[Federal Register Volume 63, Number 5 (Thursday, January 8, 1998)]
[Rules and Regulations]
[Pages 1318-1320]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-431]



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_______________________________________________________________________

Part V





Environmental Protection Agency





_______________________________________________________________________



40 CFR Parts 9 and 140



Marine Sanitation Device Standard--Establishment of Drinking Water 
Intake No Discharge Zone(s) Under Section 312(f)(4)(B) of the Clean 
Water Act; Final Rule

  Federal Register / Vol. 63, No. 5 / Thursday, January 8, 1998 / Rules 
and Regulations  

[[Page 1318]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 9 and 140

[FRL-5942-4]
RIN 2040-AC61


Marine Sanitation Device Standard--Establishment of Drinking 
Water Intake No Discharge Zone(s) Under Section 312(f)(4)(B) of the 
Clean Water Act

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Clean Water Act (CWA) authorizes the Administrator of the 
Environmental Protection Agency (EPA) to establish drinking water 
intake no discharge zones upon application by a State. Within these 
zones, the discharge of sewage from a vessel, whether treated or 
untreated, is prohibited. These no discharge zones protect the quality 
of public drinking water supplies in those areas by decreasing the 
possibility of contamination from sewage discharged from vessels.
    This provision was added to section 312 of the Clean Water Act in 
1977, after EPA had promulgated regulations on application requirements 
for other types of no discharge zones. Before today, EPA had not 
promulgated regulations specific to application requirements for 
drinking water intake no discharge zones under the CWA. Applicants for 
drinking water intake zones, therefore, have followed application 
requirements which are not tailored to drinking water intakes, and have 
provided more information than needed for these no discharge zones. 
Today, EPA is promulgating application requirements specific to 
drinking water intake no discharge zones. The effect of today's rule 
would be to more specifically tailor the type of information required 
in an application for a drinking water intake no discharge zone and 
reduce the amount of information a State must submit.

EFFECTIVE DATE: These regulations take effect on February 9, 1998.

ADDRESSES: The official record for this rulemaking is available for 
inspection at EPA's Water Docket, Rm M2616, Waterside Mall, 401 M 
Street, S.W., Washington, D.C, 20460. For access to the Docket, call 
(202) 260-3027 between 9 a.m. and 3:30 p.m., Monday through Friday, 
excluding legal holidays for an appointment. EPA public information 
regulation (40 CFR Part 2) provides that a reasonable fee may be 
charged for copying.

FOR FURTHER INFORMATION CONTACT: Deborah Lebow, Oceans and Coastal 
Protection Division, United States Environmental Protection Agency, 
4504F, 401 M St. S.W., Washington, D.C. 20460, (202) 260-8448.

SUPPLEMENTARY INFORMATION:

Regulated Entities

    Entities potentially affected by this action include States who 
seek to establish a drinking water intake no discharge zone where 
vessel sewage is prohibited in a specified area, under section 312(f) 
of the Clean Water Act. Potentially affected entities include:

------------------------------------------------------------------------
                                               Examples of potentially  
                 Category                         affected entities     
------------------------------------------------------------------------
State/local/tribal governments............  States applying for no      
                                             discharge zones.           
------------------------------------------------------------------------

Public Comments

    EPA is today clarifying the application requirements for 
designating drinking water intake no discharge zones under section 312 
of the CWA. This rule only applies to States requesting approval of 
drinking water intake no discharge zones and has no direct effect on 
any regulated entity. These requirements are promulgated pursuant to 
section 312(f)(4)(B) of the CWA (33 U.S.C. 1322(f)(4)(B)), which 
provides that ``Upon application by a State, the Administrator shall, 
by regulation, establish a drinking water intake zone in any waters 
within such State and prohibit the discharge of sewage from vessels 
within that zone.'' The effect of this rule is to set out application 
requirements specific to drinking water intake no discharge zones. It 
will reduce the amount of information States are required to submit to 
EPA under existing 40 CFR 140.4(b) to establish these no discharge 
zones.
    EPA proposed this change on October 16, 1996 (61 FR 54014-54017). 
The background and details pertaining to this change are detailed there 
and will not be repeated here. Today EPA is promulgating the 
regulations as they were originally proposed.
    EPA received four sets of comments on the proposal all of which 
supported the proposal in full. One of the commenters, however, 
suggested that EPA take a more active enforcement role, and consider 
prohibiting other types of discharges such as spills, paints when a 
boat is refueling or in repair, in addition to prohibiting sewage 
discharge. Since Section 312 addresses vessel sewage, this comment is 
beyond the scope of these regulations and will not be addressed here. 
The Agency notes, however, that spills are addressed in other parts of 
the CWA (e.g., section 311). Another commenter asked that we require 
NOAA nautical charts rather than USGS maps. We have made the change to 
require NOAA charts where applicable.
    States are encouraged to establish drinking water intake no 
discharge zones that are consistent with source water protection areas 
for surface water systems delineated pursuant to Section 1453(a)(2)(A) 
of the Safe Drinking Water Act Amendments of 1996 and the forthcoming 
Source Water Assessment and Protection guidance. In fact, States could 
incorporate these no discharge zones into source water assessment 
programs and pay for their delineation with funds set aside from the 
new Drinking Water State Revolving Fund.

Compliance With Other Laws and Executive Orders

A. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA), EPA generally is 
required to conduct a regulatory flexibility analysis describing the 
impact of the regulatory action on small entities as part of 
rulemaking. However, under section 605(b) of the RFA, if EPA certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities, EPA is not required to prepare an 
RFA. Pursuant to Section 605(b) of the Regulatory Flexibility Act, 5 
U.S.C. 605(b), the Administrator certifies that this rule will not have 
a significant economic impact on a substantial number of small 
entities. Today's rule simplifies existing requirements and should have 
no direct effect on small entities. The rule, which reduces existing 
regulatory requirements, applies only to States, which do not qualify 
as small entities.

B. Paperwork Reduction Act

    The Office of Management and Budget (OMB) has approved the 
information collection requirements contained in this rule under the 
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. EPA 
prepared an Information Collection Request (ICR) document (ICR No. 
1791.01) and has assigned OMB control number 1791.01. A copy may be 
obtained from Sandy Farmer, OPPE Regulatory Information Division; U.S. 
Environmental Protection Agency (2137); 401 M St., S.W.; Washington, DC 
20460 or by calling (202) 260-2740.
    This information is required from States who wish to designate a 
drinking water intake no discharge zone under CWA Section 312(f)(4)(B). 
It allows the

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EPA Administrator to evaluate these State applications for designating 
no discharge zones to ensure that the discharge area is the appropriate 
size to protect drinking water intake zones from vessel sewage. This 
information is not of a confidential nature.
    Under existing regulatory provisions, applications for drinking 
water intake no discharge zones have an estimated reporting burden 
averaging 167 hours per application and an estimated annual record 
keeping burden of one hour per applicant at approximately $82 per 
application. Under the new regulations, the reporting burden is reduced 
to 101 hours per application and the annual record keeping burden per 
application is estimated at one hour at approximately $82 per 
application. This rule reduces the reporting burden by 66 hours per 
application. Burden means the total time, effort, or financial 
resources expended by persons to generate, maintain, retain, or 
disclose or provide information to or for a Federal agency. This 
includes the time needed to review instructions; develop, acquire, 
install, and utilize technology and systems for the purposes of 
collecting, validating, and verifying information, processing and 
maintaining information, and disclosing and providing information; 
adjust the existing ways to comply with any previously applicable 
instructions and requirements; train personnel to be able to respond to 
a collection of information; search data sources; complete and review 
the collection of information; and transmit or otherwise disclose the 
information.
    An Agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations are listed in 40 CFR Part 9 and 48 CFR Chapter 15. EPA is 
today amending the table of currently approved information collection 
request control numbers to include the OMB control number for the 
information collection request for this rule. This ICR was previously 
subject to public notice and comment prior to OMB approval. As a 
result, EPA finds that there is ``good cause'' under section 553(b)(B) 
of the Administrative Procedure Act (5 U.S.C. 553(b)(B)) to amend this 
table without prior notice and comment. Due to the technical nature of 
the table, further notice and comment would be unnecessary.

C. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Order defines ``significant regulatory action'' as 
one that is likely to result in a rule that may: (1) Have an annual 
effect on the economy of $100 million or more or adversely affect in a 
material way the economy, a sector of the economy, productivity, 
competition, jobs, the environment, public health or safety, or State, 
local, or tribal governments or communities; (2) Create a serious 
inconsistency or otherwise interfere with an action taken or planned by 
another agency; (3) Materially alter the budgetary impact of 
entitlements, grants, user fees, or loan programs or the rights and 
obligations of recipients thereof; or (4) Raise novel legal or policy 
issues arising out of legal mandates, the President's priorities, or 
the principles set forth in the Executive Order.
    It has been determined that this rule is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and is 
therefore not subject to OMB review.

D. The Unfunded Mandates Reform Act, and Executive Order 12875

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under Section 202 of UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, Section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of Section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
Section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
Section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements. EPA has determined that today's regulation does not 
impose any enforceable duties upon the private sector. Therefore, this 
final rulemaking is not a ``private sector mandate.''
    Further, EPA has determined that today's action does not include a 
Federal mandate that may result in expenditures of $100 million or more 
by either State, local, and tribal governments, in the aggregate, or to 
the private sector in any one year. This rulemaking should reduce the 
reporting and recordkeeping burden on State applicants. Thus, this rule 
is not subject to the requirements of Sections 202 and 205 of the UMRA. 
It is codifying in 40 CFR 140.4(c) that which already exists in the 
statute and is self-implementing. Therefore, this rule does not 
significantly or uniquely affect small governments. Executive Order 
12875 requires that, to the extent feasible and permitted by law, no 
Federal agency shall promulgate any regulation that is not required by 
statute and that creates a mandate upon a State, local, or tribal 
government, unless funds necessary to pay the direct costs incurred by 
the State, local or tribal government in complying with the mandate are 
provided by the Federal government. EPA has determined that the 
requirements of Executive Order 12875 do not apply to today's 
rulemaking, since no mandate is created by this action.

E. Small Business Regulatory Enforcement Fairness Act of 1996

    Under 5 U.S.C. 801(1)(A) as added by the Small Business Regulatory 
Enforcement Fairness Act of 1996, EPA submitted 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 General 
Accounting Office prior to publication of the rule in today's Federal 
Register. This rule is not a ``major rule'' as defined by 5 U.S.C. 
804(2).

F. National Technology Transfer and Advancement Act

    Under section 12(d) of the National Technology Transfer and 
Advancement Act (NTTAA), the Agency is required to

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use voluntary consensus standards in its regulatory activities unless 
to do so would be inconsistent with applicable law or otherwise 
impractical. Voluntary consensus standards are technical standards 
(e.g., materials specifications, test methods, sampling procedures, 
business practices, etc.) that are developed or adopted by voluntary 
consensus standards bodies. Where available and potentially applicable 
voluntary consensus standards are not used by EPA, the Act requires the 
Agency to provide Congress, through the Office of Management and 
Budget, an explanation of the reasons for not using such standards.
    The Agency has found that this final rule does not contain any 
technical standards subject to the NTTAA.

List of Subjects

40 CFR Part 9

    Reporting and recordkeeping requirements.

40 CFR Part 140

    Environmental protection, Drinking water intake zones, Marine 
sanitation device standard, No discharge areas.

    Dated: December 22, 1997.
Carol M. Browner,
Administrator.

    For the reasons set forth in the preamble, 40 CFR parts 9 and 140 
are amended as follows:

PART 9--[AMENDED]

    1. The authority citation for part 9 continues to read as follows:

    Authority: 7 U.S.C. 135 et seq., 136-136y; 15 U.S.C. 2001, 2003, 
2005, 2006. 2601-2671; 21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33 
U.S.C. 1251 et seq.,1311, 1313d, 1314, 1318, 1321, 1326, 1330, 1342, 
1344, 1345 (d) and (e), 1361; E.O. 11735, 38 FR 21243, 3 CFR, 1971-
1975 Comp. P.973; 42 U.S.C. 241, 242b, 243, 246, 300f, 300g, 300g-1, 
300g-2, 300g-3, 300g-4, 300g-5, 300g-6, 300j-1, 300j-2, 300j-3, 
300j-4, 300j-9, 1857 et seq., 6901-6992k, 7401-7671q, 7542, 9601-
9657, 11023, 11048.

    2. In Sec. 9.1 the table is amended by adding a new heading and 
entry in numerical order to read as follows:


Sec. 9.1  OMB approvals under the Paperwork Reduction Act.

* * * * *

------------------------------------------------------------------------
                                                             OMB control
                      40 CFR citation                            No.    
------------------------------------------------------------------------
                                                                        
                  *        *        *        *        *                 
Marine Sanitation Device Standard:                                      
  Part 140.................................................    2040-0187
                                                                        
                  *        *        *        *        *                 
------------------------------------------------------------------------

PART 140--[AMENDED]

    3. The authority citation for part 140 is revised to read as 
follows:

    Authority: 33 U.S.C. 1322, as amended.

    4. Section 140.4 is amended:
    a. In paragraph (a) introductory text, in the first sentence, by 
revising the first word ``A'' to read ``a'' and by adding to the 
beginning of the sentence the words ``Prohibition pursuant to CWA 
section 312(f)(3):''.
    b. In paragraph (b) introductory text, in the first sentence, by 
revising the first word ``A'' to read ``a'' and by adding to the 
beginning of the sentence the words ``Prohibition pursuant to CWA 
section 312(f)(4)(A):'' and by removing from the first sentence the 
words ``312(f)(4)'' and adding, in their place, the words 
``312(f)(4)(A)''.
    c. In paragraph (b)(1) by removing the word ``prohibited,'' and 
adding in its place the words ``prohibited pursuant to CWA Section 
312(f)(4)(A):'', and by redesignating paragraph (b)(1)(ii) as new 
paragraph (c)(4)(i) and adding and reserving paragraph (b)(1)(ii).
    d. By adding the following new paragraph (c)(1), (c)(2), (c)(3) and 
(c)(4) introductory text; and by adding and reserving (c)(4)(ii) to 
read as follows:


Sec. 140.4  Complete prohibition.

* * * * *
    (c)(1) Prohibition pursuant to CWA section 312(f)(4)(B): A State 
may make written application to the Administrator of the Environmental 
Protection Agency under section 312(f)(4)(B) of the Act for the 
issuance of a regulation establishing a drinking water intake no 
discharge zone which completely prohibits discharge from a vessel of 
any sewage, whether treated or untreated, into that zone in particular 
waters, or portions thereof, within such State. Such application shall:
    (i) Identify and describe exactly and in detail the location of the 
drinking water supply intake(s) and the community served by the 
intake(s), including average and maximum expected amounts of inflow;
    (ii) Specify and describe exactly and in detail, the waters, or 
portions thereof, for which a complete prohibition is desired, and 
where appropriate, average, maximum and low flows in million gallons 
per day (MGD) or the metric equivalent;
    (iii) Include a map, either a USGS topographic quadrant map or a 
NOAA nautical chart, as applicable, clearly marking by latitude and 
longitude the waters or portions thereof to be designated a drinking 
water intake zone; and
    (iv) Include a statement of basis justifying the size of the 
requested drinking water intake zone, for example, identifying areas of 
intensive boating activities.
    (2) If the Administrator finds that a complete prohibition is 
appropriate under this paragraph, he or she shall publish notice of 
such finding together with a notice of proposed rulemaking, and then 
shall proceed in accordance with 5 U.S.C. 553. If the Administrator's 
finding is that a complete prohibition covering a more restricted or 
more expanded area than that applied for by the State is appropriate, 
he or she shall also include a statement of the reasons why the finding 
differs in scope from that requested in the State's application.
    (3) If the Administrator finds that a complete prohibition is 
inappropriate under this paragraph, he or she shall deny the 
application and state the reasons for such denial.
    (4) For the following waters the discharge from a vessel of any 
sewage, whether treated or not, is completely prohibited pursuant to 
CWA section 312(f)(4)(B):
    (i) * * *
    (ii) (Reserved).

[FR Doc. 98-431 Filed 1-7-98; 8:45 am]
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