[Federal Register: March 27, 2008 (Volume 73, Number 60)]
[Proposed Rules]
[Page 16224-16228]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27mr08-13]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 922
[Docket No. 080302355-8413-01]
RINs 0648 AT14, 0648 AT15, 0648 AT16
Office of National Marine Sanctuaries Regulations
AGENCY: Office of National Marine Sanctuaries (ONMS), National Ocean
Service (NOS), National Oceanic and Atmospheric Administration (NOAA),
Department of Commerce (DOC).
ACTION: Proposed rule.
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SUMMARY: The National Oceanic and Atmospheric Administration (NOAA)
previously published proposed revised management plans, revised
Designation Documents, and revised regulations for the Cordell Bank
National Marine Sanctuary (CBNMS), Gulf of the Farallones National
Marine Sanctuary (GFNMS), and Monterey Bay National Marine Sanctuary
(MBNMS). The currently pending proposed regulations would revise and
provide greater clarity to existing regulations.
After reviewing public comments on the proposed rules, including a
request from the California State Water Resources Control Board to
prohibit discharges from certain vessels in national marine sanctuaries
offshore of California, and further analyzing vessel discharge issues,
NOAA now proposes additional discharge regulations for the CBNMS,
GFNMS, and MBNMS consistent with the request of the California State
Water Resources Control Board. This proposed rule would prohibit
discharge of treated waste from vessels 300 gross registered tons (GRT)
or more with sufficient holding tank capacity to hold treated sewage
while within the sanctuary and limit the exception for graywater
discharges to vessels less than 300 GRT, and vessels 300 GRT or more
without sufficient holding tank capacity to hold graywater while within
the MBNMS.
DATES: Comments will be considered if received by May 9, 2008.
ADDRESSES: Written comments should be sent by mail to: Sean Morton,
JMPR Management Plan Coordinator, NOAA's Office of National Marine
Sanctuaries, 1305 East-West Highway, N/ORM-6, Silver Spring, MD 20910,
by e-mail to: jointplancomments@noaa.gov, or by fax to (301) 713-0404.
Copies of the DMP/DEIS are available from the same address and on the
Web at: http://www.sanctuaries.nos.noaa.gov/jointplan. Comments can
also be submitted to the Federal e-Rulemaking Portal: http://
www.regulations.gov. Follow the instructions for submitting comments.
FOR FURTHER INFORMATION CONTACT: Sean Morton, NOAA Office of National
Marine Sanctuaries, 301-713-7264 or sean.morton@noaa.gov.
SUPPLEMENTARY INFORMATION: Pursuant to section 304(e) of the National
Marine Sanctuaries Act (16 U.S.C. 1434 et seq.) (NMSA), the ONMS
conducted a review of the management plans for the CBNMS, GFNMS, and
MBNMS. The review resulted in proposed new management plans for the
sanctuaries, some proposed revisions to existing regulations, some
proposed new regulations, and some proposed changes to the designation
documents. Certain discharges or deposits of material or other matter
from within or into the sanctuaries from vessels in general and certain
discharges or deposits from cruise ships were among regulations
proposed for modification or addition.
For the CBNMS, proposed new regulations (71 FR 59039, October 6,
2006) included prohibitions on:
Discharging or depositing from within or into the
Sanctuary any material or other matter from a cruise ship, except
vessel engine and generator cooling water.
For the CBNMS, proposed revisions to existing regulations (71 FR
59039, October 6, 2006) would:
Clarify that discharges/deposits allowed from marine
sanitation devices apply only to Type I and Type II marine sanitation
devices and all vessel operators are required to lock all marine
sanitation devices in a manner that prevents discharge of untreated
sewage;
Remove an exception for discharging or depositing food
waste resulting from meals on board vessels; and
Revise language for discharges and deposits from beyond
the boundary of the sanctuary that subsequently enter the Sanctuary and
injure Sanctuary resources.
For the GFNMS, proposed new regulations (71 FR 59338, October 6,
2006) included prohibitions on:
Discharging or depositing from within or into the
sanctuary any material or other matter from a cruise ship, except
vessel engine and generator cooling water; and
Discharging or depositing, from beyond the boundary of the
sanctuary, any material or other matter that subsequently enters the
sanctuary and injures a sanctuary resource or quality.
For the GFNMS, proposed revisions to existing regulations (71 FR
59338, October 6, 2006) would:
Clarify that discharges/deposits allowed from marine
sanitation devices apply only to Type I and Type II marine sanitation
devices, and that the vessel operators are required to lock all marine
sanitation devices in a manner that prevents discharge of untreated
sewage; and
Remove exceptions to the discharging or depositing
prohibition that pertain to discharge of municipal sewage.
For the MBNMS, proposed new regulations (71 FR 59050, October 6,
2006) included prohibitions on:
Discharging or depositing any material or other matter
from a cruise ship other than vessel engine cooling water, vessel
generator cooling water, or anchor wash.
For the MBNMS, proposed revisions to existing regulations (71 FR
59050, October 6, 2006) would:
Clarify that discharges/deposits allowed from marine
sanitation devices apply only to Type I and Type II marine sanitation
devices and that vessel operators are required to lock all marine
sanitation devices in a manner that prevents discharge of untreated
sewage;
Clarify that the prohibition against discharges/deposits
applies to discharges/deposits both within and into the sanctuary;
Clarify that discharges/deposits resulting from cruise
ship generator cooling water, anchor wash, and clean bilge water
(defined as not containing detectable levels of harmful matter) are
excepted from the cruise ship discharge/deposit prohibition.
NOAA published these proposals in 2006 in the CBNMS, GFNMS, and
MBNMS Draft Management Plans
[[Page 16225]]
(DMPs) and Draft Environmental Impact Statement (DEIS), available
online at: http://sanctuaries.noaa.gov/jointplan/. On October 6, 2006
NOAA issued notices of availability of the DMPs and DEIS, and published
the associated proposed rules.
With regard to vessel discharges/deposits from marine sanitation
devices, NOAA's proposed action only allowed discharges from Type I and
Type II marine sanitation devices and required vessel operators to lock
marine sanitation devices in a manner preventing discharge of untreated
sewage. NOAA's proposed action prohibited most discharges/deposits from
within or into the sanctuaries from cruise ships.
After receiving comments on the DEIS and proposed rules, in
particular from the California State Water Resources Control Board,
NOAA proposes to expand the range of vessels subject to the discharge
requirements to better address potential impacts of sewage and
graywater discharges from large vessels other than cruise ships. The
impact of the regulations is within the range of the alternatives
discussed in the original DEIS. Additional analysis related to these
proposed regulations is included in Supplemental Draft Environmental
Impact Statement (SDEIS).
Background
NOAA distributed the draft management plans and DEIS, and published
the proposed rules, on October 6, 2006 and accepted comments through
January 5, 2006. During public review, NOAA received a wide range of
comments, including substantial public and agency comments about
changes proposed for sanctuary regulation of sewage and graywater
discharges/deposits from vessels of 300 GRT or more. Comments included
a request that NOAA expand the cruise ship discharge regulation to
prohibit sewage discharges from other large vessels. In addition,
comments from California state agencies and environmental non-
governmental organizations indicated that NOAA's proposed exception for
graywater discharges is inconsistent with the California Clean Coast
Act (California Public Resources Code sec. 72420-72422) prohibiting
graywater discharges from vessels 300 GRT or more within state waters.
On May 11, 2007, NOAA also received a request from the California
State Water Resources Control Board to prohibit discharges from certain
vessels in national marine sanctuaries offshore of California. The
California Clean Coast Act requires the State Water Resources Control
Board to request the appropriate federal agencies to prohibit the
release of wastes from cruise ships and oceangoing ships into state
marine waters and the four national marine sanctuaries in California.
The request referenced the California Clean Coast Act [California
Senate Bill 771 (Chapter 588, Statutes of 2006)], and specifically
requested NOAA prohibit release from large passenger vessels (cruise
ships) and other oceangoing ships (300 gross tons or more) of hazardous
waste, oily bilgewater, other waste, and sewage sludge into the marine
waters of the state and marine sanctuaries. These proposed rules
include prohibitions consistent with the request from the State of
California for the CBNMS, GFNMS, and MBNMS.
Existing or currently pending regulations published in October 2006
(71 FR 59039, 71 FR 59050, 71 FR 59338) already prohibit discharge of
hazardous waste, oil bilge water and sewage sludge.
The revised proposed discharge/deposit regulations: (1) Provide an
exception for treated sewage discharges only applicable to vessels less
than 300 GRT, and vessels greater than 300 GRT without sufficient
holding tank capacity to hold sewage while within the sanctuary and (2)
provide an exception for graywater discharges applicable to vessels
less than 300 GRT, and vessels 300 GRT or more without sufficient
holding tank capacity to hold graywater while within the MBNMS.
Discharge of graywater is already prohibited, without exception, in the
CBNMS and GFNMS.
The graywater discharge exception for vessels without sufficient
holding tank capacity to hold graywater while within the MBNMS is
proposed because many vessels are designed without the ability to
retain graywater, and as such must discharge graywater directly as it
is produced. Some vessels mix graywater with untreated sewage where it
is treated in the vessel marine sanitation device (MSD). If graywater
is retained in an MSD and, consequently, mixed with any sewage, it is
considered blackwater.
The primary purpose of these revised regulations is to reduce
potentially harmful effects of large-vessel sewage and graywater
discharges on sanctuary qualities and resources. The revisions
described herein affect two of the exceptions to the prohibition on
discharging or depositing material or other matter into the sanctuary:
the exception for treated sewage for the CBNMS, GFNMS, and MBNMS, and
the exception for biodegradable matter including sewage for the MBNMS.
Proposed revisions would result in substantive changes regarding sewage
and graywater.
NOAA will publish any final regulations for the CBNMS, GFNMS, and
MBNMS after reviewing all comments to the currently pending proposed
rules and this proposed rule.
Environment
The CBNMS protects an area of 526 square miles (399 square nautical
miles) off the northern California coast. The main feature of the
Sanctuary is Cordell Bank, an offshore granite bank located on the edge
of the continental shelf, about 43 nautical miles (nmi) northwest of
the Golden Gate Bridge and 20 nmi west of the Point Reyes lighthouse.
CBNMS is entirely offshore and shares its southern and eastern boundary
with the GFNMS. The CBNMS eastern boundary is six miles from shore and
the western boundary is the 1000 fathom isobath on the edge of the
continental slope. CBNMS is located in one of the world's four major
coastal upwelling systems. The combination of oceanic conditions and
undersea topography provides for a highly productive environment in a
discrete, well-defined area. The vertical relief and hard substrate of
the Bank provide benthic habitat with near-shore characteristics in an
open ocean environment 20 nmi from shore. The Cordell Bank National
Marine Sanctuary was established in 1989 to protect and preserve the
extraordinary ecosystem, including marine birds, mammals, and other
natural resources of Cordell Bank and its surrounding waters.
The GFNMS lies off the coast of California, to the west and north
of San Francisco. The GFNMS is composed of offshore waters extending
out to and around the Farallon Islands and nearshore waters (up to the
mean high tide line) from Bodega Head to Rocky Point in Marin. The
GFNMS is characterized by the widest continental shelf on the west
coast of the contiguous United States. In the Gulf of the Farallones,
the shelf reaches a width of 32 nautical miles (59 km). Shoreward of
the Farallon Islands, the continental shelf is a relatively flat sandy/
muddy plain, which slopes gently to the west and north from the
mainland shoreline. The Farallon Islands lie along the outer edge of
the continental shelf, between 13 and 19 nautical miles (24 and 35 km)
southwest of Point Reyes and approximately 26 nautical miles (48 km)
due west of San Francisco. In addition to sandy beaches, rocky cliffs,
small coves, and offshore stacks, the GFNMS includes open bays (Bodega
Bay, Drakes Bay) and enclosed bays or estuaries (Bolinas Lagoon,
Tomales Bay, Estero Americano, and Estero de San Antonio). The Gulf of
the Farallones National
[[Page 16226]]
Marine Sanctuary was established in 1981 to protect and preserve this
unique and fragile ecological community.
The MBNMS is located offshore of California's central coast,
adjacent to and south of the GFNMS. It encompasses a shoreline length
of approximately 268 miles between Marin in Marin County and Cambria in
San Luis Obispo County and approximately 4,016 square nautical miles of
ocean and coastal waters, and the submerged lands thereunder, extending
an average distance of 30 miles from shore. Supporting some of the
world's most diverse marine ecosystems, it is home to numerous mammals,
seabirds, fishes, invertebrates, and plants in a remarkably productive
coastal environment. The MBNMS was established in 1992 for the purposes
of protecting and managing the conservation, ecological, recreational,
research, educational, historical, and esthetic resources and qualities
of the area.
According to Lloyds Maritime Information Services, in 2000, 3,575
cargo vessels called at ports on San Francisco Bay, including 1,936
container vessels, 787 tankers, 626 dry bulk vessels, and 226 other
types (Bureau of Transportation Statistics 2002). Approximately half of
these vessels transit south off the coast of California, while the
other half transit north or west of San Francisco. Data from the U.S.
Army Corps of Engineers show a similar level of movement, with
approximately 3,600 vessels (including foreign and domestic vessels,
tugs, and barges) entering San Francisco Bay from the Pacific Ocean
each year (USACE 2002a). In addition, approximately 3,000 large vessels
transit along the northern/central California coast every year (Pacific
States/British Columbia Oil Spill Task Force 2002), passing through the
three sanctuaries.
Summary of the Proposed Regulatory Amendments
Regulation of Vessel Sewage
The proposed regulations would revise the prohibition to address
sewage discharges/deposits from within or into the CBNMS, GFNMS, and
MBNMS from vessels of 300 GRT or more. The prohibitions would only
apply to vessels with sufficient holding tank capacity to hold sewage
while within the sanctuary.
The revised regulations would better address NOAA's concerns about
possible impacts from large volumes of treated sewage discharges within
the sanctuaries from large vessels in addition to cruise ships.
Untreated sewage discharges are prohibited within the national marine
sanctuaries. Vessel sewage discharges are more concentrated than
domestic land-based sewage. They may contain bacteria or viruses that
can cause disease in humans and wildlife, may contain high
concentrations of nutrients that can lead to eutrophication (the
process that can cause oxygen-depleted ``dead zones'' in aquatic
environments), and may yield unpleasant esthetic impacts to the
sanctuary environment (diminishing sanctuary resources and their
ecological, conservation, esthetic, recreational and other qualities).
Large vessels may have either Type II marine sanitation devices (MSDs)
that treat sewage, or Type III MSDs that hold sewage until it can be
legally pumped out or discharged.
In 2006, approximately 75% of the large oceangoing vessels that
called on California ports were using a Type II MSD. While these
devices are designed to lower fecal coliform bacteria counts (to a
standard of 200 fecal coliform per 100 milliliter of sample) and reduce
total suspended solids (to a standard of 150 milligrams per liter),
studies in Alaska of cruise ship wastewater discharges have shown high
rates of failure in the ability of conventional MSDs to meet legal
discharge standards (Alaska Department of Environmental Conservation
2004). Furthermore, monitoring and testing of MSD discharges (outside
of Alaska) is not legally required of large vessel operators, so
reductions in treatment effectiveness may go undetected.
Regulation of Vessel Graywater
The proposed action would also amend the exception to the
prohibition on discharging or depositing graywater from within or into
the MBNMS. The revised regulation would provide an exception for
discharging or depositing graywater from vessels less than 300 GRT, and
vessels 300 GRT or greater without sufficient holding tank capacity to
hold graywater while within the MBNMS.
The revised regulation would better address NOAA's concerns about
the potential impacts of graywater discharges from large vessels in the
MBNMS. Graywater from vessels includes wastewater from showers, baths,
and galleys. Graywater can contain a variety of substances including
(but not limited to) detergents, oil and grease, pesticides and food
wastes (Eley 2000). Very little research has been done on the impacts
of graywater on the marine environment, but many of the chemicals
commonly found in graywater are known to be toxic (Casanova et al.
2001). These chemicals have been implicated in the occurrence of
cancerous growths in bottom-dwelling fish (Mix 1986). Furthermore,
studies of graywater discharges from large cruise ships in Alaska
(prior to strict state effluent standards for cruise ship graywater
discharges) found very high levels of fecal coliform in large cruise
ship graywater (well exceeding the federal standards for fecal coliform
from Type II MSDs). These same studies also found high mean total
suspended solids in some graywater sources (exceeding the federal
standards for total suspended solids from Type II MSDs).
In summary, the revised proposed discharge regulations would
prohibit the following discharges: (1) Within or into the CBNMS, GFNMS,
and MBNMS all treated sewage/deposits from vessels 300 GRT or more with
sufficient holding tank capacity to hold sewage while within the
sanctuary and (2) within or into the MBNMS, all graywater from vessels
300 GRT or more with sufficient holding tank capacity to hold graywater
while within the MBNMS.
Miscellaneous Rulemaking Requirements
National Environmental Policy Act
NOAA has prepared a Supplemental Draft Environmental Impact
Statement (SDEIS) to evaluate the proposed revisions to the discharge/
deposit regulations analyzed in the DEIS. Copies are available at the
address and Web site listed in the Addresses section of this proposed
rule. Responses to comments received on this proposed rule will be
published in the Final Environmental Impact Statement and preamble to
the final rule.
Executive Order 12866: Regulatory Impact
This proposed rule has been determined to be not significant within
the meaning of Executive Order 12866.
Executive Order 13132: Federalism Assessment
NOAA has concluded this regulatory action does not have federalism
implications sufficient to warrant preparation of a federalism
assessment under Executive Order 12612. The ONMS consulted with a
number of entities within the State who participated in development of
this proposed rule, including but not limited to the California Coastal
Commission, California Regional Water Quality Control Board, California
Department of Fish and Game, and California Resources Agency.
[[Page 16227]]
Regulatory Flexibility Act
The Chief Counsel for Regulation of the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration this proposed rule, if adopted, would not have a
significant economic impact on a substantial number of small entities.
The factual basis for this certification is as follows:
Based primarily on recent socioeconomic studies, and on-site
surveys of visitor use, NMSP has identified the following small
entities as defined by the Regulatory Flexibility Act. Small business
concerns operating within the CBNMS, GFNMS, and MBNMS (sanctuaries)
include over 500 commercial fishing operations, six mariculture
operations, more than 30 consumptive recreational charter businesses,
over 30 non-consumptive recreational charter businesses, approximately
3 motorized personal watercraft businesses, and approximately 10 marine
salvage companies.
Small organizations operating within the sanctuaries include non-
governmental organizations (NGOs) and/or non-profit organizations
(NPOs) dedicated to environmental education, research, restoration, and
conservation concerning marine and maritime heritage resources. There
are approximately 50 small organizations active in the sanctuaries
including non-profit organizations (NPOs) involved in education,
research, restoration, and conservation activities. Cambria, Carmel-by-
the-Sea, Pacific Grove, City of Monterey, City of Seaside, Del Rey
Oaks, Marina, Castroville, Pajaro, Soquel, Capitola, Rio Del Mar,
Aptos, Pacifica, Half Moon Bay, San Mateo County Harbor District, Santa
Cruz Port District and Moss Landing Harbor District would qualify as
``small governmental jurisdictions'' directly adjacent to the
sanctuaries.
The proposed modifications to the sanctuaries' discharge/deposit
regulation prohibiting waste discharges from vessels 300 GRT or greater
is applicable to any small entities that operate vessels of this size
in the Sanctuary. However, no small entities among those identified
above operate vessels 300 GRT or more within the sanctuaries. Because
this action would not have a significant economic impact on a
substantial number of small entities, no initial regulatory flexibility
analysis is required, and none was prepared.
Request for Comments
NOAA requests comments on this proposed rule concerning vessel
discharges and deposits of sewage and graywater, which supplements the
currently pending proposed rules published on October 2006 (71 FR
59039, 71 FR 59050, 71 FR 59338).
List of Subjects in 15 CFR Part 922
Administrative practice and procedure, Boats and Boating safety,
Coastal zone, Education, Environmental protection, Fish, Harbors,
Marine mammals, Marine pollution, Marine resources, Marine safety,
Natural resources, Penalties, Recreation and recreation areas,
Reporting and recordkeeping requirements, Research, Water pollution
control, Water resources, Wildlife.
(Federal Domestic Assistance Catalog Number 11.429 Marine Sanctuary
Program)
Dated: March 21, 2008.
Steve Kozak,
Chief of Staff for Ocean Services and Coastal Zone Management.
Accordingly, for the reasons set forth above, 15 CFR part 922 is
proposed to be amended as follows:
PART 922--[AMENDED]
1. The authority citation for part 922 continues to read as
follows:
Authority: 16 U.S.C. 1431 et seq.
2. In Sec. 922.82 revise paragraphs (a)(2) introductory text and
(a)(2)(ii) to read as follows:
Sec. 922.82 Prohibited or otherwise regulated activities.
(a)* * *
(2) Discharging or depositing from within or into the Sanctuary,
other than from a cruise ship, any material or other matter except:
* * * * *
(ii) For a vessel less than 300 gross registered tons (GRT), or a
vessel 300 GRT or greater without sufficient holding tank capacity to
hold sewage while within the Sanctuary, biodegradable effluents
incidental to vessel use and generated by: An operable Type I or II
marine sanitation device (U.S. Coast Guard classification) that is
approved in accordance with section 312 of the Federal Water Pollution
Control Act, as amended (FWPCA), 33 U.S.C. 1322.
Vessel operators must lock all marine sanitation devices in a
manner that prevents discharge or deposit of untreated sewage;
* * * * *
3. In Sec. 922.111 revise paragraphs (a)(1)(i) introductory text
and (a)(1)(i)(B) to read as follows:
Sec. 922.111 Prohibited or otherwise regulated activities.
(a) * * *
(1) * * *
(i) Discharging or depositing from within or into the Sanctuary,
other than from a cruise ship, any material or other matter except:
* * * * *
(B) For a vessel less than 300 gross registered tons (GRT), or a
vessel 300 GRT or greater without sufficient holding tank capacity to
hold sewage while within the Sanctuary, biodegradable effluents
incidental to vessel use and generated by an operable Type I or II
marine sanitation device (U.S. Coast Guard classification) approved in
accordance with section 312 of the Federal Water Pollution Control Act,
as amended, (FWPCA), 33 U.S.C. 1322. Vessel operators must lock all
marine sanitation devices in a manner that prevents discharge or
deposit of untreated sewage;
* * * * *
4. In Sec. 922.132 revise paragraphs (a)(2)(i) introductory text
and (a)(2)(i)(B) through (E), and add paragraph (a)(2)(i)(F) to read as
follows:
Sec. 922.132 Prohibited or otherwise regulated activities.
(a) * * *
(2)(i) Discharging or depositing from within or into the Sanctuary,
other than from a cruise ship, any material or other matter, except:
* * * * *
(B) For a vessel less than 300 gross registered tons (GRT), or a
vessel 300 GRT or greater without sufficient holding tank capacity to
hold sewage while within the Sanctuary, biodegradable effluent
incidental to vessel use and generated by an operable Type I or II
marine sanitation device (U.S. Coast Guard classification) approved in
accordance with section 312 of the Federal Water Pollution Control Act,
as amended (FWPCA), 33 U.S.C. 1322. Vessel operators must lock all
marine sanitation devices in a manner that prevents discharge or
deposit of untreated sewage;
(C) Biodegradable vessel deck wash down, vessel engine cooling
water, vessel generator cooling water, anchor wash, clean bilge water
(meaning not containing detectable levels of harmful matter as
defined);
(D) For a vessel less than 300 gross registered tons (GRT), or a
vessel 300 GRT or greater without sufficient holding tank capacity to
hold graywater
[[Page 16228]]
while within the Sanctuary, graywater as defined by section 312 of the
FWPCA that is biodegradable;
(E) Vessel engine or generator exhaust; or
(F) Dredged material deposited at disposal sites authorized by the
U.S. Environmental Protection Agency (EPA) (in consultation with the
U.S. Army Corps of Engineers (COE)) prior to the effective date of
Sanctuary designation (January 1, 1993), provided that the activity is
pursuant to, and complies with the terms and conditions of, a valid
Federal permit or approval existing on January 1, 1993. Authorized
disposal sites within the Sanctuary are described in appendix C to this
subpart.
* * * * *
[FR Doc. E8-6189 Filed 3-26-08; 8:45 am]
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