Such records
and reports shall be retained for a period of not less than three (3) years and
shall be submitted to the Executive Officer in the manner specified in the
approved ACE and upon request by the Executive Officer, either within 24 hours
or by a later date approved by the Executive Officer.
(L) Emission reductions included in an ACE
shall not include reductions that are otherwise required by any State, federal
or international rule, regulation, or statute.
(M) No person may comply with this section by
operating under an ACE unless the applicant has first been notified in writing
by the Executive Officer that the ACE application has been approved. Prior to
such approval, applicants shall comply with the provisions of this section,
including the emission limits in subsection (e)(1).
(N) No person may comply with this section by
operating under an ACE that has been revoked as provided in subsections
(g)(2)(G) and (g)(3).
(2)
Application Process.
(A) Applications for an
ACE shall be submitted in writing to the Executive Officer for
evaluation.
(B) The Executive
Officer shall establish an internet site ("ACE internet site") in which all
documents pertaining to an ACE application will be made available for public
review. The Executive Officer shall also provide a copy of all such documents
to each person who has requested copies of the documents; these persons shall
be treated as interested parties. The Executive Officer shall provide two
separate public comment periods during the ACE Application process, as
specified in this subsection (g)(2).
(C) Completeness Determination.
Within 15 days after receiving an ACE application, the
Executive Officer shall notify the applicant whether the application is deemed
sufficiently complete to proceed with further evaluation. If the application is
deemed incomplete, the notification shall identify the application's
deficiencies. The Executive Officer shall have an additional 15-day period for
reviewing each set of documents or information submitted in response to an
incomplete determination. Nothing in this subsection prohibits the Executive
Officer from requesting additional information from the applicant, during any
part of the ACE application process, which the Executive Officer determines is
necessary to evaluate the application.
(D) Notice of Completeness and 30-Day First
Public Comment Period.
After an ACE application has been deemed complete, the
Executive Officer shall provide a 30-day public comment period to receive
comments on any element of the ACE application and whether the Executive
Officer should approve or disapprove the ACE application based on the contents
and merits of the application. The Executive Officer shall notify all
interested parties of the following:
1. the applicant(s);
2. the start and end dates for the 30-day
first comment period; and
3. the
address of the ACE internet site where the application is posted.
The Executive Officer shall also make this notification
available for public review on the ACE internet
site.
(E) Proposed
Action and 15-Day Second Public Comment Period.
Within 30 days after the first public comment period ends,
the Executive Officer shall notify the applicant and all interested parties of
ARB's proposed approval or disapproval. This notification shall propose to
approve the application as submitted, disapprove the application, or approve
the ACE application with modifications as deemed necessary by the Executive
Officer. The notification shall identify the start and end dates for the 15-day
second public comment period. During the second public comment period, any
person may comment on the Executive Officer's proposed approval or disapproval
of the ACE application and any element of the application. The Executive
Officer shall also make this notification available for public review on the
ACE internet site.
(F) Final
Action.
Within 15 days after the second public comment period ends,
the Executive Officer shall take final action to either approve or deny an ACE
application and shall notify the applicant accordingly. If the application is
denied or modified, the Executive Officer shall state the reasons for the
denial or modification in the notification. The notification to the applicant
and approved ACE plan, if applicable, shall be made available to the public on
the ACE internet site. In addition, the Executive Officer shall consider and
address all comments received during the first and second public comment
periods, and provide responses to each comment on the ACE internet
site.
(G) Notification to
the Executive Officer of Changes to an Approved ACE.
The applicant shall notify the Executive Officer in writing
within 30 days upon learning of any information that would alter the emissions
estimates submitted during any part of the ACE application process. If the
Executive Officer has reason to believe that an approved ACE has been granted
to a person that no longer meets the criteria for an ACE, the Executive Officer
may, pursuant to subsection (g)(3) below, modify or revoke the ACE as necessary
to assure that the applicant and subject vessel(s) will meet the emission
reduction requirements in this section.
(3) Revocation or Modification of Approved
ACEs.
With 30-days notice to the ACE holder, the Executive Officer
may revoke or modify, as needed, an approved ACE if there have been multiple
violations of the ACE provisions or the requirements of the approved ACE plan;
or if the Executive Officer has reason to believe that an approved ACE has been
granted that no longer meets the criteria or requirements for an ACE or the
applicant can no longer comply with the requirements of the approved ACE in its
current form. Public notification of a revocation or modification of an
approved ACE shall be made available on the ACE internet
site.
(h)
Noncompliance Fee In Lieu of Meeting Subsection (e)(1).
The Executive Officer may permit a person to pay
noncompliance fees in lieu of meeting the requirements of subsection (e)(1).
Payment of the fees notwithstanding, all other provisions of this section shall
continue to apply. No person shall be permitted to pay the fees unless the
person meets the notification requirements in subsection (h)(1) and the
requirements in either subsections (h)(2), (h)(3), or (h)(4), as specified
below:
(1) Notification Requirements.
Before the person's vessel enters Regulated California
Waters, the Executive Officer must receive notice that the person will not meet
the requirements of subsection (e)(1) while operating within Regulated
California Waters, but the person will instead meet the requirements of this
subsection (h). If the Executive Officer has not received such notice and the
person enters Regulated California Waters, the person will be in violation of
this section and will not be permitted to pay the fees in lieu of meeting the
requirements of subsection (e)(1).
(2) Noncompliance for Reasons Beyond a
Person's Reasonable Control.
Any person wishing to pay the fees under this subsection
(h)(2) shall meet the following criteria:
(A) Demonstration of Need.
The person shall, through adequate documentation, demonstrate
to the Executive Officer's satisfaction that the person's noncompliance with
the requirements of subsection (e)(1) is beyond the person's reasonable
control. For the purposes of this paragraph, "beyond the person's reasonable
control" applies only when one or more of the following sets of circumstances
(1, 2, or 3) applies:
1. Unplanned
Redirection.
This provision applies only when all of the following
criteria are met:
a. after leaving the
last port of call, the person's vessel was redirected from his/her original,
officially logged, non-California destination to a California port, roadstead,
or terminal facility ("port"); and
b. the vessel does not contain a quantity of
fuel sufficient for the auxiliary engines to meet the requirements of
subsection (e)(1) and cannot comply using the alternative emission control
strategies under an approved ACE.
2. Inadequate Fuel Supply.
This provision applies only when all of the following
criteria are met:
a. the person made
good faith efforts to acquire a quantity of fuel sufficient for the vessel's
auxiliary engines to meet the requirements of subsection (e)(1); and
b. the person was unable to acquire fuel
sufficient for the engines to meet the requirements of subsection (e)(1) and
cannot comply using the alternative emission control strategies under an
approved ACE.
3.
Inadvertent Purchase of Defective Fuel.
This provision applies only when all of the following
criteria are met:
a. based on the fuel
supplier's certification of the fuel specifications, the person reasonably
believed, and relied on such belief, that the fuel the person purchased on the
route from the vessel's home port to California would enable the auxiliary
engines to meet the requirements of subsection (e)(1);
b. the person determined that the vessel's
auxiliary engines in fact will not meet the requirements of subsection (e)(1)
using any of the fuel purchased under paragraph 3.a. above and the person
cannot comply using the alternative emission control strategies under an
approved ACE; and
c. the vessel is
already on its way to California, and there are no other ports of call on the
vessel's route where fuel can be purchased sufficient to meet the requirements
of subsection (e)(1).
(B) Payment of Fees.
Upon meeting the requirements of paragraph (A) in this
subsection (h)(2), the person shall pay the fees for every port visit, as
specified in subsection (h)(5) below.
(C) Executive Officer Review.
For the purposes of verifying the demonstration of need as
specified in paragraph (A) above, the Executive Officer may consider and rely
on any facts or circumstances the Executive Officer believes are appropriate,
including but not limited to: the fuel supplier's ability or failure to provide
adequate fuel ordered by the person; any material misrepresentation by the fuel
supplier concerning the fuel specifications; the reasonableness of the person's
reliance on fuel suppliers with a history of supplying fuel inadequate for
meeting the requirements of subsection (e)(1); and force
majeure.
(3)
Noncompliance for Vessels to Be Taken Out of Service for Modifications.
If a person cannot meet the requirements of subsection (e)(1)
without vessel modifications, and such modifications cannot be completed prior
to the effective date of subsection (e)(1), the Executive Officer may permit
the person to pay the fees as specified in this subsection. This provision also
applies to vessels that will undergo modifications pursuant to an Executive
Officer approved Alternative Control of Emissions (ACE) Plan. The vessel must
be scheduled to complete the necessary modifications (e.g. during a dry dock
operation) as soon as possible, but no later than 5 years after the effective
date of this section. For this provision to apply, the person shall meet all of
the following criteria:
(A)
Demonstration of Need.
The person shall provide the Executive Officer a Compliance
Retrofit Report, signed by the Chief Engineer of the person's vessel,
which:
1. identifies the specific
vessel modifications ("modifications") (e.g. installation of additional fuel
tanks) the person plans to use for meeting the requirements of subsection
(e)(1) or an ACE Plan;
2.
identifies the specific date by which the modifications will be completed (e.g.
while the vessel is in dry dock); and
3. demonstrates to the satisfaction of the
Executive Officer that the modifications will be made at the earliest possible
date (e.g. the vessel has been scheduled for the earliest available dry dock
appointment).
(B) Payment
of Fees.
Upon meeting the requirements of paragraph (A) in this
subsection (h)(3), the person shall pay the fees for every port visit, as
specified in subsection (h)(5) below.
(C) Proof of Modifications Actually
Performed.
Within ten (10) business days after the scheduled or actual
completion of the modifications, whichever occurs first, the person shall
provide written certification to the Executive Officer that the modifications
specified under this subsection (h)(3) have been completed. If the
modifications have not been completed, the person shall certify which
modifications have been completed, which have not, and the anticipated
completion date for the remaining modifications. The notification requirement
specified in this paragraph, the notification requirements in subsection (h)(1)
above, and the fee provisions in subsection (h)(5) below shall apply until all
the modifications have been completed.
(4) Noncompliance Based on Infrequent Visits
and Need for Vessel Modifications.
If a person cannot meet the requirements of subsection (e)(1)
without modifications for the vessel at issue, and that vessel will make no
more than two California port visits per calendar year, and no more than 4
California port visits after January 1, 2007 during the life of the vessel, the
Executive Officer may permit the person to pay the fees as specified in this
subsection.
(A) Demonstration of Need.
The person shall demonstrate to the satisfaction of the
Executive Officer that modifications to the vessel are necessary to meet the
requirements of subsection (e)(1), and that the vessel shall meet the
visitation limits specified in this subsection (h)(4).
(B) Payment of Fees.
Upon meeting the requirements of paragraph (A) above, the
person shall pay the fees for every port visit up to a maximum of 4 visits, as
specified in subsection (h)(5) below.
(5) Calculation and Payment of Fees.
For each port visit, the person who elects to pay the fees
pursuant to this subsection (h) shall pay the applicable fees shown in Table 1.
For purposes of this provision, "port visit" shall include all stops at a port,
roadstead, or terminal facility in Regulated California Waters, as well as all
moorings (i.e., the ship drops anchor) at an offshore location in Regulated
California Waters away from a port, roadstead or terminal facility (e.g.,
Catalina Island or off Monterey). For each port visit, the person shall deposit
the fees in the port's Noncompliance Fee Settlement and Air Quality Mitigation
Fund prior to leaving the California port or by a later date approved by the
Executive Officer on a case-by-case basis:
(A) After January 1, 2007, each instance of a
vessel stopping or anchoring at a port or offshore in Regulated California
Waters shall count as one port visit, and the port visits shall be cumulative.
Table 1: Noncompliance Fee Schedule, Per
Vessel
|
Visit |
Fee |
|
Diesel-Electric
Vessels |
Other
Vessels |
|
|
|
| 1st Port
Visited | | $32,500 | $13,000 |
| 2nd Port Visited |
| $65,000 | $26,000 |
| 3rd Port Visited |
| $97,500 | $39,000 |
| 4th Port Visited |
| $130,000 | $52,000 |
| 5th or more Port
Visited |
| $162,500 | $65,000 |
(B)
The fees shown in Table 1 shall be assessed by the Executive Officer at the
time of the port visit. However, if for any reason the person is not notified
by the Executive Officer of the assessed fee by the end of the port visit, the
person shall nevertheless be responsible for payment of the appropriate fee as
specified in this subsection (h) prior to leaving the California port or by a
later date approved by the Executive Officer on a case-by-case basis.
(C) The Executive Officer shall enter into
enforceable agreements with each port that will receive the fees. The
agreements shall require that the fees be used by the ports only to fund
projects that will substantially reduce emissions of diesel PM, NOx, and SOx
from on-site sources, sources within 2 miles of port boundaries, or ocean-going
vessels operated within the Regulated California Waters, except that the fees
shall not be used to fund projects on vessels from which noncompliance fees
were paid. Fees intended for ports that do not have such agreements at the time
the fees are paid shall be deposited into the California Air Pollution Control
Fund.
(j) Sunset, Technology Re-evaluation, and
Baseline and Test Method Review.
(1) If the
Executive Officer determines that the International Maritime Organization or
the United States Environmental Protection Agency have adopted regulations for
auxiliary diesel engines and diesel-electric engines that will achieve
equivalent or greater emission reductions from ocean-going vessels in
California compared to the emission reductions resulting from this regulation,
the Executive Officer shall propose to the Board for its consideration the
termination of the requirements of this section or other modifications to the
section as deemed appropriate by the Executive Officer.
(2) On or before July 1, 2008, the Executive
Officer shall re-evaluate the feasibility of the emission limits based on using
marine gas oil with no greater than 0.1 percent sulfur by weight specified in
subsection (e)(1)(B). The re-evaluation shall consider, but not be limited to:
(A) the availability of 0.1 percent sulfur
marine gas oil at bunkering ports worldwide;
(B) the ability of petroleum refiners and
marine fuel suppliers to deliver 0.1 percent sulfur fuel by January 1,
2010;
(C) fuel lubricity;
(D) compatibility of the 0.1 percent sulfur
marine gas oil with heavy fuel oil during fuel transitions; and
(E) the additional cost of 0.1 percent sulfur
fuel compared to marine gas oil with other sulfur content
levels.
(3) Pursuant to
paragraph (2) of this subsection (j), if the Executive Officer determines that
modifications to subsection (e)(1)(B) are necessary, the Executive Officer
shall propose appropriate changes to the Board prior to January 1,
2009.
(4) The Executive Officer
shall periodically review the California baseline determinations by the
National Oceanic and Atmospheric Administration (NOAA) to determine if updates
to the baseline maps incorporated by reference in this section are necessary.
If modifications to the baseline maps are determined to be necessary, the
Executive Officer shall conduct a public hearing as soon as practicable to
amend this section accordingly.
(5)
The Executive Officer shall periodically review the test methods incorporated
by reference in this section to determine if updates to the referenced methods
are necessary. If updates to the test methods are determined to be necessary,
the Executive Officer shall conduct a public hearing as soon as practicable to
amend this section accordingly.
1. New section
filed 12-6-2006; operative 12-6-2006 pursuant to Government Code section
11343.4 (Register 2006, No. 49).
2. Change without regulatory effect
amending subsections (b)(1)(G) and (d)(26)(G) filed 7-2-2008 pursuant to
section 100, title 1, California Code of
Regulations (Register 2008, No. 27).
3. Change without regulatory
effect adding explanatory note referencing court injunction preventing
enforcement of this section pursuant to the decision in Pacific Merchant
Shipping Ass'n. v. Goldstene (9th Cir. 2008) 517 F.3d 1108 filed 5-29-2009
(Register 2009, No. 22).
Note: Authority cited: Sections 39600, 39601, 41511, 43013
and 43018, Health and Safety Code. Reference: Sections 39000, 39001, 39515,
39516, 41510, 41511, 43013, 43016 and 43018, Health and Safety Code; and
Western Oil and Gas Ass'n v. Orange County Air Pollution Control District, 14
Cal.3rd 411, 121 Cal.Rptr. 249
(1975).
