[Federal Register Volume 63, Number 5 (Thursday, January 8, 1998)]
[Rules and Regulations]
[Pages 1318-1320]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-431]
[[Page 1317]]
_______________________________________________________________________
Part V
Environmental Protection Agency
_______________________________________________________________________
40 CFR Parts 9 and 140
Marine Sanitation Device Standard--Establishment of Drinking Water
Intake No Discharge Zone(s) Under Section 312(f)(4)(B) of the Clean
Water Act; Final Rule
Federal Register / Vol. 63, No. 5 / Thursday, January 8, 1998 / Rules
and Regulations
[[Page 1318]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 9 and 140
[FRL-5942-4]
RIN 2040-AC61
Marine Sanitation Device Standard--Establishment of Drinking
Water Intake No Discharge Zone(s) Under Section 312(f)(4)(B) of the
Clean Water Act
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: The Clean Water Act (CWA) authorizes the Administrator of the
Environmental Protection Agency (EPA) to establish drinking water
intake no discharge zones upon application by a State. Within these
zones, the discharge of sewage from a vessel, whether treated or
untreated, is prohibited. These no discharge zones protect the quality
of public drinking water supplies in those areas by decreasing the
possibility of contamination from sewage discharged from vessels.
This provision was added to section 312 of the Clean Water Act in
1977, after EPA had promulgated regulations on application requirements
for other types of no discharge zones. Before today, EPA had not
promulgated regulations specific to application requirements for
drinking water intake no discharge zones under the CWA. Applicants for
drinking water intake zones, therefore, have followed application
requirements which are not tailored to drinking water intakes, and have
provided more information than needed for these no discharge zones.
Today, EPA is promulgating application requirements specific to
drinking water intake no discharge zones. The effect of today's rule
would be to more specifically tailor the type of information required
in an application for a drinking water intake no discharge zone and
reduce the amount of information a State must submit.
EFFECTIVE DATE: These regulations take effect on February 9, 1998.
ADDRESSES: The official record for this rulemaking is available for
inspection at EPA's Water Docket, Rm M2616, Waterside Mall, 401 M
Street, S.W., Washington, D.C, 20460. For access to the Docket, call
(202) 260-3027 between 9 a.m. and 3:30 p.m., Monday through Friday,
excluding legal holidays for an appointment. EPA public information
regulation (40 CFR Part 2) provides that a reasonable fee may be
charged for copying.
FOR FURTHER INFORMATION CONTACT: Deborah Lebow, Oceans and Coastal
Protection Division, United States Environmental Protection Agency,
4504F, 401 M St. S.W., Washington, D.C. 20460, (202) 260-8448.
SUPPLEMENTARY INFORMATION:
Regulated Entities
Entities potentially affected by this action include States who
seek to establish a drinking water intake no discharge zone where
vessel sewage is prohibited in a specified area, under section 312(f)
of the Clean Water Act. Potentially affected entities include:
------------------------------------------------------------------------
Examples of potentially
Category affected entities
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State/local/tribal governments............ States applying for no
discharge zones.
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Public Comments
EPA is today clarifying the application requirements for
designating drinking water intake no discharge zones under section 312
of the CWA. This rule only applies to States requesting approval of
drinking water intake no discharge zones and has no direct effect on
any regulated entity. These requirements are promulgated pursuant to
section 312(f)(4)(B) of the CWA (33 U.S.C. 1322(f)(4)(B)), which
provides that ``Upon application by a State, the Administrator shall,
by regulation, establish a drinking water intake zone in any waters
within such State and prohibit the discharge of sewage from vessels
within that zone.'' The effect of this rule is to set out application
requirements specific to drinking water intake no discharge zones. It
will reduce the amount of information States are required to submit to
EPA under existing 40 CFR 140.4(b) to establish these no discharge
zones.
EPA proposed this change on October 16, 1996 (61 FR 54014-54017).
The background and details pertaining to this change are detailed there
and will not be repeated here. Today EPA is promulgating the
regulations as they were originally proposed.
EPA received four sets of comments on the proposal all of which
supported the proposal in full. One of the commenters, however,
suggested that EPA take a more active enforcement role, and consider
prohibiting other types of discharges such as spills, paints when a
boat is refueling or in repair, in addition to prohibiting sewage
discharge. Since Section 312 addresses vessel sewage, this comment is
beyond the scope of these regulations and will not be addressed here.
The Agency notes, however, that spills are addressed in other parts of
the CWA (e.g., section 311). Another commenter asked that we require
NOAA nautical charts rather than USGS maps. We have made the change to
require NOAA charts where applicable.
States are encouraged to establish drinking water intake no
discharge zones that are consistent with source water protection areas
for surface water systems delineated pursuant to Section 1453(a)(2)(A)
of the Safe Drinking Water Act Amendments of 1996 and the forthcoming
Source Water Assessment and Protection guidance. In fact, States could
incorporate these no discharge zones into source water assessment
programs and pay for their delineation with funds set aside from the
new Drinking Water State Revolving Fund.
Compliance With Other Laws and Executive Orders
A. Regulatory Flexibility Act
Under the Regulatory Flexibility Act (RFA), EPA generally is
required to conduct a regulatory flexibility analysis describing the
impact of the regulatory action on small entities as part of
rulemaking. However, under section 605(b) of the RFA, if EPA certifies
that the rule will not have a significant economic impact on a
substantial number of small entities, EPA is not required to prepare an
RFA. Pursuant to Section 605(b) of the Regulatory Flexibility Act, 5
U.S.C. 605(b), the Administrator certifies that this rule will not have
a significant economic impact on a substantial number of small
entities. Today's rule simplifies existing requirements and should have
no direct effect on small entities. The rule, which reduces existing
regulatory requirements, applies only to States, which do not qualify
as small entities.
B. Paperwork Reduction Act
The Office of Management and Budget (OMB) has approved the
information collection requirements contained in this rule under the
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. EPA
prepared an Information Collection Request (ICR) document (ICR No.
1791.01) and has assigned OMB control number 1791.01. A copy may be
obtained from Sandy Farmer, OPPE Regulatory Information Division; U.S.
Environmental Protection Agency (2137); 401 M St., S.W.; Washington, DC
20460 or by calling (202) 260-2740.
This information is required from States who wish to designate a
drinking water intake no discharge zone under CWA Section 312(f)(4)(B).
It allows the
[[Page 1319]]
EPA Administrator to evaluate these State applications for designating
no discharge zones to ensure that the discharge area is the appropriate
size to protect drinking water intake zones from vessel sewage. This
information is not of a confidential nature.
Under existing regulatory provisions, applications for drinking
water intake no discharge zones have an estimated reporting burden
averaging 167 hours per application and an estimated annual record
keeping burden of one hour per applicant at approximately $82 per
application. Under the new regulations, the reporting burden is reduced
to 101 hours per application and the annual record keeping burden per
application is estimated at one hour at approximately $82 per
application. This rule reduces the reporting burden by 66 hours per
application. Burden means the total time, effort, or financial
resources expended by persons to generate, maintain, retain, or
disclose or provide information to or for a Federal agency. This
includes the time needed to review instructions; develop, acquire,
install, and utilize technology and systems for the purposes of
collecting, validating, and verifying information, processing and
maintaining information, and disclosing and providing information;
adjust the existing ways to comply with any previously applicable
instructions and requirements; train personnel to be able to respond to
a collection of information; search data sources; complete and review
the collection of information; and transmit or otherwise disclose the
information.
An Agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR Part 9 and 48 CFR Chapter 15. EPA is
today amending the table of currently approved information collection
request control numbers to include the OMB control number for the
information collection request for this rule. This ICR was previously
subject to public notice and comment prior to OMB approval. As a
result, EPA finds that there is ``good cause'' under section 553(b)(B)
of the Administrative Procedure Act (5 U.S.C. 553(b)(B)) to amend this
table without prior notice and comment. Due to the technical nature of
the table, further notice and comment would be unnecessary.
C. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may: (1) Have an annual
effect on the economy of $100 million or more or adversely affect in a
material way the economy, a sector of the economy, productivity,
competition, jobs, the environment, public health or safety, or State,
local, or tribal governments or communities; (2) Create a serious
inconsistency or otherwise interfere with an action taken or planned by
another agency; (3) Materially alter the budgetary impact of
entitlements, grants, user fees, or loan programs or the rights and
obligations of recipients thereof; or (4) Raise novel legal or policy
issues arising out of legal mandates, the President's priorities, or
the principles set forth in the Executive Order.
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to OMB review.
D. The Unfunded Mandates Reform Act, and Executive Order 12875
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under Section 202 of UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, Section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of Section 205
do not apply when they are inconsistent with applicable law. Moreover,
Section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
Section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements. EPA has determined that today's regulation does not
impose any enforceable duties upon the private sector. Therefore, this
final rulemaking is not a ``private sector mandate.''
Further, EPA has determined that today's action does not include a
Federal mandate that may result in expenditures of $100 million or more
by either State, local, and tribal governments, in the aggregate, or to
the private sector in any one year. This rulemaking should reduce the
reporting and recordkeeping burden on State applicants. Thus, this rule
is not subject to the requirements of Sections 202 and 205 of the UMRA.
It is codifying in 40 CFR 140.4(c) that which already exists in the
statute and is self-implementing. Therefore, this rule does not
significantly or uniquely affect small governments. Executive Order
12875 requires that, to the extent feasible and permitted by law, no
Federal agency shall promulgate any regulation that is not required by
statute and that creates a mandate upon a State, local, or tribal
government, unless funds necessary to pay the direct costs incurred by
the State, local or tribal government in complying with the mandate are
provided by the Federal government. EPA has determined that the
requirements of Executive Order 12875 do not apply to today's
rulemaking, since no mandate is created by this action.
E. Small Business Regulatory Enforcement Fairness Act of 1996
Under 5 U.S.C. 801(1)(A) as added by the Small Business Regulatory
Enforcement Fairness Act of 1996, EPA submitted a report containing
this rule and other required information to the U.S. Senate, the U.S.
House of Representatives and the Comptroller General of the General
Accounting Office prior to publication of the rule in today's Federal
Register. This rule is not a ``major rule'' as defined by 5 U.S.C.
804(2).
F. National Technology Transfer and Advancement Act
Under section 12(d) of the National Technology Transfer and
Advancement Act (NTTAA), the Agency is required to
[[Page 1320]]
use voluntary consensus standards in its regulatory activities unless
to do so would be inconsistent with applicable law or otherwise
impractical. Voluntary consensus standards are technical standards
(e.g., materials specifications, test methods, sampling procedures,
business practices, etc.) that are developed or adopted by voluntary
consensus standards bodies. Where available and potentially applicable
voluntary consensus standards are not used by EPA, the Act requires the
Agency to provide Congress, through the Office of Management and
Budget, an explanation of the reasons for not using such standards.
The Agency has found that this final rule does not contain any
technical standards subject to the NTTAA.
List of Subjects
40 CFR Part 9
Reporting and recordkeeping requirements.
40 CFR Part 140
Environmental protection, Drinking water intake zones, Marine
sanitation device standard, No discharge areas.
Dated: December 22, 1997.
Carol M. Browner,
Administrator.
For the reasons set forth in the preamble, 40 CFR parts 9 and 140
are amended as follows:
PART 9--[AMENDED]
1. The authority citation for part 9 continues to read as follows:
Authority: 7 U.S.C. 135 et seq., 136-136y; 15 U.S.C. 2001, 2003,
2005, 2006. 2601-2671; 21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33
U.S.C. 1251 et seq.,1311, 1313d, 1314, 1318, 1321, 1326, 1330, 1342,
1344, 1345 (d) and (e), 1361; E.O. 11735, 38 FR 21243, 3 CFR, 1971-
1975 Comp. P.973; 42 U.S.C. 241, 242b, 243, 246, 300f, 300g, 300g-1,
300g-2, 300g-3, 300g-4, 300g-5, 300g-6, 300j-1, 300j-2, 300j-3,
300j-4, 300j-9, 1857 et seq., 6901-6992k, 7401-7671q, 7542, 9601-
9657, 11023, 11048.
2. In Sec. 9.1 the table is amended by adding a new heading and
entry in numerical order to read as follows:
Sec. 9.1 OMB approvals under the Paperwork Reduction Act.
* * * * *
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OMB control
40 CFR citation No.
------------------------------------------------------------------------
* * * * *
Marine Sanitation Device Standard:
Part 140................................................. 2040-0187
* * * * *
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PART 140--[AMENDED]
3. The authority citation for part 140 is revised to read as
follows:
Authority: 33 U.S.C. 1322, as amended.
4. Section 140.4 is amended:
a. In paragraph (a) introductory text, in the first sentence, by
revising the first word ``A'' to read ``a'' and by adding to the
beginning of the sentence the words ``Prohibition pursuant to CWA
section 312(f)(3):''.
b. In paragraph (b) introductory text, in the first sentence, by
revising the first word ``A'' to read ``a'' and by adding to the
beginning of the sentence the words ``Prohibition pursuant to CWA
section 312(f)(4)(A):'' and by removing from the first sentence the
words ``312(f)(4)'' and adding, in their place, the words
``312(f)(4)(A)''.
c. In paragraph (b)(1) by removing the word ``prohibited,'' and
adding in its place the words ``prohibited pursuant to CWA Section
312(f)(4)(A):'', and by redesignating paragraph (b)(1)(ii) as new
paragraph (c)(4)(i) and adding and reserving paragraph (b)(1)(ii).
d. By adding the following new paragraph (c)(1), (c)(2), (c)(3) and
(c)(4) introductory text; and by adding and reserving (c)(4)(ii) to
read as follows:
Sec. 140.4 Complete prohibition.
* * * * *
(c)(1) Prohibition pursuant to CWA section 312(f)(4)(B): A State
may make written application to the Administrator of the Environmental
Protection Agency under section 312(f)(4)(B) of the Act for the
issuance of a regulation establishing a drinking water intake no
discharge zone which completely prohibits discharge from a vessel of
any sewage, whether treated or untreated, into that zone in particular
waters, or portions thereof, within such State. Such application shall:
(i) Identify and describe exactly and in detail the location of the
drinking water supply intake(s) and the community served by the
intake(s), including average and maximum expected amounts of inflow;
(ii) Specify and describe exactly and in detail, the waters, or
portions thereof, for which a complete prohibition is desired, and
where appropriate, average, maximum and low flows in million gallons
per day (MGD) or the metric equivalent;
(iii) Include a map, either a USGS topographic quadrant map or a
NOAA nautical chart, as applicable, clearly marking by latitude and
longitude the waters or portions thereof to be designated a drinking
water intake zone; and
(iv) Include a statement of basis justifying the size of the
requested drinking water intake zone, for example, identifying areas of
intensive boating activities.
(2) If the Administrator finds that a complete prohibition is
appropriate under this paragraph, he or she shall publish notice of
such finding together with a notice of proposed rulemaking, and then
shall proceed in accordance with 5 U.S.C. 553. If the Administrator's
finding is that a complete prohibition covering a more restricted or
more expanded area than that applied for by the State is appropriate,
he or she shall also include a statement of the reasons why the finding
differs in scope from that requested in the State's application.
(3) If the Administrator finds that a complete prohibition is
inappropriate under this paragraph, he or she shall deny the
application and state the reasons for such denial.
(4) For the following waters the discharge from a vessel of any
sewage, whether treated or not, is completely prohibited pursuant to
CWA section 312(f)(4)(B):
(i) * * *
(ii) (Reserved).
[FR Doc. 98-431 Filed 1-7-98; 8:45 am]
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