[Federal Register Volume 73, Number 61 (Friday, March 28, 2008)]
[Proposed Rules]
[Pages 16580-16586]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-6178]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 922

[Docket No. 080311420-8412-01]
RIN 0648-AT17


Revisions to Channel Islands National Marine Sanctuary 
Regulations

AGENCY: National Marine Sanctuary Program (NMSP), 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 a proposed rule (71 FR 29096, May 19, 2006) to 
adopt a revised set of regulations for the Channel Islands National 
Marine Sanctuary (CINMS or Sanctuary). This currently pending proposed 
rule includes both new regulations and changes to existing regulations, 
including the discharge prohibition. After reviewing public comments, 
considering the California Coastal Commission's federal consistency 
review (per the Coastal Zone Management Act, 16 U.S.C. 1451 et seq.), 
and further analyzing vessel discharge issues, NOAA has decided to 
revise the Sanctuary's proposed discharge regulation to: (1) Limit the 
exception for treated sewage discharges to vessels less than 300 gross 
registered tons (GRT); (2) limit the exception for graywater discharges 
to vessels less than 300 GRT, and oceangoing ships without sufficient 
holding tank capacity to hold graywater while within the Sanctuary; and 
(3) provide definitions for ``oceangoing ship,'' ``graywater,'' and 
``cruise ship''.

DATES: Comments will be considered if received by May 30, 2008.

ADDRESSES: Copies of the Supplemental Draft Environmental Impact 
Statement (SDEIS) and this supplemental proposed rule are available at 
Channel Islands National Marine Sanctuary, 113 Harbor Way, Suite 150, 
Santa Barbara, California and on the web at http://www.channelislands.noaa.gov. Comments on the SDEIS and this 
supplemental proposed rule, identified by RIN 0648-AT17, may be 
submitted by any of the following methods:
     Federal e-Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments for docket NOAA-NOS-
2007-0846.
     E-mail: [email protected].
     Fax: (805) 568-1582.
     Mail: Chris Mobley, Superintendent, Channel Islands 
National Marine Sanctuary, 113 Harbor Way, Suite 150, Santa Barbara, 
California 93109.
     Hand Delivery/Courier: Channel Islands National Marine 
Sanctuary, 113 Harbor Way, Suite 150, Santa Barbara, California 93109.

FOR FURTHER INFORMATION CONTACT: Michael Murray, Sanctuary Management 
Plan Coordinator, at (805) 884-1464 or [email protected].

SUPPLEMENTARY INFORMATION:

Introduction

    Pursuant to section 304(e) of the National Marine Sanctuaries Act 
(NMSA, 16 U.S.C. 1434(e)), NOAA conducted a review of the management 
plan and regulations for CINMS, which is located off the coast of 
southern California. The review resulted in a proposed new CINMS 
management plan, some proposed changes to existing CINMS regulations, 
some proposed new CINMS regulations, and some proposed changes to the 
CINMS terms of designation. ``Discharge and deposit'' was one of the 
existing CINMS regulations subject to proposed changes. The May 2006 
proposed rule clarified that:
     The discharge regulation's exception for discharges from 
marine sanitation devices is only applicable to discharges from Type I 
and Type II marine sanitation devices; and
     The discharge regulation's exception for water (including 
cooling water) and other biodegradable effluents incidental to vessel 
use of the Sanctuary includes graywater as defined by section 312 of 
the Federal Water Pollution Control Act (Clean Water Act or CWA).
    The Draft Environmental Impact Statement (DEIS) for the currently 
pending proposed rule included three alternatives consisting of NOAA's 
proposed action, alternative ``1,'' and a no-action alternative. With 
regard to vessel discharges, NOAA's proposed action would clarify that 
a type I or II marine sanitation device (MSD) is required of all 
vessels for discharge of treated sewage within the Sanctuary, and 
proposes that graywater discharge from all vessels be excepted from the 
discharge prohibition. DEIS alternative 1 also proposes a graywater 
exception from the prohibition for all vessels, but would prohibit 
discharge into the Sanctuary of treated or untreated sewage from large 
vessels (300 gross registered tons or more). The DEIS no-action 
alternative would retain the status quo regulation on discharge, which 
is

[[Page 16581]]

ambiguous with regard to graywater and imprecise with regard to the 
type of MSD required for vessel sewage discharge within the Sanctuary.
    After receiving comments on the DEIS and proposed rule, NOAA 
determined that this range of alternatives needed to be modified to 
better address potential impacts of sewage and graywater discharges 
from large vessels (300 GRT or greater). Thus, the SDEIS modifies the 
range of regulatory changes under consideration and discusses the 
potential environmental consequences of a revised discharge regulation. 
The revisions set forth in this supplemental proposed rule are now 
incorporated into the original proposed action and constitute NOAA's 
``revised proposed action.'' NOAA is not taking final action with the 
SDEIS and this supplemental proposed rule, but rather is analyzing and 
putting forth for public review and comment a revision to its discharge 
regulation proposed in the DEIS and the proposed rule (71 FR 29096). 
Final CINMS regulations will be issued after NOAA has released the 
Final Management Plan/Final EIS.

Background

    NOAA released the Draft Management Plan (DMP)/DEIS and published 
the proposed rule on May 19, 2006. Comments were accepted through July 
21, 2006. During the public review period NOAA received a wide range of 
comments, including substantial public and agency comments about 
changes proposed for Sanctuary regulation of sewage and graywater 
discharges from large vessels. (Herein ``large vessel'' refers to a 
vessel 300 GRT or more). Comments included a request that NOAA adopt 
the discharge regulation under alternative ``1,'' which would prohibit 
any sewage discharges from large vessels, whether treated or untreated. 
Comments also included a request that NOAA prohibit cruise ship 
discharges in Sanctuary waters. In addition, there were suggestions 
that NOAA implement recommendations contained in the water quality 
needs assessment developed by a working group of the Sanctuary Advisory 
Council (Polgar et al. 2005; available online at http://www.channelislands.noaa.gov/sac/pdf/10-17-5.pdf), which provides a 
comprehensive evaluation of water quality threats and provides a broad 
range of management advice. This assessment includes a recommendation 
that NOAA prohibit cruise ship discharges in Sanctuary waters. 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), which 
prohibits graywater discharges from vessels 300 GRT or more within 
state waters. The comments received on this issue were submitted by the 
Channel Islands National Park, three state agencies (California 
Resources Agency, State Water Resources Control Board, and California 
Coastal Commission), three non-governmental organizations (Bluewater 
Network, Environmental Defense Center, and Santa Barbara 
Channelkeeper), and the Sanctuary Advisory Council and its Conservation 
Working Group. The types of comments described above were the only 
types of comments received on the issues of graywater and sewage 
discharge from large vessels.
    In May 2006 NOAA submitted its Coastal Zone Management Act 
consistency determination to the California Coastal Commission 
(Commission), in compliance with federal consistency regulations (15 
CFR part 930). In July 2006 the Commission conditionally concurred with 
NOAA's determination that the proposed revised Sanctuary management 
plan and regulations are consistent to the maximum extent practicable 
with the enforceable policies of the California Coastal Management 
Program. The Commission voted to concur with the consistency 
determination on the condition that NOAA revise the proposed discharge 
and deposit regulation to prohibit vessels of 300 GRT or more from 
discharging sewage or graywater into the waters of the Sanctuary. Also, 
the California State Water Resources Control Board requested that NOAA 
prohibit graywater and sewage discharges, among others, from cruise 
ships and other oceangoing vessels in California national marine 
sanctuaries.
    After reviewing the comments received, considering the Coastal 
Commission's action, and further analyzing the vessel discharge issues 
raised, NOAA decided to revise the Sanctuary's proposed discharge 
regulation. The revised proposed discharge regulation would: (1) Limit 
the exception for treated sewage discharges to vessels less than 300 
GRT; (2) limit the exception for graywater discharges to vessels less 
than 300 GRT, and oceangoing ships without sufficient holding tank 
capacity to hold graywater while within the Sanctuary; and (3) propose 
definitions for ``oceangoing ship,'' ``graywater,'' and ``cruise ship'' 
(see next paragraph). These new definitions would, through their 
operation, result in the prohibition of discharge of graywater from 
cruise ships. The graywater discharge exception for oceangoing ships 
that do not have sufficient holding tank capacity to hold graywater 
while within the Sanctuary is proposed because many oceangoing ships 
were designed without the ability to retain graywater, particularly 
those constructed prior to the early 1990s (personal communication, S. 
Young, U.S. Coast Guard). While many of these older ships, particularly 
those calling on U.S. ports, have since been modified to allow 
graywater retention, some must still discharge graywater directly as it 
is produced (personal communication, S. Young, U.S. Coast Guard).
    The proposed definition of ``oceangoing ship'' would read as 
follows: ``Oceangoing ship means a private, commercial, government, or 
military vessel of 300 gross registered tons or more, not including 
cruise ships.'' The proposed definition of ``graywater'' would read as 
follows: ``Graywater means galley, bath, or shower water.'' Section 312 
of the CWA, as amended (33 U.S.C. 1321 et seq.), is the basis for 
NOAA's definition of graywater. Other discharges, such as those from 
laundry facilities, are not included in this definition of graywater. 
The proposed definition of ``cruise ship'' would read as follows: 
``Cruise ship means a vessel with 250 or more passenger berths for 
hire.'' These three definitions would be added to the other CINMS terms 
proposed to be defined at 15 CFR 922.71 in the currently pending 
proposed rule. NOAA is not proposing to define ``sewage'' in the CINMS 
regulations because the regulations do not use this term; however, 
herein sewage, also referred to as ``blackwater,'' means human body 
wastes and the wastes from toilets and other receptacles intended to 
receive or retain body wastes.
    The primary purpose of this revised regulation is to prevent 
potentially harmful effects of large-vessel sewage and graywater 
discharges on Sanctuary resources and qualities. To meet this purpose, 
the revised proposed regulation seeks to maximize protection of 
Sanctuary water quality from large-vessel sewage and graywater 
discharges. Furthermore, NOAA seeks to maintain the Sanctuary's 
nationally significant esthetic and recreational qualities, and to 
manage activities affecting the Sanctuary in a manner that complements 
existing regulatory authorities, as envisioned by the NMSA.
    The California Clean Coast Act prohibits graywater discharges into

[[Page 16582]]

marine waters of the state from large passenger vessels and oceangoing 
ships with sufficient holding tank capacity. This act is also intended 
to prohibit releases of sewage and sewage sludge into marine waters of 
the state (including state waters within a national marine sanctuary) 
from both large passenger vessels and oceangoing ships with sufficient 
holding tank capacity. This revised proposed action would make the 
Sanctuary regulations consistent with the standards of the California 
Clean Coast Act.
    The proposed 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 and 
the exception for biodegradable matter including graywater. Proposed 
revisions would result in substantive changes regarding sewage and 
graywater, and would also result in minor, non-substantive changes in 
wording and organization regarding deck wash down and vessel engine 
cooling water.
    In this supplemental proposed rule, NOAA is not proposing to revise 
any other section of the DEIS proposed action or currently pending 
proposed rule, including other clauses of the discharge prohibition. As 
noted above, NOAA will publish the final CINMS regulations after 
reviewing all comments on the currently pending proposed rule and this 
supplemental proposed rule.

Sanctuary Environment

    The Channel Islands area is a national treasure with a rich 
cultural history and unique environment. The Sanctuary's cultural 
values stem largely from its rich array of maritime heritage resources 
(e.g., shipwrecks, aircraft wrecks, material associated with wharves, 
piers and landings, prehistoric archaeological sites and their 
associated artifacts, and paleontological remains). The Sanctuary also 
contains a wealth of Chumash Native American artifacts dating back 
13,000 years. (The oldest human remains yet discovered in North America 
were found on Santa Rosa Island.)
    Adjacent to the Channel Islands land mass is located a spectacular, 
unique, nationally significant marine environment, including kelp 
forests, surfgrass and eelgrass beds, intertidal, nearshore subtidal, 
deep-water benthic, and pelagic habitats. This marine environment 
supports rich biological communities possessing extensive conservation, 
recreational, commercial, ecological, historical, research, 
educational, and esthetic values.
    Two bioregions come together in and around the Sanctuary resulting 
in a unique and highly diverse array of marine life. Hundreds of 
species of plants and fish, thousands of invertebrate species, more 
than 27 species of cetaceans (whales and dolphins), five species of 
pinnipeds (seals and sea lions), four sea turtle species, and more than 
60 species of birds may be found in the Sanctuary. Included among these 
are several endangered species, including blue, humpback and sei 
whales, southern sea otters, white abalone, leatherback sea turtles, 
California brown pelicans, and California least terns.
    The ecological and cultural values of the Channel Islands and 
surrounding waters are recognized by several special designations. In 
1980, the United States not only designated the Sanctuary, but also 
designated Anacapa, San Miguel, Santa Barbara, Santa Cruz, and Santa 
Rosa islands (and the rocks, islets, submerged lands, and waters within 
one nautical mile of each island) as the Channel Islands National Park. 
In addition, the United Nations Educational, Scientific and Cultural 
Organization's (UNESCO) Man and the Biosphere Program designated the 
Sanctuary as a Biosphere Reserve in 1986. In 1991, in recognition of 
the need to protect Sanctuary resources and qualities from the 
potential damage from ship traffic, the International Maritime 
Organization designated an area to be avoided, or ATBA, around the 
Sanctuary for all cargo vessels, including tankers, bulk carriers, and 
barges, in order to avoid pollution risks within the CINMS. The State 
of California recognizes portions of the state waters surrounding the 
Channel Islands as ``Areas of Special Biological Significance/State 
Water Quality Protection Areas.''
    The uniqueness of the Sanctuary region and its proximity to several 
major ports and harbors along the mainland coast make it a popular 
destination for numerous recreational and commercial activities. 
Sportfishing, diving, snorkeling, whale watching, pleasure boating, 
kayaking, surfing, and sightseeing are all popular pastimes within the 
Sanctuary, which is often referred to as ``the Galapagos of North 
America.'' Other human uses that occur adjacent to and in the Sanctuary 
are oil and gas activities, shipping, Departments of Defense and 
Homeland Security activities, scientific research, and education.

Vessel Traffic and Discharges

    The Santa Barbara Channel, in which part of the Sanctuary is 
located, is also a major thoroughfare for oceangoing ships traveling 
between domestic and international ports along the Pacific coast of 
North America, and for large vessels traveling between ports in North 
America and Asia. Vessels calling at California ports identify the 
following last ports of call prior to arriving in California: Nearly 40 
percent identify a Far Eastern port such as Japan, China, or Korea; 20 
percent identify a North American port such as Canada or Mexico; and 13 
percent identify a South American port (California State Lands 
Commission 2001).
    The Sanctuary is located about 70 miles northwest of the Port of 
Los Angeles/Long Beach (LA/Long Beach), which is the busiest container 
port in North America. The containerized trade at LA/Long Beach grew 
150 percent from 1990 to 2002 (Port of Long Beach 2003), and the Santa 
Barbara Channel is a main thoroughfare for this trade. Approximately 75 
percent of the departing vessel traffic from LA/Long Beach leaves 
northbound and 65 percent of arriving vessel traffic comes southbound, 
passing through the Santa Barbara Channel.
    While transiting the Santa Barbara Channel large vessel traffic is 
encouraged to use the Santa Barbara Channel Traffic Separation Scheme 
(TSS), both lanes of which traverse a small portion (approximately 4%) 
of the Sanctuary. The Santa Barbara Channel TSS is described at 33 CFR 
167.450-167.452, and includes northwest and southeast-bound lanes, with 
a separation zone between the lanes. The distance through Sanctuary 
waters that vessels transit when in the northwest-bound lane is 
approximately 18 nmi, while in the southeast-bound lane it is 
approximately 37 nmi. The average container ship that travels at 25 
knots would spend less than one hour in Sanctuary waters when using the 
northwest-bound lane, and approximately one-and-a-half hours when using 
the southeast-bound lane.
    For the year 2006, an estimated 6,980 vessels (including container 
ships and other large vessels) going to or coming from the ports of LA/
Long Beach transited the Santa Barbara Channel and CINMS, with 
approximately 3,500 inbound to LA/Long Beach and 3,480 outbound 
(McKenna 2007). These ``transit'' numbers include multiple trips by the 
same vessel.
    The expansion of the global economy has resulted in a substantial 
increase in oceangoing ship traffic in the Santa Barbara Channel, and 
consequently in the Sanctuary. The average growth rate in container 
traffic at the Port of LA/Long Beach was 9.9% per year over the

[[Page 16583]]

years 1990-2003. According to the Port of Long Beach Master Plan, the 
Los Angeles Port Authority plans to expand capacity of the harbor, 
which will increase both the number and size of the vessels that use 
the Santa Barbara Channel (Port of Long Beach 2003). The Los Angeles 
Port Authority plans to increase capacity by 100 percent by the year 
2020. During the same time frame the size of the commercial vessels 
that use the Santa Barbara Channel is expected to increase with the 
4,000 to 4,999 twenty-foot equivalent units (TEU; a measure of 
containerized cargo capacity equal to one standard 20 ft long x 8 ft 
wide x 8 ft 6 in high container) class, currently the most common size 
class, being supplemented by vessels as large as 10,000 to 12,000 TEU 
that are currently under construction (Mercator Transport Group 2005). 
The bulk of these larger vessels are expected to make their first port 
call at the Port of LA/Long Beach. This is because the Port of Oakland, 
the other large vessel port in California, will not be able to 
accommodate them due to the shallowness of San Francisco Bay. The 
expected tonnage carried by commercial vessels is also expected to 
increase from 75 million tons in 1980 to 202 million tons by the year 
2020 (Temple et al. 1988; USACE 1984). With anticipated high import 
growth and expansion of the Panama Canal, the Port of LA/Long Beach 
forecasts that port calls by container vessels in 2020 could be nearly 
double that experienced in 2004, going from 3,224 to 6,292 (Mercator 
Transport Group 2005).
    Port Hueneme, the deep-water international port closest to the 
Sanctuary, also generates vessel traffic. In 2006, 410 cargo vessels, 
typically carrying automobiles or bananas, docked at Port Hueneme 
(Oxnard Harbor District 2007). Approximately 158 supply vessel trips 
are made each year to regional oil and gas facilities (Oxnard Harbor 
District 2002).
    NOAA's assessment of data collected by California in 2006, pursuant 
to California Senate Bill 771, indicates that on average oceangoing 
ships typically have crews of approximately twenty people, but may 
range from five to fifty people. Oceangoing ships are not passenger 
carrying vessels so crew sizes may be used to represent the total 
number of people on board. Based on the significantly lower number of 
people on board oceangoing ships compared with cruise ships, oceangoing 
ships are not likely to generate the large volume of sewage and 
graywater generated by cruise ships.
    At this time, cruise ships occasionally transit through the waters 
of the Sanctuary using the TSS, but are not known to stop in the 
Sanctuary. The Sanctuary Aerial Monitoring and Spatial Analysis Program 
(SAMSAP) surveys (which are not conducted at night, in foul weather, or 
when a pilot or aircraft is not available) have observed only two 
cruise ships since such flights began in 1997, and those two vessels 
were traveling within the TSS. These observations demonstrate that 
cruise ships do use the TSS, but may not be representative of the total 
number of cruise ships using the TSS because of the limitations on 
flight time. Direct observation by staff with the Channel Islands 
National Park indicates that more than 12 years ago cruise ship 
operation within the Sanctuary (and outside the TSS) did occasionally 
take place (Channel Islands National Park 2006, personal communication 
with J. Fitzgerald), but such operation has not been noted since. Thus, 
while cruise ships have stopped in the Sanctuary in the past (and the 
cruise line industry could do so again in the future), they are not 
presently known to stop in the Sanctuary.
    Given that cruise ships travel at between 15 to 20 knots, they 
should only be in Sanctuary waters for approximately one hour when 
transiting north in the TSS, and approximately two to two-and-a-half 
hours when transiting south in the TSS.
    Cruise ships occasionally visit the City of Santa Barbara while 
transiting between destinations to the north and south of the city and 
in doing so are likely to spend time in the Santa Barbara Channel TSS. 
Between 2002 and May 7, 2007 Santa Barbara received eight cruise ship 
visits from six different cruise ships (Santa Barbara Waterfront 
Department 2007, personal communication with B. Slagle). According to 
data that these ships provided to the City's Waterfront Department, 
they ranged in size from 16,927 to 116,000 GRT, and carried between 296 
and 3,700 people (``total passenger/crew'') on board.
    According to the Cruise Line Industry Association, Inc. (CLIA), the 
cruise industry is the fastest growing segment of the travel industry, 
with 2,100% growth since 1970 (CLIA 2007), and an average annual 
passenger growth rate of 8.2% per year since 1980 (CLIA 2006b). By the 
end of 2007 about 100 new cruise ships will have been introduced since 
2000 (CLIA 2007). The worldwide cruise ship fleet includes more than 
230 ships, with vessel capacities of 3,000 passengers and crew not 
uncommon (U.S. EPA 2006a). A consistent increase in the size of cruise 
ships has occurred over the past three decades. The largest vessel 
currently in service is Royal Caribbean's Freedom of the Seas (3,634 
passengers). However, the same cruise line has ordered two 5,400 
passenger-capacity cruise ships as part of its ``Genesis Project,'' 
with vessel deliveries expected in 2009 and 2010 (Royal Caribbean 
Cruises 2007). Although most of the largest vessels are destined for 
operation in the Caribbean, the general trend in the industry is toward 
increased vessel size. The cruise industry is building its capacity 
based on its growth potential and untapped markets (CLIA 2007). This 
overall growth trend in the industry could yield increased cruise ship 
traffic through the Santa Barbara Channel, and consequently the 
Sanctuary.
    Cruise ships can produce and discharge extensive sewage wastes on 
par with some small cities, yet they are not subject to the same 
environmental regulations and monitoring requirements that land based 
facilities are required to comply with, such as obtaining discharge 
permits, meeting numerous permit conditions, and monitoring effluent 
discharges (NOAA 2003c). Estimates of blackwater production from large 
cruise ships range from a low of 5-7 gallons per person per day to a 
high of 17 gallons per person per day (EPA 2006c, d, e, f). The volume 
of treated blackwater generated and discharged varies considerably from 
ship to ship and region to region. Much of the variation depends on the 
treatment process.
    A typical 7-10 day cruise ship voyage produces more than one 
million gallons of graywater, making it by far the largest source of 
liquid waste on a cruise ship (Sweeting and Wayne 2003). The average 
large cruise ship with 2,500 passengers and crew onboard produces 
211,200 gallons of wastewater per day, and 90-95% of this wastewater is 
graywater (Alaska Department of Environmental Conservation 2004a). The 
average small cruise ship with 100 passengers and crew onboard produces 
2,500 gallons of wastewater per day (Alaska Department of Environmental 
Conservation 2004a).
    Some vessels mix graywater with blackwater where it gets treated in 
the blackwater treatment system or advanced treatment system. If 
graywater is retained in an MSD and, consequently, mixed with any 
sewage, it is considered blackwater.

Summary of the Proposed Revised Regulatory Amendments

Regulation of Vessel Sewage

    The revised regulation would amend the exception to the prohibition 
on

[[Page 16584]]

discharging or depositing sewage from within or into the Sanctuary. The 
revised exception would apply exclusively to small vessels (less than 
300 GRT) that generate sewage effluent treated by an operable Type I or 
II marine sanitation device. Consequently, large vessels would not be 
allowed to discharge sewage whether treated or untreated.
    The revised regulation would address NOAA's concerns about possible 
impacts from large volumes of sewage discharges in the Sanctuary, 
whether treated or not, from large vessels (such as cruise ships). 
Vessel sewage discharges are more concentrated than domestic land-based 
sewage. They may introduce disease-causing microorganisms (pathogens), 
such as bacteria, protozoans, and viruses, into the marine environment 
(EPA 2007). They may also 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 (diminishing Sanctuary resources and 
its ecological, conservation, esthetic, recreational and other 
qualities).
    The revised regulation would also address additional concerns NOAA 
has about failure of conventional MSDs on large vessels to adequately 
treat sewage waste streams, and lack of monitoring of those waste 
streams. Type II MSDs, used in approximately 75% of the large 
oceangoing vessels that called on California ports in 2006, have been 
found to generate waste streams that exceed federal standards (40 CFR 
part 140). While these devices are designed to lower fecal coliform 
bacteria counts and reduce total suspended solids, studies in Alaska of 
cruise ship waste water 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. Consequently, NOAA has determined that 
it is appropriate to require large vessels to hold both treated and 
untreated sewage while within the Sanctuary.
    At this time, NOAA is less concerned with treated sewage discharges 
from small vessels (less than 300 GRT). Although the exception for 
treated sewage discharge from Type I or II MSDs would be applicable to 
small vessels, most small vessels in the Sanctuary do not have Type I 
or II MSDs and as such remain prohibited from discharging their sewage 
in the Sanctuary. The U.S. Coast Guard's Marine Safety Detachment 
office in Santa Barbara has informed NOAA that most small vessels 
operating in the Sanctuary have Type III MSDs, discharges from which 
are prohibited throughout the Sanctuary, or no MSD at all. 
Additionally, single point sewage discharges from the few small vessels 
that have Type I or II MSDs are far less in quantity than those from 
cruise ships, thus discharging fewer nutrients, bacteria, and potential 
pathogens.

Regulation of Vessel Graywater

    The revised regulation would amend the exception to the prohibition 
on discharging graywater from within or into the Sanctuary. The revised 
regulation would provide that the exception for graywater is only 
applicable to small vessels (less than 300 GRT), and to oceangoing 
ships without sufficient holding tank capacity to hold graywater while 
within the Sanctuary. Accordingly, the revised regulation would in 
effect prohibit the discharge of graywater by, for example, cruise 
ships when operating in the Sanctuary.
    Per this supplemental proposed rule, the proposed CINMS definition 
of ``graywater'' to be added to the National Marine Sanctuary Program 
regulations at 15 CFR part 922.71 would read as follows: ``Graywater 
means galley, bath, or shower water.'' Other discharges, such as those 
from laundry facilities, are not included in this definition, which is 
based on section 312 of the CWA. NOAA's May 2006 proposed rule (71 FR 
29096) referred to the definition of graywater codified by the CWA; 
however, NOAA is proposing to provide the definition of graywater in 
the CINMS regulations so that Sanctuary users do not have to refer to 
the CWA for this definition.
    The revised regulation would address NOAA's concerns about the 
potential impacts of graywater discharges from large vessels in the 
Sanctuary. 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).
    Unlike cruise ships, many oceangoing ships were designed without 
the ability to retain graywater, particularly those constructed prior 
to the early 1990s (personal communication, S. Young, U.S. Coast 
Guard). While many of these older ships, particularly those calling on 
U.S. ports, have since been modified to allow graywater retention, some 
must still discharge graywater directly as it is produced (personal 
communication, S. Young, U.S. Coast Guard). Consequently, given that 
many older vessels are still in operation, NOAA proposes an exception 
for graywater discharge from oceangoing ships without sufficient 
holding tank capacity to retain graywater while in the Sanctuary. The 
California State Water Resources Control Board staff's preliminary 
review of 2006 survey data found that approximately 20% of oceangoing 
ships have sufficient holding tank capacity to hold graywater while 
within marine waters of the state (State Water Resources Control Board 
2006, personal communication with R. Jauregui). This represents the 
best available data, and as such indicates that it is possible that the 
exception could apply to 80% of the oceangoing ships transiting the 
Sanctuary. However, given that the holding tank requirements for 
retaining graywater within all state marine waters are much greater 
than that which would be required for transiting the Sanctuary, NOAA 
believes the number of oceangoing vessels that would not have 
sufficient holding tank capacity to retain graywater within the 
Sanctuary would be much less than the possible 80% figure derived from 
state-collected data. Furthermore, the quantity of graywater generated 
by oceangoing ships, which typically have an average crew size of 
approximately twenty people, but may range from five to fifty people, 
is far less than the volume of graywater generated by cruise ships. As 
a general rule, large cruise ships generate 180 liters (50 gallons) of 
graywater per person per day. The average large cruise ship with 2,500 
passengers and crew onboard produces 211,200 gallons of wastewater per 
day, and 90-95% of this wastewater is graywater (Alaska Department of

[[Page 16585]]

Environmental Conservation 2004a). The average small cruise ship with 
100 passengers and crew onboard produces 2,500 gallons of wastewater 
per day (Alaska Department of Environmental Conservation 2004a). Due to 
the much lower number of people on board oceangoing ships (as noted 
above, on average oceangoing ships carry crews of approximately twenty 
people, but may range from five to fifty people), graywater from 
oceangoing ships is not expected to contain the larger volume of 
possible harmful chemicals that can be found in cruise ship graywater 
(NOAA 2003c).
    To summarize, the revised proposed discharge regulation would in 
effect prohibit the following discharges from within or into the 
Sanctuary: (1) Sewage from vessels 300 GRT or more, including cruise 
ships and oceangoing ships; (2) graywater from cruise ships; and (3) 
graywater from oceangoing ships with sufficient holding tank capacity 
to hold graywater while within the Sanctuary.
    For consistency purposes, NOAA is proposing to adopt, in part, the 
existing California Clean Coast Act definition of ``oceangoing ship'' 
(California Public Resources Code sec. 72410(j)). The proposed CINMS 
definition of ``oceangoing ship'' to be added to the National Marine 
Sanctuary Program regulations at 15 CFR part 922.71 would read as 
follows: ``Oceangoing ship means a private, commercial, government, or 
military vessel of 300 gross registered tons or more, not including 
cruise ships.''
    The California Clean Coast Act definition is the same with one 
additional phrase at the end: ``Calling on California ports or 
places.'' The Sanctuary definition excludes this phrase since ships of 
this general description may traverse the Santa Barbara Channel TSS, 
and thereby the Sanctuary, without stopping in California ports or 
places.
    Also for consistency, NOAA is proposing application of the proposed 
Monterey Bay National Marine Sanctuary definition of ``cruise ship'' 
(71 FR 59050-59066). Therefore, the proposed CINMS definition of 
``cruise ship'' to be added to the National Marine Sanctuary Program 
regulations at 15 CFR 922.71 would read as follows: ``Cruise ship means 
a vessel with 250 or more passenger berths for hire.''

Summary of Anticipated Impacts of This Rule

    Revisions to the treated sewage discharge exception are expected to 
have beneficial impacts on the Sanctuary's physical, biological, and 
recreational resources. In addition, prohibiting large volumes of 
sewage (treated and untreated) from being discharged in the Sanctuary 
may have beneficial esthetic impacts on certain Sanctuary users. For 
example, boating, paddle sports, fishing, and diving may benefit from 
not encountering large volume sewage wastewater plumes in the 
Sanctuary.
    The proposed revision to the treated sewage discharge exception is 
expected to create less than significant adverse socioeconomic impacts 
to operators of large vessels. Large vessels using the shipping lanes 
within the Santa Barbara Channel would only be required to hold sewage 
on board for a distance of 18 nmi (less than an hour at 25 knots) when 
transiting northwest across the CINMS, and for 37 nmi (approximately an 
hour and a half at 25 knots) when traveling southeast. Additionally, a 
portion of the southeast-bound shipping lane that transits through the 
Sanctuary also passes through state waters, where large vessel sewage 
discharge is already prohibited pursuant to the California Clean Coast 
Act.
    Revisions to the graywater discharge exception are expected to have 
cumulative beneficial impacts on the Sanctuary's physical, biological, 
and recreational resources. In addition, prohibiting large volumes of 
graywater from being discharged in the Sanctuary may have beneficial 
esthetic impacts on certain Sanctuary users. For example, boating, 
paddle sports, fishing, and diving may benefit from not encountering 
large volume graywater discharges in the Sanctuary.
    The proposed revision to the graywater discharge exception is 
expected to create less than significant adverse socioeconomic impacts 
on operators of large vessels. Potential socioeconomic impacts to large 
vessel operators are reduced given (1) the limited time these vessels 
spend in the Sanctuary, and (2) the proposed exception to the graywater 
discharge prohibition for oceangoing ships that do not have sufficient 
holding tank capacity to hold graywater while within the Sanctuary.
    An analysis of environmental consequences of the regulatory changes 
proposed in this rule is provided in the associated SDEIS. For 
information on how to obtain a copy of the SDEIS please see the 
ADDRESSES section of this proposed rule.

Miscellaneous Rulemaking Requirements

National Environmental Policy Act

    NOAA has prepared a SDEIS to evaluate the proposed revisions to the 
discharge/deposit regulation analyzed in the DEIS. Copies of the SDEIS 
are available at the address and Web site listed in the ADDRESSES 
section of this proposed rule. Responses to comments received on the 
SDEIS will be published in the Final Management Plan (FMP)/FEIS and 
preamble to the final rule.

Coastal Zone Management Act

    Based upon discussions with staff for the California Coastal 
Commission, NOAA believes this proposed action meets the conditional 
concurrence issued by the Commission on July 18, 2006. NOAA will 
continue to consult with the Commission to ensure full compliance with 
all applicable requirements of the Coastal Zone Management Act.

Executive Order 12866: Regulatory Impact

    This proposed rule has been determined to be not significant within 
the meaning of Executive Order 12866.

Executive Order 12612: Federalism Assessment

    NOAA has concluded that this regulatory action does not have 
federalism implications sufficient to warrant preparation of a 
federalism assessment under Executive Order 12612. Sanctuary staff have 
consulted with members of the Sanctuary Advisory Council, California 
Coastal Commission staff, and California State Water Resources Control 
Board staff during the development of the revised proposed discharge 
regulation.

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 that 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:
    Small business concerns operating within the Sanctuary include over 
500 commercial fishermen, approximately 28 consumptive recreational 
charter businesses, approximately 27 non-consumptive recreational 
charter businesses, one motorized personal watercraft business, 
approximately 20 marine salvage companies, and one aviation business. 
The approximately 40 small organizations operating within the

[[Page 16586]]

Sanctuary include non-governmental organizations (NGO's) and/or non-
profit organizations (NPO's) dedicated to environmental education, 
research, restoration, and conservation concerning marine and maritime 
heritage resources. There are no small governmental jurisdictions in 
the Sanctuary.
    Limiting the sewage discharge exception to vessels less than 300 
GRT would not have a significant adverse impact on small entities. No 
small entities operate vessels 300 GRT or more within the Sanctuary, 
including cruise ships and oceangoing ships.
    The graywater discharge exception for vessels less than 300 GRT, 
and oceangoing ships 300 GRT or more without sufficient holding tank 
capacity to hold graywater while within the Sanctuary would not have a 
significant adverse impact on small entities. No small entities operate 
vessels 300 GRT or more within the Sanctuary, including cruise ships 
and oceangoing ships.
    Because this action would not have a significant economic impact on 
a substantial number of small entities, no initial regulatory 
flexibility analysis was prepared.

Request for Comments

    NOAA is requesting comments on the amendments concerning vessel 
discharges of sewage and graywater made by this proposed rule to its 
May 2006 currently pending proposed rule (71 FR 29096).

List of Subjects in 15 CFR Part 922

    Administrative practice and procedure, Coastal zone, Historic 
preservation, Intergovernmental relations, Marine resources, Natural 
resources, Penalties, Recreation and recreation areas, Reporting and 
recordkeeping requirements, Wildlife.

(Federal Domestic Assistance Catalog Number 11.429 Marine Sanctuary 
Program)

References

    A complete list of all references cited herein is available upon 
request (see ADDRESSES section).

    Dated: March 21, 2008.
Steve Kozak,
Chief of Staff for Ocean Services and Coastal Zone Management.

    Accordingly, for the reasons set forth above, the proposed rule 
published at 71 FR 29096, May 19, 2006, is proposed to be further 
amended as follows:

PART 922--NATIONAL MARINE SANCTUARY PROGRAM REGULATIONS

    1. The authority citation for part 922 continues to read as 
follows:

    Authority: 16 U.S.C. 1431 et seq.

    2. Amend Sec.  922.71 by adding the following paragraphs in 
alphabetical order:


Sec.  922.71  Definitions.

* * * * *
    Cruise ship means a vessel with 250 or more passenger berths for 
hire.
    Graywater means galley, bath, or shower water.
    Oceangoing ship means a private, commercial, government, or 
military vessel of 300 gross registered tons or more, not including 
cruise ships.
    3. In Sec.  922.72, revise paragraphs (a)(3)(i)(B) and (C) to read 
as follows:


Sec.  922.72  Prohibited or otherwise regulated activities.

    (a) * * *
    (3)(i) * * *
    (B) 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. 1321 et 
seq., from a vessel less than 300 gross registered tons. Vessel 
operators must lock all marine sanitation devices in a manner that 
prevents discharge of untreated sewage;
    (C) Biodegradable matter from:
    (1) Vessel deck wash down;
    (2) Vessel engine cooling water;
    (3) Graywater from a vessel less than 300 gross registered tons;
    (4) Graywater from an oceangoing ship without sufficient holding 
tank capacity to hold graywater while within the Sanctuary;
* * * * *
 [FR Doc. E8-6178 Filed 3-27-08; 8:45 am]
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