Current through Register 2024 Notice Reg. No. 38, September 20, 2024
(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; and
(F) all waters within 24 nautical miles of
the California baseline, starting at the California-Oregon border and ending at
the California-Mexico border at the Pacific Ocean, inclusive, except for the
region within the area defined by 34.8 degrees North, 121.14 degrees West,
thence to 34.46 degrees North, 120.82 degrees West, thence to 34.36 degrees
North, 120.82 degrees West, thence to 34.29 degrees North, 120.99 degrees West,
and following the boundary 24 nautical miles from the California baseline from
34.29 degrees North, 120.99 degrees West to 34.8 degrees North, 121.14 degrees
West.
(2) Except as
provided in subsection (c), this section applies to 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 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 emergency generators.
(3) The requirements of this section do not
apply to auxiliary engines, main engines or auxiliary boilers onboard
ocean-going vessels owned or operated by any branch of local, state, or federal
government, or by a foreign government, when such vessels are operated within
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, main engines, and auxiliary boilers while such
engines and boilers are operating on alternative fuel in Regulated California
Waters.
(5) The requirements of
this section, including the payment of Noncompliance Fees as provided in
subsection (h), do not apply 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.
(6) Temporary
Experimental or Research Exemption. As provided in this paragraph, the
requirements of this section do not apply to vessels that have been granted a
temporary experimental exemption by the Executive Officer for the duration of
the approved exemption. A temporary experimental exemption may be granted by
the Executive Officer for experimental purposes for up to three years with one
extension for up to three additional years. The exemption will be limited in
duration as specified by the Executive Officer in the Executive Order granting
such an exemption or extension. All documentation and information submitted in
support of an application for a temporary experimental exemption or extension
shall be deemed non-confidential and available for public review under the
Public Records Act.
(A) Pursuant to this
paragraph, a person may operate an auxiliary engine, main engine or auxiliary
boiler with fuel that does not meet the provisions of (e)(1), provided the
person meets all of the following requirements:
1. the person obtains written approval for
this exemption or extension, in the form of an Executive Order from the
Executive Officer, before the vessel enters Regulated California
Waters;
2. the person or master of
the vessel takes all measures available to minimize emissions of diesel PM,
NOx, and SOx to the extent feasible during the period in which the temporary
experimental exemption is in effect;
3. the request for an exemption or extension
is provided in writing, submitted to the Executive Officer at least 30 days
before the vessel enters Regulated California Waters, and contains the
following:
a. specifications for the
non-compliant fuel that the person is proposing to use pursuant to this
paragraph, including but not limited to, sulfur content (expressed to the
nearest tenth weight percent); whether the fuel meets ASTM specifications for
marine diesel oil (MDO), marine gas oil (MGO), or some other fuel (identify
which ASTM specifications the fuel meets, if any); and
b. a clear and convincing demonstration that
the use of the proposed non-compliant fuel will generate data as part of
research that advances the state of knowledge of exhaust control technology or
characterization of emissions. For purposes of this paragraph, the Executive
Officer's determination that the person has provided a "clear and convincing
demonstration" shall be based on whether the person's use of the proposed
noncompliant fuel is an express part of a formal, executed research contract or
project; a doctoral dissertation; or a master's thesis. A demonstration of the
"state of knowledge" includes specific citations to scientific, academic,
industry or regulatory literature existing or in progress at the time of the
request;
c. identification of the
purpose, goals, and objectives of the project, measures taken to minimize
emission of air contaminants, and testing procedures and testing
schedules;
(B)
A person with an exemption granted pursuant to this provision shall:
1. bring the vessel into full compliance with
the requirements of this section, including subsection (e)(1), prior to the
expiration of the temporary experimental exemption as specified; and
2. provide a progress report annually from
the date of the executive order, to the Executive Officer providing interim
test data or other interim results, description of vessel modifications or
retrofitting done as part of the projects or other information generated from
the date of the prior progress report.
3. provide all official test data and all
other results, data, or other information generated during the exemption period
to the Executive Officer, in writing and final form, no more than 90 days after
the expiration of the temporary experimental exemption or
extension.
(C) No
modifications to the terms and conditions of an approved temporary experimental
exemption shall be valid unless in writing and agreed to by both the Executive
Officer and the person. Any variance, deviance, or nonconformance with the
terms and conditions of an approved temporary experimental exemption or
extension shall be deemed a separate violation of this
section.
(d)
Definitions.
For purposes of this section, the following definitions
apply:
(1) "Alternative fuel" means
natural gas, propane, ethanol, methanol, hydrogen, electricity, or fuel cells.
Alternative fuel also means any mixture that only contains these
fuels.
(2) "ASTM" means ASTM
International.
(3) "Auxiliary
boiler" means any fuel-fired combustion equipment designed primarily to produce
steam for uses other than propulsion, including, but not limited to, heating of
residual fuel and liquid cargo, heating of water for crew and passengers,
powering steam turbine discharge pumps, freshwater generation, and space
heating of cabins. Exhaust gas economizers that exclusively use diesel engine
exhaust as a heat source to produce steam are not auxiliary boilers.
(4) "Auxiliary engine" means a diesel engine
on an ocean-going vessel designed primarily to provide power for uses other
than propulsion or emergencies, except that all diesel-electric engines shall
be considered "auxiliary diesel engines" for purposes of this
section.
(5) "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 (August 2008); and
(G) Chart 18740, San Diego to Santa Rosa
Island (March 2007).
(6)
"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.
(7) "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.
(8) "Diesel-electric
engine" means a diesel engine connected to a generator that is used as a source
of electricity for propulsion or other uses.
(9) "Emergency Generator" means a
diesel-electric engine operated only during emergencies or to perform
maintenance and testing necessary to ensure readiness for
emergencies.
(10) "Essential
Modification" means the addition of new equipment, or the replacement of
existing components with modified components, that can be demonstrated to be
necessary to comply with this regulation. Essential modifications do not
include:
(1) changes that are made for
convenience or automation of fuel switching; or
(2) replacement of components that would be
replaced in the absence of this regulation, based on measured component wear,
visual inspection, or expected service life, even if accelerated due to the
fuel requirements. Additional tankage is considered essential only if existing
available tankage has less than the capacity required for a complete voyage
within Regulated California Waters.
(11) "Estuarine Waters" means an arm of the
sea or ocean that extends inland to meet the mouth of a river.
(12) "Executive Officer" means the executive
officer of the Air Resources Board (ARB), or his or her designee.
(13) "Hydrocarbon (HC)" means the sum of all
hydrocarbon air pollutants.
(14)
"Internal Waters" means any navigable river or waterway within the State of
California.
(15) "IMO" means the
International Maritime Organization.
(16) "ISO" means the International
Organization for Standardization.
(17) "Main Engine" means a diesel engine on
an ocean-going vessel designed primarily to provide propulsion, except that
diesel-electric engines shall not be considered "main engines" for purposes of
this section.
(18) "Marine Diesel
Oil (MDO)" 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, or DMB grades as defined in Table I
of International Standard ISO 8217, as revised on June 15, 2010, which is
incorporated herein by reference.
(19) "Marine Gas Oil (MGO)" 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, or DMX, DMA, or DMZ grades as defined in Table I of
International Standard ISO 8217, as revised on June 15, 2010, which is
incorporated herein by reference.
(20) "Master" means the person who operates a
vessel or is otherwise in charge of the vessel's operations.
(21) "Military Vessel" means any ship, boat,
watercraft, or other contrivance used for any purpose on water, and owned or
operated by the armed services.
(22) "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.
(23) "Non-Methane Hydrocarbons (NMHC)" means
the sum of all hydrocarbon air pollutants except methane.
(24) "Ocean-going Vessel (OGV)" means a
commercial, government, or military vessel meeting any one of the following
criteria:
(A) a non-tanker vessel greater than
or equal to 400 feet in length overall (LOA) as defined in
50 CFR §
679.2, as adopted June 19, 1996;
(B) a non-tanker vessel greater than or equal
to 10,000 gross tons (GT ITC) per the convention measurement (international
system) as defined in 46 CFR
69.51 -.61, as adopted September 12,
1989;
(C) a non-tanker vessel
propelled by a marine compression ignition engine with a per-cylinder
displacement of greater than or equal to 30 liters; or
(D) a tanker that meets any one of the
criteria in subsections (A)-(C). For purposes of this section, "ocean-going
vessel" does not include tugboats, towboats, or pushboats.
(25) "Operate" means steering or otherwise
running the vessel or its functions while the vessel is underway, moored,
anchored, or at dock.
(26) "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.
(27) "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).
(28) "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.
(29) "Port Visit"
means any of the following:
(A) each separate
and distinct entry of a vessel into a port, roadstead, or terminal facility
(collectively "port") in Regulated California Waters that results in the vessel
stopping, docking, mooring, or otherwise dropping anchor (collectively
"stopping") at the port. The "port visit" continues if the vessel moves to a
different berth within the same port, but the "port visit" ends when the vessel
leaves for or is otherwise moved to another port within the same bay or any
other port;
(B) except as provided
in paragraph (C) below, each separate and distinct entry of a vessel into an
offshore location in Regulated California Waters away from a port that results
in the vessel stopping at that offshore location (e.g., Catalina Island or off
Monterey). The "port visit" ends when the vessel leaves for or is otherwise
moved to a port or another offshore location; or
(C) each separate and distinct entry of a
vessel into an offshore location in Regulated California Waters away from a
port that results in the vessel stopping, followed by entry into that port,
shall constitute one "port visit", provided the offshore stop was conducted
solely because the port could not accept the vessel as scheduled due to reasons
beyond the reasonable control of the vessel operator or
master.
(30) "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; and
(F) all waters within 24 nautical miles of
the California baseline, starting at the California-Oregon border and ending at
the California-Mexico border at the Pacific Ocean, inclusive, except for the
region within the area defined by 34.8 degrees North, 121.14 degrees West,
thence to 34.46 degrees North, 120.82 degrees West, thence to 34.36 degrees
North, 120.82 degrees West, thence to 34.29 degrees North, 120.99 degrees West,
and following the boundary 24 nautical miles from the California baseline from
34.29 degrees North, 120.99 degrees West to 34.8 degrees North, 121.14 degrees
West.
(31) "Roadstead"
means any facility that is used for the loading, unloading, and anchoring of
ships.
(32) "Steamship" means a
self-propelled vessel in which the primary propulsion and electrical power are
provided by steam boilers.
(33)
"Slow Speed Engine" means an engine with a rated speed of 150 revolutions per
minute or less.
(34) "Sulfur
Oxides" means compounds of sulfur dioxide (SO2), and
other oxides of sulfur, which are typically created during combustion of sulfur
containing fuels.
(35) "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.
(36) "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.
(37) "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.
(38) "Voyage" means each separate and
distinct journey that begins when a vessel reaches Regulated California Waters
from a point beyond Regulated California Waters, includes at least one port
visit, and ends when the vessel departs from Regulated California
Waters.
(g)
Noncompliance for Vessels Based on the Need for Essential
Modifications.
If a person cannot meet the requirements of subsection (e)(1)
without essential modifications, as defined in subsection (d), the Executive
Officer will grant the person an exemption in whole or in part to subsection
(e)(1). For this provision to apply, the person shall meet all of the following
criteria:
(1) Notification
Requirements.
For each voyage before the person's vessel enters Regulated
California Waters from waters outside Regulated California Waters, a person who
has demonstrated need under subsection (g)(2) must notify the Executive Officer
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 (g). 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.
(2) Demonstration of Need.
At least 45 days prior to a vessel's first reliance on
subsection (g) when entering Regulated California Waters, or at the earliest
practicable date prior to entry into Regulated California Waters if first
reliance on subsection (g) is less than 45 days after the effective date of
this section, the person shall provide, in writing, the Executive Officer with
an Essential Modification Report attested to under the penalty of perjury by
the Chief Engineer of the person's vessel. The Executive Officer has 30 days to
act on the Essential Modification Report. Additional information may be
provided by the applicant or requested by the Executive officer after submittal
of the original Essential Modification Report. The Executive Officer will have
an additional 15 days to review the additional submittal and act on the amended
Essential Modification Report. The Essential Modification Report shall, to the
satisfaction of the Executive Officer:
(A) identify the specific essential vessel
modifications ("essential modifications" as defined in subsection (d)) required
to meet the requirements of subsection (e)(1);
(B) demonstrate that modifications to the
vessel are necessary to meet the requirements of subsection (e)(1);
and
(C) identify the maximum
extent, with respect to trip distance or regulated equipment type, to which the
vessel can meet the requirements of (e)(1) without essential modifications
where feasible and safe for each of the auxiliary engines, main engines, and
auxiliary boilers.
(3)
While the vessel is operating in Regulated California Waters, a person subject
to this subsection shall:
(A) operate each
main engine meeting the requirements of (e)(1) to the extent identified in
(g)(2)(C);
(B) operate each
auxiliary boiler meeting the requirements of (e)(1) to the extent identified in
(g)(2)(C); and
(C) operate each
auxiliary engine meeting the requirements of (e)(1) to the extent identified in
(g)(2)(C).
(h)
Noncompliance Fee in Lieu of Meeting Subsection (e)(1).
The Executive Officer may permit a person ("person") to pay
noncompliance fees ("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
from waters outside 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 (collectively "port"); and
b. the vessel does not contain a quantity of
fuel sufficient for the auxiliary engines, main engines, and auxiliary boilers
to meet the requirements of subsection (e)(1).
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 auxiliary
engines, main engines, and auxiliary boilers to meet the requirements of
subsection (e)(1); and
b. the
person was unable to acquire fuel sufficient for auxiliary engines, main
engines, and auxiliary boilers to meet the requirements of subsection
(e)(1).
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, main engines, and auxiliary boilers to meet the requirements of
subsection (e)(1);
b. the person
determined that the auxiliary engines, main engines, and auxiliary boilers in
fact will not meet the requirements of subsection (e)(1) using any of the fuel
purchased under paragraph 3.a; 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 elects not to comply under section (g), 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. 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 December 31, 2014. 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
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,
fuel cooling systems) the person plans to use for meeting the requirements of
subsection (e)(1);
2. identifies
the specific date by which the modifications will be completed (i.e., 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 elects not to comply under
section (g), and that vessel will make no more than two California voyages per
calendar year, and no more than 4 California voyages after the effective date
of the regulation, during the life of the vessel, the Executive Officer may
permit the person to pay the fees as specified in this subsection. This
provision terminates on December 31, 2014.
(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 as specified in subsection
(h)(5) below.
(5)
Calculation and Payment of Fees.
Fees will be calculated based on the number of port visits
made by a person using fuel that does not comply with subsection (e)(1). 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 prior to leaving
the California port or by a later date approved by the Executive Officer. For
persons that purchase fuels complying with subsection (e)(1) during their
California port visit, and use these complying fuels during their port visit
and upon departure, the fees specified in Table 1 shall be halved. The person
shall deposit the fees in the port's Noncompliance Fee Settlement and Air
Quality Mitigation Fund. If no such port fund exists, the person shall deposit
the fees into the California Air Pollution Control Fund, as directed by the
Executive Officer. Port visits shall be cumulative for all non-compliant port
visits over the life of the vessel. For the purposes of this paragraph, any
port visit where the non-compliance fee is waived shall not be included in the
cumulative total.
(A) Noncompliance
Fee Schedule.
Table 1: Noncompliance Fee Schedule, Per
Vessel
|
Port
Visit |
Per-Port Visit
Fee |
|
1st Port Visited |
$45,500 |
|
2nd Port Visited |
$45,500 |
|
3rd Port Visited |
$91,000 |
|
4th Port Visited |
$136,500 |
|
5th or more Port Visited |
$182,000 |
(B)
The fees shown in Table 1 shall be assessed by the Executive Officer at the
time of the port visit. For the purposes of assessing fees under subsection
(h), offshore anchorages made in conjunction with a port visit shall not be
considered as a separate port visit.
(C) For subsection (h)(2), beginning January
1, 2014, the fee will be waived once per vessel during each calendar year until
December 31, 2014, when all of the following are met:
1. a person acquires fuel and meets the
requirements of subsection (e)(1) prior to leaving the first port visited
during the voyage and meets the requirements of (e)(1) for the remainder of the
voyage; and
2. during any
non-compliant portion of the voyage, a person operates each auxiliary engine,
main engine, and auxiliary boiler with either marine gas oil (MGO), with a
maximum of 1.0 percent sulfur by weight, or marine diesel oil (MDO), with a
maximum of 0.5 percent sulfur by weight, rounded as specified in subsection
(i)(3).
(D) The Executive
Officer may 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.
(E) 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.
1. New section
filed 5--29--2009; operative 6--28--2009 (Register 2009, No. 22).
2.
Amendment filed 10--27--2011; operative 10--27--2011 pursuant to Government
Code section 11343.4 (Register 2011, No. 43).
3. Change without
regulatory effect amending subsection (e)(1)(B)2. filed 9-14-2012 pursuant to
section 100, title 1, California Code of
Regulations (Register 2012, No. 37).
Note: Authority cited: Sections 39600, 39601, 41510, 41511,
43013 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). Reference: Sections 39000, 39001, 39002, 39003, 39500, 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).
