Federal Register / Vol. 77, No. 38 / Monday, February 27, 2012 / Rules and Regulations 11401 

1The State of California’s ‘‘Application for 

Permission to Prohibit Sewage Discharges from 

Vessels in California’s Waters Pursuant to Clean 

Water Act Section 312(f)(4)(A)’’ at page 33 (Apr. 5, 

2006). 

Dated: February 15, 2012. 

Lisa P. Jackson, 

Administrator. 

For the reasons discussed in the 

preamble, 40 CFR Part 93 is amended as 

follows: 

PART 93—[AMENDED] 

■ 1. The authority citation for Part 93 

continues to read as follows: 

Authority: 42 U.S.C. 7401–7671q. 

■ 2. Section 93.111 is amended by 

adding paragraph (b)(3) to read as 

follows: 

§ 93.111 Criteria and procedures: Latest 

emissions model. 

* * * * * 

(b) * * * 

(3) Notwithstanding paragraph (b)(1) 

of this section, the grace period for 

using the MOVES2010 emissions model 

(and minor revisions) for regional 

emissions analyses will end on March 2, 

2013. 

* * * * * 

[FR Doc. 2012–4484 Filed 2–24–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 140 

[EPA–R09–OW–2010–0438; FRL–9633–9] 

RIN 2009–AA04 

Marine Sanitation Devices (MSDs): No 

Discharge Zone (NDZ) for California 

State Marine Waters 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The U.S. Environmental 

Protection Agency (EPA) is establishing 

a No Discharge Zone (NDZ) for marine 

waters of the State of California for 

sewage discharges from: all large 

passenger vessels of 300 gross tons or 

greater; and from large oceangoing 

vessels of 300 gross tons or greater with 

available holding tank capacity or 

containing sewage generated while the 

vessel was outside of the marine waters 

of the State of California, pursuant to 

Section 312(f)(4)(A) of the Clean Water 

Act (CWA), 33 U.S.C. 1322(f)(4)(A). This 

action is being taken in response to an 

April 5, 2006, application from the 

California State Water Resources 

Control Board requesting establishment 

of this NDZ. Based on the State’s 

application, EPA has determined that 

the protection and enhancement of the 

quality of California’s marine waters 

requires the prohibition of sewage 

discharges from two classes of large 

vessels. For the purposes of today’s rule, 

the marine waters of the State of 

California are defined as the territorial 

sea measured from the baseline, as 

determined in accordance with the 

Convention on the Territorial Sea and 

the Contiguous Zone, and extending 

seaward a distance of three miles and 

including all enclosed bays and 

estuaries subject to tidal influences from 

the Oregon border to the Mexican 

border. State marine waters extend three 

miles from State islands, including the 

Farallones and the Northern and 

Southern Channel Islands. 

DATES: This final rule is effective March 

28, 2012. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R09–OW–2010–0438. All 

documents in the docket are listed on 

the www.regulations.gov Web site. 

Although listed in the index, some 

information is not publicly available, 

e.g., confidential business information 

(CBI) or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

www.regulations.gov or in hard copy at 

the Water Division, U.S. Environmental 

Protection Agency Region IX, 75 

Hawthorne Street, San Francisco, CA 

94105–3901. EPA requests that if at all 

possible, you contact the person listed 

in the FOR FURTHER INFORMATION

CONTACT section to schedule an 

appointment. The Regional Office’s 

business hours are Monday through 

Friday, 8:30 to 5, excluding Federal 

holidays. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Paul Amato at (415) 972–3847 or 

amato.paul@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

II. Summary of Final Action 

III. Response to Comments 

A. Overview 

B. Public Comments 

1. Protection of California’s Coastal 

Resources 

2. Expansion of the Rule 

3. Scope and Applicability of CWA Section 

312(f)(4)(A) 

4. Classes of Vessels 

5. Large Oceangoing Vessel Sewage 

Holding Capacity 

6. Applying a No Discharge Zone for All 

California Marine Waters 

7. Other General Comments 

IV. Administrative Requirements 

I. Background 

The proposed rule was published in 

the September 2, 2010, issue of the 

Federal Register (75 FR 53914). A 60- 

day comment period followed that 

ended on November 1, 2010, during 

which time EPA Region IX received 

approximately 2,020 comment letters 

and emails, including 16 distinct letters 

and approximately 2,000 substantially 

identical letters. Section III addresses 

the comments. 

Clean Water Act Section 312, 33 

U.S.C. 1322, (hereafter referred to as 

‘‘Section 312’’), regulates the discharge 

of sewage from vessels into the 

navigable waters. Pollutants most 

frequently associated with sewage 

discharges include solids, nutrients, 

pathogens, petroleum products, heavy 

metals, pesticides, pharmaceuticals, and 

other potentially harmful compounds.1

Sewage discharges can contaminate 

shellfish beds, pollute drinking water 

supplies, harm fish and other aquatic 

wildlife, and cause damage to coral 

reefs. Direct contact with these 

pollutants can have serious human 

health effects, with children, the 

elderly, and individuals with 

compromised immune systems being 

most susceptible. Currently, California 

marine waters include 120 miles of 

coast that are listed as impaired for 

pathogens commonly associated with 

sewage. 

Clean Water Act Section 312(h) 

prohibits vessels equipped with 

installed toilet facilities from operating 

on the navigable waters (which include 

the three mile territorial seas), unless 

the vessel is equipped with an operable 

marine sanitation device (MSD), 

certified by the Coast Guard to meet 

applicable performance standards. 33 

U.S.C. 1322(h). The provisions of 

Section 312 are implemented jointly by 

EPA and the Coast Guard. EPA sets 

performance standards for MSDs and is 

involved in varying degrees in the 

establishment of NDZs for vessel 

sewage. 33 U.S.C. 1322(b) and (f). The 

Coast Guard is responsible for 

developing regulations governing the 

design, construction, certification, 

installation and operation of MSDs, 

consistent with EPA’s performance 

standards. 33 U.S.C. 1322(b) and (g); see 

also 33 CFR part 159. The Coast Guard’s 

responsibility includes certifying MSDs 

for installation on U.S. flagged vessels. 

Under some circumstances, vessel 

sewage discharges treated by an MSD 


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2Exceeding these limits is only a violation if the 

operator was not discharging through a properly 

operated and maintained MSD. 

3Alaska Department of Environmental 

Conservation, ‘‘Alaska Cruise Ship Initiative, Part 2 

Report’’ (2001), available at http://dec.alaska.gov/ 

water/cruise_ships/cruiseinitiative.htm. 

may contain higher concentrations of 

pollutants than discharges of treated 

sewage from land-based wastewater 

treatment plants and may cause or 

contribute to water quality impairments 

and impacts to sensitive marine 

habitats. In 2000, an Alaska Cruise Ship 

Initiative study sampled 21 cruise ships 

twice during the cruise season and 

found that 57 percent of the samples 

exceeded fecal coliform effluent limits 

and 78 percent exceeded suspended 

solids effluent limits for Type II MSDs.2

Only one sample met the standards for 

both. The Coast Guard inspected six of 

the vessels with high effluent 

concentrations and found that five were 

exceeding limits due to improper MSD 

operation or maintenance, resulting in 

issuance of civil penalties.3 EPA 

estimates that large passenger vessels 

and large oceangoing vessels generate 

25.2 million gallons of sewage each year 

while in California State marine waters 

a number that is projected to grow. Data 

was not available to quantify how much 

of this sewage is currently discharged 

while vessels are present in California 

marine waters; however, as shown in 

Table 1, EPA used existing data to 

estimate that the final rule will prohibit 

the discharge of 22.5 million of the 25.2 

million gallons of sewage that large 

vessels could otherwise legally 

discharge into California State marine 

waters each year. Small vessels without 

holding capacity, which are not 

regulated by today’s rule, generate an 

additional 2.8 million gallons of sewage 

per year that can be legally discharged 

to California marine waters. A map of 

California State marine waters and the 

NDZ can be obtained or viewed at the 

EPA’s Web site at http://www.epa.gov/ 

region9/water/no-discharge/ 

overview.html, or by calling (415) 972– 

3847. 

TABLE 1—CALIFORNIA VESSEL SEWAGE CONTRIBUTIONS AND NDZ PROHIBITIONS

Sewage source 

Vessel sewage generation in state 

waters 

(gallons/year) 

Treated vessel sewage prohibited 

by this NDZ 

(gallons/year) 

Addressed by this rule 

Large Passenger Vessels ................................................................ 19.2 million .................................... 19.2 million. 

Large Oceangoing Vessels with available holding capacity ............ 3.3 million * .................................... 3.3 million. 

Combined = .............................................................................. 22.5 million .................................... 22.5 million. 

Not addressed by this rule 

Large Oceangoing Vessels without holding capacity ...................... 2.3 million * .................................... No change. 

Large Oceangoing Vessel discharges beyond holding tank capacity.0.4 million ...................................... No change. 

Small Vessels without holding capacity ........................................... 2.8 million ** ................................... No change. 

Combined = .............................................................................. 5.5 million ...................................... No change. 

* The sewage generation per year for large oceangoing vessels in this table (totaling 6 million gallons = 3.3 million + 2.7 million) differs from 

the 3.4 million gallons per year estimated in the proposed rule because it is derived from more recent data and analysis indicating that the rate of 

sewage generation is higher than estimated for the proposed rule. The Chamber of Shipping of America (CSA) had conducted a vessel sewage 

data survey in response to EPA’s July 12, 2010, ‘‘Clean Water Act Section 312(b): Notice Seeking Stakeholder Input on Petition and Other Request to Revise the Performance Standards for Marine Sanitation Devices,’’ 75 FR 39683. This data and its analysis can be found in the docket 

for this final rule at www.regulations.gov. 

** EPA estimate based on State of California small vessel usage data in their January 27, 2009 Application Addendum. 

The State of California declared the 

importance of protecting coastal water 

from vessel sewage when it enacted the 

California Clean Coast Act of 2005 

(Senate Bill (SB) 771) and related 

legislation in 2003–2005 to limit 

pollution from large passenger and large 

oceangoing vessels. In enacting this 

legislation, the State found that 

California’s coastal waters warrant the 

higher level of protection that should be 

provided through an NDZ. California’s 

highly varied marine environments 

support high levels of biological 

diversity and habitat for several dozen 

species listed as endangered, 

threatened, or of concern under Federal 

or State law and include designated 

essential habitat for nearly 100 species 

of fish along most of California’s coast. 

The unique values associated with 

California’s coastal marine environment 

have been recognized through the 

creation of a network of more than 200 

protected areas, reserves, sanctuaries, 

and monuments that together afford 

special resource protection status to the 

vast majority of California coastal waters 

including the four Federally designated 

National Marine Sanctuaries (Cordell 

Bank, Gulf of the Farallones, Monterey 

Bay, and Channel Islands) that 

combined occupy approximately onethird of the coastline. Waters along the 

California coastline support important 

economic, recreational, conservation, 

research, educational, and aesthetic 

values, and are becoming increasingly 

more important for potable water supply 

as desalinization measures are used to 

meet demands. 

CWA Section 312 generally preempts 

state regulation of the discharge of 

sewage from vessels: ‘‘no state or 

political subdivision thereof shall adopt 

or enforce any statute or regulation of 

such state or political subdivision with 

respect to the design, manufacture, or 

installation or use of any [MSD] on any 

vessel subject to the provision of [CWA 

Section 312].’’ 33 U.S.C. 1322(f)(1)(A). 

Under Section 312(f), however, a state 

may, in certain circumstances, request 

that EPA establish an NDZ for vessel 

sewage or, after required findings are 

made by EPA, establish such a zone 

themselves. 

There are three types of NDZ 

designations. First, under Section 

312(f)(3) states may designate portions 

or all of their waters as NDZs if the state 

determines that the protection and 

enhancement of the quality of the 

waters require greater environmental 

protection than provided by current 

Federal standards. However, no such 

prohibition applies to discharges until 

EPA determines that adequate facilities 

for the safe and sanitary removal and 

treatment of sewage from all vessels are 

reasonably available for the waters in 

the NDZ. Second, a state may apply 

under Section 312(f)(4)(A), as California 

did here, for an EPA determination that 

the protection and enhancement of the 


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4A vessel is subject to this rule if it is of 300 gross 

tons or greater as measured under the International 

Convention on Tonnage Measurement of Ships, 

1969, measurement system in 46 U.S.C. 14302, or 

the regulatory measurement system of 46 U.S.C. 

14502 for vessels not measured under 46 U.S.C. 

14302. 

quality of specified waters within such 

state requires a prohibition. In contrast 

to Section 312(f)(3) NDZ designations, 

Section 312(f)(4) does not require EPA 

to determine that adequate pump out 

facilities are reasonably available for all 

vessels. Upon its determination that the 

protection and enhancement of the 

quality of specified waters requires the 

prohibition, EPA shall by regulation 

completely prohibit the discharge from 

a vessel of any sewage (whether treated 

or not) into such waters. Lastly, a state 

may apply under Section 312(f)(4)(B) for 

EPA to establish, by regulation, a 

drinking water intake zone which 

prohibits the discharge of sewage into 

that zone. 33 U.S.C. 1322(f), 40 CFR 

140.4. 

The State of California, through the 

State Water Resources Control Board 

(State Board), applied to EPA for the 

establishment of an NDZ covering all 

California marine waters pursuant to 

Clean Water Act Section 312(f)(4)(A). As 

required by the California Clean Coast 

Act, the State Board’s application 

requested a prohibition of sewage 

discharges from large passenger vessels 

and large oceangoing vessels with 

‘‘sufficient holding tank capacity’’ to 

contain sewage while the vessels are 

within the marine waters of the State. 

With today’s rule, the EPA Region IX 

Administrator grants this application. 

II. Summary of Final Action 

EPA evaluated the State of 

California’s CWA Section 312(f)(4)(A) 

application for the establishment of an 

NDZ throughout the marine waters of 

the State and other relevant information, 

and issued a notice of proposed 

rulemaking that would establish the 

requested NDZ based on the Agency’s 

proposed determination that the 

protection and enhancement of the 

quality of these waters required it. EPA 

carefully considered the public 

comments on the proposed rule 

(available in the docket at 

www.regulations.gov), and concludes 

that nothing in these comments affects 

EPA’s proposed determination that an 

NDZ is warranted for these waters. As 

discussed more fully below, EPA was 

convinced by some of the comments to 

make changes to the description of the 

class of covered large oceangoing 

vessels subject to the NDZ. The State 

has indicated that it finds these changes 

consistent with its NDZ petition. 

As discussed more fully in the 

preamble to the proposed rule, 

California marine waters support a 

variety of unique, nationally important 

and biologically significant 

environments that contribute to 

California’s recreational, economic, and 

aesthetic values. EPA estimates that this 

rule will prohibit the discharge of 

approximately 22.5 million gallons of 

treated vessel sewage per year that 

could otherwise enter California marine 

waters (EPA is unable to estimate how 

much of this treated sewage would 

actually enter California marine waters 

in the absence of this rule). This action 

will protect and enhance water quality, 

which will benefit human health by 

reducing the potential for exposure to 

pollutants from: recreational use of the 

waters, commercial fishing, shellfish 

bed operations, and water intakes for 

desalination plants. Similarly, this 

action will provide benefits to wildlife 

and their habitats. 

On September 2, 2010, EPA proposed 

an NDZ covering all California marine 

waters which would be applicable to 

large passenger vessels and to large 

oceangoing vessels with two days or 

more sewage holding capacity. Based on 

the comments received for the proposed 

rule, EPA has changed the description 

of the class of covered large oceangoing 

vessels so that it applies to all large 

oceangoing vessels that have not fully 

utilized available holding tank capacity 

or that contain sewage generated outside 

the NDZ. Revising the definition will 

provide greater protection and 

enhancement of the covered waters and 

make compliance more feasible. The 

reasons for this change are addressed in 

more detail in Section III. 

EPA is not changing the rule as it 

applies to passenger vessels, but has 

addressed a potential ambiguity by 

modifying the definition of ‘‘large 

oceangoing vessel’’ to make clear that it 

excludes any vessel defined as a ‘‘large 

passenger vessel.’’ 

Today’s rule establishes an NDZ for 

the marine waters of the State of 

California that applies to two classes of 

vessels—(1) passenger vessels of 300 

gross tons or more having berths or 

overnight accommodations, and (2) 

oceangoing vessels of 300 gross tons or 

more equipped with a holding tank 

which has not fully used the holding 

tank’s capacity, or which contains more 

than de minimis amounts of sewage 

generated while the vessel was outside 

of the NDZ.4 Vessels within these two 

classes are completely prohibited from 

discharging any sewage (whether treated 

or not) within the NDZ. 

EPA expects today’s rule will result in 

large oceangoing vessels with holding 

tanks maximizing use of their holding 

tank capacity while in the NDZ. In order 

to comply with the NDZ, a large 

oceangoing vessel with a holding tank 

will, in most cases, choose to empty its 

holding tank before entering California 

marine waters. While present in these 

waters, the vessel must refrain from 

discharging any sewage so long as it has 

any holding tank capacity. If the large 

oceangoing vessel reaches its holding 

tank capacity due only to sewage 

generated while in the NDZ, the vessel 

is no longer within the class of covered 

vessels and can discharge properly 

treated sewage in compliance with the 

NDZ. A vessel can choose to enter the 

NDZ without first emptying its holding 

tank, but then it may not discharge any 

sewage. 

EPA recognizes that de minimis 

amounts of sewage may remain in the 

holding tank of a vessel that has fully 

discharged before entering State waters, 

and therefore has clarified in the rule 

that such de minimis amounts do not 

prohibit the vessel from discharging in 

State waters once its holding tank 

capacity is fully used. A holding tank is 

‘‘fully used’’ when it has been filled to 

the point that safe and proper operation 

requires that it be discharged. EPA has 

also defined the term ‘‘holding tank’’ to 

make it clear that the rule does not 

intend for vessels’ operators to use 

ballast tanks, or other tanks that have 

not been specifically designed, 

constructed, and fitted for holding 

sewage, to store sewage while vessels 

are operating in California marine 

waters. 

This NDZ will not alter the ten 

existing NDZs in California, all of which 

were enacted pursuant to CWA Section 

312(f)(3). These prior NDZs cover a 

relatively small portion of California’s 

total marine waters and remain in effect 

for all vessels’ (not just large passenger 

and oceangoing vessels). In addition, 

certain sewage discharges from vessels 

are prohibited under National Oceanic 

and Atmospheric Administration 

(NOAA) regulations for the four 

California marine sanctuaries. Nothing 

in today’s rule affects these regulations. 

III. Response to Comments 

In response to the proposed rule, 

approximately 2,020 comment letters 

and emails were received including 16 

distinct letters and approximately 2,000 

substantially identical letters in support 

of the rule. Comments were provided by 

regulated entities, trade organizations, 

government officials, non-governmental 

organizations, and members of the 

public. The substantive comments are 

grouped together and addressed below. 


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5As noted previously, such discharges may or 

may not be a regulatory violation, depending on 

whether or not they result from improper operation 

or maintenance of the device. 

A. Overview 

Most of the comment letters expressed 

support for this rule because it will help 

protect California’s marine biological 

resources, recreational opportunities, 

and human health from vessel sewage. 

Some of these commenters said the rule 

was necessary: (1) Because there is a 

need for stronger standards to protect 

coastal resources from vessel sewage; 

and (2) it will improve California 

marine waters for commercial fisheries, 

tourism, aesthetics, science and 

research. Some supporting commenters 

further suggested that the rule should be 

expanded: (1) To include California 

marine waters out to 12 nautical miles 

from shore; (2) to include all vessels; (3) 

to further regulate landside sources of 

pollution; (4) to improve inspection and 

testing procedures; (5) to improve vessel 

discharge monitoring; and (6) to specify 

penalties for violators. One supportive 

commenter expressed concerns with the 

legal basis for regulating military vessels 

and one commenter suggested that 

EPA’s economic analysis was 

incomplete because it did not 

adequately consider impacts on small 

businesses. 

Commenters opposed to the proposed 

rule expressed several concerns 

regarding its legal and scientific basis, 

which largely fall into these four 

categories of comments: (1) CWA 

Section 312(f)(4)(A) does not permit 

EPA to establish an NDZ applicable to 

a subset of vessels; (2) the proposed rule 

does not adequately support an NDZ for 

all of California marine waters; (3) the 

connection between vessel sewage and 

impacts to California waters has not 

been sufficiently demonstrated; and (4) 

the two-day holding capacity 

requirement for oceangoing vessels is 

arbitrary, inconsistent with CWA 

Section 312, and less protective than 

alternative approaches. The comments 

are addressed in detail below. 

B. Public Comments 

1. Protection of California’s Coastal 

Resources 

Many commenters expressed support 

for EPA’s conclusion that the NDZ is 

required to protect California’s coastal 

waters from pollutants found in vessel 

sewage. Approximately 2,000 similar 

comment letters urged EPA to approve 

California’s application and stated that 

the NDZ would protect California’s 

fragile ocean and coastal ecosystem 

from vessel sewage and improve water 

quality for beaches, fishing, shellfish 

beds, and human health. Another letter 

signed by 19 members of California’s 

Congressional Delegation expressed 

strong support for EPA’s proposed rule. 

Several commenters expressed concerns 

with anticipated increases in sewage 

discharges due to the growing cruise 

ship industry and the number of large 

oceangoing vessels in California waters. 

In addition, commenters said the NDZ 

was needed to protect the water quality 

of State and federally protected areas 

and to address inadequate Federal 

discharge and monitoring requirements 

of a growing cruise and shipping 

industry with a documented history of 

illegal discharges. Economic benefits of 

improving California’s coastal resources 

were also provided as a reason for 

creating the NDZ. Some commenters 

stated that the information in 

California’s application to EPA was 

sufficient to demonstrate the need for 

the rule under CWA Section 312. 

The EPA agrees with these concerns 

about impacts to coastal water quality 

and is finalizing its determination that 

this NDZ is required to protect and 

enhance the quality of California marine 

waters. The information provided by the 

State and other sources demonstrates 

that California marine waters are a very 

important and sensitive resource that 

has been degraded by the discharge of 

sewage and would likely experience 

further degradation without the 

protections provided by this NDZ. This 

rule is expected to benefit California’s 

fragile coastal resources by significantly 

reducing the discharge of pollutants that 

can occur in vessel sewage. Water 

quality data for vessel sewage is limited 

because monitoring is not required; 

however, EPA considered the 2000 

Alaska Cruise Ship Initiative sewage 

sampling data from 21 cruise ships with 

Type II MSDs in determining that 

treated vessel sewage discharges can 

still contain pollutants in 

concentrations that exceed current 

Federal Type II MSD effluent limits.5

Type II MSDs also do not remove 

nutrients and the biochemical oxygen 

demand loading which contribute to 

water quality degradation. Based on this 

information, and the likelihood that 

vessel traffic will continue to grow, EPA 

and the State of California have 

determined that even vessel sewage 

treated by an MSD that complies with 

CWA Section 312 standards may be a 

significant source of pollutants that 

have negative impacts on California’s 

coastal resources. 

2. Expansion of the Rule 

Some of the commenters 

recommended expanding the rule to 

increase protection of California’s 

coastal resources. One commenter 

recommended that EPA expand the 

distance of the proposed NDZ from 

three to twelve nautical miles from 

shore because winds and currents 

constantly move the sewage and even 

three miles from shore is too close to 

protect coastal resources. The 

commenter noted that some other 

Federal laws, such as the National 

Marine Sanctuaries Act, the Marine 

Plastic Pollution Research and Control 

Act of 1987, and the Ocean Dumping 

Act, address pollution within the 12- 

mile contiguous zone. 

EPA recognizes that an NDZ does not 

impose a physical barrier to the 

movement of pollutants and 

understands the potential benefits of 

such an expansion, but the commenter’s 

proposal would extend the NDZ beyond 

the limit of the CWA territorial seas, 

into the CWA contiguous zone, an area 

in which CWA Section 312 does not 

apply. See, e.g., CWA Section 312(b) 

(directing EPA to develop Federal 

standards of performance for MSDs 

discharging into ‘‘navigable waters’’) 

and CWA Sections 502(7) and (8) 

(defining ‘‘navigable waters’’ as 

including the ‘‘territorial seas’’ which 

extend ‘‘seaward a distance of three 

miles’’). Any request for action under 

the authorities cited by the 

commenter—even if potentially 

available—is outside the scope of 

today’s action on California’s 

application for an NDZ applicable to its 

waters, pursuant to CWA Section 312. 

EPA also notes that the U.S. Coast 

Guard, which is charged with enforcing 

this NDZ under CWA Section 312(k), 

measures the CWA’s jurisdictional 

boundaries in ocean waters by using 

nautical miles. See, e.g., 33 U.S.C. 

part 2. 

A commenter who supports 

establishment of an NDZ stated that the 

rule should be expanded to apply to all 

vessels, instead of just the classes of 

vessels requested by California’s 

legislation. EPA recognizes that 

prohibiting all vessels from discharging 

treated sewage in California marine 

waters may have broader benefits for 

water quality; however, the commenter 

did not provide information for the 

record demonstrating that such an 

expansion is required for the protection 

and enhancement of the quality of the 

specified waters. The State specifically 

requested, and provided information in 

support of, an NDZ limited to large 

passenger vessels and large cargo 

vessels with adequate holding capacity. 

EPA approached the State Board about 

expanding the application to include all 

vessels, but the State Board determined 


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this would be contrary to the 

Legislature’s instructions to limit the 

scope of the prohibition to the two 

specified classes of vessels. The State 

Board provided further support for the 

distinction between large and small 

vessels in an October 13, 2006, 

supplement to its CWA Section 

312(f)(4)(A) application. The 

supplement cites a number of efforts 

directed at smaller vessels, including 

construction of pump-out facilities, 

educational outreach, and establishment 

of small NDZs under CWA Section 

312(f)(3) in key harbor areas. The 

supplement also summarizes data from 

marina surveys of small vessels which 

showed that 80 percent of the estimated 

841,000 recreational vessels in 

California marine waters lack Type I or 

II MSDs, which means that they are 

already prohibited from discharging to 

marine waters by the CWA. EPA 

reviewed this material and determined 

that the State’s approach was reasonable 

because it would control discharges 

from two significant classes of vessels 

which, together, generate most of the 

sewage that could be legally discharged 

into State waters, whereas neither the 

State, nor any commenters, submitted 

evidence showing that it would be 

necessary to prohibit all discharges from 

the remaining classes of vessels to 

provide for the protection and 

enhancement of the quality of the 

State’s waters. 

One commenter asked EPA to 

consider regulating landside wastewater 

sources as well, including municipal 

discharge and wastewater treatment 

facilities, because they are a larger 

source of pollutants. EPA agrees that 

landside discharges are a more 

significant contributor to pollutants in 

coastal waters, but these discharges are 

outside the scope of today’s rulemaking. 

Today’s rule establishes an NDZ under 

CWA Section 312, which is limited to 

vessel sewage discharges only. Landside 

point-source discharges of pollutants are 

regulated through the National Pollution 

Discharge Elimination System (NPDES) 

under CWA Section 402, and nonpoint 

sources of pollution are regulated under 

CWA Section 319. 

A commenter also suggested 

improved inspections, sampling, 

monitoring, penalties and passenger fees 

as ways to improve the rule. 

Specifically, the commenter noted that 

the United States Coast Guard (Coast 

Guard) should have authority to 

conduct unannounced inspections of 

regulated vessels in light of several 

previously confirmed vessel sewage 

discharge violations. These activities are 

beyond the scope of today’s Section 

312(f)(4)(A) rulemaking. We note that 

the Coast Guard has existing authority 

to inspect vessels and assess penalties 

under CWA Sections 312(j)–(l), as well 

as its general law enforcement 

authorities. 33 U.S.C. 1322(j)–(l); see 

also 14 U.S.C. 89. 

3. Scope and Applicability of CWA 

Section 312(f)(4)(A) 

Several commenters stated that CWA 

Section 312(f)(4)(A) requires a complete 

prohibition of discharges from all 

vessels upon the Administrator’s 

determination that specified state waters 

require protection. These commenters 

stated that Section 312(f)(4) and 40 CFR 

140.4(b) do not permit application of an 

NDZ to select vessel classes and that 

EPA must act on the State’s application 

by either imposing an NDZ applicable to 

all vessels, or by not establishing an 

NDZ at all. One commenter further 

stated that it is implicit in Section 

312(f)(4)(A) that NDZs are intended only 

for areas where sewage discharges are 

sufficiently impacting the marine 

ecosystem so as to justify banning them 

entirely. 

As noted in the Notice of Proposed 

Rulemaking, this is the first time an 

NDZ has been proposed for specific 

categories of vessels. EPA is issuing the 

rule, applicable to two classes of large 

vessels, based on: (1) The scope of the 

State’s NDZ application; (2) the 

evidence supporting a discharge ban 

with this defined scope; (3) lack of 

information demonstrating that an 

expansion is required, and (4) EPA’s 

interpretation that Section 312(f)(4)(A) 

authorizes EPA to promulgate an NDZ 

for specific classes of vessels where 

appropriate. 

The final rule is consistent with the 

State of California’s application for an 

NDZ limited to all passenger vessels 

over 300 gross tons, and oceangoing 

vessels over 300 gross tons with 

sufficient holding tank capacity. The 

State legislature specifically directed the 

State Board to submit an application to 

EPA requesting an NDZ for only these 

two classes of vessels. As discussed 

above, EPA made its determination 

regarding the requested NDZ based on 

the record before it, which included 

information on sewage generation and 

the potential for sewage discharges to 

State waters from the subject classes of 

vessels and from other classes of 

vessels. The two subject classes of 

vessels are responsible for most of the 

sewage generated by vessels in 

California marine waters, an estimated 

22.5 million gallons of 28 million total 

gallons generated and potentially 

discharged each year. The information 

obtained by EPA did not show that 

extension of the rule to all vessels was 

required to protect and enhance the 

quality of the State’s waters. The 

commenters also did not provide 

information which shows that it is 

necessary to include these other classes 

of vessels within the scope of the rule 

to protect and enhance the quality of 

these waters. 

Extending the rule to all vessels 

would also be unduly burdensome on 

the community of marine vessel owners 

and operators. By applying this rule to 

the two classes of large vessels, the vast 

majority of sewage discharges will be 

abated in these sensitive waters. As 

discussed previously, much of the 

vessel-generated sewage that is not 

covered by this rule is already required 

to be pumped out in harbor pump-out 

stations, or discharged outside the 3- 

mile limit of State marine waters, 

because most recreational and small 

commercial vessels lack a Type I or 

Type II MSD to treat their sewage. The 

remaining vessels without holding tanks 

(which are required by CWA Section 

312 to treat their sewage with approved 

MSDs), account for a comparatively 

small portion of the total sewage 

generated in the State’s marine waters. 

EPA considered the different structure 

and wording of the NDZ provisions to 

conclude that Section (f)(4)(A) allows 

for an NDZ limited to specific classes of 

vessels, where appropriate. EPA 

believes that the contrast between the 

language in the NDZ provisions in 

Sections 312(f)(4)(A) and 312(f)(3) 

strongly suggest that Congress did not 

intend to foreclose the Agency from 

imposing an NDZ on a subset of vessels 

under the former where appropriate: 

Section 312(f)(4)(A) allows EPA to 

completely prohibit the discharge of any 

sewage from ‘‘a vessel,’’ whereas 

Section 312(f)(3) provides for the 

complete prohibition of discharge of any 

sewage from ‘‘all vessels.’’ If Congress 

had meant that all vessels must be 

subject to an NDZ under Section 

312(f)(4)(A), it would have used the 

term ‘‘all’’ as it did in Section 312(f)(3). 

In addition, Congress’ desire to 

authorize NDZ protection for special 

waters where necessary could be 

significantly frustrated if the Agency 

were to adopt the commenters’ reading. 

After all, if EPA were to read the CWA 

to foreclose California’s application, the 

State would be forced to choose 

between seeking a complete discharge 

ban that includes some vessels, which 

as a group do not contribute greatly to 

the sewage discharge problem yet might 

have difficulty complying, or taking no 

action to protect water quality from any 

vessel discharges. In view of the textual 

differences between Sections 312(f)(3) 

and 312(f)(4)(A), as well as the policy 


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6Commenters who disagreed with this 

conclusion relied primarily on Congress’ use of the 

terms ‘‘completely’’ and ‘‘any’’ in describing the 

scope of NDZs permitted under Section 

312(f)(4)(A). See 33 U.S.C. 1322(f)(4)(A) (providing 

that, upon making the required finding, the 

Administrator shall ‘‘completely prohibit the 

discharge from a vessel of any sewage (whether 

treated or not) into such waters’’) (emphasis added). 

While Congress’ use of the terms ‘‘completely’’ and 

‘‘any’’ by itself, might be conducive to a reading 

that the NDZ must apply to all vessels, this 

language refers to ‘‘a vessel.’’ These terms could 

simply have been used by Congress to indicate that 

the prohibition on discharge is absolute with 

respect to whatever vessel or class of vessels it 

applies to, rather than permitting a standard which 

allows covered vessels to discharge sewage that 

meets a specified treatment standard. 

considerations underlying Congress’ 

enactment of those provisions, EPA 

reads Section 312(f)(4)(A) as permitting 

a state to seek an NDZ that is limited to 

specific classes of vessels.6

Two commenters expressed concern 

that this rule could lead to the 

patchwork application of NDZ’s 

between states or other jurisdiction 

based on vessel classes. The 

commenters believe that an NDZ that 

does not ban discharges from all vessels 

could lead to a lack of uniformity which 

would make the efficient operation of 

commercial vessels in U.S. waters very 

difficult. They stated that Congress 

created the NDZ program to address 

local water quality issues that deserved 

additional protections but that Congress 

also recognized a critical need for 

consistency across state lines. 

‘‘Uniformity and predictability of legal 

requirements was precisely the goal 

when Congress enacted CWA Section 

312(f)(1) which preempts the states from 

creating such inconsistent legal 

requirements particularly with regard to 

the application of Section 312(f)(4) 

which does not require a determination 

of adequate shore reception facilities.’’ 

As the comments indicate, Section 

312(f) reflects a balance between the 

Federal interest in uniform regulation of 

marine commerce and a state’s interests 

in protection and enhancement of the 

quality of specified waters. EPA has 

previously approved ten NDZs in 

California, and NOAA has established 

prohibitions on the discharge of sewage 

from large vessels in waters within the 

boundaries of the four National Marine 

Sanctuaries along the California coast. 

Already, the discharge requirements for 

vessels operating along the California 

coast are not uniform. Today’s rule will 

create a more uniform, well-defined 

boundary three miles from the 

California coast demarcating the NDZ 

for the covered classes of vessels. 

One of these commenters further 

stated that establishing an NDZ for 

vessel classes sets a ‘‘dangerous 

precedent’’ because Section 312(f)(4)(A) 

does not require EPA to find that 

adequate pump-out facilities are 

reasonably available for all vessels, as is 

the case for state applications under 

Section 312(f)(3). 

EPA does not expect that today’s 

action will lead to the establishment of 

unjustified NDZs in the future. As 

noted, Section 312(f)(4)(A) does not 

require EPA to find that adequate pumpout facilities are available, but, unlike 

Section 312(f)(3), it requires EPA to 

determine whether a proposed NDZ is 

required for the protection and 

enhancement of the quality of specified 

waters. If a state is unable to 

demonstrate that the waters specified in 

a proposed NDZ warrant that protection, 

or that the necessary protection can be 

provided by an NDZ, the state will not 

obtain a discharge prohibition under 

Section 312(f)(4)(A). Under Section 312 

(f)(3), only the state needs to determine 

whether the waters require protection, 

and EPA decides whether adequate 

pump-out facilities are reasonably 

available. 

Some commenters also suggested that 

the State should have sought EPA 

approval under CWA Section 312(f)(3), 

instead of 312(f)(4)(A). Section 312(f)(3) 

authorizes states to, ‘‘completely 

prohibit the discharge from all vessels of 

any sewage’’ in some or all of their 

waters, provided that EPA determines 

that adequate sewage handling facilities 

are reasonably available to ‘‘all vessels’’ 

operating in the affected waters. 

EPA does not decide which of these 

statutory provisions a state should use 

to apply for an NDZ. Having decided to 

apply under Section 312(f)(4)(A), the 

State of California was required to meet 

the criteria of this provision, and EPA 

is required to determine whether or not 

they have done so. With this final rule, 

we find that they have. 

4. Classes of Vessels 

Some commenters stated that there is 

no factual basis for distinguishing 

between large cargo vessels and smaller 

vessels with similar crew and passenger 

numbers because there would be no 

difference in the impacts of their sewage 

discharges on water quality. Some 

commenters also noted that the 

proposed rule had estimated that 

recreational vessels without holding 

tanks, as a class, have the potential to 

discharge more than twice the amount 

of sewage as covered cargo vessels. 

EPA recognizes that the size of a 

vessel is not always determinative of the 

amount of sewage it will generate or its 

potential to pollute State waters. We 

expect that some vessels below the 300 

gross tonnage threshold sometimes carry 

a similar number of crew and 

passengers as some of the covered large 

oceangoing vessels. However, as 

discussed above, California’s 

application addressed vessels over 300 

gross tons, and the revised data show 

that smaller vessels without holding 

tanks, as a group, are a less significant 

source of sewage discharges within the 

NDZ than large oceangoing vessels (see 

Table 1). EPA believes that the State’s 

approach to defining the vessel classes 

by tonnage is practical and 

understandable. Alternatives, such as 

defining vessel classes by crew and 

passenger numbers, would be more 

difficult to implement and enforce. 

Several commenters stated that EPA 

did not explain the legal basis for 

applying the NDZ to select classes of 

vessels. Some of these commenters also 

stated that EPA should renotice the rule 

for comment after explaining the legal 

justification for applying Section 

312(f)(4)(A) to limited classes of vessels. 

EPA is only required to reference the 

legal authority for the proposed rule. 5 

U.S.C. 553(b)(2). The Notice of Proposed 

Rulemaking not only specified the legal 

basis for the proposed rule (CWA 

Section 312(f)(4)(A) and 40 CFR 140.4), 

it explained EPA’s rationale for 

proposing, for the first time, to limit the 

NDZ to certain vessel classes, and 

specifically invited the public to 

comment on this approach. The 

commenters’ detailed analyses of the 

issue shows that the commenters had a 

sufficient understanding of the legal 

issues to question EPA’s application of 

Section 312(f)(4)(A) to specific classes of 

vessels and offer specific arguments 

against the proposed approach. In this 

final rule preamble, EPA has, in 

response to these comments, explained 

its legal rationale for today’s action. 

5. Large Oceangoing Vessel Sewage 

Holding Capacity 

Some commenters suggested that the 

two-day holding capacity requirement 

for oceangoing vessels in the proposed 

rule was arbitrary and impractical 

because it had no environmental 

impact-based justification and would 

cause large oceangoing vessels to have 

to make extra trips beyond State waters 

to discharge sewage. Commenters also 

noted that the requirement could 

incentivize holding tank removal or 

reduction to avoid regulation, resulting 

in an increase in unregulated vessels 

and vessel discharges. One commenter 

suggested that there should be an 

exception for vessels that had installed 

improved treatment systems rather than 

large holding tanks. A couple of 

commenters suggested that there was a 

greater impact from the sewage 


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7Records of meetings between EPA and shipping 

industry representatives can be found in the docket 

for this rule at www.regulations.gov. 

8For the proposed rule, EPA did not have data 

on cargo ship sewage generation rates, so the 

Agency used passenger ship data from the 

December 29, 2008 Cruise Ship Discharge 

Assessment Report to estimate the sewage 

generation rate for large non-passenger oceangoing 

vessels at 8.4 gallons per person, per day. The Coast 

Guard and CSA is more reliable because it includes 

specific sewage generation data for large oceangoing 

vessels. 

9The older data used in developing the proposed 

rule would also show that the final rule prohibits 

more sewage discharges, and is therefore more 

protective of water quality, but the extent of the 

difference would be less because EPA’s original 

estimate of daily sewage generation was lower. 

discharges of vessels not covered by the 

two-day holding capacity requirement. 

Most of the commenters who opposed 

the two-day holding capacity 

requirement recommended revising the 

rule to more closely reflect California’s 

legislation, which defines the covered 

class of large oceangoing vessels as 

those with ‘‘a holding tank of sufficient 

capacity’’ to contain sewage while in the 

marine waters of the State. These 

commenters proposed changing the rule 

to require all vessels, to the extent they 

are coming from waters in which 

discharge is permitted, to arrive with 

sewage holding tanks that have been 

discharged to the greatest extent 

operationally practicable. In addition, 

under the commenters’ suggested 

approach, all such vessels would be 

prohibited from discharging sewage 

within State waters to the extent that 

they have the capability to hold such 

sewage in a holding tank. These 

commenters stated that this approach 

would provide greater environmental 

benefit by regulating all vessels with 

holding tanks and result in a greater 

reduction in the amount of effluent 

discharged. In addition to written 

comments, representatives of the 

shipping industry met with EPA to 

discuss this approach during and after 

the proposed rule comment period.7

These representatives stated that this 

approach would increase compliance 

and be easier to enforce since the Coast 

Guard could check the discharge logs at 

the same time and in the same manner 

as it investigated compliance with other 

shipping industry regulations. 

Based on the information provided by 

the commenters and EPA’s own 

evaluation of the sewage generation 

data, we agree that the proposed twoday holding tank definition may be 

impractical in some circumstances (e.g, 

causing some vessels to make additional 

trips from ports to discharge outside the 

NDZ and complicating port operations), 

might create an incentive for some 

vessel operators to remove existing 

holding capacity to avoid coverage by 

the rule, and, as discussed more fully 

below, would be less protective of 

coastal water quality than a rule that 

covers all large oceangoing vessels 

having any amount of holding capacity. 

As described in Section II, today’s rule 

replaces the proposed two-day holding 

tank capacity definition with a vessel 

class definition which provides that 

only those large oceangoing vessels 

equipped with holding tanks which 

have fully utilized the capacity of those 

holding tanks while present in State 

waters may discharge any treated 

sewage. The Agency believes this 

approach better implements California’s 

request in its application for an NDZ 

that applies to large oceangoing vessels 

equipped with ‘‘a holding tank of 

sufficient capacity.’’ Consistent with the 

State’s application, the final rule 

remains limited to large vessels. 

Since the Notice of Proposed 

Rulemaking, EPA has acquired detailed 

2010 large vessel data from the Coast 

Guard and the Chamber of Shipping of 

America (CSA), available in the docket 

for this rule. Data from the Coast Guard 

include port arrival and departure dates 

and times, and vessel identification, 

characteristics, country of origin, 

owners and operators for all vessels 

calling on California ports in 2010. EPA 

used the Coast Guard data to better 

estimate port call frequency and 

durations for large vessels, as this 

information was more current and 

complete than the 2006 State Lands 

Trust Vessel Survey Data that EPA 

relied on for the proposed rule. The 

CSA vessel sewage data was compiled 

in response to EPA’s Clean Water Act 

Section 312(b): Notice Seeking 

Stakeholder Input on Petition and Other 

Request to Revise the Performance 

Standards for Marine Sanitation 

Devices, 75 FR 39683, July 12, 2010, and 

includes vessel, crew, sewage 

generation and holding capacity 

information for over 600 oceangoing 

vessels, of which 588 were 300 gross 

tons or greater. EPA was able to use this 

data to better estimate sewage 

generation rates and holding capacities 

for large oceangoing vessels because the 

holding capacity information is more 

detailed and reliable and includes the 

number of days of holding capacity and 

daily sewage generation rates for each 

vessel. EPA used the new data to 

compare the volumes of treated vessel 

sewage that would be prohibited from 

discharge into State marine waters 

under the proposed rule and this final 

rule. 

Without direct data for vessel sewage 

discharges in State waters, EPA used the 

2006 State Lands data and 2010 Coast 

Guard and CSA data, to estimate the 

volumes of sewage generated by the 

different classes of vessels while present 

in California waters. An analysis of the 

Coast Guard and CSA data indicate that 

the median daily sewage generation rate 

per person for large oceangoing vessels 

is 16 gallons, which is almost twice as 

much as the estimate for large passenger 

vessels.8 CSA sewage volume data 

ranged significantly and is attributed to 

crew size variation and likely to systems 

that process both sewage and graywater; 

regardless, this remains the best 

available data for large oceangoing 

vessels. The 2006 State Lands data 

continues to be the best source of 

information for large passenger vessels, 

therefore, EPA’s estimated sewage 

generation rate for these vessels remains 

8.4 gallons per person, per day as was 

used in the proposed rule. EPA used 

these sewage generation estimates, data 

on the number and length of vessel port 

calls, and the range of vessel sewage 

tank holding capacities, to compare the 

scope of coverage of today’s rule against 

the scope of coverage for the proposed 

rule. The Coast Guard and CSA data, 

and EPA’s analysis and analytical 

methods are included in the docket for 

this rule. EPA’s analysis determined 

that today’s rule would regulate 62 

percent of large oceangoing vessels, or 

approximately twelve percent more than 

the two-day holding capacity criteria of 

the proposed rule, because all large 

oceangoing vessels with holding tank 

capacity, including those with less than 

two days, would now fall under the 

rule. Based on CSA data, approximately 

50 percent of vessels reporting had less 

than two days holding capacity. This 

increase would prohibit approximately 

nine percent more treated sewage, or 

over 780,000 gallons, from being 

discharged into California marine 

waters, as compared to the two-day 

holding capacity requirement in the 

proposed rule.9

Today’s rule also addresses the point 

raised by some commenters that the 

proposed two-day holding capacity rule 

would have excluded more large 

oceangoing vessels from the NDZ than 

it covered. As described above, today’s 

rule will apply to approximately 62 

percent of the large oceangoing vessels 

calling on California ports (those with 

holding tanks), instead of only 50 

percent with two-day capacity using the 

originally proposed two-day holding 

capacity criteria. As a result today’s rule 

will prohibit the discharge of 

approximately 3.3 million gallons of 

sewage per year, compared to the 


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10EPA recognizes that its CWA section 

312(f)(4)(A) regulations include a reference to state 

water quality standards, in the context of 

addressing a decision by the Administrator to 

expand or reduce the scope of a State’s requested 

NDZ, but that is not an issue in this designation. 

In any event, this reference predates amendments 

to CWA 312(f)(4)(A) which eliminated any need for 

EPA to determine whether an NDZ was necessary 

to protect applicable water quality standards, to the 

language in the statute today. 

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

estimated 2.7 million gallons of sewage 

that may continue to be discharged by 

vessels with no holding capacity or 

vessels that exceed the maximum 

holding capacity of their tanks. (See 

Table 1.) 

Since this approach is consistent with 

the State’s application for an NDZ, more 

protective of California marine waters, 

more operationally feasible, and more 

likely to lead to better compliance, EPA 

has eliminated the proposed two-day 

holding tank capacity criteria and 

associated definitions, and restructured 

the rule to require that all large 

oceangoing vessels with holding tanks 

fully utilize their holding tank capacity 

while in State marine waters. EPA has 

presented this approach to the State, 

and the State agrees that the final rule 

is an appropriate approach to 

implementing ‘‘sufficient holding tank 

capacity.’’ 

Today’s final rule does not adopt the 

commenters’ specific proposed 

language, but it has substantially the 

same effect on large oceangoing vessels. 

Most covered vessel operators are 

expected to choose to enter State waters 

with empty holding tanks to be certain 

that they will fall outside the class of 

vessels subject to the NDZ if they fully 

use their holding capacity. In some 

instances, where a vessel with 

substantial holding capacity will be in 

State waters for a short time, this may 

not be necessary. However, any large 

oceangoing vessel which might reach its 

holding capacity while in State marine 

waters is expected to choose to empty 

its tanks before entering State marine 

waters. In addition, EPA did not 

incorporate the commenters’ proposed 

language requiring holding tanks to be 

‘‘discharged to the greatest extent 

operationally practicable’’ because this 

is addressed by the ‘‘more than de 

minimis amounts of sewage’’ provision 

in the final rule. 

The rule also does not distinguish 

between large passenger vessels with 

certified MSDs and those with advanced 

waste treatment systems, as one 

commenter proposed, because Section 

312(f)(4)(A) expressly prohibits 

distinctions between vessel discharges 

based on the level of treatment (the 

regulation must ‘‘completely prohibit 

the discharge from a vessel of any 

sewage (whether treated or not) into 

such water’’). 

5. Applying a No Discharge Zone for All 

California Marine Waters 

Many commenters suggested that 

there is an insufficient nexus between 

vessel sewage and the entirety of 

California marine waters to designate an 

NDZ for all of the State’s coastal waters. 

Some commenters suggested that there 

is insufficient data to support an NDZ 

at all. Three commenters stated that a 

prohibition under CWA Section 

312(f)(4)(A) and 40 CFR 140.4(b) 

requires science-based evidence that 

vessel sewage discharges are impacting 

specific waters in the proposed NDZ 

and that the State and EPA had not 

provided sufficient evidence of the 

impacts. One stated that the 

determination of the proper area to be 

included in an NDZ requires a 

quantitative and qualitative 

consideration of the relationship 

between the discharge for which the 

regulation is being considered and the 

water quality characteristics (both 

baseline levels and water quality 

standards) of the ‘‘specified’’ waters 

covered by the State’s application. Some 

commenters stated that under 40 CFR 

140.4(b), an NDZ could only be 

established where a prohibition on 

vessel discharges is needed to attain 

applicable water quality standards for 

the specific waters to be protected. 

Commenters suggested that impacts to 

water quality could not be measured 

without knowing the volume and spatial 

and temporal distribution of the 

discharges, or without ranking the 

contribution of the vessel discharges in 

relation to other sources of marine 

pollution. A commenter also stated that 

the diversity of California marine waters 

and the differing levels of impacts from 

oceangoing vessels to the waters make 

‘‘lumping’’ them together into one NDZ 

illogical. 

Pursuant to CWA Section 312(f)(4)(A), 

EPA evaluated the waters that the State 

specified for NDZ coverage. At the 

outset, it is important to note that the 

statutory standard for when EPA must 

impose an NDZ under CWA 312(f)(4)(A) 

is where the Administrator determines 

‘‘that the protection and enhancement 

of the quality of specified waters within 

such state requires such a prohibition.’’ 

Contrary to what was suggested by 

commenters, nothing in the statute 

requires a demonstration focused on 

specific state water quality standards.10

Based on the information contained in 

the record for today’s rule, EPA finds 

that the NDZ requested in the State’s 

application is required for all of 

California’s marine waters. This 

information demonstrates that 

significant portions of California marine 

waters are biologically important and 

sensitive, that large vessel sewage 

discharges are a significant source of 

marine pollution which is distributed 

widely throughout State waters, and 

that these discharges contribute to the 

degradation of the State waters. From 

the Mexican border to the Oregon 

border, California marine waters include 

889 recreational areas, 200 aquatic 

sanctuaries, over 100 state marine 

protected areas, including 34 locations 

designated as State Water Quality 

Protection Areas for unique biological 

values and or fragility, four National 

Marine Sanctuaries, other national and 

state parks, commercial and recreational 

fisheries, shellfish growing areas and 

essential fish habitat. These waters 

support important economic, 

recreational, conservation, research, 

educational, and aesthetic values, and 

are becoming increasingly important for 

potable water supply as desalinization 

measures are being proposed and used 

to meet drinking water demands. 

California has also listed 120 miles of its 

coastal waters as impaired for pathogens 

commonly associated with sewage.11

Specially designated areas found 

throughout California’s coastal waters 

are part of a larger connected 

oceanographic unit that is essential 

habitat for a wide range of important 

marine species. The entire length of 

California’s coastal waters is influenced 

by the California Current system, an 

eastern boundary current that forms the 

eastern portion of the North Pacific 

subtropical gyre. While this broad 

current moves southward off the 

continental shelf, seasonal coastal 

upwelling (driven primarily by coastal 

winds), as well as countercurrents and 

eddies (smaller scale cyclonic flows), 

contribute to mixing of continental shelf 

water with offshore ocean waters. The 

population dynamics, genetic structure, 

and biogeography of many coastal 

marine species are highly influenced by 

and dependent on this oceanographic 

connectivity. These waters provide 

important migration routes, feeding 

grounds, and breeding sites for many 

marine mammal species, including blue 

whales, gray whales, dolphins, 

porpoises, California sea lions, fur seals, 

and Northern elephant seals, as well as 

migratory and resident sea bird species, 

including petrels, cormorants, albatross, 

terns, shearwaters, pelicans, and 

auklets. 

Because most of California’s coastal 

waters are recognized as possessing 


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12As noted previously, these commenters stated 

that EPA should deny the State’s request for 

establishment of an NDZ for all California marine 

waters. 

special significance, the degree of 

connectivity and mixing throughout 

these coastal waters requires that the 

NDZ extend to all of California’s marine 

waters. As some commenters noted, 

discharged sewage moves easily through 

coastal waters and can impair water 

quality in protected areas even if it is 

released outside those areas. By 

establishing the NDZ for all of California 

marine waters, instead of select areas of 

special concern, today’s rule will 

provide the required protection of water 

quality. In addition, it will be easier for 

vessel operators to understand the scope 

of the designation and be able to comply 

with the rule. 

In light of the extensive array of 

important marine resources located 

throughout California’s coastal waters, 

their connection to the California 

Current system, and the presence of the 

two covered classes of large vessels in 

many parts of these waters having the 

potential to discharge 22.5 million 

gallons of sewage per year, EPA does 

not believe that Section 312(f)(4)(A) 

requires it to divide the proposed NDZ 

into individual segments and conduct 

site-specific evaluations of these 

segments to determine the extent to 

which vessel sewage discharges are 

impacting each. None of the 

commenters identified specific 

segments of the NDZ that they proposed 

to exclude from designation.12 The 

information provided in the State’s 

application, the proposed rule and 

supporting comments demonstrate that 

an NDZ encompassing all California 

marine waters is required to protect and 

enhance the quality of California marine 

waters which warrant special protection 

under CWA Section 312(f)(4)(A) because 

of their unique qualities and diverse 

resources. 

7. Other General Comments 

One commenter, while in support of 

the vessel sewage prohibition, expressed 

concerns with the legal basis for 

regulating military vessels under the 

rule stating that Section 553(a)(1) of the 

Administrative Procedure Act prohibits 

an agency from regulating military 

matters. Section 553(a)(1) exempts 

rulemakings involving military 

functions from having to comply with 

the Administrative Procedure Act’s 

notice and comment procedures, but 

does not exempt military functions from 

all Federal regulations. Pursuant to 

Section 312(d) of the CWA, certain 

military vessels are covered by today’s 

rulemaking according to the second 

applicability provision, i.e., any military 

vessel that is a ‘‘large oceangoing vessel 

equipped with a holding tank which has 

not fully used the holding tank’s 

capacity, or which contains more than 

de minimis amounts of sewage 

generated while the vessel was outside 

of the marine waters of the State of 

California.’’ Under CWA section 312(d), 

however, the Secretary of Defense has 

exercised the authority to exempt 

specific vessels or classes of vessels 

from compliance in the interest of 

national security. The Secretary of 

Defense promulgated Department of 

Defense (DoD) 4715.06–R1 ‘‘Regulations 

on Vessels Owned or Operated by the 

Department of Defense’’ (January 2005), 

at p.8, sections C.1.3.1.1 through 

C.1.3.1.4, which explain the 

circumstances under which DoD has 

exempted its vessels from the sewage 

discharge requirements of Section 312, 

including for example, circumstances in 

which compliance would excessively 

and unreasonably detract from the 

vessel’s military characteristics, 

effectiveness, or safety, and not be in the 

interest of national security. This DoD 

regulation states that commanding 

officers and/or vessel masters of 

exempted vessels are nonetheless 

required to limit sewage discharges into 

U.S. navigable waters, territorial seas, 

and NDZs to the maximum extent 

practicable without endangering the 

health, safety, or welfare of the crew or 

other personnel aboard. 

The commenter also stated that the 

economic analysis for the rule required 

under the Regulatory Flexibility Act was 

incomplete because it did not consider 

‘‘potentially devastating’’ impacts to 

small shore-side businesses in the event 

regulated large passenger vessels spent 

fewer days at ports while transiting 

beyond the NDZ to discharge. The 

Regulatory Flexibility Act only requires 

agencies to consider economic impacts 

on small entities to which the rule will 

apply. See, e.g., Cement Kiln Recycling 

Coalition v. EPA, 255 F.3d 855 (DC Cir. 

2001), 5 U.S.C. 603(b)(3). This rule will 

not apply to ‘‘small shore-side 

businesses’’ and thus EPA was not 

required to consider the potential 

indirect impacts of the rule on those 

businesses. Nevertheless, EPA does not 

anticipate the rule will result in cruise 

ships spending fewer days at California 

ports than they would otherwise. The 

comment letter from Cruise Lines 

International Association, which 

represents 26 cruise lines, stated that 

their members have implemented the 

California legislative restrictions that 

formed the basis for the rule since the 

State legislation was enacted. 

Another commenter suggested that 

Federal regulation of sewage discharges 

from vessels preempts state regulation. 

Section 312(f)(1)(A) of the CWA 

specifies no state or political 

subdivision thereof shall adopt or 

enforce any statute or regulation of such 

state or political subdivision with 

respect to the design, manufacture, or 

installation or use of any marine 

sanitation device on any vessel subject 

to the provisions of this section; 

however, the other subsections of 312(f) 

specifically authorize states to apply to 

EPA for establishment of NDZs. 

IV. Administrative Requirements 

Plain Language 

In compliance with the principles in 

the President’s Memorandum of June 1, 

1998 (63 FR 31885), regarding plain 

language, this preamble and the Final 

Rule are written using plain language. 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

Under Executive Order 12866 (58 FR 

51735, Oct. 4, 1993), this action is a 

‘‘significant regulatory action.’’ 

Accordingly, EPA submitted this action 

to the Office of Management and Budget 

(OMB) for review under EO 12866 and 

13563 (76 FR 3821, Jan. 21, 2011) and 

any changes made in response to OMB 

recommendations have been 

documented in the docket for this action 

(docket number EPA–R09–OW–2010– 

0438). 

EPA prepared an analysis of the 

potential costs associated with this 

action to determine whether the final 

rule would have an annual effect on the 

economy of $100 million or more, or 

adversely affect in a material way the 

economy or a sector of the economy. 

Vessels that are equipped with MSDs 

and that navigate throughout California 

waters are already subject to the EPA 

MSD Standard at 40 CFR part 140 and 

the Coast Guard MSD Regulations at 33 

CFR part 159. These standards prohibit 

the overboard discharge of untreated 

vessel sewage in state waters and 

require that vessels with installed toilets 

be equipped with Coast Guard certified 

MSDs which either retain sewage or 

treat sewage to the applicable standards. 

See, 40 CFR 140.3; 33 CFR 159.7. There 

are three types of MSDs, but only Type 

II and Type III MSDs are used by the 

vessels affected by this rule. 

Vessels subject to this final rule 

include all large passenger vessels of 

300 gross tons or more and oceangoing 


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11410 Federal Register / Vol. 77, No. 38 / Monday, February 27, 2012 / Rules and Regulations 

13U.S. Small Business Administration Table of 

Small Business Size Standards, North American 

Industry Classification System (NAICS), 

www.sba.gov/size. 

vessels of 300 gross tons or more 

equipped with sewage holding tanks. 

The proposed rule relied on 2008 data 

for large passenger vessel calls to 

estimate that up to 40 percent of the 

large passenger vessels may need to 

retrofit their holding tanks, at an 

estimated cost of $200,000 per vessel, to 

ensure they had adequate holding 

capacity while operating in State waters. 

The total estimated one-time capital cost 

for the existing fleet of large passenger 

vessels calling on California ports was 

estimated to be $3.8 million. To 

estimate operation and maintenance 

costs, EPA assumed that most of the cost 

would be labor to operate and 

occasionally inspect new or retrofitted 

tanks. Conservatively assuming each 

ship would budget one hour per week 

for tank operation and maintenance at 

approximately $50 per hour, we 

estimated approximately $2,600 per 

year, per ship, or approximately $50,000 

per year for operation and maintenance 

costs. 

Approximately 62 percent of the large 

oceangoing vessels have sewage holding 

tanks and, therefore, are subject to this 

final rule. For the proposed rule, EPA 

evaluated the potential costs of 

voluntarily retrofitting holding tanks on 

some vessels to increase capacity or, 

alternatively, making extra trips beyond 

State marine waters to discharge 

sewage. However, the final rule does not 

require owners to retrofit any large 

oceangoing vessels or make extra trips 

to discharge outside of the NDZ to 

discharge sewage, and therefore we do 

not anticipate that it will impose 

additional costs on these vessel 

operators. 

B. Paperwork Reduction Act 

This action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq. Burden is 

defined at 5 CFR 1320.3(b). Since 

today’s rule would not establish or 

modify any information and 

recordkeeping requirements, it is not 

subject to the requirements of the 

Paperwork Reduction Act. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of today’s rule on small entities, small 

entity is defined as: (1) A small business 

as defined by the Small Business 

Administration’s (SBA) regulations at 13 

CFR 121.201; (2) a small governmental 

jurisdiction that is a government of a 

city, county, town, school district or 

special district with a population of less 

than 50,000; and (3) a small 

organization that is any not-for-profit 

enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of the final rule on small 

entities, EPA certifies that this action 

will not have a significant economic 

impact on a substantial number of small 

entities. The small entities subject to the 

requirements of this final rule fall under 

Deep Sea Freight Transportation (NAICS 

Code 483111) and Deep Sea Passenger 

Transportation (NAICS 483112) 

classifications.13 The U.S. Small 

Business Administration size standard 

for these businesses is 500 or fewer 

employees. To determine the size of 

companies that own large passenger and 

large oceangoing vessels that call at 

California ports, the EPA reviewed 

owner profiles for all large passenger 

vessels and several oceangoing vessels 

that responded to the State’s 2006 vessel 

survey. Based on this review, it was 

determined that no large passenger and 

oceangoing vessels that call at California 

ports are owned by companies that 

employ 500 or fewer people. 

D. Unfunded Mandates Reform Act 

This final rule does not contain a 

Federal mandate that may result in 

expenditures of $100 million or more 

for state, local, and tribal governments, 

in the aggregate, or the private sector in 

any one year, as demonstrated above in 

section A, Executive Order 12866: 

Regulatory Planning and Review. 

Because the final rule contains no 

regulatory requirements that might 

significantly or uniquely affect small 

governments, it is also not subject to the 

requirements of Section 203 of the Act. 

Small governments are subject to the 

same requirements as other entities 

whose duties result from this final rule 

and they have the same ability as other 

entities to retain and pump out treated 

sewage or discharge outside of the 

designated zones. 

E. Executive Order 13132: Federalism 

This action does not have Federalism 

implications. It will not have substantial 

direct effects on the states, on the 

relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. Section 312(f) of 

the CWA generally preempts state 

regulation of sewage discharges in state 

waters. An NDZ allows the state to seek 

protection of its state waters that it 

would otherwise be preempted from 

providing on its own. The State of 

California is requesting that EPA take 

action to designate all State marine 

waters as an NDZ under CWA Section 

312(f)(4)(A), and EPA’s action in this 

final rule is responsive to this request. 

Therefore, Executive Order 13132 does 

not apply to this action. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have any known 

tribal implications, as specified in 

Executive Order 13175 (65 FR 67249, 

Nov. 9, 2000). The only expected impact 

on tribal rights or responsibilities is the 

improvement of ocean water quality. 

EPA has notified all California tribes 

with coastal reservations of this action 

and received no comments. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks & Safety Risks 

The order applies to economically 

significant rules under E.O. 12866 that 

concern an environmental health or 

safety risk that EPA has reason to 

believe may disproportionately affect 

children. This action is not subject to 

EO 13045 (62 FR 19885, Apr. 23, 1997) 

because it is not economically 

significant as defined in EO 12866. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not a ‘‘significant 

energy action’’ as defined in Executive 

Order 13211 (66 FR 28355, May 22, 

2001), because it is not likely to have a 

significant adverse effect on the supply, 

distribution, or use of energy. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (NTTAA), Public Law 104– 

113, 12(d) (15 U.S.C. 272 note) directs 

EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 


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Federal Register / Vol. 77, No. 38 / Monday, February 27, 2012 / Rules and Regulations 11411 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. NTTAA directs EPA to provide 

Congress, through OMB, explanations 

when the Agency decides not to use 

available and applicable voluntary 

consensus standards. 

This final rule does not involve 

technical standards. Therefore, EPA did 

not consider the use of any voluntary 

consensus standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629 

(Feb. 16, 1994)) establishes Federal 

executive policy on environmental 

justice. Its main provision directs 

Federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA has determined that this final 

rule will not have disproportionately 

high and adverse human health or 

environmental effects on minority or 

low-income populations because it 

increases the level of environmental 

protection for all affected populations 

without having any disproportionately 

high and adverse human health or 

environmental effects on any 

population, including any minority or 

low-income population. The final rule 

will further regulate and reduce 

pollutants from sewage in California 

marine waters thus reducing the risk of 

exposure to all populations, including 

those covered under this Executive 

order. 

K. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A Major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). This rule 

will be effective March 28, 2012. 

Lists of Subjects in 40 CFR Part 140 

Environmental protection, Sewage 

disposal, Vessels. 

Dated: February 9, 2012. 

Jared Blumenfeld, 

Regional Administrator, Region IX. 

For the reasons stated in the 

preamble, EPA amends 40 CFR part 140 

as follows: 

PART 140—[AMENDED] 

■ 1. The authority citation for part 140 

continues to read as follows: 

Authority: 33 U.S.C. 1322. 

■ 2. Section 140.4 is amended by adding 

paragraph (b)(2) to read as follows: 

§ 140.4 Complete prohibition. 

* * * * * 

(b) * * * 

(2)(i) For the marine waters of the 

State of California, the following vessels 

are completely prohibited from 

discharging any sewage (whether treated 

or not): 

(A) A large passenger vessel; 

(B) A large oceangoing vessel 

equipped with a holding tank which has 

not fully used the holding tank’s 

capacity, or which contains more than 

de minimis amounts of sewage 

generated while the vessel was outside 

of the marine waters of the State of 

California. 

(ii) For purposes of paragraph (b)(2) of 

this section: 

(A) ‘‘Marine waters of the State of 

California’’ means the territorial sea 

measured from the baseline as 

determined in accordance with the 

Convention on the Territorial Sea and 

the Contiguous Zone and extending 

seaward a distance of three miles, and 

all enclosed bays and estuaries subject 

to tidal influences from the Oregon 

border (41.999325 North Latitude, 

124.212110 West Longitude, decimal 

degrees, NAD 1983) to the Mexican 

border (32.471231 North Latitude, 

117.137814 West Longitude, decimal 

degrees, NAD 1983). A map illustrating 

these waters can be obtained from EPA 

or viewed at http://www.epa.gov/ 

region9/water/no-discharge/ 

overview.html. 

(B) A ‘‘large passenger vessel’’ means 

a passenger vessel, as defined in section 

2101(22) of title 46, United States Code, 

of 300 gross tons or more, as measured 

under the International Convention on 

Tonnage Measurement of Ships, 1969, 

measurement system in 46 U.S.C. 

14302, or the regulatory measurement 

system of 46 U.S.C. 14502 for vessels 

not measured under 46 U.S.C. 14302, 

that has berths or overnight 

accommodations for passengers. 

(C) A ‘‘large oceangoing vessel’’ 

means a private, commercial, 

government, or military vessel of 300 

gross tons or more, as measured under 

the International Convention on 

Tonnage Measurement of Ships, 1969, 

measurement system in 46 U.S.C. 

14302, or the regulatory measurement 

system of 46 U.S.C. 14502 for vessels 

not measured under 46 U.S.C.14302, 

that is not a large passenger vessel. 

(D) A ‘‘holding tank’’ means a tank 

specifically designed, constructed, and 

fitted for the retention of treated or 

untreated sewage, that has been 

designated and approved by the ship’s 

flag Administration on the ship’s 

stability plan; a designated ballast tank 

is not a holding tank for this purpose. 

* * * * * 

[FR Doc. 2012–4469 Filed 2–24–12; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 622 

[Docket No. 001005281–0369–02] 

RIN 0648–XB031 

Fisheries of the Caribbean, Gulf of 

Mexico, and South Atlantic; Coastal 

Migratory Pelagic Resources of the 

Gulf of Mexico and South Atlantic; 

Closure 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; closure. 

SUMMARY: NMFS closes the hook-andline component of the commercial 

sector of the coastal migratory pelagic 

fishery for king mackerel in the 

southern Florida west coast subzone. 

This closure is necessary to protect the 

Gulf king mackerel resource. 

DATES: This rule is effective 12:01 a.m., 

local time, February 26, 2012, through 

June 30, 2012. 

FOR FURTHER INFORMATION CONTACT: 

Susan Gerhart, telephone 727–824– 

5305, email susan.gerhart@noaa.gov. 

SUPPLEMENTARY INFORMATION: The 

fishery for coastal migratory pelagic fish 


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