Discharge of Effluents in Certain Alaskan Waters by Cruise Vessel
Operations
[Federal Register: July 26, 2001 (Volume 66, Number 144)]
[Rules and Regulations]
[Page 38926-38933]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26jy01-9]
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DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Part 159
[CGD17-01-003]
RIN 2115-AG12
Discharge of Effluents in Certain Alaskan Waters by Cruise Vessel
Operations
AGENCY: Coast Guard, DOT.
ACTION: Final rule.
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SUMMARY: The Coast Guard is implementing regulations regarding sewage
and graywater discharges from certain cruise vessels transiting
applicable waters of Alaska. Operators of cruise vessels carrying 500
or more passengers and transiting applicable waters of Alaska are
restricted in where they may discharge effluents and will be required
to perform testing of sewage and graywater discharges and maintain
records of such discharges. The Coast Guard will inspect, monitor, and
oversee this process to ensure compliance with applicable water quality
laws and regulations.
DATES: This rule shall be effective on July 26, 2001.
ADDRESSES: Comments and material received from the public, as well as
documents indicated in this preamble as being available in the docket,
are part of docket CGD17-01-003 and are available for inspection or
copying at room 751 of the Federal Building in Juneau, AK between 9:30
a.m. and 2 p.m., Monday through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: LCDR Spencer Wood, Seventeenth
District (moc), 907-463-2809.
SUPPLEMENTARY INFORMATION:
Regulatory Information
On April 25, 2001, we published a notice of proposed rulemaking
(NPRM) entitled Discharge of Effluents in Certain Alaskan Waters by
Cruise Vessel Operations in the Federal Register (66 FR 20770). We
received 7 letters commenting on the proposed rule. No public hearing
was requested, and none was held.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause
exists for making this rule effective less than 30 days after
publication in the Federal Register. The regulations enacted by this
final rule are the product of ``Title XIV--Certain Alaskan Cruise Ship
Operations'' of the Miscellaneous Appropriations Bill (H.R. 5666)
passed by Congress on December 21, 2000 in the Consolidated
Appropriations Act of 2001 (Pub. L. 106-554) (``Title XIV''). Discussed
at greater length below, Title XIV gives the Coast Guard new
enforcement tools essential to curb current sewage and graywater
effluent discharges from large cruise vessels in Alaskan waters. There
is good cause to make this final rule effective upon publishing because
the Coast Guard needs the regulations to enforce the standards set in
Title XIV during the summer 2001 cruise season. The lack of a final
rule has inhibited enforcement of the new legislation during this
season. The Coast Guard has initiated law enforcement action against
two vessels that arrived during the first week of the season for
violating the Title XIV standards. These and other potential violators
of the legislation and these regulations, in particular the self-
reporting and record keeping requirements, are currently escaping
complete enforcement action. The inability to wholly enforce Congress'
mandate in Title XIV will continue until the rule is made effective.
Further, the majority (6 of 7) of the public comments received stated
that the Coast Guard should immediately begin enforcement of these
proposed regulations.
Background and Purpose
Congress passed Title XIV in response to public concern with
environmental impacts of cruise vessels on Alaska waters. This
legislation was drafted in the wake of past incidents of illegal
wastewater discharges, the discovery of high levels of fecal coliform
in legal discharges of treated sewage and graywater, the projected
growth of the industry, and the trend within the industry towards
larger vessels that carry over 5000 people.
In December of 1999, a task force comprised of representatives from
the federal government, State government, the cruise industry, and
environmental groups was established to develop voluntary procedures
for sampling and analyzing wastes generated by cruise vessels while
operating in Alaska's waters during the 2000 cruise vessel season.
During the summer 2000 cruise season, the relevant segment of the
cruise industry voluntarily agreed not to discharge treated sewage or
graywater while in port, not to discharge garbage or untreated sewage
in Southeast Alaska's ``Donut Holes'' (bodies of water greater than
three miles from any shoreline yet within Alaska's inside passage), and
not to discharge treated sewage or graywater, unless more than 10 miles
from port and proceeding at a speed of not less than 6 knots.
Additionally, a voluntary sampling and testing protocol and Quality
Assurance/Quality Control Plan (QA/QPC) for treated sewage and
graywater were developed. The protocol and QA/QPC were applied to 21
cruise vessels calling on Alaska ports during the 2000 season.
The test results revealed that the majority of the vessels'
discharges, both treated sewage and graywater, exceeded marine
sanitation device (MSD) design standards for water quality of 200 fecal
coliform per 100 milliliters and 150 milligrams per liter total
suspended solids (TSS). The high levels of fecal coliform and TSS found
in treated sewage indicate that the MSDs used by cruise vessels may not
be operating properly or functioning as designed. The Coast Guard
boarded 15 vessels as a result of high fecal coliform and TSS levels.
Five vessels were found to have evidence of improperly functioning
MSDs. The source of the high fecal coliform and TSS found in graywater
has yet to be positively determined.
Concurrent with this voluntary sampling process, Congress was
drafting legislation that addressed sewage and graywater discharges in
Alaska's waters and sought to close the ``Donut Holes'' located in
Southeast Alaska's Inside Passage to untreated sewage discharge. This
legislation was enacted into law on December 21, 2000, as part of the
Consolidated Appropriations Act of 2001 in the form of Title XIV.
[[Page 38927]]
The summer 2001 cruise season began on May 1st. As in the past two
seasons, the cruise industry has consented to voluntarily participate
in a sampling protocol. The regulatory requirements set forth in the
NPRM are being observed voluntarily. Despite notice of the new
standards and voluntary industry participation in a sampling program
based on those standards, the Coast Guard has initiated law enforcement
action against two vessels that arrived during the first week of the
season for violating the Title XIV standards. However, this law
enforcement action has been limited in the absence of the regulations
stated in this final rule.
These regulations are in response to Title XIV statutory mandate to
draft implementing regulations. Section 1406 of Title XIV directs the
Secretary to incorporate into the commercial vessel examination program
an inspection regime sufficient to verify that operators of cruise
vessels carrying 500 or more passengers and visiting ports in the State
of Alaska or operating in the applicable waters of Alaska are in full
compliance with the environmental record keeping and equipment
requirements of Title XIV, the Federal Water Pollution Control Act, as
amended, and any regulations issued there under, other applicable
Federal laws and regulations, and all applicable international treaty
requirements. The applicable waters of Alaska are defined as the waters
of the Alexander Archipelago, the navigable waters of the United States
within the State of Alaska, and the Kachemak Bay National Estuarine
Research Reserve.
Discussion of Comments and Changes
As noted above, the Coast Guard received 7 comments on the NPRM.
These comments were received from private individuals and
representatives of private environmental organizations. No comments
were received from the cruise ship industry. The comments raised both
general issues about Title XIV and the proposed regulations and
specific issues about the language of the proposed regulations.
The general issues indicated three things. First, commenters
uniformly supported the new legislation and recommended immediate
enforcement of the statute and the proposed regulations. Second, the
majority of the letters urged the Coast Guard to seek increased funding
to ensure rigorous implementation and enforcement of the regulations.
Third, the letters recommended the Coast Guard use as many unannounced
inspections of cruise vessels as necessary to ensure pollution control
equipment is functioning properly.
In raising these general issues, commenters did not recommend
specific changes to the proposed regulations, therefore none have been
made. The first general comment recommending immediate enforcement of
the proposed regulation does, however, support the Coast Guard's
determination that good cause exists for the final rule to be made
effective upon publishing.
One of the 7 comments stated that Title XIV and the proposed
regulations would only create a large environmental problem and that
all cruise ship effluent discharges should be directed to shoreside
processing plants. This comment sought action that is beyond the scope
of Title XIV and this rulemaking. As such, no changes were made in
response to this comment.
Four commenters recommended immediate designation of ``no-discharge
zones'' under Sec. 159.309(a)(2). This section, along with section 1404
of Title XIV from which Sec. 159.309(a)(2) is derived, does not provide
for establishment of no-discharge zones. Instead, they provide for
establishment of areas less than a mile from shore, by the Coast Guard
in consultation with the State of Alaska, for discharge by cruise
ships. The language in Sec. 159.309(a)(2) is directly quoted from the
law. Establishment of no-discharge zones is provided for in Title XIV
section 1410, however, it gives authority to State of Alaska to
petition the Administrator of the Environmental Protection Agency to
establish no-discharge zones, not the Coast Guard. Therefore,
establishment of no-discharge zones is not addressed in this
rulemaking.
Four commenters criticized Secs. 159.309(b)(5) and (6) for being
too general and recommendations were made that a more specific sampling
regime be used. The Coast Guard disagrees with these comments and has
made no changes to these sections. The language in Secs. 159.309(b)(5)
and (6) allows for current and future advances in effluent discharge
technology and gives the Captain of the Port (COTP) discretion to
tailor testing for individual vessels. Similarly, there were four
recommendations that the Coast Guard develop a more specific Quality
Assurance /Quality Control Plan (QA/QCP) than that prescribed in
Sec. 159.317(b). This section also has not been changed to ensure COTP
flexibility in the face of varying vessel effluent discharge systems.
The Coast Guard believes these concerns are more appropriately
addressed during review of the QA/QCP and VSSP.
Four commenters recommended that the language of Sec. 159.313(b) be
expanded to include inspection of Marine Sanitation Devices, holding
tanks, and other equipment. This equipment is already being examined by
the Coast Guard and the existing language ``general examination of the
vessel'' includes this specific equipment obviating the need for more
specific direction to Coast Guard inspectors.
Four commenters recommended expansion of the Graywater Discharge
Record Book minimum requirements to specify whether the effluent was
treated or untreated, and, if treated, in what manner or with what
specific technology or equipment. The Coast Guard agrees with this
suggestion and has modified Sec. 159.315 to reflect this change.
One commenter recommended that the requirement under
Sec. 159.317(a)(1) be modified to ensure QA/QCPs be uniformly
applicable to all cruise ships. The Coast Guard agrees and the language
of this section has been modified. In addition, the requirement for
submission of a Vessel Specific Sampling Plan has been moved from this
section to Sec. 159.317(a)(3). The Coast Guard believes this change is
necessary after observation of the startup of the 2001 cruise season.
This change is intended to allow a third party contractor, hired to
conduct the sampling, to develop a VSSP adequate for operations in the
applicable waters of Alaska. Therefore, submission of the VSSP should
occur within 30 days of each vessel's initial entry into the applicable
waters of Alaska.
Four commenters recommended the self certification requirement
under Sec. 159.317(a)(2) be based on current samples from treated
sewage and graywater effluents. The Coast Guard agrees and the language
of this section has been modified to ensure that samples are coincident
with the cruise vessel's window of time for annual self certification.
One commenter recommended a requirement be included in Sec. 159.315
that copies of the Sewage and Graywater Discharge Record Book be
submitted to the Coast Guard and Alaska Department of Environmental
Conservation at regular intervals. The Coast Guard disagrees. The
current language provides for maintenance of the Sewage and Graywater
Discharge Record Book on board the vessel and that it be readily
available for inspection. In addition, language under Sec. 159.313(b)
provides that a copy of any entry in the Sewage and Graywater Discharge
Record Book may be made and the Master of the vessel may be required to
certify that the
[[Page 38928]]
copy is a true copy of the original entry. The Sewage and Graywater
Discharge Record Book is an enforcement tool to ensure compliance with
environmental laws and regulations. The Coast Guard has determined that
maintenance of this record on board the vessel, with full access by the
Coast Guard, is adequate to ensure compliance as mandated by Title XIV.
Regulatory Evaluation
This rule is not a ``significant regulatory action'' under section
3(f) of Executive Order 12866, Regulatory Planning and Review, and does
not require an assessment of potential costs and benefits under section
6(a)(3) of that Order. The Office of Management and Budget has not
reviewed it under that Order. It is not ``significant'' under the
regulatory policies and procedures of the Department of Transportation
(DOT)(44 FR 11040, February 26, 1979). A draft Regulatory Evaluation
under paragraph 10e of the regulatory policies and procedures of DOT
follows:
A Quality Assurance/Quality Control Plan (QA/QCP) with Vessel
Specific Sampling Plan (VSSP) is required by these regulations to
establish procedures for collecting and analyzing treated sewage and
graywater samples from cruise vessels. During the summer 2000 voluntary
cruise vessel sampling program a single QA/QCP, acceptable to the Coast
Guard, was used by all 21 cruise vessels. A VSSP was then developed for
each vessel. It is anticipated the same, or similar depending on the
laboratory used, QA/QCP and VSSP will be used for subsequent summer
cruise vessel seasons negating the need to develop new ones. The Coast
Guard is not able to estimate the burden that may be associated with
individual cruise vessel revisions to the QA/QCP and VSSP, if any.
The annual burden of creating and maintaining a Sewage and
Graywater Discharge Record Book on 23 cruise vessels is expected to be
$460. This estimate is for the cost of purchasing a record book and
maintaining it onboard each vessel. Entries into the record book should
be made during the normal routine of the engineering watch so no
additional labor costs are expected.
During the summer 2000 cruise vessel voluntary sampling program,
the cruise industry operating in Alaska spent an estimated $65,000 on
sampling of cruise vessels while underway. An additional estimated
$150,000 was spent in having the samples analyzed for conventional
pollutants and the complete suite of priority pollutants listed in 40
CFR 401.15. The summer 2000 sampling program included two separate
sampling events on 21 cruise vessels from all overboard treated sewage
and graywater effluents and marine sanitation devices. In addition to
the conventional pollutant suites, one of the two sampling events
included samples drawn for a complete suite of priority pollutants
analysis.
These regulations provide for a similar sampling and analysis
regime with cost savings in some areas and offsetting cost increases in
others. While the number of more costly priority pollutants analysis
will decrease, the number of overall sampling events for conventional
pollutants will likely increase. Also, the number of respondents is
expected to increase from 21 to 23. Therefore, the annual burden for
sampling and analysis under these regulations is estimated to be
$215,000. When divided by the number of participants, the annual cost
to each individual vessel is estimated to be $9,348. The estimated cost
to each cruise vessel line is as follows:
------------------------------------------------------------------------
Cruise line Vessels Cost
------------------------------------------------------------------------
Princess Cruises.................................. 6 $56,088
Holland American.................................. 6 56,088
Celebrity......................................... 2 18,696
Norwegian......................................... 2 18,696
Royal Caribbean................................... 2 18,696
Carnival.......................................... 1 9,348
Japan............................................. 1 9,348
World Explorer.................................... 1 9,348
Crystal Cruises................................... 1 9,348
Radisson Seven Seas............................... 1 9,348
------------------------------------------------------------------------
The cost is based on two sampling events on each cruise vessel. One
sample event would be required within 30 days of entering Alaska
waters. The second sample event, although discretionary by the Coast
Guard, will be taken from vessels that visit Alaskan waters at least
four times a year. Additional samples and analysis may be required,
along with the associated cost increase, should the initial sample
results indicate noncompliance.
The Coast Guard is not able to estimate the costs that might be
incurred if a cruise vessel cannot certify that their discharges meet
the applicable standards, and does not have the capacity to hold all of
its discharges while transiting the applicable waters of Alaska. In
that scenario, it is believed that the cruise vessel would need to
alter its cruise itinerary in order to leave the applicable Alaskan
waters and enter the high seas, thus enabling the vessel to discharge.
We asked for comments to help us estimate this cost, but none were
received.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this rule would have a significant economic impact
on a substantial number of small entities. The term ``small entities''
comprises small businesses, not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with populations of less than 50,000.
Because the population of affected cruise vessels are owned by
entities that do not qualify as small entities, the Coast Guard
certifies under 5 U.S.C. 605(b) that this rule will not have a
significant economic impact on a substantial number of small entities.
Collection of Information
This rule provides for a collection of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). As defined in
5 CFR 1320.3(c), ``collection of information'' includes reporting,
record keeping, monitoring, posting, labeling, and other, similar
actions. The title and description of the collections, a description of
the respondents, and an estimate of the total annual burden follow.
Included in the estimate is the time for reviewing instructions,
searching existing sources of data, gathering and maintaining the data
needed, and completing and reviewing the collection.
Title: Sewage and Graywater Discharge Records for Certain Cruise
Vessels Operating in Alaskan Waters.
Summary of the Collection of Information: The following information
will be required to be collected by these regulations:
Quality Assurance/Quality Control Plan (QA/QCP) with Vessel Specific
Sampling Plan (VSSP).
Sewage and Graywater Discharge Record Book.
Sewage and graywater sampling test results.
Need for Information: Compliance and enforcement of ``Certain
Alaskan Cruise Ship Operations'' (Pub. L. 106-554).
Proposed use of Information: Regulatory oversight and compliance
assurance.
Description of the Respondents: Master or other person having
charge of each cruise vessel authorized to carry 500 or more passengers
while operating in the waters of the Alexander Archipelago and the
navigable waters of the United States within the State of Alaska and
within the Kachemak Bay National Estuarine Research Reserve.
[[Page 38929]]
Number of Respondents: 23.
Frequency of Response: Periodically while operating in the waters
described above.
Burden of Response: There are three separate record keeping
requirements involved in this regulation. Each is addressed separately,
and the estimated total burden follows:
1. Quality Assurance/Quality Control Plan (QA/QCP) with Vessel
Specific Sampling Plan (VSSP) development costs.
A QA/QCP with VSSP is required by these regulations to establish
procedures for collecting and analyzing treated sewage and graywater
samples from cruise vessels. During the summer 2000 voluntary cruise
vessel sampling program, a single QA/QCP acceptable to the Coast Guard,
was used by all 21 cruise vessels. A VSSP was then developed for each
vessel and sampling was conducted in compliance with these documents.
It is anticipated the same, or similar, QA/QCP and VSSP will be used
for subsequent summer cruise vessel seasons negating the need to
develop a new QA/QCP or VSSP. The Coast Guard is not able to estimate
the burden that may be associated with individual cruise vessel
revisions to the QA/QCP or VSSP, if any.
2. Sewage and Graywater Discharge Record Book costs. The annual
burden of creating and maintaining a Sewage and Graywater Discharge
Record Book on 23 cruise vessels is expected to be $460. This estimate
is for the cost of purchasing a record book and maintaining it onboard
each vessel. Entries into the record book should be made during the
normal routine of the engineering watch so no additional labor costs
are expected.
3. Sample collection and analysis costs.
a. During the summer 2000 cruise vessel voluntary sampling program,
the cruise industry operating in Alaska spent an estimated $65,000 on
sampling of cruise vessels while underway. An additional estimated
$150,000 was spent in having the samples analyzed for conventional
pollutants and the complete suite of priority pollutants listed in 40
CFR 401.15. The summer 2000 sampling program included two separate
sampling events on 21 cruise vessels from all overboard treated sewage
and graywater effluents and marine sanitation devices. In addition to
the conventional pollutant suites, one of the two sampling events
included samples drawn for a complete suite of priority pollutants
analysis.
These regulations provide for a similar sampling and analysis
regime with cost savings in some areas and offsetting cost increases in
others. While the number of more costly priority pollutants analysis
will decrease, the number of overall sampling events for conventional
pollutants will likely increase. Also, the number of respondents is
expected to increase from 21 to 23. Therefore, the annual cost for
sampling and analysis under these regulations is estimated to be
$215,000. When divided by the number of participants, the annual cost
to each individual vessel is estimated to be $9,348.
Estimated Total Annual Burden: The estimated total annual burden is
$215,460.
As required by section 3507(d) of the Paperwork Reduction Act of
1995, the Coast Guard submitted a copy of this rule to OMB for its
review of the collection of information.
The Coast Guard solicited public comment on the collection of
information to: (1) Evaluate whether the information is necessary for
the proper performance of the functions of the Coast Guard, including
whether the information will have practical utility; (2) evaluate the
accuracy of the Coast Guard's estimate of the burden of the collection,
including the validity of the methodology and assumptions used; (3)
enhance the quality, utility, and clarity of the information to be
collected; and (4) minimize the burden of the collection on those who
are to respond, as by allowing the submittal of responses by electronic
means or the use of other forms of information technology.
OMB has approved our collection of information and assigned to it
OMB control number 2115-0647. This approval expires on December 31,
2001. Persons are not required to respond to a collection of
information unless it displays a currently valid OMB control number.
Federalism
Under Executive Order 13132, section 3(b), the Coast Guard finds
that a program monitoring effluent discharge from cruise ships
transiting certain Alaskan waters is in the national interest, as
evidenced by Congress in enacting ``Title XIV--Certain Alaskan Cruise
Ship Operations'' as part of the Consolidated Appropriations Act of
2001 (Pub. L. 106-554). In that legislation, Congress empowered the
Coast Guard to monitor wastewater discharges from cruise ships
transiting certain Alaskan waters.
The sampling, testing and log-keeping program outlined in this
regulation was taken from a similar program that was run on a voluntary
basis during the summer of 2000. That program was one of the results of
the Alaska Cruise Ship Initiative, which grew out of a working group
composed of representatives from the cruise industry, the public,
environmental groups, and state and federal government. The Coast Guard
was one of the federal government representatives on that group. The
working group was begun by the Commissioner of the Alaska Department of
Environmental Conservation (ADEC) in December of 1999.
At the conclusion of the 2000 Alaskan cruise ship season, data from
the voluntary wastewater sampling and testing program showed that none
of the tested vessels were in full compliance with all federal
performance standards for the discharge of treated sewage. This data,
as well as data showing high levels of pollutants in graywater, spurred
the legislation cited above. It also spurred a meeting between the
Alaska governor, ADEC, the Coast Guard, and members of the cruise ship
industry in November of 2000. At this meeting, the governor expressed
his approval of the then-proposed Title XIV, and the greater authority
it granted to the Coast Guard to protect Alaskan waters from
pollutants.
This established cooperation between the Coast Guard and the State
of Alaska, and the State's support of the legislation and voluntary
testing program on which the regulation is based shows how the Coast
Guard has consulted with State officials in accordance with Executive
Order 13132, Section 3(b). The Coast Guard will continue to consult the
State by sharing the results of sample tests with the State, as well as
requiring that discharge logbooks be kept in a format readable by the
Alaskan Department of Environmental Conservation.
Section 6(c)(2) of Executive Order 13132, requires, that if the
agency promulgating the regulations intends that they have preemptive
effect, it state that intention and the rationale on which it is based.
Accordingly, the following statement is provided:
Section 1411 (b) Pub. L. 106-554 specifies that, ``[n]othing in
this Title shall in any way affect or restrict, or be construed to
affect or restrict, the authority of the State of Alaska or any
political subdivision thereof--(1) to impose additional liability or
additional requirements; * * *.'' This language, was drafted so as to
be identical to the savings clause in Section 1018 of the Oil Pollution
Act of 1990, which was recently interpreted by the Supreme Court in the
case of U.S. v. Locke, 120 S.Ct. 1135 (Mar. 6, 2000). The Court held
that a state could regulate regarding actual discharges, but could
[[Page 38930]]
not regulate in the areas of design, construction, alteration, repair,
maintenance, operation, equipping, personnel qualification, or manning
of vessels. In the Department of Transportation's letter transmitting
Title XIV of Pub. L. 106-554 to Congress, we explained that conference
report language on Title XIV should explain that preemption for this
bill would work in the same manner as in OPA 90. We also discussed this
position with the Alaska Attorney General's Office.
Accordingly, these rules are construed in the same manner as OPA
90, as described in the Department of Transportation's views letter
referred to above. Thus, any of these regulations that have the effect
of regulating a cruise vessel's design, construction, alteration,
repair, maintenance, operation, equipping, personnel qualification,
manning and casualty reporting have preemptive effect under existing
U.S. laws and treaties to which the United States is a party. However,
state legislation regulation actual discharges only is not preempted by
these regulations.
Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $100,000,000 or more in any
one year. Though this rule will not result in such an expenditure, we
do discuss the effects of this rule elsewhere in this preamble.
Taking of Private Property
This rule will not effect a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights.
Civil Justice Reform
This rule meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
Protection of Children
We have analyzed this rule under Executive Order 13045, Protection
of Children from Environmental Health Risks and Safety Risks. This rule
is not an economically significant rule and does not create an
environmental risk to health or risk to safety that may
disproportionately affect children.
Indian Tribal Governments
This rule does not have tribal implications under Executive Order
13175, Consultation and Coordination with Indian Tribal Governments,
because it does not have a substantial direct effect on one or more
Indian tribes, on the relationship between the Federal Government and
Indian tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian tribes.
Environment
We have considered the environmental impact of this rule and
concluded that, under figure 2-1, paragraph (34)(d), of Commandant
Instruction M16475.1C, this rule is categorically excluded from further
environmental documentation. This proposed regulation would require
operators of cruise vessels carrying 500 or more passengers in Alaskan
waters to document treated sewage and graywater discharges to ensure
that they comply with effluent discharge standards. The content of
effluent discharges reflects compliant equipment operations. A
``Categorical Exclusion Determination'' is available in the docket
where indicated under ADDRESSES.
Energy Effects
We have analyzed this rule under Executive Order 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. We have determined that it is not a ``significant
energy action'' under that order because it is not a ``significant
regulatory action'' under Executive Order 12866 and is not likely to
have a significant adverse effect on the supply, distribution, or use
of energy. It has not been designated by the Administrator of the
Office of Information and Regulatory Affairs as a significant energy
action. Therefore, it does not require a Statement of Energy Effects
under Executive Order 13211.
List of Subjects in 33 CFR Part 159
Reporting and recordkeeping requirements, sewage disposal, vessels.
For the reasons discussed in the preamble, the Coast Guard amends
33 CFR part 159 as follows:
PART 159--MARINE SANITATION DEVICES
1. The authority citation for part 159 is revised to read as
follows:
Authority: 33 U.S.C. 1322(b)(1); 49 CFR 1.45(b) and 1.46(l) and
(m). Subpart E also issued under authority of sec. 1(a)(4), Pub. L.
106-554, 114 Stat. 2763; 49 CFR 1.46(ttt).
2. Subpart E is added to part 159 to read as follows:
Subpart E--Discharge of Effluents in Certain Alaskan Waters by Cruise
Vessel Operations
Sec.
159.301 Purpose.
159.303 Applicability.
159.305 Definitions.
159.307 Untreated sewage.
159.309 Limitations on discharge of treated sewage or graywater.
159.311 Safety exception.
159.313 Inspection for compliance and enforcement.
159.315 Sewage and graywater discharge record book.
159.317 Sampling and reporting.
159.319 Fecal coliform and total suspended solids standards.
159.321 Enforcement.
Subpart E--Discharge of Effluents in Certain Alaskan Waters by
Cruise Vessel Operations
Sec. 159.301 Purpose.
The purpose of this subpart is to implement ``Title XIV--Certain
Alaskan Cruise Ship Operations'' contained in section 1(a)(4) of Pub.
L. 106-554, enacted on December 21, 2000, by prescribing regulations
governing the discharges of sewage and graywater from cruise vessels,
require sampling and testing of sewage and graywater discharges, and
establish reporting and record keeping requirements.
Sec. 159.303 Applicability.
This subpart applies to each cruise vessel authorized to carry 500
or more passengers operating in the waters of the Alexander Archipelago
and the navigable waters of the United States within the State of
Alaska and within the Kachemak Bay National Estuarine Research Reserve.
Sec. 159.305 Definitions.
In this subpart:
Administrator--means the Administrator of the United States
Environmental Protection Agency.
Applicable Waters of Alaska--means the waters of the Alexander
Archipelago and the navigable waters of the United States within the
State of Alaska and within the Kachemak Bay National Estuarine Research
Reserve.
Captain of the Port--means the Captain of the Port as defined in
Subpart 3.85 of this chapter.
Conventional Pollutants--means the list of pollutants listed in 40
CFR 401.16.
Cruise Vessel--means a passenger vessel as defined in section
2101(22) of Title 46, United States Code. The term does not include a
vessel of the United States operated by the federal
[[Page 38931]]
government or a vessel owned and operated by the government of a State.
Discharge--means a release, however caused, from a cruise vessel,
and includes, any escape, disposal, spilling, leaking, pumping,
emitting or emptying.
Environmental Compliance Records--includes the Sewage and Graywater
Discharge Record Book, all discharge reports, all discharge sampling
test results, as well as any other records that must be kept under this
subpart.
Graywater--means only galley, dishwasher, bath, and laundry waste
water. The term does not include other wastes or waste streams.
Navigable Waters--has the same meaning as in section 502 of the
Federal Water Pollution Control Act, as amended.
Person--means an individual, corporation, partnership, limited
liability company, association, state, municipality, commission or
political subdivision of a state, or any federally recognized Indian
tribal government.
Priority Pollutant--means the list of toxic pollutants listed in 40
CFR 401.15.
Sewage--means human body wastes and the wastes from toilets and
other receptacles intended to receive or retain body waste.
Treated Sewage--means sewage meeting all applicable effluent
limitation standards and processing requirements of the Federal Water
Pollution Control Act, as amended and of Title XIV of Public Law 106-
554 ``Certain Alaskan Cruise Ship Operations'', and regulations
promulgated under either.
Untreated Sewage--means sewage that is not treated sewage.
Waters Of The Alexander Archipelago--means all waters under the
sovereignty of the United States within or near Southeast Alaska as
follows:
(1) Beginning at a point 58 deg. 11-44 N, 136 deg. 39-25 W [near
Cape Spencer Light], thence southeasterly along a line three nautical
miles seaward of the baseline from which the breadth of the territorial
sea is measured in the Pacific Ocean and the Dixon Entrance, except
where this line intersects geodesics connecting the following five
pairs of points:
58 deg. 05-17 N, 136 deg. 33-49 W and 58 deg. 11-41 N, 136 deg. 39-
25 W [Cross Sound]
56 deg. 09-40 N, 134 deg. 40-00 W and 55 deg. 49-15 N, 134 deg. 17-
40 W [Chatham Strait]
55 deg. 49-15 N, 134 deg. 17-40 W and 55 deg. 50-30 N, 133 deg. 54-
15 W [Sumner Strait]
54 deg. 41-30 N, 132 deg. 01-00 W and 54 deg. 51-30 N, 131 deg. 20-
45 W [Clarence Strait]
54 deg. 51-30 N, 131 deg. 20-45 W and 54 deg. 46-15 N, 130 deg. 52-
00 W [Revillagigedo Channel]
(2) The portion of each such geodesic in paragraph (1) of this
definition situated beyond 3 nautical miles from the baseline from
which the breadth of the territorial seas is measured from the outer
limit of the waters of the Alexander Archipelago in those five
locations.
Sec. 159.307 Untreated sewage.
No person shall discharge any untreated sewage from a cruise vessel
into the applicable waters of Alaska.
Sec. 159.309 Limitations on discharge of treated sewage or graywater.
(a) No person shall discharge treated sewage or graywater from a
cruise vessel into the applicable waters of Alaska unless:
(1) The cruise vessel is underway and proceeding at a speed of not
less than six knots;
(2) The cruise vessel is not less than one nautical mile from the
nearest shore, except in areas designated by the Coast Guard in
consultation with the State of Alaska;
(3) The discharge complies with all applicable cruise vessel
effluent standards established pursuant to Pub. L. 106-554 and any
other applicable law, and
(4) The cruise vessel is not in an area where the discharge of
treated sewage or graywater is prohibited.
(b) Until such time as the Administrator promulgates regulations
addressing effluent quality standards for cruise vessels operating in
the applicable waters of Alaska, treated sewage and graywater may be
discharged from vessels in circumstances otherwise prohibited under
paragraph(a)(1) and (2) of this section provided that:
(1) Notification to the Captain of the Port (COTP) is made not less
than 30 days prior to the planned discharge, and such notice includes
results of tests showing compliance with this section;
(2) The discharge satisfies the minimum level of effluent quality
specified in 40 CFR 133.102;
(3) The geometric mean of the samples from the discharge during any
30-day period does not exceed 20 fecal coliform/100 milliliters (ml)
and not more than 10 percent of the samples exceed 40 fecal coliform/
100 ml;
(4) Concentrations of total residual chlorine do not exceed 10.0
milligrams per liter (mg/l);
(5) Prior to any such discharge occurring, the owner, operator or
master, or other person in charge of a cruise vessel, can demonstrate
to the COTP that test results from at least five samples taken from the
vessel representative of the effluent to be discharged, on different
days over a 30-day period, conducted in accordance with the guidelines
promulgated by the Administrator in 40 CFR part 136, which confirm that
the water quality of the effluents proposed for discharge is in
compliance with paragraphs (b)(2), (3) and (4) of this section; and
(6) To the extent not otherwise being done by the owner, operator,
master or other person in charge of a cruise vessel, pursuant to
Sec. 159.317 of this subpart, the owner, operator, master or other
person in charge of a cruise vessel shall demonstrate continued
compliance through sampling and testing for conventional pollutants and
residual chlorine of all treated sewage and graywater effluents
periodically as determined by the COTP.
Sec. 159.311 Safety exception.
The regulations in this subpart shall not apply to discharges made
for the purpose of securing the safety of the cruise vessel or saving
life at sea, provided that all reasonable precautions have been taken
for the purpose of preventing or minimizing the discharge.
Sec. 159.313 Inspection for compliance and enforcement.
(a) Cruise vessels operating within the applicable waters of Alaska
are subject to inspection by the Coast Guard to ensure compliance with
this subpart.
(b) An inspection under this section shall include an examination
of the Sewage and Graywater Discharge Record Book required under
Sec. 159.315 of this subpart, environmental compliance records, and a
general examination of the vessel. A copy of any entry in the Sewage
and Graywater Discharge Record Book may be made and the Master of the
vessel may be required to certify that the copy is a true copy of the
original entry.
(c) A vessel not in compliance with this subpart may be subject to
the penalties set out in Sec. 159.321, denied entry into the applicable
waters of Alaska, detained, or restricted in its operations by order of
the COTP.
Sec. 159.315 Sewage and graywater discharge record book.
(a) While operating in the applicable waters of Alaska each cruise
vessel shall maintain, in English, a legible Sewage and Graywater
Discharge Record Book with the vessel's name and official number listed
on the front cover and at the top of each page.
(b) Entries shall be made in the Sewage and Graywater Discharge
Record Book whenever any of the following is released into the
applicable waters of Alaska:
(1) Treated or untreated sewage;
[[Page 38932]]
(2) Graywater; or
(3) Sewage and graywater mixture.
(c) Each entry in the Sewage and Graywater Discharge Record Book
shall, at a minimum, contain the following information:
(1) Name and location of each discharge port within the ship;
(2) Date the start of discharge occurred;
(3) Whether the effluent is treated or untreated sewage, graywater,
or a sewage and graywater mixture and type of treatment used;
(4) Time discharge port is opened;
(5) Vessel's latitude and longitude at the time the discharge port
is opened;
(6) Volume discharged in cubic meters;
(7) Flow rate of discharge in liters per minute;
(8) Time discharge port is secured;
(9) Vessel's latitude and longitude at the time the discharge port
is secured; and
(10) Vessel's minimum speed during discharge.
(d) In the event of an emergency, accidental or other exceptional
discharge of sewage or graywater, a statement shall be made in the
Sewage and Graywater Discharge Record Book of the circumstances and
reasons for the discharge and an immediate notification of the
discharge shall be made to the COTP.
(e) Each entry of a discharge shall be recorded without delay and
signed and dated by the person or persons in charge of the discharge
concerned and each completed page shall be signed and dated by the
master or other person having charge of the ship.
(f) The Sewage and Graywater Discharge Record Book shall be kept in
such a place as to be readily available for inspection at all
reasonable times and shall be kept on board the ship.
(g) The master or other person having charge of a ship required to
keep a Sewage and Graywater Discharge Record Book shall be responsible
for the maintenance of such record.
(h) The Sewage and Graywater Discharge Record Book shall be
maintained on board for not less than three years.
Sec. 159.317 Sampling and reporting.
(a) The owner, operator, master or other person in charge of a
cruise vessel that discharges treated sewage and/or graywater in the
applicable waters of Alaska shall;
(1) Not less than 90 days prior to each vessel's initial entry into
the applicable waters of Alaska during any calendar year, provide to
the COTP certification of participation under a Quality Assurance/
Quality Control Plan (QA/QCP) accepted by the COTP for sampling and
analysis of treated sewage and/or graywater for the current operating
season;
(2) Not less than 30 days nor more than 120 days prior to each
vessel's initial entry into the applicable waters of Alaska during any
calendar year, provide a certification to the COTP that the vessel's
treated sewage and graywater effluents meet the minimum standards
established by the Administrator, or in the absence of such standards,
meet the minimum established in Sec. 159.319 of this subpart;
(3) Within 30 days of each vessel's initial entry into the
applicable waters of Alaska during any calendar year, provide to the
COTP a Vessel Specific Sampling Plan (VSSP) for review and acceptance,
and undergo sampling and testing for conventional pollutants of all
treated sewage and graywater effluents as directed by the COTP;
(4) While operating in the applicable waters of Alaska be subject
to unannounced sampling of treated sewage and graywater discharge
effluents, or combined treated sewage/graywater discharge effluents for
the purpose of testing for a limited suite, as determined by the Coast
Guard, of priority pollutants;
(5) While operating in the applicable waters of Alaska be subject
to additional random sampling events, in addition to all other required
sampling, of some or all treated sewage and graywater discharge
effluents for conventional and/or priority pollutant testing as
directed by the COTP;
(6) Ensure all samples, as required by this section, are collected
and tested by a laboratory accepted by the Coast Guard for the testing
of conventional and priority pollutants, as defined by this subpart,
and in accordance with the cruise vessel's Coast Guard accepted QA/QCP
and VSSP;
(7) Pay all costs associated with development of an acceptable QA/
QCP and VSSP, sampling and testing of effluents, reporting of results,
and any additional environmental record keeping as required by this
subpart, not to include cost of federal regulatory oversight.
(b) A QA/QCP must, at a minimum include:
(1) Sampling techniques and equipment, sampling preservation
methods and holding times, and transportation protocols, including
chain of custody;
(2) Laboratory analytical information including methods used,
calibration, detection limits, and the laboratory's internal QA/QC
procedures;
(3) Quality assurance audits used to determine the effectiveness of
the QA program; and
(4) Procedures and deliverables for data validation used to assess
data precision and accuracy, the representative nature of the samples
drawn, comparability, and completeness of measure parameters.
(c) A VSSP is a working document used during the sampling events
required under this section and must, at a minimum, include:
(1) Vessel name;
(2) Passenger and crew capacity of the vessel;
(3) Daily water use of the vessel;
(4) Holding tank capacities for treated sewage and graywater;
(5) Vessel schematic of discharge ports and corresponding sampling
ports;
(6) Description of discharges; and
(7) A table documenting the type of discharge, type of sample drawn
(grab or composite), parameters to test for (conventional or priority
pollutants), vessel location when sample drawn, date and time of the
sampling event.
(d) Test results for conventional pollutants shall be submitted
within 15 calendar days of the date the sample was collected, and for
priority pollutants within 30 calendar days of the date the sample was
collected, to the COTP directly by the laboratory conducting the
testing and in accordance with the Coast Guard accepted QA/QCP.
(e) Samples collected for analysis under this subpart shall be held
by the laboratory contracted to do the analysis for not less than six
months, or as directed by the COTP.
(f) Reports required under this section may be written or
electronic. If electronic, the reports must be in a format readable by
Coast Guard and Alaska Department of Environmental Conservation data
systems.
Sec. 159.319 Fecal coliform and total suspended solids standards.
(a) Treated sewage effluent discharges. Until such time as the
Administrator promulgates effluent discharge standards for treated
sewage, treated sewage effluent discharges in the applicable waters of
Alaska shall not have a fecal coliform bacterial count of greater than
200 per 100 ml nor total suspended solids greater than 150 mg/l.
(b) Graywater effluent discharges. [Reserved].
Sec. 159.321 Enforcement.
(a) Administrative Penalties.
(1) Violations. Any person who violates this subpart may be
assessed a
[[Page 38933]]
class I or class II civil penalty by the Secretary or his delegatee.
(2) Classes of penalties.
(i) Class I. The amount of a class I civil penalty under this
section may not exceed $10,000 per violation, except that the maximum
amount of any class I civil penalty under this section shall not exceed
$25,000. Before assessing a civil penalty under this subparagraph, the
Secretary or his delegatee shall give to the person to be assessed such
penalty written notice of the Secretary's proposal to assess the
penalty and the opportunity to request, within 30 days of the date the
notice is received by such person, a hearing on the proposed penalty.
Such hearing shall not be subject to 5 U.S.C. 554 or 556, but shall
provide a reasonable opportunity to be heard and to present evidence.
(ii) Class II. The amount of a class II civil penalty under this
section may not exceed $10,000 per day for each day during which the
violation continues, except that the maximum amount of any class II
civil penalty under this section shall not exceed $125,000. Except as
otherwise provided in paragraph (a) of this section, a class II civil
penalty shall be assessed and collected in the same manner, and subject
to the same provisions as in the case of civil penalties assessed and
collected after notice and an opportunity for hearing on the record in
accordance with 5 U.S.C. 554. Proceedings to assess a class II
administrative civil penalty under this section will be governed by 33
CFR Part 20.
(3) Rights of interested persons.
(i) Public notice. Before issuing an order assessing a class II
civil penalty under this paragraph, the Secretary shall provide public
notice of and reasonable opportunity to comment on the proposed
issuance of each order.
(ii) Presentation of evidence. Any person who comments on a
proposed assessment of a class II civil penalty under this section
shall be given notice of any hearing held under paragraph (a) of this
section, and of the order assessing such penalty. In any hearing held
under paragraph (a)(3) of this section, such person shall have a
reasonable opportunity to be heard and present evidence.
(iii) Rights of interested persons to a hearing. If no hearing is
held under paragraph (a)(2) of this section before issuance of an order
assessing a class II civil penalty under this section, any person who
commented on the proposed assessment may petition, within 30 days after
the issuance of such an order, the Secretary or his delegatee to set
aside such order and provide a hearing on the penalty. If the evidence
presented by the petitioner in support of the petition is material and
was not considered in the issuance of the order, the Secretary, or his
delegatee, shall immediately set aside such order and provide a hearing
in accordance with paragraph (a)(2)(ii) of this section. If the
Secretary or his delegatee denies a hearing under this clause, the
Secretary or his delegatee shall provide to the petitioner and publish
in the Federal Register notice of and the reasons for such denial.
(b) Civil judicial penalties.
(1) Generally. Any person who violates this subpart shall be
subject to a civil penalty not to exceed $25,000 per day for each
violation. Each day a violation continues constitutes a separate
violation.
(2) Limitation. A person is not liable for a civil judicial penalty
under this paragraph for a violation if the person has been assessed a
civil administrative penalty under paragraph (a) of this section for
the violation.
(c) Determination of amount. In determining the amount of a civil
penalty under paragraphs (a) or (b) of this section, the court or the
Secretary or his delegatee shall consider the seriousness of the
violation, any history of such violations, any good-faith efforts to
comply with applicable requirements, the economic impact of the penalty
on the violator, and other such matters as justice may require.
(d) Criminal penalties.
(1) Negligent violations. Any person who negligently violates this
subpart commits a Class A misdemeanor.
(2) Knowing violations. Any person who knowingly violates this
subpart commits a Class D felony.
(3) False statements. Any person who knowingly makes any false
statement, representation, or certification in any record, report or
other document filed or required to be maintained under this subpart,
or who falsifies, tampers with, or knowingly renders inaccurate any
testing or monitoring device or method required to be maintained under
this subpart commits a Class D felony.
(e) Awards.
(1) The Secretary or his delegatee or the court, when assessing any
fines or civil penalties, as the case may be, may pay from any fines or
civil penalties collected under this section an amount not to exceed
one-half of the penalty or fine collected to any individual who
furnished information which leads to the payment of the penalty or
fine. If several individuals provide such information, the amount shall
be divided equitably among such individuals. No officer or employee of
the United States, the State of Alaska or any Federally recognized
Tribe who furnishes information or renders service in the performance
of his or her official duties shall be eligible for payment under this
paragraph.
(2) The Secretary, his delegatee, or a court, when assessing any
fines or civil penalties, as the case may be, may pay, from any fines
or civil penalties collected under this section, to the State of Alaska
or any Federally recognized Tribe providing information or
investigative assistance which leads to payment of the penalty or fine,
an amount which reflects the level of information or investigative
assistance provided. Should the State of Alaska or a Federally
recognized Tribe and an individual under paragraph (e)(1) of this
section be eligible for an award, the Secretary, his delegatee, or the
court, as the case may be, shall divide the amount equitably.
(f) Liability in rem. A cruise vessel operated in violation of this
subpart is liable in rem for any fine imposed under paragraph (c) of
this section or for any civil penalty imposed under paragraphs (a) or
(b) of this section, and may be proceeded against in the United States
district court of any district in which the cruise vessel may be found.
Dated: July 5, 2001.
T.J. Barrett,
Rear Admiral, U.S. Coast Guard, Commander, Seventeenth Coast.
[FR Doc. 01-18676 Filed 7-25-01; 8:45 am]
BILLING CODE 4910-15-P
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