requirements are considered best practice and would ensure the
longevity and effectiveness of the coating and minimize the pollutant
loading into the surrounding environment.
    EPA is also proposing to prohibit in-water cleaning of biofouling
that exceeds a fouling rating of FR-20, except in the following two
circumstances: (1) When the fouling is local in origin and cleaning
does not result in the substantial removal of a biocidal antifouling
coating, as indicated by a plume or cloud of paint; or (2) when an in-
water cleaning and capture (IWCC) system is used that is designed and
operated to capture coatings and biofouling organisms; filter
biofouling organisms from the effluent, and minimize the release of
biocides. Pursuant to this proposed standard, fouling is considered to
be local if a vessel follows a `clean-before-you-go' strategy, whereby
in-water cleaning is conducted prior to leaving a port on fouling
accumulated in that port. If IWCC systems are used, discharge of any
wastes filtered or otherwise removed from the system is prohibited.
Also, understanding that IWCC systems may not be available in many
ports, EPA recommends, but does not propose to require, the use of IWCC
systems for removal of local macrofouling.
    IWCC systems reduce the discharge of fouling organisms and coating
particles into the surrounding environment, and allow solids removed
from the vessel hulls to be collected and disposed of onshore. Cleaning
of hulls and niche areas, such as with IWCC systems, is necessary for
vessel maintenance, and therefore the discharge of treated or filtered
effluent from these systems is considered incidental to the normal
operation of a vessel and authorized under the VIDA. IWCC discharges
result ``from a protective, preservative . . . application to the hull
of the vessel'' (33 U.S.C. 1322(a)(12)(A)(i)). Vessels following
effective biofouling management strategies generally should be able to
maintain fouling at or below an advanced slime layer. Therefore, use of
such IWCC systems would primarily occur either to remove fouling that
is local in origin (e.g., after periods of idleness) or in contingency
scenarios. Technologies to remove and capture biofouling have emerged
since the last VGP issuance. These technologies are available and
becoming common practice globally. To date, EPA has identified four
companies that have

designed IWCC systems, operating in more than 15 countries and across
six continents. This international information is relevant to this
sector because a significant number of vessels to which this rule
applies operate internationally. EPA anticipates that this technology
will continue to improve and become more widely available. Similar to
proactive cleaning, IWCC devices are advertised as being capable of
providing hundreds of thousands of dollars in fuel savings annually to
many vessel owners and operators, and thus there is an economic
incentive independent of this rule driving their use. Additionally, the
shipping industry has outlined the lack of approved in-water cleaning
facilities as an impedance to effective biofouling management,
resulting in ships increasingly cleaning offshore and in open waters,
which bring added safety concerns. The primary challenge with using an
IWCC is not the lack of technologies themselves, but regulatory
frameworks that do not allow for these technologies to be used in
various areas around the world. Removal of regulatory obstacles
associated with the use of IWCC will afford vessel owners and operators
with the opportunity to realize operational savings associated with
maintaining a clean hull. As such, EPA expects that regular cleaning of
biofouling consisting of FR-20 or below, in combination with the
potential for controlled cleaning of biofouling exceeding FR-20 through
IWCC devices, represents best available technology economically
achievable to control the release of ANS and biocides from vessel hulls
and associated niche areas, with likely long term cost savings to the
vessel industry.
    In line with the VGP, EPA is also proposing to minimize discharges
of copper to aquatic ecosystems by restricting the in-water cleaning of
vessels coated with copper-based antifouling paints in copper-impaired
waters within the first 365 days after paint application. The proposed
rule would allow in-water cleaning of copper-based coatings in copper-
impaired waters within the 365 days following application only in
circumstances when an IWCC system consistent with the aforementioned
specifications is used. EPA understands that biocidal coatings are
generally designed to remain free of fouling for the 365 days after
application, prior to requiring in-water hull cleaning. Additionally,
the majority of copper-impaired waters within the United States are
streams, creeks, and rivers which generally have lower fouling pressure
in comparison to warmer, marine waterbodies, and therefore vessels
primarily operating in these waters would likely not require cleaning
within the 365 days following application of the coating. For vessels
operating in the few copper-impaired areas of coastal waterbodies in
the United States, there remains the option to either conduct cleaning
at a nearby, non-impaired port or to employ the use of an IWCC system
as described above. Although it is unlikely that a vessel with a
copper-based coating will have to clean within a copper-impaired water
during the 365 days following application, EPA has further determined
that there are alternatives to copper-based coatings that are available
for use, which, over the coating lifespan would result in costs
comparable to copper-based coatings.
    Additionally, EPA proposes to prohibit in-water cleaning on any
section of a biocidal antifouling coating which has shown significant
deterioration since the most recent application of the coating. Such a
level of deterioration indicates failure at the anticorrosive/
antifouling interface which can result in a soft blister that is more
likely to be broken by cleaning. Cleaning of paint that has reached
this level may cause rupturing of paint blisters, which not only
results in discharges of coating particles, but also increases the rate
of damage to the anti-fouling system more generally. In turn, the
exposed surface is subject to increased fouling and risk of corrosion.
EPA expects that an antifouling system selected in accordance with the
vessel's operating profile, and cleaned with minimally abrasive
cleaning methods, should not present signs of significant deterioration
at the anticorrosive/antifouling interface, therefore adherence to this
standard is achievable by following the coating and cleaning practices
in the proposed guidelines.
    Consistent with proposed requirements for detergents used for deck
washdown in this proposed rule and the VGP, EPA proposes that cleaning
agents used on vessel surfaces that maintain direct contact with
ambient waters, such as the scum lines of the hull, must be minimally-
toxic, phosphate-free, and biodegradable. Finally, as proposed in
section 139.40, EPA proposes additional controls for discharges from
in-water cleaning when vessels are operating in federally-protected
waters.
14. Inert Gas Systems
    Inert gas is used on tankers for several reasons, with one of the
primary uses being to control the oxygen levels in the atmosphere in
the cargo and ballast tanks to prevent explosion and suppress
flammability. Inert gas system discharges consist of scrubber washwater
and water from deck water seals when used as an integral part of the
inert gas system.
    EPA endeavored to identify new technology and best management
options for inert gas system discharges; however, EPA did not identify
any new technology since the development of the VGP. As such, EPA
relied on the BPT/BCT/BAT analysis that led to the development of the
VGP requirements and is proposing to require substantively the same
standard of performance required by the VGP.
    As required by the VGP, EPA proposes that all inert gas scrubber
washwater and water from deck seals must meet all of the requirements
identified in the general discharge standards, and notably,
requirements for oily discharges, including requirements set forth in
MARPOL Annex I, EPA oil regulations, and USCG oil regulations as
appropriate for the vessel.
15. Motor Gasoline and Compensating Systems
    Motor gasoline and compensating discharge is the discharge of
seawater that is taken into motor gasoline tanks to replace the weight
of fuel as it is used and eliminate free space where vapors could
accumulate. The compensating system is used for fuel tanks to supply
pressure for the gasoline and to keep the tank full to prevent
potentially explosive gasoline vapors from forming. The seawater is
discharged when the vessel refills the tanks with gasoline or when
performing maintenance. The discharge can contain both toxic and
conventional pollutants including residual oils or traces of gasoline
constituents, which can include alkanes, alkenes, aromatics (e.g.,
benzene, toluene, ethylbenzene, phenol, and naphthalene), metals, and
additives. Most vessels by design do not produce this discharge.
    EPA endeavored to identify new technology and best management
options for motor gasoline and compensating discharges; however, EPA
did not identify any new technology since the development of the VGP.
As such, EPA relied on the BPT/BCT/BAT analysis that led to the
development of the VGP requirements and is proposing to require
substantively the same standard of performance required by the VGP.
    As required by the VGP, EPA proposes that all motor gasoline and
compensating discharge must meet the requirements identified in the
general

discharge standards, and notably, requirements for oily discharges,
including requirements set forth in MARPOL Annex I, EPA oil
regulations, and USCG oil regulations as appropriate for the vessel.
    Finally, as discussed in VIII C. Discharges Incidental to the
Normal Operation of a Vessel--Specialized Areas, and as required by the
VGP, EPA proposes several additional controls for discharges from motor
gasoline and compensating systems from a vessel operating in federally-
protected waters.
16. Non-Oily Machinery
    Non-oily machinery wastewater is the combined wastewater from the
operation of distilling plants, water chillers, valve packings, water
piping, low- and high-pressure air compressors, propulsion engine
jacket coolers, fire pumps, and seawater and potable water pumps. Non-
oily machinery wastewater systems are intended to keep wastewater from
machinery that does not contain oil separate from wastewater that has
oil content. Non-oily machinery wastewater discharge rates vary by
vessel size and operation type, ranging from 100 to 4,000 gallons per
hour. Constituents of non-oily machinery wastewater discharge can
include a suite of conventional and nonconventional pollutants
including metals and organics.
    EPA endeavored to identify new technology and best management
options for discharges of non-oily machinery wastewater; however, EPA
did not identify any new technology since the development of the VGP.
As such, EPA relied on the BPT/BCT/BAT analysis that led to the
development of the VGP requirements and is proposing to require
substantively the same standard of performance required by the VGP.
    As required by the VGP, EPA proposes that the discharge of
untreated non-oily wastewater and packing gland or stuffing box
effluent that contains toxic or bioaccumulative additives or the
discharge of oil in such quantities as may be harmful is prohibited.
17. Pools and Spas
    Cruise ships and other vessels occasionally have pools or spas
onboard that use water treated with chlorine or bromine as a
disinfectant. When pools or spas are drained, the water is discharged
overboard or sent to an advanced wastewater treatment system. The
discharge water can contain nonconventional pollutants such as bromine
and chlorine.
    EPA endeavored to identify new technology and best management
options for pool and spa wastewater; however, EPA did not identify any
new technology since the development of the VGP. As such, EPA relied on
the BPT/BCT/BAT analysis that led to the development of the VGP
requirements and is proposing substantively similar requirements as the
VGP. EPA determined the dechlorination limits by using those
established for ballast water treatment systems and by evaluating
comments submitted by the public on the 2008 and 2013 VGPs that
indicated such limits are achievable. Furthermore, the proposed numeric
discharge standard is consistent with common dechlorination limits from
shore-based sewage treatment facilities.
    The proposed standard would require vessel operators to discharge
while underway and dechlorinate and/or debrominate any pool or spa
water, except for unintentional or inadvertent releases from overflows
across the decks and into overboard drains, prior to discharging
overboard. To be considered dechlorinated, the total residual chlorine
in the pool or spa effluent must be less than 100[micro]g/L. To be
considered debrominated, the total residual oxidant in the pool or spa
effluent must be less than 25[micro]g/L. Additionally, the proposed
standard would require the discharge of pool and spa water overboard to
occur while the vessel is underway unless determined infeasible by the
Secretary.
    Finally, as discussed in VIII C. Discharges Incidental to the
Normal Operation of a Vessel--Specialized Areas, and as required by the
VGP, EPA proposes additional controls for discharges from pools and
spas from vessels operating in federally-protected waters.
18. Refrigeration and Air Conditioning
    Condensation from cold refrigeration or evaporator coils of air
conditioning systems drips from the coils and collects in drip troughs
which typically channel to a drainage system. The condensate discharge
may contain toxic, conventional, and nonconventional pollutants
including detergents, seawater, food residue, and trace metals. This
waste stream can easily be segregated from oily wastes, and toxic or
hazardous materials and safely discharged, channeled, or collected for
temporary holding until disposed of onshore or drained to the bilge.
    EPA endeavored to identify new technology and best management
options for refrigeration and air conditioning condensate; however, EPA
did not identify any new technology or management options since the
development of the VGP. As such, EPA relied on the BPT/BCT/BAT analysis
that led to the development of the VGP requirements and is proposing
substantively similar requirements as the VGP.
    As required by the VGP, EPA proposes to prohibit the discharge of
refrigeration and air conditioning condensate directly overboard that
contacts toxic or hazardous materials.
19. Seawater Piping
    Seawater piping systems, including sea chests and grates, are a
niche area that have the potential to harbor and discharge a large
quantity of ANS, which are a nonconventional pollutant. Niche areas
represent a challenge for biofouling management as they are generally
more difficult to access and are protected from hydrodynamic forces,
facilitating the accumulation and survivorship of fouling organisms.
Niche areas account for approximately 10 percent of the total wetted
surface area of a vessel (Moser et al., 2017). However, over 80 percent
of species sampled in vessel biofouling studies were found in niche
areas (Bell et al., 2011). Therefore, while the relative surface area
of niche areas in proportion to the hull may be low, the risk of such
areas contributing to the discharge of ANS is significant.
Additionally, seawater piping systems on commercial vessels may provide
water uptake for firefighting response, engine cooling, and ballast
water. Ensuring that these systems are unobstructed from macrofouling
organisms is vital to ship operations, including the structural
integrity of the vessel and the safety of the crew.
    The VGP required vessel owners/operators to remove fouling
organisms from seawater piping on a regular basis and dispose of
removed substances in accordance with local, state, and federal
regulations. The VGP also prohibited the discharge of removed fouling
organisms into regulated waters. Additionally, the VGP required a
drydock inspection report noting that the sea chest and other surface
and niche areas of the vessel have been inspected for attached living
organisms, and those organisms have been removed or neutralized.
    EPA proposes any vessel with a seawater piping system (sea chests,
grates, and any sea-piping) that accumulates biofouling that exceeds a
fouling rating of FR-20 must be fitted with a Marine Growth Prevention
System (MGPS).
    The most common MGPS for seawater includes sacrificial anodic
copper systems and chlorine-based dosing systems. Such systems are
already widely in use and available. EPA

recognizes that there may be a variety of systems capable of addressing
biofouling in seawater systems, and an effective, preventative
biofouling management strategy may include a combination of different
systems. EPA therefore expanded the definition of an MGPS for this
standard to also include chemical injection; electrolysis, ultrasound,
ultraviolet radiation, or electrochlorination; application of an
antifouling coating; or use of cupro-nickel piping. Due to the many
options available and the wide extent of their current use, EPA
considers the MGPS options provided to be best available technology.
    An MGPS can vary widely in operational characteristics and
placement suitability. EPA proposes that the MGPS selection must
consider the level, frequency, and type of expected biofouling and the
design, location, and area in which the system will be used. For
example, it has been suggested that an MGPS installed in the sea chest
provides protection to both the sea chest and internal pipework, while
one installed in the strainer may only protect the internal pipework.
Furthermore, anti-fouling coating selection and application should be
appropriate to the material of the piping and level of waterflow to
which the coated area is subjected. Based on the potential differences
in profile of the coated areas, the coating applied to a seawater
system may be different from the coating applied to the vessel hull.
EPA recommends that the MGPS should be selected, installed, and
maintained according to the manufacturer specifications.
    Upon identification that biofouling exceeds a level of FR-20
despite preventative measures, then reactive measures must be used to
remove biofouling. Such measures can include freshwater flushing or
chemical dosing. For example, vessels that use seawater cooling systems
to condense low pressure steam from propulsion plants or generator
turbines already practice freshwater flushing as a means of removing
biofouling. However, discharges resulting from reactive measures to
remove macrofouling are prohibited in port.
    When these vessels are in port for more than a few days, the main
steam plant is shut down and does not circulate. This can cause an
accumulation of biological growth within the system; consequently, a
freshwater layup is carried-out by flushing the seawater in the system
with potable or surrounding freshwater (e.g., lake water) and
thoroughly cleaning the system. EPA expects the frequency at which
reactive measures should be used will be vessel-specific and therefore
is not proposing a specific time interval. Time intervals should be
determined based on a vessel's operational profile. Finally, as
proposed in section 139.40, EPA proposes additional controls for
discharges from seawater piping systems when vessels are operating in
federally-protected waters.
    Seawater piping discharges also include non-contact engine cooling
water, hydraulic system cooling water, refrigeration cooling water, and
freshwater lay-up wastewater. Such systems use ambient water to absorb
the heat from heat exchangers, propulsion systems, and mechanical
auxiliary systems. The water is typically circulated through an
enclosed system that does not come in direct contact with machinery,
but still may contain sediment from water intake, traces of hydraulic
or lubricating oils, and trace metals leached or eroded from the pipes
within the system. Additionally, because it is used for cooling, the
effluent will have an increased temperature. Cooling water can reach
high temperatures with the thermal difference between seawater intake
and discharge typically ranging from 5 [deg]C to 25 [deg]C, with
maximum temperatures reaching 140 [deg]C. EPA is aware that use of
shore-power may reduce the discharges of seawater from cooling system;
however, EPA recognizes that shore-power may not be available in many
locations, may not be sufficient for the electricity needs of the
vessel, and may not be compatible with the vessel's systems. Therefore,
currently, EPA is not proposing to require the use of shore-power to
reduce thermal discharges from seawater piping systems.
20. Sonar Domes
    Sonar dome discharge consists of leachate from anti-fouling
materials into the surrounding seawater and the discharge of seawater
or freshwater retained within the sonar dome. Sonar domes house
detection, navigation, and ranging equipment and are filled with water
to maintain their shape and pressure. They are typically found on
research vessels but may occur on other vessel classes. Sonar dome
discharge occasionally occurs when the water in the dome is drained for
maintenance or repair; discharge rates are estimated to range from 300
to 74,000 gallons from inside the sonar dome for each repair event.
This discharge from inside the dome may include toxic pollutants
including zinc, copper, nickel, and epoxy paints. Additionally,
discharge occurs when materials leach from the exterior of the dome.
Components that may leach into surrounding waters include antifouling
agents, plastic, iron and rubber.
    EPA endeavored to identify new technology and best management
options for sonar domes; however, EPA did not identify any new
technology or management options since the development of the VGP. As
such, EPA relied on the BPT/BCT/BAT analysis that led to the
development of the VGP requirements and is proposing to require
substantively the same standard of performance required by the VGP.
    EPA proposes to prohibit the discharge of water during maintenance
or repair from inside the sonar domes. Additionally, the proposed
standard would prohibit the use of bioaccumulative biocides when non-
bioaccumulative alternatives are available.

C. Discharges Incidental to the Normal Operation of a Vessel--
Federally-Protected Waters Requirements

    The VIDA, in CWA Section 312(p)(4)(B)(iii), specifies that EPA must
propose national standards of performance that are no less stringent
than the VGP requirements relating to effluent limits and related
requirements, including with respect to waters subject to Federal
protection, in whole or in part, for conservation purposes (with
limited exemptions for new information or to correct mistakes or
misinterpretations made in previous requirements in the VGP).
Therefore, EPA proposes to prohibit or limit discharges in federally-
protected waters consistent with the VGP requirements established for
``waters federally-protected for conservation purposes.'' EPA proposes
that the designated federally-protected waters for this rulemaking
consist of the areas of waters listed in Appendix G of the VGP
(National Marine Sanctuaries, Marine National Monuments, National
Parks, National Wildlife Refuges, National Wilderness Areas, or parts
of the National Wild and Scenic Rivers System) plus any additional
individual waters that have been added to these nationally-recognized
waters since the establishment of the VGP Appendix G; this updated list
of waters is proposed in Appendix A of Part 139 in this rulemaking.
Federally-protected waters are likely to be of high quality and consist
of unique ecosystems which may include distinctive species of aquatic
animals and plants. Furthermore, as protected areas, these waters are
more likely to have a greater abundance of sensitive species of plants
and animals that may have trouble

surviving in areas with greater anthropogenic impact. Such waters are
important to the public at large, as evidenced by the waters' special
status or designation by the Federal government as National Marine
Sanctuaries, Marine National Monuments, National Parks, National
Wildlife Refuges, National Wilderness Areas, or parts of the National
Wild and Scenic Rivers System.
    To develop the list of applicable ``federally-protected waters,''
for the VGP, EPA reviewed several federal authorities that protect
waters that are known to be of high value or sensitive to environmental
impacts, such as those administered by the Bureau of Land Management
(BLM), the National Park Service (NPS), the United States Fish and
Wildlife Service (FWS), the Forest Service (USFS), and the National
Oceanic and Atmospheric Administration (NOAA). These areas, identified
in Appendix G of the VGP, include:
     National Marine Sanctuaries--as designated under the
National Marine Sanctuaries Act (16 U.S.C. 1431 et seq.) and
implementing regulations found at 15 CFR part 922 and 50 CFR part 404.
Maps and a list of national marine sanctuaries are currently available
at https://sanctuaries.noaa.gov.
     Marine National Monuments--as designated by presidential
proclamation under the Antiquities Act of 1906 (54 U.S.C. 320301 et
seq). Maps and a list of marine national monuments are currently
available at https://fisheries.noaa.gov.
     National Parks (including National Preserves and National
Monuments)--as designated under the National Park Service Organic Act,
as amended (54 U.S.C. 100101 et seq.) within the National Park System
by the NPS within the U.S. Department of the Interior. Maps and a list
of national parks are currently available at https://www.nps.gov/findpark.index.htm.
     National Wildlife Refuges (including Wetland Management
Districts, Waterfowl Production Areas, National Game Preserves,
Wildlife Management Area, and National Fish and Wildlife Refuges)--as
designated under the National Wildlife Refuge System Administration Act
of 1966 as amended by the National Wildlife Refuge System Improvement
Act of 1997 (16 U.S.C. 668dd et seq). Maps and a list of national
wildlife refuges are currently available at https://www.fws.gov/refuges.
     National Wilderness Areas--as designated under the
Wilderness Act of 1964 (16 U.S.C. 1131 et seq). Section 4(c) of the
Wilderness Act strictly prohibits motorized vehicles, vessels,
aircrafts or equipment for the purposes of transport of any kind within
the boundaries of all wilderness areas (16 U.S.C. 1133(c)). Exceptions
to this Act include motorized vehicle use for the purposes of gathering
information on minerals or other resources; for the purposes of
controlling fire, insects, or disease; and in wilderness areas where
aircraft or motorized boat use have already been established prior to
1964. Maps and a list of national wilderness areas are available at
https://www.wilderness.net.
     National Wild and Scenic Rivers--as designated
under the Wild and Scenic Rivers Act of 1968 (16 U.S.C. 1271 et seq).
Maps and a list of national wild and scenic rivers are currently
available at https://www.rivers.gov.
    EPA does not propose to include Outstanding National Resource
Waters (ONRWs) on the list of federally-protected waters in this
proposed rule as these are State or Tribal water quality-based
designations under the antidegradation policy of the CWA. CWA Section
312(p)(9) establishes state authorities under the VIDA and CWA Section
312(p)(10) establishes specific regional requirements and neither
section includes nor references the ONRWs established under the VGP.
    As required by the VGP, EPA proposes to include discharge
requirements for vessels operating in federally-protected waters as
designated in Appendix A. These requirements are in addition to any
applicable general or specific discharge requirements in Subparts B and
C of the proposed rule. The following paragraphs describe the
additional discharge requirements established when a vessel is
operating in federally-protected waters.
    Ballast Tanks: EPA proposes that, generally consistent with section
<IP_ADDRESS>. of the VGP, the discharge or uptake of ballast water must be
avoided in federally-protected waters, except for those vessels
operating within the boundaries of any national marine sanctuary that
preserves shipwrecks or maritime heritage in the Great Lakes, including
Thunder Bay National Marine Sanctuary and Underwater Preserve, as
necessary to allow for safe and efficient vessel operation, unless the
designation documents for such sanctuary do not allow taking up or
discharging ballast water in such sanctuary, pursuant to the Howard
Coble Coast Guard and Maritime Transportation Act of 2014, Public Law
113-281, title VI, sec. 610, as amended by the Coast Guard
Reauthorization Act of 2015, Public Law 114-120, title VI, sec. 602).
    Bilges: EPA proposes that, consistent with section 2.2.2 of the
VGP, for any vessel of 400 GT ITC (400 GRT if GT ITC is not assigned)
and above, the discharge of bilgewater is prohibited.
    Boilers: EPA proposes that, consistent with section 2.2.6 of the
VGP, any discharge from a boiler into federally-protected waters is
prohibited. This requirement acknowledges that small volumes of routine
blowdown may be discharged because of design and operational
considerations of the boiler if compliance with this part would
compromise the safety of life at sea consistent with exclusion from
these discharge standards in section 139.1(b)(3) of the proposed rule.
    Fire Protection Equipment: EPA proposes that, generally consistent
with section 2.2.5 of the VGP for aqueous film forming foam and section
2.2.12 of the VGP for firemain systems, the discharge from fire
protection equipment during training, testing, maintenance, inspection,
and certification into federally-protected waters is prohibited and the
discharge of fluorinated foam in federally-protected waters is
prohibited.
    Graywater: EPA proposes that, consistent with section 2.2.15 of the
VGP, the discharge of graywater into federally-protected waters is
prohibited from any vessel with remaining available graywater storage
capacity.
    Motor Gasoline and Compensating Discharge: EPA proposes that,
consistent with section 2.2.16 of the VGP, the discharge of motor
gasoline and compensating discharges into federally-protected waters is
prohibited.
    Additionally, EPA proposes to include several new or modified
discharge requirements for vessels operating in federally-protected
waters. EPA proposes that these additional requirements are
technologically available because the waters that are ``federally
protected'' waters are limited and thus vessels are able to operate
without discharging in these protected waters. For example, a vessel
traveling through the Florida Keys National Marine Sanctuary can
ordinarily wait to discharge accumulated water and sediment from any
chain locker or chemically-dosed seawater piping until no longer in
those federally-protected waters. EPA proposes that the requirement is
economically achievable because EPA does not have any information
indicating that vessels undertaking an activity such as holding would
incur costs.
    Chain Lockers: EPA proposes that the discharge of accumulated water
and sediment from any chain locker into federally-protected waters is
prohibited.

This is a proposed new requirement that acknowledges that cleanout of
chain lockers is not a time sensitive activity and as such, can be
scheduled at times when a vessel is outside of these sensitive waters.
    Decks: EPA proposes that the discharge of deck washdown into
federally-protected waters is prohibited. This proposed requirement
extends coverage from certain vessels in the VGP to all vessels that
acknowledges that washing of decks is an activity that can be scheduled
for times when a vessel is outside of these sensitive waters.
    Hulls and Associated Niche Areas: EPA proposes that the discharge
from in-water cleaning of vessel hulls and niche areas into federally-
protected waters is prohibited. This is a new requirement that
acknowledges in-water cleaning of vessel hulls and niche areas is an
activity that can be scheduled for times when the vessel is outside of
these sensitive waters.
    Pools and Spas: EPA proposes that the discharge of pool or spa
water into federally-protected waters is prohibited. This proposed
requirement extends coverage from medium and large cruise ships to all
vessels with pools or spas and acknowledges that these discharges can
be scheduled for times when the vessel is outside of these sensitive
waters.
    Seawater Piping Systems: EPA proposes that the discharge of
chemical dosing, as required in section 139.28 of the proposed rule,
into federally-protected waters is prohibited. This is a new
requirement that acknowledges chemical dosing and the resultant
discharge is an activity that can be scheduled for times when the
vessel is outside of these sensitive waters.
    EPA specifically solicits comment on the use of the VGP's Appendix
G water areas and more specifically the list of waters in Appendix A as
the proposed static list of federally-protected waters, including
whether specific designations of waters should be added to or excluded
from the proposed list. EPA also specifically solicits comments on the
additional discharge requirements proposed for vessels operating in
federally-protected waters.

D. Discharges Incidental to the Normal Operation of a Vessel--Previous
VGP Discharges No Longer Requiring Control

    EPA proposes to exclude fish hold effluent and small boat engine
wet exhaust as independent discharges incidental to the normal
operation of a vessel under the proposed rule.
    Fish hold is the area where fish are kept once caught and kept
fresh during the remainder of the vessel's voyage before being
offloaded to shore or another tender vessel. The fish hold is typically
a refrigerated seawater holding tank, where the fish are kept cool by
mechanical refrigeration or ice. With the exception of ballast water,
CWA Section 312(p)(2)(B)(i)(III) excludes from these proposed
regulations discharges incidental to the normal operation of a fishing
vessel; therefore, EPA proposes that although this discharge was
included in the VGP, it should not be a discharge incidental to the
normal operation of a vessel subject to these regulations.
    Small boat engines use ambient water that is injected into the
exhaust for cooling and noise reduction purposes. Similar to fishing
vessels, with the exception of ballast water, CWA Section
312(p)(2)(B)(i)(III) excludes from these proposed regulations
discharges incidental to the normal operation of a vessel less than 79
feet; therefore, EPA proposes that although this discharge was included
in the VGP, it should not be a discharge incidental to the normal
operation of a vessel subject to these regulations.

IX. Procedures for States To Request Changes to Standards, Regulations,
or Policy Promulgated by the Administrator

A. Petition by a Governor for the Administrator To Establish an
Emergency Order or Review a Standard, Regulation, or Policy

    Under CWA Section 312(p)(7)(A), a Governor of a state may submit a
petition to the Administrator to issue an emergency order or to review
any standard of performance, regulation, or policy if there exists new
information that could reasonably result in a change. A petition must
be signed by the Governor (or a designee) and must include the purpose
of the petition (request for emergency order or to review of any
standard of performance, regulation, or policy); any applicable
scientific or technical information that forms the basis of the
petition; and the direct and indirect benefits if the requested
petition were to be granted by the Administrator. The Administrator
shall grant or deny the petition and either issue the relevant
emergency order or submit a Notice of Proposed Rulemaking to the
Federal Register for comment for a change in any standard of
performance, regulation, or policy.
    EPA specifically solicits comment on the proposed process for
Governors to solicit the issuance of an emergency order or to review
any standard of performance, regulation of policy, including whether a
more detailed process should be developed.

B. Petition by a Governor for the Administrator To Establish Enhanced
Great Lakes System Requirements

    CWA Section 312(p)(10)(B) creates a process for establishing
enhanced federal standards or requirements to apply within the Great
Lakes System in lieu of any comparable standards or requirements
promulgated under CWA Section 312(p)(4)-(5). Any Governor of a Great
Lakes State (or the Governor's designee) may initiate the process by
submitting a petition for an enhanced standard to the other Great Lakes
States Governors, as well as the as the Executive Director of the Great
Lakes Commission and the Director of EPA's Great Lakes National Program
Office. The petition must seek the endorsement of fellow governors for
an enhanced standard of performance or other requirement with respect
to any discharge that is subject to regulation under CWA Section 312(p)
that occurs in the Great Lakes System. A petition shall include an
explanation regarding why the applicable standard of performance or
other requirement is at least as stringent as a comparable standard of
performance or other requirement in the final rule; in accordance with
maritime safety; and in accordance with applicable maritime and
navigation laws and regulations. After involving the Great Lakes
Commission, the requisite number of Governors may jointly submit to the
Administrator and the Secretary an endorsement of a proposed standard
of performance or other requirement to apply within the Great Lakes
System.
    Upon receipt of the proposed standard of performance or requirement
from a Great Lakes Governor, the Administrator shall submit, after
consultation with the USCG, a notice to the Federal Register that
provides an opportunity for public comment on the proposed standard of
performance or requirement. In addition, the Administrator shall
commence a review of the proposed standard of performance or
requirement to determine if it is at least as stringent as the
comparable CWA Section 312(p) standard. During review, pursuant to CWA
Section 312(p)(10)(B)(iii)(III)(bb), the Administrator shall consult
with the Secretary, the Governor of each Great Lakes State, and
representatives from the Federal and provincial governments of Canada;
shall take into consideration any relevant data or public comments
received; and shall not take into consideration any preliminary
assessment by the Great Lakes

Commission or dissenting opinion submitted by a Governor of a Great
Lake State. Not later than 180 days after receipt of the proposed
standard of performance or requirement, the Administrator, in
concurrence with the Secretary, shall approve or disapprove the
proposal. If the proposal is disapproved, the Administrator shall
submit a notice of determination to the Federal Register that describes
the reasons why the standard of performance or requirement is less
stringent or inconsistent with applicable maritime and navigational
laws and provide any recommendations for modification of the proposal.
If the Administrator approves a proposed standard of performance or
other requirement, the Administrator shall submit a notice of the
determination to the Governor of each Great Lakes State and to the
Federal Register. Additionally, the Administrator shall establish by
regulation the proposed standard of performance for the Great Lakes.
    EPA specifically solicits comment on the process to request
enhanced Great Lakes system requirements, including the extent to which
EPA should provide further details in the final rule considering the
details already included in the VIDA.

C. Application by a State for the Administrator To Establish a State
No-Discharge Zone

    Under CWA Section 312(p) states have an opportunity to apply to EPA
to prohibit one or more discharges incidental to the normal operation
of a vessel, whether treated or not, into specified waters, if the
state determines that the protection and enhancement of the quality of
some or all of its waters require greater environmental protection.
    Pursuant to CWA Section 312(p)(10)(D)(iii)(I), a discharge
prohibition established by EPA through regulation would not apply until
after the Administrator reviews the state application, makes a
determination with concurrence from the USCG, publishes a proposed rule
for comment, and publishes a regulation establishing that (1) the
prohibition would protect and enhance the quality of the specified
waters; (2) adequate facilities for the safe and sanitary removal of
the discharge incidental to the normal operation of a vessel are
reasonably available for the waters to which the prohibition would
apply; and (3) the discharge can safely be collected and stored until a
vessel reaches a discharge facility or other location. If the no-
discharge zone concerns ballast water discharges regulated under CWA
Section 312(p), then the Administrator must also determine that
adequate facilities are reasonably available after considering at a
minimum water depth, dock size, pumpout capacity and flow rate,
availability of year round operations, proximity to navigational
routes, the ratio of pumpout facilities to vessels in operation in
those specified waters. The VIDA also provides that the prohibition for
ballast water discharges will not unreasonably interfere with the safe
loading and unloading of cargo, passengers, or fuel.
    EPA proposes that a state application for such a prohibition must
include (i) a signature by the Governor; (ii) a certification that the
protection and enhancement of the waters for which the state is seeking
a prohibition require greater environmental protection than the
applicable national standard of performance provides; (iii) a detailed
analysis of how the requested prohibition for each individual discharge
requested will protect the waters for which the state is seeking a
prohibition; (iv) a table identifying types and number of vessels
operating in the waterbody and a table identifying the types and number
of vessels that will be the subject of the prohibition; (v) a map
detailing the location, operating hours, draught requirements, and
service capabilities of commercial and recreational pump-out facilities
(both mobile and stationary) available to receive each individual
discharge in the waters for which the state is seeking a prohibition;
(vi) a table identifying the location and geographic area of each
proposed no-discharge zone; and (vii) a detailed analysis of how the
vessels subject to the prohibition may be impacted with regards to
collection capability, storage capability, need for retrofitting,
travel time to facility, and safety concerns.
    EPA is proposing that these additional procedures because its
history with CWA Section 312 sewage no-discharge zones suggests that
the statutory language does not provide enough detail or description to
clearly define a workable process without additional clarification.
    EPA specifically solicits comment on the no-discharge zone
application process.

X. Implementation, Compliance, and Enforcement

    CWA Section 312(p)(5) directs the USCG to develop implementing
regulations governing the design, construction, testing, approval,
installation, and use of marine pollution control devices as are
necessary to ensure compliance with the national standards of
performance presented in the proposed rule. Additionally, the USCG
shall promulgate requirements to ensure, monitor, and enforce
compliance of the proposed standards. As such, the proposed rule does
not include implementation, compliance, or enforcement provisions.

XI. Regulatory Impact Analysis

    EPA projects that the incremental costs and benefits arising from
the proposed rule will be minor and that the vessel community will
experience a net savings of $12.4 million annually. This regulatory
relief is principally the result of the VIDA exclusion of small vessels
and fishing vessels from federal incidental discharge requirements
(e.g., CWA permits and national discharges standards), except for
ballast water. When compared to the current VGP requirements, this
exclusion will ultimately reduce burden on more than 155,000 vessels.
    EPA estimates that 66,000 U.S.- and 16,000 foreign-flagged vessels
will need to comply with the proposed standards once finalized. In
addition to its assessment of the cost impacts specifically to the
66,000 U.S.-flagged vessels, EPA also examined the cost impacts to the
approximately 500 foreign-flagged vessels that are U.S.-owned.
    The cost analysis, found in the Regulatory Impact Analysis (RIA)
located in the rulemaking docket, uses compliance with the VGP and the
sVGP, as well as other regulations and industry standards, (i.e., the
status quo that existed prior to the passage of the VIDA) as the
analytic baseline. The analysis compares baseline cost impacts
experienced by the regulated community immediately prior to passage of
the VIDA legislation to projected cost impacts expected as a result of
the proposed new EPA standards. The VIDA repealed the sVGP effective
immediately upon signature, while stipulating that VGP requirements are
to remain in place until the new VIDA program is fully in force and
effective. This analysis accounts for both the impacts of the proposed
new EPA standards as well as the regulatory relief expected as a result
of the VIDA exclusion of small vessels and fishing vessels from the
discharge requirements, except for ballast water, and the corresponding
repeal of the sVGP.
    The cost analysis groups the proposed rule's major impacts into
four categories. The first category of impacts is comprised of new
standards in the proposed rule that result in incremental costs
compared to existing VGP

requirements. In this category, EPA is proposing two new discharge
requirements, one for graywater systems and one for seawater piping
systems, that together are projected to result in incremental costs of
$4.3 million annually. The second category describes proposed standards
that are not expected to result in incremental costs compared to the
VGP baseline since they reflect practices already in place on vessels
as a result of other regulations and industry standards. The third
category describes changes mandated by Congress directly in the VIDA
that are projected to result in incremental costs to the regulated
community. These provisions impose new ballast water requirements
nationally and regionally in the Pacific Region and the Great Lakes.
The estimated incremental cost for vessels to meet these
Congressionally-mandated provisions is $5.5 million annually. The
fourth category is the reduction in costs projected to result from the
VIDA exclusion of small vessels and fishing vessels from the discharge
requirements, except for ballast water, and the corresponding repeal of
the sVGP. EPA estimates that this regulatory relief will result in
annual cost savings of nearly $22.2 million to the vessel community.
    To evaluate the potential impact of the proposed rule on small
entities, EPA used a cost-to revenue test to evaluate potential
severity of economic impact on vessels owned by small entities. The
test calculates annualized pre-tax compliance cost as a percentage of
total revenues and uses a threshold of 1 and 3 percent to identify
entities that would be significantly impacted if this proposed rule
were to go final. EPA projects the potential impacts would not exceed
these conventional cost/revenue thresholds. In addition, the Agency
completed estimates of the paperwork burden associated with the
proposed rulemaking. These estimates project the annualized paperwork
burden on states that voluntarily petition EPA for any one of the
following: Establishment of no-discharge zones, review of national
standards of performance, issuance of emergency orders, and
establishment of enhanced Great Lakes System requirements.
    EPA also assessed the environmental impacts from this proposal. The
Agency does not expect the proposed rule to change environmental
benefits significantly compared to those realized by the VGP since the
existing VGP requirements are largely proposed to be adopted as the new
discharge standards. EPA notes that the VIDA exclusion of small vessels
and fishing vessels, except for ballast water, and the corresponding
repeal of the sVGP could potentially lead to a reduction in
environmental benefits to the extent that affected vessels no longer
adhere to practices previously required under the sVGP. In particular,
the RIA examines possible losses in benefits from the elimination of
the sVGP discharge management requirements for bilgewater, graywater,
and anti-fouling hull coatings.
    EPA did not evaluate the cost impacts from changes in monitoring,
reporting, self-inspection, or recordkeeping associated with the VIDA
re-allocation of EPA and USCG authorities and responsibilities. The
USCG will present an analysis of these impacts, and other relevant
impacts, in documentation supporting their rulemaking for the USCG
portions of the CWA Section 312(p) program.
    The RIA is available in the docket for this proposed rulemaking.
EPA solicits comment on all aspects of its RIA including the underlying
assumptions and methodology.

XII. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review

    The proposed rule is a significant regulatory action that was
submitted to the Office of Management and Budget (OMB) for review
because it raises novel legal or policy issues. Any changes made in
response to OMB recommendations have been documented in the public
docket for this proposed rule.
    In addition, EPA prepared an analysis of the potential impacts
associated with this proposed rule. The regulatory impact analysis is
available in the public docket for this proposed rule, and both costs
and benefits are summarized in Section XI. Regulatory Impact Analysis.

B. Executive Order 13771: Reducing Regulation and Controlling
Regulatory Costs

    The proposed rule is expected to be an Executive Order 13771
deregulatory action. Details on the estimated cost savings of this
proposed rule can be found in EPA's analysis of the potential costs and
benefits associated with this action.

C. Paperwork Reduction Act

    This proposed rule, once finalized by EPA and implemented through
corresponding USCG requirements addressing implementation, compliance,
and enforcement, would impose an information collection burden to
states under the PRA. The information collection activities in this
proposed rule have been submitted for approval to the Office of
Management and Budget (OMB) under the PRA. The Information Collection
Request (ICR) document that EPA prepared has been assigned EPA ICR
number 2605.01. You can find a copy of the ICR in the docket for this
rule, and it is briefly summarized here.
Background
    EPA has regulated discharges incidental to the normal operation of
vessels under the CWA Section 402 NPDES permitting program since 2008.
The information collection burden associated with EPA's regulation of
those activities are included as part of the Information Collection
Request (ICR) for the NPDES Program, OMB Control No. 2040-0004.
    The current inventory of vessels included in the NPDES ICR includes
72,942 vessels covered under the VGP and 137,739 small vessels covered
under the Small Vessel General Permit (sVGP). That ICR identifies a
total of 292,466 responses annually specific to the VGP and sVGP with a
total annual burden of 269,919 hours for activities including:
Reporting (Notice of Intent, Notice of Termination, annual report);
inspection (routine, annual, and drydock) and monitoring; and
recordkeeping.
    As described below, the enactment of the VIDA in 2018 authorized
EPA and the USCG to establish a new regulatory framework for the
discharges covered by the VGP which will result in a change in the type
of information collected, the Agency responsible for collecting the
information, and ultimately the information collection burden.
    Upon enactment of the VIDA (December 4, 2018), the sVGP was
repealed and incidental discharges from small vessels and fishing
vessels less than 79 feet with the exception of ballast water were
excluded from requirements established under the VIDA. Thus, any
monitoring and reporting burden beyond those for ballast water for
small vessels or fishing vessels less than 79 feet in length was
terminated. Additionally, once EPA develops new national standards of
performance for discharges incidental to the normal operation of a
vessel (as is

being proposed in this rulemaking) and the USCG establishes
requirements that address implementation, compliance, and enforcement
of the national standards, the information collection burden
established under the EPA VGP will be terminated and the information
collection burden will be modified as described below.
Proposed Rule
    As detailed in CWA Section 312(p)(5), upon implementation of
monitoring, reporting, and recordkeeping requirements by the USCG, the
paperwork requirements for vessel owners and operators would need to be
reported to the USCG and not to EPA. As such it is expected that much
of the existing paperwork burden on vessel owners and operators under
the VGP requirements would be managed by the USCG upon implementation
of their specific reporting and monitoring requirements. Therefore, the
proposed rule would not impose a new paperwork burden on vessel owners
and operators.
    However, the proposed rule would impose a new information
collection burden on states seeking to petition EPA to establish
different national standards of performance including enhanced
standards in the Great Lakes, issue emergency orders, or establish no-
discharge zones. EPA does not anticipate an information collection
burden on states until the USCG has established final implementing
requirements (required by the VIDA as soon as practicable but not later
than two years after the EPA discharge standards proposed in this
rulemaking are finalized). After such time, the information collection
burden relates to the voluntary preparation and submission of petitions
by states and is therefore an intermittent activity.
    The ICR submitted for approval to the OMB as part of this
rulemaking reflects an anticipated burden to states in the third year
of the three-year ICR cycle. This includes one petition of each type:
Modification of national standards of performance, issuance of
emergency orders, and establishment no-discharge zones. EPA does not
expect petitions for enhanced Great Lakes System requirements during
this ICR cycle. The type and level of detail of information that a
state would need to generate to petition EPA under CWA Section 312(p)
is most analogous to the information prepared for an application to EPA
under the existing CWA Section 312 ICR (OMB control number 2040-0187),
which includes state activities related to petitioning EPA for no-
discharge zones for sewage and discharges incidental to the normal
operation of vessels of the Armed Forces. For incidental discharges
from vessels of the Armed Forces, states may also petition EPA for
review of standards. Because of the parallels in discharge types and
state activities, EPA used the burden estimates in the existing ICR to
inform the expected burden for this proposed rule. Looking ahead, EPA
proposes that this new ICR be combined with the existing CWA Section
312 ICR (OMB control number 2040-0187) expected to be renewed in August
2022. This would create a single ICR that would include the information
collection burden for all three vessel programs under CWA Section 312
(sewage, vessels of the Armed Forces, and commercial vessels).
    The hour and cost estimates, summarized below, include such
activities as reviewing the relevant regulations and guidance
documents, gathering and analyzing the required information, and
preparing and submitting the application.
    Respondents/affected entities: State governments (SIC code 9511,
NAICS code 924110) are the only respondents to the data collection
activities described in this ICR.
    Respondent's obligation to respond: Preparation and submission of a
petition is a voluntary action that may be undertaken by the
respondent. This is not a reporting requirement, nor are there any
deadlines associated with these petitions.
    Estimated number of respondents: Three respondents are anticipated
during this three-year ICR cycle.
    Frequency of response: Three petitions are anticipated during this
three-year ICR cycle, each in the third year, including one petition
each for establishment of a no-discharge zone, review of standards, and
issuance of an emergency order.
    Total estimated burden: Approximately 82 hours per year.
    Total estimated cost: $4,560 per year, including $150 annualized
operation & maintenance costs.
    An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for the
EPA's regulations in 40 CFR are listed in 40 CFR part 9.
    Written comments and recommendations for the proposed information
collection should be sent within 30 days of publication of this notice
to https://www.reginfo.gov/public/do/PRAMain. This particular
information collection request can be located by selecting ``Currently
under 30-day Review--Open for Public Comments'' or by using the search
function. Since OMB is required to make a decision concerning the ICR
between 30 and 60 days after receipt, OMB must receive comments no
later than November 25, 2020. EPA will respond to any ICR-related
comments in the final rule.

D. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice-and-comment rulemaking requirements under the Administrative
Procedure Act or any other statute, unless the agency certifies that
the rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
    EPA certifies that this action will not have a significant economic
impact on a substantial number of small entities under the RFA.
Although the proposed rule will impose requirements on any small entity
that operates a vessel subject to the standards, EPA used a cost-to-
revenue test to evaluate potential severity of economic impact on
vessels owned by small entities. EPA determined that the projected cost
burden would not exceed the conventional cost/revenue thresholds used
for small entity impact screening analyses (costs greater than 1
percent and 3 percent of annual revenue). Details of the screening
analysis are presented in the section entitled ``Small Business
Impacts'' in the RIA accompanying the proposed rule.

E. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2
U.S.C. 1531-1538, requires federal agencies, unless otherwise
prohibited by law, to assess the effects of their regulatory actions on
state, local, and tribal governments, and the private sector. An action
contains a federal mandate if it may result in expenditures of $100
million or more (annually, adjusted for inflation) for state, local,
and tribal governments, in the aggregate, or the private sector in any
one year ($160 million in 2018). This action does not contain any
unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not
significantly or uniquely affect small governments.

F. Executive Order 13132: Federalism

    Under Executive Order 13132, EPA may not issue an action with
federalism implications, that imposes substantial direct compliance
costs, and that is not required by statute, unless the federal

government provides the funds necessary to pay the direct compliance
costs incurred by state and local governments or EPA consults with
state and local officials early in development of the action.
    EPA has concluded that this action has federalism implications for
the following reason. The VIDA added a new CWA Section 312(p)(9)(A)
that specifies beginning on the effective date of the requirements
promulgated by the Secretary established under CWA Section 312(p)(5),
no state, political subdivision of a state, or interstate agency may
adopt or enforce any law, regulation, or other requirement with respect
to an incidental discharge subject to regulation under the VIDA except
insofar as such law, regulation, or other requirement is identical to
or less stringent than the federal regulations under the VIDA.
Accordingly, EPA and the USCG conducted a Federalism consultation
briefing on July 9th, 2019 in Washington, DC to allow states and local
officials to have meaningful and timely input into the development of
EPA rulemaking.
    EPA provided an overview of the VIDA, described the interim
requirements and the framework of future regulations, identified state
provisions associated with the VIDA, and received comments and
questions. The briefing was attended by representatives from the
National Governors Association, the National Conference of State
Legislatures, the U.S. Conference of Mayors, the County Executives of
America, the National Association of Counties, the National League of
Cities, Environmental Council of the States, the Association of Clean
Water Administrators, the National Water Resources Association, the
Association of Fish and Wildlife Agencies, the National Association of
State Boating Law Administrators, the Western Governors Association,
and the Western States Water Council. Pre-proposal comments were
accepted from July 9, 2019 to September 9, 2019 and are described in
conjunction with the Governors' Consultation comments.
    Additionally, pursuant to the terms of Executive Order 13132 and
Agency policy, a federalism summary impact statement is required in the
final rule to summarize not only the issues and concerns raised by
state and local government commenters during the proposed rule's
development, but also to describe how and the extent to which the
agency addressed those concerns. Further, as required by Section 8(a)
of Executive Order 13132, EPA in the final rule will include a
certification from its Federalism Official stating that EPA met the
Executive Order's requirements in a meaningful and timely manner. A
copy of this certification will be included in the public version of
the official record once the action is finalized.

G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

    This proposed action has tribal implications as specified in
Executive Order 13175. See 65 FR 67249, November 9, 2000. However, it
will neither impose substantial direct compliance costs on federally
recognized tribal governments, nor preempt tribal law. Tribes may
primarily be interested in this action because commercial vessels may
operate in or near tribal waters. Additionally, Tribes may have TAS
under Section 309 of the CWA. To that end, EPA consulted with tribal
officials under the EPA Policy on Consultation and Coordination with
Indian Tribes early in the process of developing this regulation to
permit them to have meaningful and timely input into its development. A
summary of that consultation and coordination follows.
    EPA initiated a tribal consultation and coordination process for
this action by sending a ``Notice of Consultation and Coordination''
letter on June 18, 2019, to all 573 federally recognized tribes. The
letter invited tribal leaders and designated consultation
representatives to participate in the tribal consultation and
coordination process, which lasted from July 11 to September 11, 2019.
EPA held an informational webinar for tribal representatives on July
11, 2019, to obtain meaningful and timely input during the development
of the proposed rule. During the webinar, EPA provided an overview of
the VIDA, described the interim requirements and the framework of
future regulations, and identified tribal provisions associated with
the VIDA. A total of nine tribal representatives participated in the
webinar. EPA also provided an informational presentation on the VIDA
during the Region 10 Regional Tribal Operations Committee (RTOC) call
on July 18, 2019, as requested by the RTOC. During the consultation
period, tribes and tribal organizations sent two pre-proposal comment
letters to EPA as part of the consultation process. In addition, EPA
held one consultation meeting with the leadership of a tribe, at the
tribe's request, to obtain pre-proposal input and answer questions
regarding the forthcoming rule.
    EPA incorporated the feedback it received from tribal
representatives in the proposed rule. Records of the tribal
informational webinar, and a consultation summary summarizing the
written and verbal comments submitted by tribes are included in the
public docket for this proposed rule. The Agency specifically solicits
additional comment on this proposed rule from tribal officials.

H. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks

    This action is not subject to Executive Order 13045 because it is
not economically significant as defined in Executive Order 12866, and
because EPA does not believe the environmental health or safety risks
addressed by this action present a disproportionate risk to children.
See 62 FR 19885, April 23, 1997. The proposed national standards of
performance are designed to control discharges incidental to the normal
operation of a vessel that could adversely affect human health and the
environment. The proposed rule is intended to reduce discharges to
receiving waters that could affect any person using the receiving
waters, regardless of age.

I. Executive Order 13211: Actions That Concern Regulations That
Significantly Affect Energy Supply, Distribution, and Use

    This action is not a ``significant energy action'' as defined by
Executive Order 13211 because it is not likely to have a significant
adverse effect on the supply, distribution or use of energy. See 66 FR
28355, May 22, 2001. EPA believes that any additional energy usage
would be insignificant compared to the total energy usage of vessels
and the total annual U.S. energy consumption.

J. National Technology Transfer and Advancement Act

    The proposed rule would establish national standards of performance
but does not establish environmental monitoring or measurement
requirements and thus does not include technical standards. Similarly,
EPA proposes not to identify specific, prescribed analytic methods.
Rather, the national standards of performance in this proposed rule
would be the basis of USCG implementing regulations with respect to
inspections, monitoring, reporting, sampling, and recordkeeping to
ensure, monitor, and enforce compliance with these standards. The
applicability of the National Technology Transfer and Advancement Act
is appropriately assessed as part of that USCG rulemaking as
established in CWA Section 312(p)(5)(A).

K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations

    EPA proposes that this action does not have disproportionately high
and adverse human health or environmental effects on minority
populations, low-income populations and/or indigenous peoples, as
specified in Executive Order 12898. See 59 FR 7629, February 16, 1994.
While EPA was unable to perform a detailed environmental justice
analysis because it lacks data on the exact location of vessels and
their associated discharges, the proposed rule will increase the level
of environmental protection for all affected populations without having
any disproportionately high and adverse human health or environmental
effects on any population, including any minority or low-income
population. Overall, the proposed rule would reduce the amount of
pollution entering waterbodies from vessels, which will yield health
benefits and improve the recreational utility of waterbodies where
vessels are subject to the proposed standards.

XIII. References

Alaska Department of Environmental Conservation (ADEC). (2007).
Large Commercial Passenger Vessel Wastewater Discharge: General
Permit Information Sheet. Retrieved from http://www.dec.state.ak.us/water/cruise_ships/gp/2008_GP_Info2.pdf.
Alfa Laval. (2017). Personal communication between Peter Sahlen and
Frida Norlen, Alfa Laval and Jack Faulk, USEPA. April 1 and April 3,
2017.
American Bureau of Shipping (ABS). (2019). Best Practices for
Operations of Ballast Water Management Systems Report. Available at
https://safety4sea.com/wp-content/uploads/2019/04/ABS-2019-best-practices-for-operations-of-BWMS-report-2019_04.pdf.
Bailey, S.A., Chan, F., Ellis, S.M., Bronnenhuber, J.E., Badie,
J.N., Simard, N. (2012). Risk Assessment for Ship-Mediated
Introductions of Aquatic Nonindigenous Species to the Great Lakes
and Freshwater St. Lawrence River. Canadian Science Advisory
Secretariat.
Ballast Water Equipment Manufacturers Association (BEMA). 2020.
Compilation of BWMS Type Approval Testing Biological Efficacy Data.
February 13, 2020.
Bawat. A. (2016). Bawat Ballast Water Treatment. Available at http://www.bawat.dk/images/BAWAT_PRESENTATION_AUGUST_2016_2.pdf.
Bell, A., Phillips, S., Denny, C., Georgiades, E., and Kluza, D.
(2011). Risk Analysis: Vessel Biofouling. Wellington: Ministry of
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List of Subjects in 40 CFR Part 139

    Environmental protection, commercial vessels, coastal zone,
incidental discharges.

Andrew Wheeler,
Administrator.

    For the reasons set forth in the preamble, EPA proposes to amend 40
CFR subchapter D by adding part 139 to read as follows:

PART 139--DISCHARGES INCIDENTAL TO THE NORMAL OPERATION OF VESSELS

Subpart A--Scope
Sec.
139.1 Coverage.
139.2 Definitions.
139.3 Other Federal laws.
Subpart B--General Standards for Discharges Incidental to the Normal
Operation of a Vessel
139.4 General operation and maintenance.
139.5 Biofouling management.
139.6 Oil management.
Subpart C--Standards for Specific Discharges Incidental to the Normal
Operation of a Vessel
139.10 Ballast tanks.
139.11 Bilges.
139.12 Boilers.
139.13 Cathodic protection.
139.14 Chain lockers.
139.15 Decks.
139.16 Desalination and purification systems.
139.17 Elevator pits.
139.18 Exhaust gas emission control systems.
139.19 Fire protection equipment.
139.20 Gas turbines.
139.21 Graywater systems.
139.22 Hulls and associated niche areas.
139.23 Inert gas systems.
139.24 Motor gasoline and compensating systems.
139.25 Non-oily machinery.
139.26 Pools and spas.
139.27 Refrigeration and air conditioning.
139.28 Seawater piping.
139.29 Sonar domes.
Subpart D--Special Area Requirements
139.40 Federally-protected waters.
Subpart E--Procedures for States To Request Changes to Standards,
Regulations, or Policy Promulgated by the Administrator
139.50 Petition by a Governor for the Administrator to establish an
emergency order or review a standard, regulation, or policy.
139.51 Petition by a Governor for the Administrator to establish
enhanced Great Lakes System requirements.
139.52 Application by a State for the Administrator to establish a
State No-Discharge Zone.
Appendix A to Part 139--Federally-Protected Waters

Subpart A--Scope

Sec.  139.1  Coverage.

    (a) Vessel discharges. Except as provided in paragraph (b) of this
section, this part applies to:
    (1) Any discharge incidental to the normal operation of a vessel;
and
    (2) Any discharge incidental to the normal operation of a vessel
(such as most graywater) that is commingled with sewage, subject to the
conditions that:
    (i) Nothing in this part prevents a state from regulating sewage
discharges; and
    (ii) Any such commingled discharge must comply with all applicable
requirements of:
    (A) This part; and
    (B) Any law applicable to the discharge of sewage.
    (b) Exclusions. This part does not apply to any discharge:
    (1) Incidental to the normal operation of:
    (i) A vessel of the Armed Forces subject to 33 U.S.C. 1322(n);
    (ii) A recreational vessel subject to 33 U.S.C. 1322(o);
    (iii) A small vessel or fishing vessel, except that this part
applies to any discharge of ballast water from a small vessel or
fishing vessel; or
    (iv) A floating craft that is permanently moored to a pier,
including a floating casino, hotel, restaurant, or bar; or
    (2) That results from, or contains material derived from, an
activity other than the normal operation of the vessel, such as
material resulting from an industrial or manufacturing process onboard
the vessel; or
    (3) If compliance with this part would compromise the safety of
life at sea.
    (c) Area of coverage. The standards in this part apply to any
vessel identified in paragraph (a) of this section, not otherwise
excluded in paragraph (b) of this section, while operating in the
waters of the United States or the waters of the contiguous zone.
    (d) Effective date. (1) The standards in this part are effective
beginning on the date upon which regulations promulgated by the
Secretary governing the design, construction, testing, approval,
installation, and use of marine pollution control devices as necessary
to ensure compliance with the standards are final, effective, and
enforceable.
    (2) As of the effective date identified in paragraph (d)(1) of this
section, the requirements of the Vessel General Permit and all
regulations promulgated by the Secretary pursuant to Section 1101 of
the Nonindigenous Aquatic Nuisance Prevention and Control Act of

1990 (16 U.S.C. 4711), including the regulations contained in 46 CFR
162.060 and 33 CFR part 151 subparts C and D, as in effect on December
3, 2018, shall be deemed repealed and have no force or effect.

Sec.  139.2  Definitions.

    The following definitions apply for the purposes of this part.
Terms not defined in this section have the meaning as defined under the
Clean Water Act (CWA) and applicable regulations.
    Administrator means the Administrator of the Environmental
Protection Agency. (source: CWA section 101(d)).
    Aquatic Nuisance Species (ANS) means a nonindigenous species that
threatens the diversity or abundance of a native species; the
ecological stability of waters of the United States or the waters of
the contiguous zone; or a commercial, agricultural, aquacultural, or
recreational activity that is dependent on waters of the United States
or the waters of the contiguous zone. (source: CWA section
312(p)(1)(A)).
    Ballast tank means any tank or hold on a vessel used for carrying
ballast water, whether or not the tank or hold was designed for that
purpose. (source: 33 CFR 151.1504).
    Ballast water means any water, to include suspended matter and
other materials taken onboard a vessel, to control or maintain trim,
draught, stability, or stresses of the vessel, regardless of the means
by which any such water or suspended matter is carried; or during the
cleaning, maintenance, or other operation of a ballast tank or ballast
water management system of the vessel. The term does not include any
substance that is added to that water that is directly related to the
operation of a properly functioning ballast water management system.
(source: CWA section 312(p)(1)(B)).
    Ballast water exchange means the replacement of ballast water in a
ballast tank using one of the following methods:
    (1) Flow-through exchange, in which ballast water is flushed out by
pumping in mid-ocean water at the bottom of the tank if practicable,
and continuously overflowing the tank from the top, until three full
volumes of tank water have been changed.
    (2) Empty and refill exchange, in which ballast water is pumped out
until the pump loses suction, after which the ballast tank is refilled
with water from the mid-ocean. (source: CWA section 312(p)(1)(D)).
    Ballast water management system means any marine pollution control
device (including all ballast water treatment equipment, ballast tanks,
pipes, pumps, and all associated control and monitoring equipment) that
processes ballast water to kill, render nonviable, or remove organisms;
or to avoid the uptake or discharge of organisms. (source: CWA section
312(p)(1)(E)).
    Bioaccumulative means the failure to meet one or more of the
criteria established in the definition of Not Bioaccumulative.
    Biodegradable for the following classes of substances, means (all
percentages are on a weight/weight concentration basis):
    (1) For oils: At least 90% of the formulation (for any substances
present above 0.1%) demonstrates, within 28 days, either the removal of
at least 70% of dissolved organic carbon (DOC), production of at least
60% of the theoretical carbon dioxide, or consumption of at least 60%
of the theoretical oxygen demand). Up to 5% of the formulation may be
non-biodegradable but may not be bioaccumulative. The remaining 5% must
be inherently biodegradable.
    (2) For greases: At least 75% of the formulation (for any
substances present above 0.1%) demonstrates, within 28 days, either the
removal of at least 70% of DOC, production of at least 60% of the
theoretical carbon dioxide, or consumption of at least 60% of the
theoretical oxygen demand). Up to 25% of the formulation may be non-
biodegradable or inherently biodegradable but may not be
bioaccumulative.
    (3) For soaps, cleaners, and detergents: A product that
demonstrates, within 28 days, either the removal of at least 70% of
DOC, production of at least 60% of the theoretical carbon dioxide, or
consumption of at least 60% of the theoretical oxygen demand.
    (4) For biocides: A compound or mixture that, within 28 days,
demonstrates removal of at least 70% of DOC and production of at least
60% of the theoretical carbon dioxide.
    Biofouling means the accumulation of aquatic organisms such as
micro-organisms, plants, and animals on surfaces and structures
immersed in or exposed to the aquatic environment. (source: Modified
from IMO MEPC.207(62)).
    Broom clean means a condition in which care has been taken to
prevent or eliminate any visible concentration of tank or cargo
residues, so that any remaining tank or cargo residues consist only of
dust, powder, or isolated and random pieces, none of which exceeds one
inch in diameter. (source: Modified from 33 CFR 151.66).
    Captain of the Port (COTP) zone means such zone as established by
the Secretary pursuant to sections 92, 93, and 633 of title 14, United
States Code. (source: CWA section 312(p)(1)(J)).
    Commercial vessel means, except as the term is used in Sec.
139.10(g), any vessel used in the business of transporting property for
compensation or hire, or in transporting property in the business of
the owner, lessee, or operator of the vessel. (source: CWA section
312(a)(10)). As used in Sec.  139.10(g), the term commercial vessel
means a vessel operating between:
    (1) Two ports or places of destination within the Pacific Region;
or
    (2) A port or place of destination within the Pacific Region and a
port or place of destination on the Pacific Coast of Canada or Mexico
north of parallel 20 degrees north latitude, inclusive of the Gulf of
California. (source: CWA section 312(p)(10)(C)(i)).
    Constructed in respect of a vessel means a stage of construction
when:
    (1) The keel of a vessel is laid;
    (2) Construction identifiable with the specific vessel begins;
    (3) Assembly of the vessel has commenced and comprises at least 50
tons or 1% of the estimated mass of all structural material of the
vessel, whichever is less; or
    (4) The vessel undergoes a major conversion. (source: 33 CFR
151.1504).
    Contiguous zone means the entire zone established by the United
States under Article 24 of the Convention on the Territorial Sea and
the Contiguous Zone. (source: CWA section 502(9)).
    Discharge means ``discharge incidental to the normal operation of a
vessel'' as defined in this section.
    Discharge incidental to the normal operation of a vessel means a
discharge, including--
    (1) Graywater, bilge water, cooling water, weather deck runoff,
ballast water, oil water separator effluent, and any other pollutant
discharge from the operation of a marine propulsion system, shipboard
maneuvering system, crew habitability system, or installed major
equipment, such as an aircraft carrier elevator or a catapult, or from
a protective, preservative, or absorptive application to the hull of
the vessel; and
    (2) A discharge in connection with the testing, maintenance, and
repair of a system described in clause (1):
    (i) Whenever the vessel is waterborne; and does not include--
    (A) A discharge of rubbish, trash, garbage, or other such material
discharged overboard;
    (B) An air emission resulting from the operation of a vessel
propulsion system,

motor driven equipment, or incinerator; or
    (3) A discharge that is not covered by Sec.  122.3 of this chapter
(as in effect on February 10, 1996). (source: CWA section 312).
    Discharge of oil in such quantities as may be harmful means any
discharge of oil, including an oily mixture, in such quantities
identified in 40 CFR 110.3 and excluding those discharges specified in
40 CFR 110.5.
    Empty ballast tank means a tank that has previously held ballast
water that has been drained to the limit of the functional or
operational capabilities of the tank (such as loss of pump suction); is
recorded as empty on a vessel log; and may contain unpumpable residual
ballast water and sediment. (source: CWA section 312(p)(1)(K)).
    Environmentally Acceptable Lubricant (EAL) means a lubricant,
including any oil or grease, that is ``biodegradable,'' ``minimally-
toxic,'' and ``not bioaccumulative,'' as these terms are defined in
Sec.  139.2.
    Exclusive Economic Zone (EEZ) means the area established by
Presidential Proclamation Number 5030, dated March 10, 1983 which
extends from the base line of the territorial sea of the United States
seaward 200 nautical miles, and the equivalent zone of Canada. (source:
33 CFR 151.1504).
    Existing vessel means a vessel constructed, or where construction
has begun, prior to the date identified in regulations promulgated by
the Secretary as described in Sec.  139.1(e).
    Federally-protected waters means any waters of the United States or
the waters of the contiguous zone subject to federal protection, in
whole or in part, for conservation purposes, located within any area
listed in Appendix A, as designated under:
    (1) National Marine Sanctuaries designated under the National
Marine Sanctuaries Act (16 U.S.C. 1431 et seq.);
    (2) Marine National Monuments designated under the Antiquities Act
of 1906;
    (3) A unit of the National Park System, including National
Preserves and National Monuments, designated by the National Park
Service within the U.S. Department of the Interior;
    (4) A unit of the National Wildlife Refuge System, including
Wetland Management Districts, Waterfowl Production Areas, National Game
Preserves, Wildlife Management Areas, and National Fish and Wildlife
Refuges designated under the National Wildlife Refuge System
Administration Act of 1966 as amended by the National Wildlife Refuge
System Improvement Act of 1997;
    (5) National Wilderness Areas designated under the Wilderness Act
of 1964 (16 U.S.C. 1131-1136); and
    (6) Any component designated under the National Wild and Scenic
Rivers Act of 1968, 16 U.S.C. 1273.
    Fouling rating means the scale developed by the U.S. Navy (Naval
Ships' Technical Manual, Chapter 81, Waterborne Underwater Hull
Cleaning of Navy Ships, Revision 5, S9086-CQ-STM-010, 2006) that
assigns a fouling rating (FR) number to the 10 most frequently
encountered biofouling patterns. Numbers are assigned on a scale from 0
to 100, in 10-point increments, with the lowest number representing a
clean hull and the higher numbers representing biofouling organism
populations of increasing variety and severity.
    Graywater means drainage from dishwater, shower, laundry, bath, and
washbasin drains. It does not include drainage from toilets, urinals,
hospitals, animal spaces, and cargo spaces. (source: 33 CFR 151.05).
    Great Lakes means Lake Ontario, Lake Erie, Lake Huron (including
Lake Saint Clair), Lake Michigan, Lake Superior, and the connecting
channels (Saint Mary's River, Saint Clair River, Detroit River, Niagara
River, and Saint Lawrence River to the Canadian border), and includes
all other bodies of water within the drainage basin of such lakes and
connecting channels. (source: CWA section 118(a)(3)(B)).
    Great Lakes State means any of the states of Illinois, Indiana,
Michigan, Minnesota, New York, Ohio, Pennsylvania, and Wisconsin.
(source: CWA section 312(p)(1)(M)).
    Gross Register Tonnage (GRT) means the gross tonnage measurement of
the vessel under the Regulatory Measurement System. (source: 46 CFR
69.9).
    Gross Tonnage ITC (GT ITC) means the gross tonnage measurement of
the vessel under the Convention Measurement System. (source: 46 CFR
69.9).
    Impaired waterbody means a waterbody identified by a state, tribe,
or EPA pursuant to section 303(d) of the CWA as not meeting applicable
state or tribal water quality standards (these waters are called
``water quality limited segments'' under 40 CFR 130.2(j)) and includes
both waters with approved or established Total Maximum Daily Loads
(TMDL) and those for which a TMDL has not yet been approved or
established.
    Inherently biodegradable means the property of being able to be
biodegraded when subjected to sunlight, water, and naturally occurring
microbes to the following level: Greater than 70% biodegraded after 28
days using OECD Test Guidelines 302C or greater than 20% but less than
60% biodegraded after 28 days using OECD Test Guidelines 301 A-F.
    Internal Waters means:
    (1) With respect to the United States, the waters shoreward of the
territorial sea baseline, including waters of the Great Lakes extending
to the maritime boundary with Canada, and
    (2) With respect to any other nation, the waters shoreward of its
territorial sea baseline, as recognized by the United States. (source:
Modified from 33 CFR 2.24 as referenced in CWA section 312(p)(1)(O)).
    Live or living, notwithstanding any other provision of law
(including regulations), does not:
    (1) Include an organism that has been rendered nonviable; or
    (2) Preclude the consideration of any method of measuring the
concentration of organisms in ballast water that are capable of
reproduction. (source: CWA Section 312(p)(6)(D)(i)).
    Major conversion means a conversion of an existing vessel:
    (1) That substantially alters the dimensions or carrying capacity
of the vessel; or
    (2) That changes the type of the vessel; or
    (3) The intent of which, in the opinion of the government of the
country under whose authority the vessel is operating, is substantially
to prolong its life; or
    (4) Which otherwise so alters the vessel that, if it were a new
vessel, it would become subject to relevant provisions of MARPOL not
applicable to it as an existing vessel. (source: 33 CFR 151.05).
    Marine Growth Prevention System (MGPS) means an anti-fouling system
used for the prevention of biofouling accumulation in seawater piping
systems and sea chests. (source: Modified from IMO MEPC.207(62)).
    Marine Pollution Control Device (MPCD) means any equipment or
management practice (or combination of equipment and management
practice) for installation and use onboard a vessel that is: Designed
to receive, retain, treat, control, or discharge a discharge incidental
to the normal operation of a vessel; and determined by the
Administrator and the Secretary to be the most effective equipment or
management practice (or combination of equipment and a management
practice) to reduce the environmental impacts of the discharge,
consistent with the factors considered in developing the

standards in this part. (source: CWA section 312(p)(1)(P)).
    Master means the officer having command of a vessel. (source: 46
CFR 10.107).
    Mid-ocean means greater than 200 nautical miles (NM) from any
shore, except when a ballast water exchange or saltwater flush outside
of 50 NM is authorized in this part, then it means greater than 50 NM
from any shore. For regular maintenance of ballast tanks to remove
sediments, it means outside the waters of the United States or the
waters of the contiguous zone.
    Minimally-Toxic means, for lubricants (all percentages are on a
weight/weight basis):
    (1) If both the complete formulation and the main constituents
(that is constituents making up greater than or equal to 5% of the
complete formulation) are evaluated, then the acute aquatic toxicity of
lubricants, other than greases and total loss lubricants, must be at
least 100 mg/L and the LC50 of greases and total loss lubricants must
be at least 1000 mg/L; or
    (2) If each constituent is evaluated, rather than the complete
formulation and main constituents, then for each constituent present
above 0.1%: Up to 20% of the formulation can have an LC50 greater than
10 mg/L but less than 100 mg/L and an NOEC greater than 1 mg/L but less
than 10 mg/L; up to 5% of the formulation can have an LC50 greater than
1 mg/L but less than 10 mg/L and an NOEC greater than 0.1 mg/L but less
than 1 mg/L; and up to 1% of the formulation can have an LC50 less than
1 mg/L and an NOEC less than 0.1 mg/L.
    Minimally-toxic, phosphate-free, and biodegradable means properties
of a substance or mixture of substances that:
    (1) Have an acute aquatic toxicity value corresponding to a
concentration greater than 10 ppm;
    (2) Do not produce residuals with an LC50 less than 10 ppm;
    (3) Are not bioaccumulative;
    (4) Do not cause the pH of the receiving water to go below 6.0 or
above 9.0;
    (5) Contain, by weight, 0.5% or less of phosphates or derivatives
of phosphate; and
    (6) Are biodegradable.
    Minimize means to reduce or eliminate to the extent achievable
using any control measure that is technologically available and
economically practicable and achievable and supported by demonstrated
best management practices such that compliance can be documented in
shipboard logs and plans.
    Niche Areas means areas on a ship that may be more susceptible to
biofouling due to different hydrodynamic forces, susceptibility to
coating system wear or damage, or being inadequately, or not, painted
(e.g., sea chests, bow thrusters, propeller shafts, inlet gratings,
drydock support strips) (source: MEPC.207(62)).
    Not bioaccumulative means any of the following:
    (1) The partition coefficient in the marine environment is log KOW
less than 3 or greater than 7;
    (2) The molecular mass is greater than 800 Daltons;
    (3) The molecular diameter is greater than 1.5 nanometer;
    (4) The bioconcentration factor (BCF) or bioaccumulation factor
(BAF) is less than 100 L/kg; or
    (5) The polymer with molecular weight fraction below 1,000 g/mol is
less than 1%.
    Oil means oil of any kind or in any form, including but not limited
to any petroleum, fuel oil, environmentally acceptable lubricant,
sludge, oil refuse, and oil mixed with wastes other than dredged spoil.
(source: CWA section 311(a)(1)).
    Oily mixture means a mixture, in any form, with any oil content,
including, but not limited to:
    (1) Slops from bilges;
    (2) Slops from oil cargoes (such as cargo tank washings, oily
waste, and oily refuse);
    (3) Oil residue; and
    (4) Oily ballast water from cargo or fuel oil tanks. (source: 33
CFR 151.05).
    Oil-to-Sea interface means any seal or surface on ship-board
equipment where the design is such that oil or oily mixtures can escape
directly into surrounding waters. Oil-to-sea interfaces are found on
equipment that is subject to submersion as well as equipment that can
extend overboard.
    Organism means an animal, including fish and fish eggs and larvae;
a plant; a pathogen; a microbe; a virus; a prokaryote (including any
archean or bacterium); a fungus; and a protist. (source: CWA section
312(p)(1)(R)).
    Pacific region means any Federal or state water adjacent to the
State of Alaska, California, Hawaii, Oregon, or Washington; and
extending from shore. The term includes the entire exclusive economic
zone (as defined in Section 1001 of the Oil Pollution Act of 1990 (33
U.S.C. 2701)) adjacent to each Pacific Region State. (source: CWA
section 312(p)(1)(S)).
    Port or place of destination means a port or place to which a
vessel is bound to anchor, to moor, or be otherwise secured. (source:
CWA section 312(p)(1)(T)).
    Reception facility refers to any fixed, floating, or mobile
facility capable of receiving wastes and residues from ships and fit
for that purpose. (source: Modified from MEPC.1/Circ.834/Rev.1).
    Render nonviable means, with respect to an organism in ballast
water, the action of a ballast water management system that renders the
organism permanently incapable of reproduction following treatment.
(source: CWA section 312(p)(1)(U)).
    Saltwater flush means the addition of as much mid-ocean water into
each empty ballast tank of a vessel as is safe for the vessel and crew;
and the mixing of the flush water with residual ballast water and
sediment through the motion of the vessel; and the discharge of that
mixed water, such that the resultant residual water remaining in the
tank has the highest salinity possible; and is at least 30 parts per
thousand. A saltwater flush may require more than one fill-mix-empty
sequence, particularly if only small quantities of water can be safely
taken onboard a vessel at one time. (source: CWA section 312(p)(1)(V)).
    Scheduled drydocking means hauling out of a vessel or placing a
vessel in a drydock or slipway for an examination of all accessible
parts of the vessel's underwater hull and all through-hull fittings and
does not include emergency drydocking and emergency hull repairs.
(source: Modified from 46 CFR 31.10-21).
    Seagoing vessel means a vessel in commercial service that operates
beyond either the boundary line established by 46 CFR part 7 or the St.
Lawrence River west of a rhumb line drawn from Cap des Rosiers to
Point-Sud-Oeste (West Point), Anticosti Island, and west of a line
along 63' W longitude from Anticosti Island to the north shore of the
St. Lawrence River. It does not include a vessel that navigates
exclusively on internal waters. (source: Modified from 33 CFR
151.2005).
    Secretary means the Secretary of the department in which the Coast
Guard is operating. (source: CWA section 312(p)(1)(W)).
    Small vessel or fishing vessel means a vessel with a vessel length
that is less than 79 feet; or a fishing vessel, fish processing vessel,
or fish tender vessel (as those terms are defined in Section 2101 of
title 46, United States Code), regardless of the vessel length.
(source: CWA section 312(p)(1)(Y)).
    Toxic or hazardous materials means any toxic pollutant as defined
in 40 CFR 401.15 or any hazardous material as defined in 49 CFR 171.8.

    Underway means a vessel is not at anchor, or made fast to the
shore, or aground. (source: 33 CFR 83.03).
    Vessel General Permit (VGP) means the permit that is the subject of
the notice of final permit issuance entitled ``Final National Pollutant
Discharge Elimination System (NPDES) General Permit for Discharges
Incidental to the Normal Operation of a Vessel'' (78 FR 21938 (April
12, 2013)). (source: CWA section 312(p)(1)(Z)).
    Vessel length means the horizontal distance between the foremost
part of a vessel's stem to the aftermost part of its stern, excluding
fittings and attachments. (source: 33 CFR 151.05).
    Visible sheen means, with respect to oil and oily mixtures, a
silvery or metallic sheen or gloss, increased reflectivity, visual
color, iridescence, or an oil slick on the surface of the water.
    Voyage means any transit by a vessel traveling from or destined for
any United States port or place.

Sec.  139.3  Other Federal laws.

    (a) Except as expressly provided in this part, nothing in this part
affects the applicability to a vessel of any other provision of Federal
law, including:
    (1) Sections 311 and 312 of the Federal Water Pollution Control Act
(33 U.S.C. 1321 et seq. and 33 U.S.C. 1322 et seq.), also known as the
CWA;
    (2) The Act to Prevent Pollution from Ships (33 U.S.C. 1901 et
seq.);
    (3) Title X of the Coast Guard Authorization Act of 2010 (33 U.S.C.
3801 et seq.), also known as the Clean Hulls Act;
    (4) The Federal Insecticide, Fungicide, and Rodenticide Act (7
U.S.C. 136 et seq.); and
    (5) The National Marine Sanctuaries Act (16 U.S.C. 1431 et seq.)
and implementing regulations found at 15 CFR part 922 and 50 CFR part
404.
    (b) Nothing in this part affects the authority of the Secretary of
Commerce or the Secretary of the Interior to administer any land or
waters under the administrative control of the Secretary of Commerce or
the Secretary of the Interior, respectively.
    (c) Nothing in this part shall be construed to affect, supersede,
or relieve the master of any otherwise applicable requirements or
prohibitions associated with a vessel's right to innocent passage as
provided for under customary international law.

Subpart B--General Standards for Discharges Incidental to the
Normal Operation of a Vessel

Sec.  139.4  General operation and maintenance.

    (a) The requirements in paragraph (b) of this section apply to any
discharge incidental to the normal operation of a vessel subject to
regulation under this part.
    (b) Vessels must implement the following practices:
    (1) Minimize discharges.
    (2) Discharge while underway when practical and as far from shore
as practical.
    (3) Addition of any materials to a discharge, other than for
treatment of the discharge, that is not incidental to the normal
operation of the vessel is prohibited.
    (4) Dilution of any discharge for the purpose of meeting any
standard in this part is prohibited.
    (5) Any material used onboard that will be subsequently discharged
(e.g., disinfectants, cleaners, biocides, coatings, sacrificial anodes)
must:
    (i) Be used only in the amount necessary to perform the intended
function of that material;
    (ii) Not contain any materials banned for use in the United States;
and
    (iii) If subject to FIFRA registration, be used according to the
FIFRA label. Proper use includes labeling requirements for proper
application sites, rates, frequency of application, and methods;
maintenance; removal; and storage and disposal of wastes and
containers.
    (6) Any toxic or hazardous materials onboard which might wash
overboard or dissolve as a result of contact with precipitation or
surface water spray must be stored in appropriately sealed, labeled,
and secured containers and be located in areas of the vessel that
minimize exposure to ocean spray and precipitation consistent with
vessel design, unless the master determines this would interfere with
essential vessel operations or safety of the vessel or would violate
any applicable regulations that establish specifications for safe
transportation, handling, carriage, and storage of toxic or hazardous
materials.
    (7) Containers holding toxic or hazardous materials must not be
overfilled and incompatible materials must not be mixed in containers.
    (8) The overboard discharge or disposal of containers with toxic or
hazardous materials is prohibited.
    (9) Prior to washing the cargo compartment or tank and discharging
washwater overboard, any cargo compartment or tank must be in broom
clean condition or its equivalent, to minimize any remaining residue
from these areas.
    (10) Topside surfaces (e.g., exposed decks, hull above waterline,
and related appurtenances) must be maintained to minimize the discharge
of cleaning compounds, paint chips, non-skid material fragments, and
other materials associated with exterior surface preservation.
    (11) Painting techniques on topside surfaces must minimize the
discharge of paint.
    (12) Discharge of unused paint and coatings is prohibited.
    (13) Any equipment that may release, drip, leak, or spill oil or
oily mixtures, fuel, or other toxic or hazardous materials that may be
discharged, including to the bilge, must be maintained to minimize or
eliminate the discharge of pollutants.

Sec.  139.5  Biofouling management.

    (a) The requirements in paragraph (b) of this section apply to any
vessel subject to regulation under this part.
    (b) A vessel-specific biofouling management plan must be developed
and followed with a goal to prevent macrofouling, thereby minimizing
the potential for the introduction and spread of ANS. A biofouling
management plan is a holistic strategy that considers the operational
profile of the vessel, identifies the appropriate antifouling systems,
and details the biofouling management practices for specific areas of
the vessel. The plan elements must prioritize procedures and strategies
to prevent macrofouling.

Sec.  139.6  Oil management.

    (a) The requirements in paragraphs (b) through (d) of this section
apply to vessel equipment and operations that use or discharge oil or
oily mixtures.
    (b) The following discharges are prohibited:
    (1) Used or spent oil no longer being used for its intended
purpose; and
    (2) Oil in such quantities as may be harmful.
    (c) During fueling, maintenance, and other vessel operations,
control and response measures must be used to prevent, minimize, and
contain spills and overflows.
    (d) An environmentally acceptable lubricant (EAL) must be used in
any oil-to-sea interface unless such use is technically infeasible.

Subpart C--Standards for Specific Discharges Incidental to the
Normal Operation of a Vessel

Sec.  139.10  Ballast tanks.

    (a) Applicability. Except for any vessel otherwise excluded in
paragraph (b) of this section, the requirements in paragraphs (b)
through (h) of this section apply to any vessel equipped with one or
more ballast tanks.
    (b) Exclusions. The requirements of Sec.  139.10 do not apply to
the following vessels:
    (1) A vessel that continuously takes on and discharges ballast
water in a flow-through system, if the Administrator determines that
system cannot materially contribute to the spread or introduction of
ANS;
    (2) A vessel in the National Defense Reserve Fleet scheduled for
disposal, if the vessel does not have an operable BWMS;
    (3) A vessel that discharges ballast water consisting solely of
water taken onboard from a public or commercial source that, at the
time the water is taken onboard, meets the applicable requirements or
permit requirements of the Safe Drinking Water Act (42 U.S.C. 300f et
seq.) or Health Canada's Guidelines for Canadian Drinking Water
Quality;
    (4) A vessel that carries all permanent ballast water in sealed
tanks that are not subject to discharge except under emergency
circumstances; or
    (5) A vessel that only discharges ballast water to a reception
facility.
    (c) Ballast Water Best Management Practices (BMPs). (1) Any vessel
equipped with ballast tanks must minimize the discharge and uptake of
ANS by adhering to the following practices:
    (i) Ballast tanks must be periodically flushed and cleaned to
remove sediment and biofouling organisms;
    (ii) When practicable and available, high sea suction must be used
when in port or where clearance to the bottom of the waterbody is less
than 5 meters to the lower edge of the sea chest;
    (iii) When practicable, ballast water pumps must be used in port
instead of draining by gravity to empty ballast tanks; and
    (iv) Any sea chest screen must be maintained and fully intact.
    (2) Discharge of any sediment or water from ballast tank cleaning
is prohibited.
    (3) Discharge or uptake of ballast water must be avoided in areas
with coral reefs; discharge and uptake should be conducted as far from
coral reefs as possible.
    (4) A vessel-specific ballast water management plan must be
developed and followed to minimize the potential for the introduction
and spread of ANS. A ballast water management plan is a holistic
strategy that considers the operational profile of the vessel and the
appropriate ballast water management practices and systems.
    (d) Ballast Water Discharge Standard. Unless exempted in paragraph
(d)(3) of this section, any ballast water discharge must meet the
following numeric discharge standard:
    (1) Biological parameters (expressed as instantaneous maximums).
    (i) Organisms greater than or equal to 50 micrometers in minimum
dimension: Less than 10 living organisms per cubic meter.
    (ii) Organisms less than 50 micrometers and greater than or equal
to 10 micrometers: Less than 10 living organisms per milliliter (mL).
    (iii) Toxicogenic Vibrio cholerae (serotypes O1 and O139): Less
than 1 colony forming unit (cfu) per 100 mL.
    (iv) Escherichia coli: A concentration of less than 250 cfu per 100
mL.
    (v) Intestinal enterococci: A concentration of less than 100 cfu
per 100 mL.
    (2) Biocide parameters (expressed as instantaneous maximums).
    (i) Chlorine dioxide: For any discharge from a BWMS using chlorine
dioxide, chlorine dioxide must not exceed 200 [micro]g/L.
    (ii) Total residual oxidizers: For any discharge from a BWMS using
chlorine or ozone, total residual oxidizers must not exceed 100
[micro]g/L.
    (iii) Peracetic acid: For any discharge from a BWMS using peracetic
acid, peracetic acid must not exceed 500 [micro]g/L.
    (iv) Hydrogen peroxide: For any discharge from a BWMS using
peracetic acid, hydrogen peroxide must not exceed 1,000 [micro]g/L.
    (3) Exemptions: The ballast water discharge standards in paragraphs
(d)(1) and (2) of this section do not apply to any vessel that:
    (i) Is less than or equal to 3,000 GT ITC (1,600 GRT if GT ITC is
not assigned), and does not operate outside of the EEZ;
    (ii) Is a non-seagoing, unmanned, unpowered barge, except any barge
that is part of a dedicated vessel combination such as an integrated or
articulated tug and barge unit;
    (iii) Takes on and discharges ballast water exclusively in the
contiguous portions of a single COTP Zone;
    (iv) Does not travel more than 10 NM and passes through no locks;
    (v) Is a vessel that operates exclusively in the Great Lakes and
the St. Lawrence River west of a rhumb line drawn from Cap des Rosiers
to Point-Sud-Oeste (West Point), Anticosti Island, and west of a line
along 63 W. longitude from Anticosti Island to the north shore of the
St. Lawrence River;
    (vi) Is enrolled in the USCG Shipboard Technology Evaluation
Program (STEP); or
    (vii) Discharges ballast water prior to an applicable ballast water
discharge standard compliance date established in regulations
promulgated by the Secretary as described in 139.1(d).
    (e) Ballast Water Exchange and Saltwater Flushing. Except for any
vessel identified in paragraph (e)(3), (f), or (g) of this section,
prior to an applicable ballast water discharge standard compliance date
established in regulations promulgated by the Secretary as described in
Sec.  139.1(d), any vessel must meet the requirements in paragraphs
(e)(1) and (2) of this section.
    (1) Any vessel that carries ballast water taken on in areas less
than 200 NM from any shore that will subsequently operate outside the
EEZ and more than 200 NM from any shore must:
    (i) Conduct ballast water exchange in waters not less than 200 NM
from any shore prior to discharging that ballast water; and
    (ii) Commence ballast water exchange not less than 200 NM from any
shore and as early in the vessel voyage as practicable.
    (2) For any ballast tank that is empty or contains unpumpable
residual water on a vessel bound for a port or place of destination
subject to the jurisdiction of the United States, the master must,
prior to arriving at that port or place of destination, either:
    (i) Seal the tank so that there is no discharge or uptake and
subsequent discharge of ballast water, or
    (ii) Conduct a saltwater flush:
    (A) Not less than 200 NM from any shore for a voyage originating
outside the United States or Canadian EEZ; or
    (B) not less than 50 NM from any shore for a voyage originating
within the United States or Canadian EEZ.
    (3) Exceptions: Paragraphs (e)(1) and (2), do not apply under any
of the following circumstances:
    (i) If the unpumpable residual waters and sediments of an empty
ballast tank were subject to treatment, in compliance with applicable
requirements, through a BWMS approved or accepted by the Secretary;
    (ii) Except as otherwise required under this part, if the
unpumpable residual waters and sediments of an empty ballast tank were
sourced solely within:

    (A) The same port or place of destination; or
    (B) Contiguous portions of a single COTP Zone;
    (iii) If complying with an applicable requirement of this paragraph
(e):
    (A) Would compromise the safety of the vessel; or
    (B) Is otherwise prohibited by any Federal, Canadian, or
international law (including regulations) pertaining to vessel safety;
    (iv) If design limitations of an existing vessel prevent a ballast
water exchange or saltwater flush from being conducted in accordance
with this paragraph (e); or
    (v) If the vessel is operating exclusively within the internal
waters of the United States and Canada.