Final Statement of Reasons for Rulemaking

Including Summary of Comments and Agency Responses

PUBLIC HEARING TO CONSIDER PROPOSED AMENDMENTS TO THE 

REGULATIONS “FUEL SULFUR AND OTHER OPERATIONAL 

REQUIREMENTS FOR OCEAN-GOING VESSELS WITHIN CALIFORNIA 

WATERS AND 24 NAUTICAL MILES OF THE CALIFORNIA BASELINE

Public Hearing Date: June 23, 2011

Agenda Item No.: 11-4-5
i

TABLE OF CONTENTS

Contents Page

I. General................................................................................................................. 1

II. Modifications Made to the Original Proposal ........................................................ 5

III. Summary of Comments and Agency Responses to the Amendments ................. 5

A. Legal Authority........................................................................................... 8

B. International and Federal Regulations ....................................................... 9

C. Phase 2 Implementation Date.................................................................. 12

D. Miscellaneous Comments........................................................................ 14

IV. Summary of Public Comments and Agency Responses –

 Notice of Modified Text....................................................................................... 19

V. Non Substantive Changes Made to the Rulemaking Record.............................. 27
1

State of California

AIR RESOURCES BOARD

Final Statement of Reasons for Rulemaking,

Including Summary of Comments and Agency Response

PROPOSED AMENDMENTS TO THE REGULATIONS ―FUEL SULFUR 

AND OTHER OPERATIONAL REQUIREMENTS FOR OCEAN-GOING 

VESSELS WITHIN CALIFORNIA WATERS AND 24 NAUTICAL MILES OF 

THE CALIFORNIA BASELINE

Public Hearing Date: June 23, 2011

Agenda Item No.: 11-4-5

I. GENERAL

In this rulemaking, the Air Resources Board (ARB or Board) adopted amendments to 

the Regulations ―Fuel Sulfur and Other Operational Requirements for Ocean-Going 

Vessels within California Waters and 24 Nautical Miles of the California Baseline.‖1 The 

Staff Report: Initial Statement of Reasons for Rulemaking (―Staff Report‖), entitled 

―Proposed Amendments to the Regulations for Fuel Sulfur and Other Operational 

Requirements for Ocean-Going Vessels Within California Waters and 24 Nautical Miles 

of the California Baseline‖ released April 4, 2011, contained a description of the 

rationale for the proposed amendments and is incorporated by reference herein. On

April 4, 2011, all references relied upon and identified in the Staff Report were made 

available to the public. An email message announcing and linking to the Public Hearing 

Notice and Related Materials posting was transmitted to parties that have subscribed to 

―Maritime‖ and ―Board‖ list serves for notification of postings pertaining to marine 

vessels. 

The primary purpose of the amendments to the OGV Clean Fuel Regulation is to adjust 

the offshore regulatory boundary for the clean fuel zone2in Southern California to 

lessen the potential for ocean-going vessels (OGVs or vessels) to interfere with 

operations at the United States Navy’s Point Mugu Sea Range and to reestablish the 

anticipated emission reductions from the regulation. In addition, the amendments help

facilitate a successful transition to very low sulfur fuels by aligning implementation dates 

more closely with recently approved federal requirements. 

 

1 Two essentially identical regulations were amended that reflect the authorities granted to the ARB in the 

California Health and Safety Code to regulate sources of toxic air contaminants and to regulate marine 

vessel emissions. Throughout this report the regulations are collectively referred to as ―the OGV Clean 

Fuel Regulation‖ or ―the regulation.‖

2 The clean fuel zone or regulatory zone refers to a region offshore the California coastline wherein OGV 

are required to use cleaner fuels. 
2

The amendments include extending the clean fuel zone further off shore and aligning it 

more closely in Southern California with the ―Contiguous Zone,‖ which is 

24 nm from the California Baseline (shoreline), which includes offshore islands. In 

addition, the amendments to the clean fuel zone include a small region (―window‖) 

within the 24 nm boundary off Point Conception where the vessels are exempted from 

the clean fuel requirements. This exemption window is provided to encourage vessels 

to travel in the established shipping lanes in the Santa Barbara Channel when headed 

to or from the ports of Los Angeles and Long Beach (POLA and POLB). This proposed 

change in the clean fuel zone lessens the economic incentive for OGVs to transit 

through the Point Mugu Sea Range instead of the Santa Barbara Channel and helps to

reestablish the emission reductions from the regulation. No changes are proposed to 

the clean fuel zone in Northern California. To facilitate a more successful transition to 

the 0.1 percent (%) sulfur fuel, the Phase 2 implementation date is extended from 

January 1, 2012 to January 1, 2014. 

Minor amendments are included to modify the ―noncompliance fee provision,‖ which in 

limited specified situations allows the payment of fees in lieu of direct compliance with 

the rule through the use of cleaner fuels. The amendments include adjusting the fee 

schedule specified in the regulation, reducing the fees by half for vessel operators that 

purchase and use complying fuels after arriving to a port on noncomplying fuel, and 

proposing that offshore anchorages made in conjunction with a port visit not be counted 

as a separate ―port visit.‖ 

The OGV Clean Fuel Regulation is also amended to include a March 2007 update to 

the National Oceanic and Atmospheric Administration (NOAA) nautical chart 18740 

covering California’s coastline from San Diego to Santa Rosa Island. This chart is used 

to help define the clean fuel zone, also referred to as California Regulated Waters. In 

addition, the definition of the fuels required under the OGV Clean Fuel Regulations is

amended to reflect recent changes in how these fuels are specified under international 

standards. 

At the June 23, 2011 hearing, the Board received written and oral comments. At the 

conclusion of the hearing, the Board adopted Resolution 11-25, in which it approved the 

originally proposed amendments to the regulation with modifications presented by ARB 

staff at the hearing. The Board directed the Executive Officer to incorporate the 

modifications into the proposed regulatory text and to make such modifications available 

for a supplemental comment period of at least 15 days in accordance with section 

11346.8 of the Government Code. The Executive Officer was then directed either to 

adopt the regulation with such additional modifications as he determined to be 

appropriate or to present proposed changes to the Board for further consideration if he 

determined further Board consideration was warranted.

The modified text of the regulation was made available for a supplemental 15-day 

comment period by issuance of a ―Notice of Public Availability of Modified Text and 

Availability of Additional Documents‖ (―15-day Notice‖). The 15-day Notice, a copy of 

Resolution 11-25, and the document entitled ―Modified Regulation Order‖ were provided
3

on July 25, 2011, to all parties identified in section 44(a), title 1, CCR, and to other 

persons generally interested in the ARB’s rulemaking concerning ocean-going vessels. 

These documents were also published on July 25, 2011, on ARB’s internet site. An 

email message announcing and linking to the 15-day Notice posting was transmitted to 

parties that have subscribed to ―Maritime‖ and ―OGV11‖ list serves for notification of 

postings pertaining to marine vessels. 

The 15-day Notice gave the name, telephone, and fax number of the ARB contact 

person from whom interested parties could obtain the complete texts of the additional 

documents relied upon and the modifications to the original proposal, with all of the 

modifications clearly indicated. The deadline for submittal of comments on the 

suggested modifications was August 9, 2011. 

The 15-day notice included amended fuel requirements to better coordinate with the fuel 

requirements in the North American Emission Control Area (North American ECA) 

approved by the International Maritime Organization. Specifically, the ―Phase 1‖ 

sulfur (S) content limit for marine gas oil was reduced from 1.5% to 1% beginning on

August 1, 2012. This modification is consistent with the 1% sulfur limit for marine fuels 

required under the North American ECA, starting August 1, 2012.

After considering the comments received during the supplemental 15-day comment 

period, the Executive Officer issued Executive Order R-11-012, adopting the

amendments to section 2299.2 in title 13, CCR, and section 93118.2, title 17, CCR. 

The Executive Officer also adopted findings under the California Environmental Quality 

Act.

This Final Statement of Reasons (FSOR) updates the Staff Report by identifying and 

providing the rationale for the modifications made to the originally proposed amended 

regulatory text and updating information in the Staff Report. The FSOR also 

summarizes written and oral comments the Board received on the proposed regulatory 

text during the formal rulemaking process and provides the ARB staffs’ responses to 

those comments.

Documents Incorporated by Reference. The following documents are incorporated 

by reference in the regulation: (1) International Standard ISO 8217, ―Specification of 

Marine Fuels Requirements for Marine Residual Fuels,‖ (as revised June 15, 2010); and 

(2) the National Oceanic and Atmospheric Administration (NOAA) Chart 18740, San 

Diego to Santa Rosa Island (March 2007). Each of these documents was listed in the 

45-day Notice and included in the amended regulation as proposed.

The two documents listed above consist of the following: (1) 2010 version of an

international standard specifying the range of allowable properties for various marine 

fuels, including the fuels specified in the regulations; (2) a nautical chart defining 

sections of the California baseline (i.e., coastline). Each instance of incorporation 

identifies the incorporated document by title and date. The documents are readily 

available from the ARB upon request and were made available in the context of this 
4

rulemaking in the manner specified in Government Code section 11346.5(b). Also, the 

referenced ISO document is published by the International Organization for 

Standardization, a well-established and prominent organization. Similarly, the nautical 

chart is available from the National Oceanic and Atmospheric Administration, a U.S. 

federal agency. Therefore, both of the incorporated documents are reasonably 

available to the affected public from commonly known sources. 

Fiscal Impacts. The Executive Officer has determined that this regulatory action will not 

impose a mandate upon any local agencies or school districts, whether or not it is 

reimbursable by the State pursuant to Part 7 (commencing with section 17500), division 

4, title 2 of the Government Code. Except as discussed below, the Executive Officer 

has also determined that this regulatory action will not result in costs or savings, as 

defined in Government Code section 11346.5(a)(5) and 11346.5(a)(6), to any state 

agency, or in federal funding to the state, or create other nondiscretionary cost or 

savings imposed on local agencies.

The estimated total costs associated with the proposed amendments are approximately 

$10 million annually in 2012 and 2013, and $47 million in 2014. These estimated 

annual costs represent the net additional costs associated with the proposed 

amendments over and above compliance with the current regulation. 

The average cost-effectiveness of the proposed amendments (over and above the cost 

of the original rulemaking) is estimated to be about $16 per pound of diesel PM reduced 

over the three year life of the regulation assuming all of the regulatory costs are 

assigned to the diesel PM reductions. This compares favorably to other regulations the 

Board has adopted previously, as well as to the original regulation.

The Executive Officer does not expect any fiscal costs on local agencies since local 

agencies do not operate ocean-going vessels as defined in these regulations. 

Consideration of Alternatives. The amendments proposed in this rulemaking were the 

subject of discussions involving ARB staff, the affected owners and operators of oceangoing vessels that visit California ports, and other interested parties. A discussion of 

alternatives to the initial regulatory proposal is found in Chapter III of the Staff Report. 

Specifically, the following alternative approaches were discussed: (1) Do nothing and

(2) Suspend the original regulation and rely on U.S. Environmental Protection Agency 

(U.S. EPA) and International Maritime Organization (IMO) regulation. For the reasons 

set forth in Chapter III of the Staff Report, in staff’s comments and responses at the 

hearings, and in this FSOR, the Board has determined that none of the alternatives 

considered by the agency or that have otherwise been identified and brought to the 

attention of the agency would be more effective in carrying out the purpose for which 

the regulatory action was proposed or would be as effective and less burdensome to 

affected private persons than the action taken by the Board.
5

II. MODIFICATIONS MADE TO THE ORIGINAL PROPOSAL

At the June 23, 2011 hearing, the Board approved the amendments to the OGV Clean 

Fuel Regulation with modifications and authorized the Executive Officer to make such 

additional modifications that he determined to be appropriate. All modifications made to 

the text of the regulation after publication of the 45-day Notice were circulated with the 

15-day Notice for public comments. The following is a description of the modifications 

and clarifications, by section number.

Operational Requirements (subsections 2299.2[e] and 93118.2[e]): The 

requirements in subsection (e)(1)(A) and (B) were modified to incorporate a 1.0% sulfur 

by weight limit for marine gas oil that will become effective 

August 1, 2012.

Noncompliance Fee in Lieu of Meeting subsection (e)(1). (subsections 2299.2[h] 

and 93118.2[h]): The requirements in subsection (h)(5)(C) were modified to incorporate 

a 1.0% sulfur by weight limit for marine gas oil that will become effective 

August 1, 2012.

III. SUMMARY OF COMMENTS AND AGENCY RESPONSES TO THE ORIGINAL 

PROPOSAL

The Board received both written and oral comments during the formal 45-day 

rulemaking comment period which began with the notice publication on 

May 4, 2011 and ended with the Board hearing on June 23, 2011. 

We received written and/or oral comments in support of the regulation or the rulemaking 

process from the following persons:

Michael Villegas, Ventura County Air Pollution (Written and Oral)

Barry Wallerstein, South Coast Air Quality Management District (Written)

Henry Hogo, South Coast Air Quality Management District (Oral)

C.L. Stathos, Department of the Navy (Written)

Randal Friedman, Department of the Navy (Written and Oral)

Kathy Long, County of Ventura/Regional Defense Partnership 21 (Written and Oral)

Jonathan Sharkey, Port Hueneme Councilmember (Oral)

The comments provided in support of the regulation amendments are not separately 

summarized and responded to in this FSOR.

Written and/or oral comments were also provided by the persons identified below. 

Following the list is a summary of each objection or recommendation made regarding 

the proposed action, together with an explanation of how the proposed action has been 

changed to accommodate the objection or recommendation or the reasons for making 

no change. The comments have been grouped by topic whenever possible. 
6

Comments Received During the 45-day Comment Period

(Excluding Statements in Support of the Regulation)

Abbreviation Commenter

ALA

 

Bonnie Holmes-Gen

American Lung Association

Oral Testimony: June 23, 2011

CCA

 

Candace Kim

Coalition for Clean Air and Others

Written Testimony: June 17, 2011

CCA1

 

Martin Schlageter

Coalition for Clean Air and Others

Written testimony: June 17, 2011

CCA2

 

Martin Schlageter

Coalition for Clean Air and Others

Oral Testimony: June 23, 2011

Written testimony: June 23, 2011

CHEVRON

 

Dan Krokosky

Chevron Shipping Company LLC

Oral Testimony: June 23, 2011

HANJIN

 

Henry Pak

Hanjin Shipping

Written Testimony: June 20, 2011

Oral Testimony: June 23, 2011

NAVY C.L. Stathos

Department of the Navy

Written Testimony: June 14, 2011 

NAVY1 Randall Freidman

Department of the Navy

Oral Testimony: June 23, 2011

NRDC

 

Diane Bailey

Natural Resources Defense Council

Oral Testimony: June 23, 2011
7

Abbreviation

Comments Continued

Commenter

NRDC1

 

Cooper Hanning

Natural Resources Defense Council

Oral Testimony: June 23, 2011

PMSA T.L. Garrett

Vice President

Pacific Merchant Shipping Association

Written Testimony: June 22, 20113

SCAQMD Barry Wallerstein

South Coast Air Quality Management District

Written Testimony: June 17, 2011

 

3

PMSA submitted a letter on June 22, 2011 (letter was dated July 22, 2011) which contains comments on 

the proposed amendments and those comments, along with the agency responses, are included in this 

FSOR. Attached to the June 22, 2011 letter were two letters dated July 23, 2008 and March 23, 2009. 

These letters were not directed to this current rulemaking but were comments directed to a prior 

rulemaking approved by OAL and filed with the Secretary of State on May 29, 2009 and were submitted 

by PMSA during the 45 day and 15 day comment periods for the prior Rulemaking. Those letters, along 

with the agency responses, can be found in the FSOR for the original rulemaking (Final Statement of 

Reasons for Rulemaking, Including Summary of Comments and Agency Responses, Public Hearing to 

Consider Adopting Regulations on Fuel Sulfur and Other Operational Requirements for Ocean-Going 

Vessels Within California Waters and 24 Nautical Miles of the California Baseline, 2009) which is 

available at: http://www.arb.ca.gov/regact/2008/fuelogv08/fuelogv08.htm.
8

A. Legal Authority

1. Comment: This regulation and these amendments are preempted by the 

Dormant Commerce Clause and the Submerged Lands Act. The state of 

California lacks authority to impose any regulatory requirements on vessels in 

territorial and international waters beyond the California three mile limit without 

specific Congressional consent. The ISOR also assumes that California has the 

authority to regulate the use of low-sulfur fuel on foreign flagged vessels in 

international water that are involved in international trade with the United States. 

Not only does the analysis presented in Section IV fail to assess the entire 

benefits of the Emission Control Area (ECA) since that analysis is limited to 

100 nm, not the 200 nm of the ECA, it is fundamentally flawed in that it assumes 

that California has authority beyond the traditional three-mile limit. We have 

reviewed CARB’s legal opinion and respectfully disagree with its conclusions. 

Through our review of the issues, it is clear that the authority to regulate beyond 

the state’s three mile limit is restricted to the federal government. (PMSA)

Agency Response: The issue of authority has been addressed in the Staff Report and 

the staff report for the original rulemaking, titled Initial Statement of Reasons for 

Proposed Rulemaking, Fuel Sulfur and Other Operational Requirements for OceanGoing Vessels Within California Waters and 24 Nautical Miles of the California Baseline, 

June 2008 (―2008 OGV Staff Report‖). Under State and federal law, ARB can regulate

both criteria pollutants and toxic diesel PM emissions from marine vessels. Health and

Safety Code (H&S) sections 43013 and 43018 authorize ARB to regulate marine vessels

to the extent such regulation is not preempted by federal law. Also, H&S section 39666

requires ARB to regulate emissions of toxic air contaminants (TAC) from nonvehicular

sources, which include ocean-going vessels.

The OGV Clean Fuel Regulation and the proposed amendments are neither preempted

under federal law, nor does it violate the dormant Commerce Clause of the U.S.

Constitution. Federal authorization under section 209(e) of the Clean Air Act (CAA) is

required for regulating new nonroad engines and for requiring retrofits on existing

engines. OGV engines, by definition, fall within the category of nonroad engines.

However, no federal authorization is required for implementing in-use operational

requirements on existing marine vessels and their engines. The OGV Clean Fuel 

Regulation is an in-use operational requirement, rather than an emissions standard,

because it does not apply a numerical emissions limit to be met (e.g., 10 grams NOx

per brake horsepower-hour), does not require retrofits, and does not mandate design

changes to the vessel. Rather, the regulation only requires that specified fuels be used

on OGV engines and auxiliary boilers operating in Regulated California Waters. The 

proposed amendments to the OGV Clean Fuel Regulation do not change this aspect 

of the regulation. 

Further, the Submerged Lands Act (SLA) does not preempt the OGV Clean Fuel 

Regulation or the proposed amendments. The SLA is a grant of lands to the states; it is 
9

not a limitation on states’ power. See Pacific Merchant Shipping Ass’n v. Goldstene, 

639 F.3d 1154 (9th Cir. 2011).

2. Comment: Although PMSA has repeatedly requested that CARB provide an 

assessment of the impacts or benefits of implementing and enforcing the 

regulation at the 3 nm or even the 12 nm distances, CARB has failed to do so. 

PMSA believes that the Board must be informed of the impacts and benefits of 

the proposed regulation at those distances in order to reach a fully informed 

decision on the proposed regulation in the event that the jurisdictional distance is 

indeed limited to 3 nm. By only providing the analysis to 24 nm the Board fails to 

justify the extension of the jurisdictional limits beyond 3nm. In limiting the 

analysis to 24 nm the Board has no way of evaluating the disproportionate 

benefits nearer to shore and within California ports adjacent to the most impacted 

communities. In order to reach a fully informed decision on the proposed 

regulation the Board should delay approval until staff has completed a thorough 

analysis on implementing the regulation at 3 nm. (PMSA)

Agency Response: ARB staff conducted extensive analyses and modeling in the 2008 

rulemaking for the original regulation (as discussed in detail in the 2008 OGV Staff 

Report Chapter IV and Appendices E1 and E2) demonstrating that the emissions from 

OGVs within the clean fuel zone which extends approximately 24 nm offshore will 

impact onshore air quality and that it is important to reduce these emissions. The Staff 

Report for the proposed amendments demonstrates that these air quality benefits will 

be maintained with the amended regulation, and that the regulation is cost-effective and 

technologically feasible. Implementing a regulation with boundaries closer to shore 

would result in substantially lower emission reductions and less onshore air quality 

benefits, while also introducing potential safety concerns associated with fuel switching 

closer to shore, as discussed in the staff report for the 2005 rulemaking on the similar 

fuel regulation for auxiliary engines on oceangoing vessels, titled Staff Report: Initial 

Statement of Reasons for Proposed Rulemaking, Proposed Regulation for Auxiliary 

Diesel Engines and Diesel-Electric Engines Operated on Ocean-Going Vessels Within 

California Waters and 24 Nautical Miles of the California Baseline, October 2005, 

Chapter VI, pages VI-12-13 (―2005 Auxiliary Engine Staff Report‖). 

B. International and Federal Regulations

1. Comment: Not only does the analysis presented in Section IV fail to assess the 

entire benefits of the Emission Control Area (ECA) since that analysis is limited 

to 100 nm, not the 200 nm of the ECA, it is fundamentally flawed in that it 

assumes that California has authority beyond the traditional three-mile limit.

Finally, staff has failed to acknowledge that the approved Emission Control Area 

(ECA), extending 200 nm offshore, is far more likely to achieve the desired 

emission reductions and stabilize vessel routes than these amendments.

Beyond the legal issues PMSA believes that the analysis in the ISOR is both 
10

incomplete and inaccurate in assessing the impacts and the benefits of the 

proposed regulation. The ISOR fails to fully assess the benefits of current 

federal and international regulations that have been approved since the current 

regulation was approved in July 2008. Finally, the ISOR fails to inform the Board 

of the impacts and benefits of the regulation if the jurisdiction of the regulation is 

limited to three-miles from the California coast. (PMSA)

Agency Response: As discussed in Chapter III of the Staff Report, relying on the 

North American ECA alone prior to 2015 would result in substantial increases in 

particulate matter (PM) and sulfur oxide (SOx) emissions. The commenter’s primary 

point, that ARB should rely on the North American ECA rather than this regulation, is 

reiterating a comment raised during the 2008 rulemaking for the adoption of the OGV 

Clean Fuel Regulation, rather than focusing on the amendments to the regulation 

addressed in this rulemaking. Our analysis of the emissions impacts for the 

amendments is based on the current State Implementation Plan (SIP) inventory that 

extends to 100 nm because only emission reductions that occur within that zone are 

currently credible under U.S. EPA regulations. As discussed on pages ES-7 and ES-8 

of the Staff Report and graphically depicted in Figure ES-3 on page ES-8, the OGV 

Clean Fuel Regulation achieves significantly more emission benefits than the ECA 

Phase 1 requirements. This is because the Phase 1 ECA requirements do not mandate 

the use of the cleaner marine distillate fuels. 

The analysis of the emissions and public health benefits within the South Coast Air 

Basin in Appendix C is illustrative of the difference between the impacts of the North 

American ECA and the amended OGV Clean Fuel Regulation. The South Coast Ozone 

Study domain used in the modeling does extend out to about 200 nm in one of the more 

critical regions in the waters off Southern California where a majority of the shipping 

activity occurs. Comparing the emissions between Scenarios MS1A (North American 

ECA only with 1% sulfur fuel) and MS4ws (Amended ARB rule, No North American 

ECA) show the dramatic difference in emissions. For example, as shown in Table C-3, 

SOx emissions are estimated at roughly 36 tons per day under Scenario MS1A, versus 

about 11 tons per day under Scenario MS4ws. As is shown in Table C-4, the amended 

OGV Clean Fuel Regulation will also provide significant public health benefits prior to 

2015 that are above and beyond what would be provided if only the North American 

ECA was implemented (710 annual cardiopulmonary mortalities avoided vs. 360). 

Regarding the commenter’s point that the North American ECA is more likely to 

―stabilize vessel routes,‖ we believe the rule amendments will accomplish this goal by 

removing the economic incentive to using alternatives to the established shipping lanes 

(see Chapter IV of the Staff Report). 

Finally, the responses to the previous two comments address the commenter’s incorrect 

assertion that California lacks authority to regulate OGV emission beyond three miles. 

2. Comment: At the very least CARB should revise the analysis to include the 

availability and operational limitations of multiple fuel types and switches and 

consider the ―sunset‖ of the amended regulation if equivalence is shown with the 
11

first phase of the CARB regulation.

We strongly urge CARB to complete this analysis and to provide for an early 

―sunset‖ of the amended regulation based on confirmation of the ECA providing 

equivalent emission reductions. (PMSA)

Agency Response: In response to current requirements such as the North Sea and 

Baltic Sea ECAs and OGV Clean Fuel Regulation, vessel operators have demonstrated 

that it is technically feasible to switch between different fuel types and it is a viable 

operating practice used to lower fuel costs. To comply with cleaner fuel requirements, 

vessels typically operate on less expensive, high sulfur fuel oil outside the clean fuel

zone and then switch to cleaner fuel as required in the clean fuel zone. Based on 

current operational practices, ARB staff believes that vessel operators will continue to 

fuel switch to meet the requirements of the North American ECA and the OGV Clean 

Fuel Regulation. 

During the first phase of the North American ECA (August 1, 2012 to January 1, 2015),

the North American ECA requirement limiting the fuel sulfur content to 1% allows for 

using either heavy fuel oil or distillate fuel, typically marine gas oil (MGO) or marine 

diesel oil (MDO). However, the California OGV Clean Fuel Regulation includes both a 

limit on sulfur content and a requirement to use marine distillate. Recent evaluation of 

the sulfur levels of MGO and MDO being used to comply with the OGV Clean Fuel 

Regulation Phase 1 requirement shows that the average sulfur level of the fuel is about 

0.3%, which is significantly lower than a 1% limit. Therefore, while the North American 

ECA 1% sulfur limit will provide some additional incremental benefit for California, it will 

not be equivalent to the benefits gained from using the cleaner distillate MGO and MDO 

fuel. ARB staffs’ emissions analysis, as shown in Figure ES-8 in the Staff Report,

indicates that equivalent emissions reductions will only be realized from the stricter 

0.1% sulfur North American ECA requirement on January 1, 2015, since the 

requirement of 0.1% sulfur, in practice, eliminates the use of heavy fuel oil, because it is 

not available at this restrictive sulfur content. 

3. Comment: The need for uniform and consistent regulation is also why PMSA 

joined with the World Shipping Council (WSC), the American Association of Port 

Authorities (AAPA), the West Coast Diesel Collaborative (WCDC), and others, in 

endorsing the proposed amendments to Annex VI that were approved in October 

2008. These amendments, when fully implemented, exceed the emission 

reductions of the current regulation and the proposed amendments. This is 

because the Annex VI amendments also includes emission standards for 

engines, worldwide limits on marine fuel sulfur, and extended jurisdictional 

boundaries 200 nm from the west coast of the United States and Canada. Even 

without consideration of these additional benefits, the second phase of the Annex 

VI will trigger the sunset provision of the proposed regulation when it is 

implemented in 2015. In conclusion, PMSA strongly supports an international 

approach to addressing the emission issues associated with international 

shipping throughout the world. We believe that the international approach is 
12

critical to maintaining competitive parity of California ports with all other North 

American Ports of Entry. (PMSA)

Agency Response: ARB staff supports international regulations to address vessel

emissions and we agree that it would be preferable to adopt regulations for ocean-going

vessels on an international basis provided the emission reductions are timely and are of

sufficient stringency to meet California’s air quality needs. ARB staff supports the

approved amendments to IMO Annex VI and the Emissions Control Area (ECA) around 

much of North America. We agree that a North American ECA could provide benefits 

that meet or exceed the OGV Clean Fuel Regulation on or after January 1, 2015. In 

fact, to help California transition to national or international controls, there is a provision

in the regulation to sunset the OGV Clean Fuel Regulation if the IMO or the U.S. EPA

adopts controls that will achieve equivalent benefits from ocean-going vessels emission

reductions in California. That said, it is imperative that we not forego needed emission

reductions in the 2009-2015 timeframe from ocean-going vessels. These reductions are

critical to our ability to fulfill federal SIP obligations and to protect the public health of 

California citizens. Given the significant adverse health effects from ocean-going

vessels that visit California ports while burning heavy fuel oil, as detailed in the Staff 

Report, we believe it is critical to implement the regulation rather than wait until 2015 to

achieve equivalent benefits.

C. Phase 2 Implementation Date

1. Comment: As stated in the Staff Report, 90% of the emission benefits of this 

regulation result from the implementation of the first phase of the regulation 

(page ES-9). The relatively minor benefits of the second phase of the regulation, 

coupled with the current decline in vessel calls due to the economic downturn, 

results in the conclusion that the ―two-year delay will not impact the significant 

reductions achieved with Phase 1 fuels‖. In addition, PMSA disagrees with the 

statement that the delay in the second phase will somehow help ensure the 

success of the first phase of the ECA and the transition to the second phase. 

The ECA is a regulatory requirement that will occur regardless of the CARB 

regulation. Therefore, the only possible justification for the second phase of the 

CARB regulation in 2014 is to ensure meeting the SIP requirement in the South 

Coast Air Basin by April 5, 2015 (pages ES-14 & 15). It is hard to envision how 

the additional 10% reduction provided by this single regulation in 2014 will assure 

attainment of the PM 2.5 standard in the South Coast Air Basin given the 

complexity of emission sources, economic, and meteorological conditions. 

(PMSA)

Agency Response: When ARB adopted its 2007 State Strategy as a PM2.5 SIP 

revision, the State of California made a legal commitment, required by the Clean Air Act 

and enforceable in federal court, to reduce emissions to the levels necessary for PM2.5 

attainment in 2014. To date, the South Coast is 94% of the way towards achieving the 

2014 emissions levels identified in the PM2.5 SIP. To meet this commitment, ships 

operating within 24 nm of the California Coastline and visiting California ports must, in 
13

2014, use less polluting marine distillate fuel for their main engines, auxiliary engines, 

and boilers instead of heavy fuel oil. Although the International Maritime Organization's 

fuel sulfur requirements for the North American Emission Control Area will match ARB’s 

proposed Phase 2 standards and extend out to 200 nm from the California Coastline by 

2015, ARB still has an obligation to meet the overall emissions targets specified in the 

SIP by the required January 1, 2014 deadline.

If the Board delays implementation of Phase 2 to 2015, ARB would not have the 

emission reductions necessary in 2014 to support the SIP attainment demonstration.

Since U.S. EPA is currently under a consent decree for final action on the PM2.5 SIP by 

September 2011, a delay in the implementation of Phase 2 would result in U.S. EPA 

finding the SIP deficient and disapproving the SIP. This in turn would lead to federal 

penalties including the delay of federal air quality and transportation funding in the 

South Coast Air Basin, more stringent controls for industrial sources, and ultimately a 

federally imposed plan.

2. Comment: We have seen that Phase 2 implementation date (0.1% sulfur 

distillate fuel beginning January 1, 2012) would be extended to January 1, 2014 

by two years by the ARB proposal. Although this proposal is very good for the 

shipping industry, the implementation date of the California Fuel Regulation is 

really required to be in conformity with the implementation date (January 1, 2015) 

of US Federal Regulation and EU SECA Regulation for full compliances by 

shipping industry and a successful transition to very low sulfur. (HANJIN)

Agency Response: ARB staff agrees that direct harmonization with the second phase 

of the North American ECA (0.1% sulfur) would be achieved with a January 1, 2015 

OGV Clean Fuel Regulation Phase 2 implementation date. However, the reductions 

gained by Phase 2 are needed in the 2014 calendar year. As discussed in the Staff 

Report (ES-14) and in comment (III)(C)(1) above, Phase 2 provides critical emission 

reductions needed by the South Coast Air Quality Management District (SCAQMD) to 

fulfill the SIP obligations and attain the PM2.5 standard in the South Coast Air Basin. 

The additional reductions gained by the Phase 2 implementation are a component of 

the overall reductions needed to meet the federal ambient air quality standard for 

PM2.5; reductions which must be in place by January 1, 2014. 

3. Comment: While we understand that loss of propulsion (LOP) has been raised 

as a serious concern, we are concerned that ARB does not have a suitably 

detailed and proactive plan to address any potential LOP matters that could in 

any way be related to the switch to 0.1% low sulfur fuel. We ask ARB to develop 

a detailed plan to work with vessel operators and the U.S. Coast Guard to 

address any legitimate LOP risks, so that the Phase 2 transitions to 0.1% low 

sulfur fuel is not delayed beyond 2014. (CCA/CCA1)

In light of the proposed delay, we would encourage the Air Board to do 

everything possible to work with the Coast Guard to address these loss of 
14

propulsion issues as soon as possible to make sure we can get back on track. 

(ALA)

Agency Response: We agree that there is a need to continue to investigate LOPs. 

We have an on-going process in place to work with industry, the U.S. Coast Guard, the 

Office of Spill Prevention and Response, Harbor Safety Committees, and others to 

address any operational issues that are identified. We intend to continue to use this

process to address loss of propulsion issues over the next two years to help ensure the 

transition to 0.1% sulfur fuel is successful. ARB staff believes the amendments to 

extend Phase 1 for two years and better align with the North American ECA provide the 

best path to implementing the cleanest marine distillate requirements, 0.1% sulfur, in 

California and bridging to federal requirements under the North American ECA. 

D. Miscellaneous Comments

1. Comment: The amendments to the regulation fail to demonstrate how the 

objective of returning vessels to the Santa Barbara Channel will be achieved. 

CARB also fails to demonstrate how the extension of the regulatory boundaries 

beyond the Channel Islands will result in vessels returning to use the traffic 

separation scheme in the Santa Barbara Channel or what health benefits will 

accrue to the State’s population as a result of this extension. 

The premise of the amendments to the current regulation is that extension of the 

jurisdiction 24 nm beyond the Channel Island will compel vessels to return to the 

vessel traffic separation scheme within the Santa Barbara Channel. This is 

based largely on the observed routing of vessels that has occurred subsequent 

to the original regulation going into effect in July 2009. In our conversations with 

ship operators PMSA has found that there are several reasons for this rerouting 

including the cost of fuel, need to maintain schedule, and maintenance concerns 

associated with the extended use of distillate fuels within Regulated California 

Waters. All of these concerns share a common goal to minimize the amount of 

time that the vessel must operate on the regulated distillate fuel. Just as the 

original regulation resulted in the rerouting of vessels to achieve that goal it is 

entirely possible that some portion of the vessels will again reroute to minimize 

the amount of time they are subject to the amended boundaries. As we have 

commented previously, a likely scenario would be for some vessels to take a 

diagonal route, directly through the Naval Test Range, to minimize the distance 

of operation subject to the amended regulation. Without any analysis of this 

alternative vessel routing we do not believe that staff has provided your Board 

with all the potential impacts of these proposed amendments necessary for them 

to make a truly informed decision. We suggest that staff conduct an analysis of 

vessel further rerouting to minimize time subject to the amended regulation using 

percentages up to the current levels before approving these amendments. 

(PMSA)
15

Agency Response: Under the current OGV Clean Fuel Regulation (without the 

proposed amendments), there is a fuel cost benefit of about 20% when traveling 

through an ―outer route‖ through the Point Mugu Sea Range compared to traveling 

through the Santa Barbara Channel (―the channel route‖) as shown in Table II-2 of the 

Staff Report. However, the outer route is longer in distance and travel time, compared 

to the channel route. As presented in Chapter II of the Staff Report, staff estimated the 

route costs, transit distances and transit times for five possible re-routing scenarios 

under the amended zone scenario, four of which transverse through the Point Mugu 

Sea Range. We disagree with the commenter’s statement that to minimize the cost of 

fuel, maintain schedule and to address maintenance concerns, the vessel must 

minimize operation on distillate fuel. Under the amended clean fuel zone, the fuel costs 

for the channel route are the lowest of the five routes evaluated, although the vessel 

would operate on distillate fuel for a longer segment. In addition to the lowest fuel cost, 

the channel route is also shorter in distance and travel time. With the amendments to 

the clean fuel zone, we believe that the combined benefits of lower fuel costs, distance 

and travel time for the channel route will encourage vessel operators to resume using 

the channel route. 

2. Comment: Considering fuel supplier’s comments and my company’s 

experiences, there is no fuel supplier and port facility that can supply the 0.1% 

sulfur distillate fuel in the regions of Eastern Asia and America at this moment.

In this regard, be advised that sufficient market survey and technical verifications 

should take precedence in order to confirm the possibility and availability of the 

low sulfur fuel in those regions in 2014. In addition, we need to ensure that there 

is sufficient infrastructure to supply low sulfur fuel without difficulties. (HANJIN)

Agency Response: In the 2008 OGV Staff Report for the original rulemaking and the 

Staff Report for the proposed amendments, fuel availability analyses were done to 

evaluate the availability of 0.1 % sulfur marine distillate to meet the Phase 2 

requirement. In the 2008 original rulemaking, findings indicated that in 2014, about 

1.2 million tons per year will be required to meet the demands generated from the rule. 

This represents only about 8% of global market and 16% of U.S. market for 0.1% sulfur

marine distillate fuels. In addition, since very low sulfur marine distillate fuel is very 

similar to on-road diesel and can be obtained from the on-road diesel fuel supply, this 

demand only represents 0.3% of the U.S. distillate production (2008 OGV Staff Report). 

As reported in the Staff Report for the amendments, ARB staff evaluated fuel sulfur 

information obtained from about 450 ARB inspection records from a 19 month period 

from July 2009 through January 2011. Of the 444 fuel samples analyzed, 40% of all the 

samples were below 0.1% sulfur even though the inspection period was within the 

Phase 1 sulfur limit of 1.5%. This data indicates that the 0.1% sulfur fuel is currently 

widely available and the infrastructure is presently in use to supply the cleaner Phase 2 

fuel. 

3. Comment: ARB should maintain the current noncompliance fee schedule except 

for instances of ships that arrive without the clean fuel but make every effort to 

take on the required clean fuel at the first California port of call. 
16

The proposed reductions to the noncompliance fee schedule unnecessarily 

weaken a policy that works well as an incentive to comply with the OGV 

regulation. The first 22 months of regulation, ship operators paid the 

noncompliance fee instead of using cleaner fuels only five times. Such 

infrequent use demonstrates that the policy is effective and that changes are 

unnecessary. (CCA/CCA1)

Agency Response: ARB staff believes that the infrequent use of the noncompliance 

fee provision is a result of the highly restricted range of circumstances where the 

provision is allowed to be used, not the amount of the fee. For example, the provision is 

limited to situations that are outside the master’s control such as unplanned redirection 

and purchase of defective fuel. The fee for a one-port visit has not been adjusted. 

Adjustments have only been made to multiple port visits. ARB staff believes that the 

adjustments made for multiple port visits are reasonable and the use of the noncompliance fee provision will remain low due to the restrictions for use that are currently 

in place. 

4. Comment: Although traffic in California ports decreased during the recent 

recession, throughput levels are clearly on the rise. Container traffic in the ports 

of Los Angeles and Long Beach has nearly recovered to 2007 levels. Nearly 

14.1 million twenty-foot equivalent units (TEUs) passed through San Pedro Bay 

ports in 2010, which is a 19% increase over 2009 and significantly higher than 

the 12.8 million TEU estimate from the Staff Report. We believe this 

unexpectedly quick recovery will have significant health impacts. (CCA/CCA1)

Agency Response: Due to the unpredictable economic recovery rate from the recent 

economic downturn, ARB staff developed two economic recovery scenarios. The faster 

recovery scenario assumed the economy would rebound and return to previously 

forecasted activity in 2017. The second slower recovery scenario assumed previous 

economic levels would not be reached until 2023 or later. Staff considered the 

possibility of assuming the slower recovery scenario, but determined that would be 

inappropriate given the recent increase in TEU throughput. The slower recovery 

scenario was designed to be a worst-case estimate of longer term emissions growth 

trends. Rather than rely on either the slower or faster recovery scenarios, staff 

assumed a middle case between the two forecasts. The growth assumptions are the 

same as used for the on-road and off-road rule – the medium recovery scenario. This 

tracks very well with the most recent data that ARB’s Planning and Technical Support 

Division has on container traffic at California ports.

5. Comment: Speeding ships waste fuel, endanger marine life, are a major source 

of global warming pollution, and emit toxic air pollutants that are harmful to 

human health. At a 2009 workshop for the vessel speed reduction (VSR) 

regulation, a preliminary review of emissions reductions showed that 1,500 tons 

of CO2, 5.2 tons of particulate matter, 40 tons of NOx, and 43 tons of SOx would 

be eliminated per day if ships complied with a mandatory speed limit of 12 knots 

within 40 nm of shore. We are concerned that regulatory activities for VSR are 
17

delayed and urge you to bring a regulation including a mandatory enforceable 

speed limit for OGVs this year. (CCA/CCA1/ALA)

We also encourage the Board to consider additional regulations such as vessel 

speed reductions, which can reduce pollution in our communities and protect 

residents’ health while decreasing California’s greenhouse gas emissions. 

(NRDC/NRDC1)

I urge you to establish a mandatory rule to reduce oceangoing vessels speeds as 

soon as possible. ARB has delayed this rule for too long.

There is strong evidence that a robust requirement will protect coastal 

communities and reduce toxic air pollution and greenhouse gas emissions 

contributing to the climate crisis. Moreover, case studies demonstrate that 

mandatory ship speed limits are more effective than voluntary ones in saving 

whales from being fatally struck by speeding ships. 

I have already submitted to the clerk a petition of more than 450 signatures that 

we've gathered over the past month out of interest in this speed limits issue.

(CCA2)

I would just strongly urge you that in any consideration of this (VSR), please 

remember that if you only do this in the Santa Barbara Channel, we’ll be right 

back here with the same problem. Anything to do with regulation of shipping 

needs to be done globally and consistently and take full accounting of the 

economics of shipping, the time, and the value; and needs to not create any sort 

of incentive that would make transit through our sea range more attractive than 

staying in the Santa Barbara Channel where they belong. (NAVY1)

Agency Response: The ports of Los Angeles and Long Beach have very successful 

voluntary VSR programs in place. As was discussed at the June 23, 2011 Board 

meeting, ARB staff continues to evaluate VSR options and is currently preparing a 

technical report regarding VSR that will investigate different approaches for VSR 

programs and the impacts. ARB staff agrees with the commenter that a VSR program 

that impacts the Santa Barbara Channel may have the unintended consequence of 

sending ships back into the Point Mugu Sea Range to avoid reduced speed 

requirements in the Santa Barbara Channel. This too, will be evaluated in the technical 

report. The petition submitted by Coalition for Clean Air on June 24, 2011 was 

responded to under a separate letter. A copy of the letter is included in the rulemaking 

package.

6. Comment: It’s also unlikely that anybody’s going to sell the 1% fuel. We’d also 

like you guys to take a strong look at this idea of viscosity of fuel. This is a very 

important safety aspect and one that not all shipping companies have the 

expertise that we do in order to ensure they have the right viscosity. This could 

lead to a lot of problems with reliability of the ship, especially when you’re 

maneuvering the ship. One of the dangers is the ship will not start. And of 

course the starting and stopping of the ship is what gives the ship its brakes. So 
18

again we’d really like to see a good look at this viscosity issue. I think you have 

an opportunity to set a viscosity. You set the sulfur level. You could also set a 

viscosity—a safe viscosity level. (CHEVRON)

Agency Response: We disagree with the statement indicating that 1% sulfur heavy 

fuel will not be available to comply with the first phase of the North American ECA. The 

statement suggests that distillate fuel, with its correspondingly lower viscosity, will have 

to be used instead of 1% sulfur heavy fuel to comply. In developing costs estimates, as 

shown in Table V-1 in Chapter V of the Staff Report, ARB staff identified two regions, 

Rotterdam and Singapore, where 1% sulfur heavy fuel is available in response to the 

current ECA requirements in the North Sea and Baltic Sea. Furthermore, we believe 

that 1% sulfur heavy fuel oil will become more widely available in response market 

demands due to the 1% sulfur limit beginning August 1, 2012 for the North American 

ECA. ARB staff does agree that under California’s requirement to use cleaner distillate 

fuel in both phases, and the 2015 North American ECA 0.1% sulfur limit, fuel viscosity is 

a key fuel property and proper on-board management of fuel viscosity is a very 

important parameter. We do not believe that specifying a minimum fuel viscosity in the 

regulation is a viable approach since vessel design and operation is vessel specific and 

may require individualized fuel viscosity requirements and operational procedures to 

best manage on-board fuel viscosity. However, in the amendments, we have 

addressed fuel viscosity in two ways. First, by delaying the OGV Clean Fuel 

Regulation’s Phase 2 implementation date we believe that shippers may be able to 

more easily locate fuels with higher viscosity levels during the extension of the Phase 1 

requirements. Second, a new distillate fuel type, ―DMZ‖, has been added to the 

definition of MGO, which has a higher minimum viscosity of 3 cSt at 40°C, but is 

otherwise identical to the specifications for MGO which is also referred to as ―DMA‖

grade. We believe that these amendments will provide additional flexibility for shippers 

to manage on-board fuel viscosity.

7. Comment: To overcome some of the shortfall in that one year is—use this idea 

of virtual arrival, where you actually don’t let any of the ships in to wait around the 

port. We found this to be very effective in just our own energy efficiency 

program. And by actually timing the ship’s arrival all in so that the berths are 

open, you can save a lot of energy and fuel on that. (CHEVRON)

Agency Response: ARB staff would like to thank the commenter for the support of 

and encouragement for virtual arrival strategies to reduce greenhouse gases and other 

emissions that result from vessels transiting at full speed and then sitting idle while 

waiting for berthing slots. We believe that this type of strategy could be a valuable 

component of overall port operational strategies to lower emissions. Because vessel 

virtual arrival programs impact port operations, terminal operations and vessel traffic 

management, ARB staff believe that this type of program is best implemented by the 

Ports, in coordination with industry and other key vessel management, traffic and safety 

organizations.
19

8. Comment: Relative to the CARB staff proposed delay of the use of a 0.1% sulfur 

content marine fuel from 2012 to 2014, we understand the concerns and issues 

associated with the availability and use of the lower sulfur content fuel. As such, 

we urge CARB to closely monitor the availability of the 0.1% fuel and encourage 

the use of such fuel as early as possible, but no later than 2014. (SCAQMD)

Agency Response: As noted in the Staff Report, ARB staff believes that while there is 

sufficient global availability of the 0.1% sulfur fuels, there may be isolated situations 

regionally where the 0.1% sulfur fuel may not be provided in 2012. By delaying the 

Phase 2 implementation to January 1, 2014, any isolated fuel sulfur issue should further 

decline as supply increases due to crude supply, refining capacity, fueling 

infrastructures improvements, and demands of the North American ECA requirements 

in 2015. ARB staff intends to continue to monitor the availability of fuels needed to 

comply with the OGV Clean Fuel Regulation by tracking the fuel sulfur contents of fuels 

collected by ARB enforcement personal from vessels that visit California ports. 

9. Comment: We ask for ARB’s continued commitment to work with all stake 

holders, for example the Ports of Los Angeles and Long Beach, to take all 

feasible measures to further support the return of shipping to the Santa Barbara 

Ship Channel. (NAVY)

Agency Response: Consistent with the Board’s direction noted in Resolution 11-25, 

ARB staff will continue to monitor the implementation of the regulation, including any 

changes in vessel traffic through the Unite States Navy Point Mugu Sea Range and the 

Santa Barbara Channel and work with stakeholders to propose amendments for the 

Board’s consideration when warranted to resolve any implementation issues that may 

arise. 

10.Comment: We request that ARB not incorporate VSR in this current regulatory 

revision. (NAVY)

Agency Response: We agree with the commenter and in this rulemaking are not 

incorporating amendments to the OGV Clean Fuel Regulation to require VSR. 

Additional discussion addressing VSR can be found in comment (III)(D)(5) above.

IV. SUMMARY OF PUBLIC COMMENTS AND AGENCY RESPONSES – NOTICE OF 

MODIFIED TEXT

Three written responses were received in response to the 15-day notice of modifications 

to the proposed amendments. Many of the comments received did not specifically 

address the proposed modifications. However, ARB staff decided to nonetheless 

respond to these comments. A summary of all the comments received during the 

supplemental comment period, and ARB’s responses, are provided below. 
20

Comments Received during the 15-day Comment Period

Abbreviation Commenter

APL1 Robert Clark

Director, Environmental Affairs

American President Lines

Written Testimony: August 5, 2011

MAERSK1 B. Lee Kindberg

Director, Environment

Maersk Incorporated

Written Testimony: August 9, 2011

PMSA2 T.L. Garrett

Vice President

Pacific Merchant Shipping Association

Written Testimony: August 9, 20114

 

4 PMSA submitted a letter on August 9, 2011 for the 15-day comment period. Attached to the August 9, 

2011 letter were three additional letters. The attached letter, dated July 22, 2011, was previously 

submitted for the 45-day period. Those comments along with the agency responses are included in 

Section III of this FSOR. Also attached to the August 9, 2011 letter were two letters dated July 23, 2008 

and March 23, 2009. These letters were not directed to this current rulemaking but were comments 

directed to a prior rulemaking approved by OAL and filed with the Secretary of State on May 29, 2009 and 

were submitted by PMSA during the 45 day and 15 day comment periods for the prior Rulemaking. 

Those letters, along with the agency responses, can be found in the FSOR for the original rulemaking 

(Final Statement of Reasons for Rulemaking, Including Summary of Comments and Agency Responses, 

Public Hearing to Consider Adopting Regulations on Fuel Sulfur and Other Operational Requirements for 

Ocean-Going Vessels Within California Waters and 24 Nautical Miles of the California Baseline, 2009)

which is available at: http://www.arb.ca.gov/regact/2008/fuelogv08/fuelogv08.htm.
21

1. Comment: Our experience clearly demonstrates that simplicity and alignment 

with international standards are highly desirable for achieving the best results 

and avoiding confusion on requirements. Simplicity and clarity of fuel 

requirements are especially helpful during vessel redeployments and 

ensuring that first-time callers have the right fuels and know when and where 

to use them. 

Thus we strongly support the plan to better align the timing of the lower sulfur 

phase of the California OGV fuel rule with the upcoming North American 

ECA. We hope that future studies will allow even more alignment, moving the 

0.1%S fuel requirement to January 2015 (aligned with the ECA) rather than 

2014, as currently approved. 

Until the OGV fuel rule and the ECA requirements are fully aligned, vessels 

visiting California must carry 3 different fuels (Ocean, ECA & CA), increasing 

costs and reducing tankage available for each grade. Thus having a single 

fuel standard that aligns with the international standards and the North 

American ECA is highly preferable. Ideally, the CARB OGV and ECA 

requirements for 0.1% sulfur fuel would become effective on the same date --

January 1, 2015. (MAERSK1)

Agency Response: As stated earlier, ARB staff supports international regulations to

address vessel emissions problems and agrees that it would be preferable to adopt

regulations for OGVs on an international basis provided the emission reductions are

timely and are of sufficient stringency to meet California’s air quality needs. As currently 

defined, the North American ECA will not meet our air quality needs until the 0.1% sulfur 

fuel requirement is implemented in 2015. Until that time, implementation of the OGV 

Clean Fuel Regulation’s 0.1% sulfur fuel Phase 2 fuel requirements in 2014 is

necessary to fulfill federal SIP obligations and to protect the public health of California

citizens. The additional reductions gained by the Phase 2 implementation are a 

component of the overall reductions needed to meet the federal ambient air quality 

standard for PM2.5; reductions which must be in place by January 1, 2014. As such, it 

is not possible to meet our air quality needs if the OGV Clean Fuel Regulation’s 

Phase 2 and the North American ECA requirements for 0.1% sulfur fuel became 

effective on the same date. 

2. For future evaluations, we also note that the emissions reductions achieved 

by the OGV Fuel program are probably better than has been calculated. Our 

understanding is that the emissions inventories include only the reductions 

due to low sulfur fuel use within the 24 nm zone. This does not take credit for 

the reductions outside the zone and during the transitions. This transition 

lasts from 45 min to several hours, and must be completed before entering 

the 24 nm zone, and initiated only after leaving the zone. (MAERSK1)

Agency Response: We agree that our emission reduction estimates are somewhat 

conservative because they do not account for the transitions from heavy fuel oil to 

complying distillate fuel when approaching the clean fuel zone, as well as the fuel 

transition that begins upon departure from the clean fuel zone. At this point in time, we 
22

do not believe it is appropriate to take credit for these additional emission reductions 

because we are not able to quantify the benefits. However, this is a refinement to our 

emissions estimates that we will consider for the future, as suggested by the 

commenter, if sufficient data is available.

3. The ARB Proposed Amendments take a step toward regulatory consistency 

by postponing until to 2014 the date at which the percent sulfur required will 

decrease. While we welcome this postponement, particularly for reasons 

relating to loss of propulsion as outline below, it leaves a one year gap of

inconsistent regulations for vessels calling at California ports. We strongly 

encourage ARB to make the postponement date 2015 in order to align with 

the ECA’s percent sulfur reduction date. (APL1)

Agency Response: Implementation of the 0.1% sulfur fuel Phase 2 fuel requirement in 

2014 is necessary to fulfill federal SIP obligations and to protect the public health of 

California citizens. The additional reductions gained by the Phase 2 implementation are 

a component of the overall reductions needed to meet the federal ambient air quality 

standard for PM2.5; reductions which must be in place by January 1, 2014. As such, it 

is not possible to meet our air quality needs if the OGV Clean Fuel Regulation and 

North American ECA requirements for 0.1% sulfur fuel became effective on the same 

date. 

4. Comment: With regards to loss of propulsion (LOP) associated with fuel oil

switching, APL’s U.S.-flag division, APL Maritime (AML) conducted an 

analysis of the LOP marine casualty reports made to the U.S. Coast Guard 

for vessels calling California ports in 2010. As you are aware, a vessel’s loss 

of propulsion dramatically increases the risk to the environment and APL is 

committed to striving to eliminate such risk. The LOP analysis was conducted 

in conjunction with underway audits aboard AML vessels operating from 

California ports in response to the ARB zone requirements. 

Recommendations were developed from this analysis and used in 

discussions with the various regulatory bodies concerning the issue of fuel oil 

switching, including the U.S. Coast Guard Sector San Francisco ―Loss of 

Propulsion/ Marine Engineers‖ meeting on March 16, 2011 in Oakland. AML 

found enough subjective evidence in their analysis to believe LOP marine

casualties reported by large ocean going vessels was directly related to fuel 

oil switching and contributed to stalling, loss of fuel oil pressure, and clogging 

of fuel lines and filters all of which resulted in the reportable marine casualty. 

To that end, APL strongly recommends that ARB postpone until 2015 the 

implementation of more stringent sulfur criteria in order for vessel owners and

operators to be fully prepared for all possible contingencies when fuel oil 

switching. (APL1)

Agency Response: We do not believe that it is appropriate to further delay the 

implementation of the 0.1% sulfur Phase 2 fuel from 2014 to 2015. The commenter 

suggests this postponement ―in order for vessel owners and operators to be fully 
23

prepared for all possible contingencies when fuel oil switching.‖ However, a large 

percentage of vessel operators are already using fuel that meets the 0.1% sulfur level. 

This is demonstrated by fuel testing conducted by ARB Inspectors, as shown in 

Table VI-3 of the 2008 OGV Staff Report. In addition, the delay from 2012 to 2014 

should provide more than enough time for vessel operators not already using Phase 2

compliant fuel to prepare for the use of the lower sulfur fuel. Finally, the emission 

reductions from the Implementation of the 0.1% sulfur fuel Phase 2 fuel requirement in 

2014 are necessary to fulfill federal SIP obligations and to protect the public health of 

California citizens. 

Regarding the commenter’s discussion of loss-of-propulsion (LOP) incidents, the 

number of vessels that have experienced LOPs that could be attributed to fuel switching 

is very low, and in all cases the operational difficulties have been well managed. As 

discussed in Chapter I of the Staff Report, for the period from July, 2009 to 

February, 2011, there were 37 LOP incidents attributable to fuel switching (and 71 LOP 

incidents attributable to other causes) out of about 18,000 vessel visits to California 

ports. During much of this time, the total monthly number of LOP incidents was similar 

to the rate prior to the regulation. Nevertheless, ARB staff, the U.S. Coast Guard, Ship 

Class Societies and others are working to provide information to vessel operators to 

assist them in preparing to use the lower sulfur fuels required under the OGV Clean 

Fuel Regulation (and soon to be implemented under the North American ECA) and to 

avoid LOP incidents. As part of these efforts, the ARB funded a report by the California 

Maritime Academy to discuss the root causes of LOP incidents, identify ―lessons 

learned‖ by vessel operators, and to make recommendations vessel operators to avoid 

LOPs.

5. Comment: In our previous comments, and here again, we are compelled to 

point out that these regulations contain the same fundamental problems 

concerning the state’s authority to regulate the activities of vessels both U.S.-

flagged and foreign-flagged, engaged in international trade and interstate 

commerce, operating in international waters. While the currently proposed 

amendments to the regulation make some minor adjustments towards 

consistency with international treaties and adopted federal legislation and 

regulations, it remains inconsistent with, and contradictory to, existing 

statutes, court decisions and other provisions of law. It exceeds the 

rulemaking authority of the Board, and, in light of the totality of the record, it 

has been demonstrated that the current record is inadequate in terms of 

technical, safety and legal issues. The current regulation and these 

amendments fail to take into account supporting evidence that would fairly 

detract from the agency’s current conclusions. These concerns are the basis 

of our current challenge to ―The Proposed Regulations on Fuel Sulfur and 

Other Operational Requirements for Ocean-Going Vessels within California 

Waters and 24 Nautical Miles of the California Baseline‖ that was approved 

by the Board on July 24, 2008, and to our previous challenge to the ―OceanGoing Vessel Auxiliary Diesel Engine Regulation‖ that was approved by the 

CARB Board in December of 2005. (PMSA2)
24

Agency Response: The issue of authority has been addressed in the 2008 OGV Staff 

Report, the Staff Report for proposed amendments and in comment (III)(A)(1) above,

but ARB will briefly respond. The 15-day change, which only includes a change in 

Phase 1 MGO sulfur limit, does not impact the issue of ARB’s authority to regulate 

emissions from ocean-going vessels that impact the public health of California citizens. 

Under State and federal law, ARB can regulate both criteria pollutants and toxic diesel

PM emissions from marine vessels. Health and Safety Code (H&S) sections 43013 and

43018 authorize ARB to regulate marine vessels to the extent such regulation is not

preempted by federal law. Also, H&S section 39666 requires ARB to regulate emissions

of toxic air contaminants (TAC) from nonvehicular sources, which include ocean-going

vessels.

Furthermore, we are unaware of any record that supports the commenter’s statement 

that ―the current record is inadequate in terms of technical, safety and legal issues‖. 

The proposed regulation is neither preempted under federal law, nor does it violate the 

dormant Commerce Clause of the U.S. Constitution and is consistent with existing 

statutes and recent court decisions concerning PMSA’s legal challenge. Furthermore, 

since both the OGV Clean Fuel Regulation and the North American ECA rely on the use 

of cleaner fuels, the technical and safety issues are similar. PMSA has indicated that 

they are in support of the ECA, with its similar fuel requirements, yet inconsistently

indicate that the record for the ARB rule is inadequate in terms of safety and technical 

issues. 

6. Comment: While we understand that we are supposed to limit our comments 

to only those issues that are the subject to the 15 Day Notice, specifically the 

amendment contained in Attachment B, we feel compelled to remind CARB 

staff that many of our previous comments have not been addressed. These 

include the failure of CARB to assess the full benefits of the approved North 

American Emission Control Area (ECA), failure to provide for comparison the 

emission benefits of regulation with the California’s three mile limit, 

unsupported assumptions of attaining the PM 2.5 federal Clean Air Act 

National Ambient Air Quality Standard (NAAQS) for the South Coast Air Basin 

by 2015, and wishful expectations that by further extending California’s 

jurisdictional authority the vessel traffic will revert to prior behavior and 

alleviate the Navy’s concerns regards potential disruption of their operations. 

(PMSA2)

Agency Response: The issues presented in this comment submitted for 15-day 

changes are a restatement of comments submitted by PMSA for the 45 day comment 

period for this rulemaking. Discussions concerning the assessment of the full benefit of 

the approved North American ECA and comparisons of benefits within a three mile limit 

can be found in comment (III)(B)(1) above; PM2.5 NAAQS for the South Coast Air Basin 

can be found in (III)(C)(1); and the Navy’s concerns regarding potential disruptions of 

their operations can be found in (III)(D)(1).

7. Comment: CARB staff is proposing in this 15-Day package an additional 

amendment to those submitted at the June 23, 2011 Board hearing. This 
25

amendment on the surface appears to be a common sense move towards 

improving consistency between the CARB regulation and the approved ECA 

beginning in August 2012. However, this amendment does nothing to provide 

consistency with the ECA. Primarily because compliance with the ECA 1.0% 

sulfur limit will occur with or without this amendment. With this modification 

CARB still asserts that it can regulate all fuels in use out to 24 nm from the 

Channel Islands in southern California, and 24 nm from the California Coast 

north of Point Conception. In August 2012 the North American ECA goes into 

effect requiring all vessels within 200 nm of the west coast of the U.S. and 

Canada must use a fuel with a maximum sulfur content of 1.0%. While, the 

ECA does not specify the type of fuel, only the sulfur content, clearly MGO at 

1.0% sulfur is already included in the ECA requirements and does not need 

this amendment to establish the sulfur content limit. With this new 

amendment CARB is simply asserting an additional and duplicative authority 

to enforce the sulfur content of MGO beginning in August 2012. This 

duplicative authority will do nothing to improve air quality but further increase 

the burdens on the vessel owners/operators to require additional testing of 

MGO fuels, requires additional record keeping, and subjects the vessel 

owner/operator to additional penalties and fines imposed by CARB. (PMSA2)

Agency Response: To align the OGV Clean Fuel Regulation’s Phase 1 fuel 

requirements with the North American ECA’s August 2012 fuel sulfur requirement, ARB 

staff proposed a 15-day change to incorporate 1.0% fuel sulfur limit for the 

Phase 1 marine gas oil beginning August 1, 2012 to coincide with the North American 

ECA implementation date. This modification will ensure that there is no conflict 

between the Phase 1 sulfur limits of the North American ECA and those in the OGV 

Clean Fuel Regulation. As reported at the June 2011 Board hearing, since the vast 

majority of fuel used to comply with California’s Phase 1 requirement is below 1 %

sulfur, ARB staff believes that this change will not impose any additional testing needs 

or record keeping requirements above those currently used to comply with California’s 

OGV Clean Fuel Regulation.

8. Comment: The amended regulation does nothing to address inconsistences 

between the CARB regulation and ECA requirements for marine diesel oil 

(MDO) at 0.5% maximum sulfur content, and the outright ban of residual fuels. 

The implementation of the final phase of the CARB regulation beginning on 

January 1, 2014, is inconsistent with the final phase of the ECA beginning on 

January 1, 2015. Although the ISOR states that 90% of the benefits of the 

CARB regulation results from the first phase, somehow the additional 10% 

from the second phase is critical for the South Coast Air Basin (SCAB) to 

achieve the PM 2.5 National Ambient Air Quality Standard (NAAQS). 

However, no analysis is provided to demonstrate why this early 

implementation of the 0.1% sulfur content, one year in advance of the ECA, is 

necessary for either the 2015 attainment date of the NAAQS in the SCAB or 

for public health in other parts of California that are not subject to the PM 2.5 

attainment date of the SCAB. (PMSA2)

Agency Response: The amendments to the regulation are not designed to make the 

OGV Clean Fuel Regulation identical to the North American ECA. The requirement to 
26

use distillate fuels (rather than residual fuels) and the 0.5% sulfur limit for MDO both 

reduce emissions of diesel particulate matter beyond what the North American ECA will 

achieve prior to 2015. If the regulation were identical to the North American ECA, 

California citizens would be exposed to significant increases in PM and SOx levels, and 

associated health risks. However, as discussed in the Staff Report, some of the 

amendments do make the regulation more consistent with the North American ECA. 

Specifically, changing the sulfur limit for MGO from 1.5% sulfur to 1% sulfur on 

August 1, 2012, is consistent with the 1% sulfur North American ECA limit that will be 

implemented on the same date. This change avoids a situation where a vessel operator 

could use a fuel that is compliant with the California regulation, but not the North 

American ECA. In addition, delaying the implementation of the Phase 2 (0.1% sulfur 

fuel) from 2012 to 2014 moves the requirement closer to the 2015 start date in the North 

American ECA. Regarding the 2014 start date for the Phase 2 fuel, the additional 

reductions gained by the Phase 2 implementation are a component of the overall 

reductions needed by 2014 to meet the federal ambient air quality standard for PM2.5. 

These reductions are also needed to reduce the public’s exposure to diesel PM 

emissions, as demonstrated at length in the 2008 OGV Staff Report (Chapter IV, 

Chapter VII, and Appendices E1, E2, and E3).

9. Comment: With these considerations in mind, PMSA suggests that CARB 

Staff does an evaluation of the need to have a duplicative regulatory 

requirement to the ECA from August 2012 to January 1, 2014. Considering 

the similarities in fuel sulfur content, the extended range of the ECA, and the 

limited sources of fuels to comply, it seems highly likely that the CARB 

regulation provides no air quality benefit during this interim period. Therefore, 

it appears likely that the regulation should be suspended upon implementation 

of the ECA in August 2012 unless and until CARB can demonstrate significant 

air quality benefits beyond those provide by the ECA. Further, CARB should 

suspend the 2014 implementation date of the final phase of the regulation 

until it can clearly demonstrate that it is necessary for the PM 2.5 SCAB 

attainment date in 2015, but is also of significant public health benefit for the 

rest of California. (PMSA2)

Agency Response: ARB staff performed an analysis comparing the statewide 

emission reductions and associated reductions in health risk between the OGV Clean 

Fuel Regulation and the North American ECA in the 2008 OGV Staff Report (Chapter 

V). In addition, ARB staff conducted another similar analysis covering the South Coast 

Air Basin, shown in Appendix C of the current Staff Report. Both analyses demonstrate 

that the California OGV Clean Fuel Regulation would achieve substantially greater 

emission reductions than the North American ECA. This comment, which is a 

restatement of a comment submitted during the 45-day period, is discussed fully in 

(III)(B)(1) above. 
27

V. NON SUBSTANTIVE CHANGES MADE TO THE RULEMAKING RECORD

There were title and date errors in the references various appendices to the Staff 

Report. ARB staff notes the following corrections to the references, and the corrections 

are as follows:

1. Appendix C Attachment C-1, reference #1

―Main Speciation Profiles‖ was corrected to ―Speciation Profiles Used in ARB 

Modeling‖;

Reference 1 was available as part of the rulemaking record at the time of 

publication.

2. Appendix D, reference #2 (CARB, 2005b)

―Oceangoing Vessel Survey‖ was corrected to ―Oceangoing Ship Survey‖; 

(CARB, 2005b) was available as part of the rulemaking record at the time of 

publication.

3. Appendix D, reference #3 (CARB, 2006)

―October, 2006‖ was corrected to ―October, 2005‖; 

(CARB, 2006) was available as part of the rulemaking record at the time of 

publication.

4. Appendix D, reference #5 (CARB, 2007b) 

―California Air Resources Board, Ocean-Going Vessel PM Emission Factors for 

Heavy Fuel Oil White Paper, March, 2007‖ was corrected to 

―California Air Resources Board, A Critical Review of Ocean-Going Vessel 

Particulate Matter Emission Factors‖;

(CARB, 2007b) was available as part of the rulemaking record at the time of 

publication.

5. Appendix D, reference #10 (IVL, 2002)

―February 2002‖ was corrected to ―February 2004‖;

(IVL, 2002) was available as part of the rulemaking record at the time of 

publication.

6. Appendix D, reference #20 (USACE, 2007) 

―US Army Corps of Engineers Navigation Data Center, Foreign Traffic Vessel 

Entrances and Clearance, various years. 1997-2005 available at 

http://www.iwr.usace.army.mil/ndc/data/dataclen.htm‖ was corrected to 

―US Army Corps of Engineers Navigation Data Center, National Waterway 

Network. Available at http://www.ndc.iwr.usace.army.mil/data/datanwn.htm‖

(USACE, 2007) was available as part of the rulemaking record at the time of 

publication.