[Federal Register Volume 85, Number 138 (Friday, July 17, 2020)]
[Rules and Regulations]
[Pages 43465-43478]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-12571]


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ENVIRONMENTAL PROTECTION AGENCY

DEPARTMENT OF DEFENSE

40 CFR Part 1700

[EPA-HQ-OW-2016-0351; FRL-10009-46-OW]
RIN 2040-AF53


Uniform National Discharge Standards for Vessels of the Armed 
Forces--Phase II Batch Two

AGENCY: Environmental Protection Agency and Department of Defense.

ACTION: Final rule.

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SUMMARY: The U.S. Environmental Protection Agency (EPA) and the U.S. 
Department of Defense (DoD) are promulgating discharge performance 
standards for 11 discharges incidental to the normal operation of a 
vessel of the Armed Forces in the navigable waters of the United 
States, the territorial seas, and the contiguous zone. When 
implemented, the discharge performance standards will reduce the 
adverse environmental impacts associated with the vessel discharges, 
stimulate the development of improved vessel pollution control devices, 
and advance the development of environmentally sound vessels of the 
Armed Forces. The 11 discharges addressed by the final rule include the 
following: Catapult water brake tank and post-launch retraction 
exhaust, controllable pitch propeller hydraulic fluid, deck runoff, 
firemain systems, graywater, hull coating leachate, motor gasoline and 
compensating discharge, sonar dome discharge, submarine bilgewater, 
surface vessel bilgewater/oil-water separator effluent, and underwater 
ship husbandry.

DATES: This final rule is effective on August 17, 2020.

ADDRESSES: The EPA has established a docket for this action under 
Docket No. EPA-HQ-OW-2016-0351. All documents in the docket are listed 
on the http://regulations.gov website. The complete public record for 
this rulemaking, including responses to comments received during the 
rulemaking, can be found under Docket No. EPA-HQ-OW-2016-0351.

FOR FURTHER INFORMATION CONTACT: Katherine B. Weiler, Oceans and 
Coastal Management Branch (4504T), U.S. EPA, 1200 Pennsylvania Avenue 
NW, Washington, DC 20460; (202) 566-1280; weiler.katherine@epa.gov, or 
Mike Pletke, Chief of Naval Operations (N45), 2000 Navy Pentagon (Rm. 
2D253), Washington, DC 20350-2000; (703) 695-5184; 
mike.pletke@navy.mil.

SUPPLEMENTARY INFORMATION: This supplementary information is organized 
as follows:

I. General Information
    A. Legal Authority for the Final Rule
    B. Purpose of the Final Rule
    C. What vessels are regulated by the final rule?
    D. What is the geographic scope of the final rule?
    E. Rulemaking Process
    F. Summary of Public Outreach and Consultation With Federal 
Agencies, States, Territories, and Tribes
    G. Supporting Documentation
II. UNDS Performance Standards Development
    A. Nature of the Discharge
    B. Environmental Effects
    C. Cost, Practicability, and Operational Impacts
    D. Applicable U.S. and International Law
    E. Definitions
III. UNDS Discharge Analysis and Performance Standards
    A. Catapult Water Brake Tank and Post-Launch Retraction Exhaust
    B. Controllable Pitch Propeller Hydraulic Fluid
    C. Deck Runoff
    D. Firemain Systems
    E. Graywater
    F. Hull Coating Leachate
    G. Motor Gasoline and Compensating Discharge
    H. Sonar Dome Discharge
    I. Submarine Bilgewater
    J. Surface Vessel Bilgewater/Oil-Water Separator Effluent
    K. Underwater Ship Husbandry
IV. Additional Information in the Final Rule
V. Changes and Improvements Since the Proposed Rule
    A. Public Comment
    B. Modification to Proposed Standards
VI. Related Acts of Congress and Executive Orders
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Executive Order 13771: Reducing Regulation and Controlling 
Regulatory Costs
    C. Paperwork Reduction Act
    D. Regulatory Flexibility Act
    E. Unfunded Mandates Reform Act
    F. Executive Order 13132: Federalism
    G. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    H. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    I. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    J. National Technology Transfer and Advancement Act
    K. Coastal Zone Management Act
    L. Endangered Species Act
    M. Executive Order 13112: Invasive Species
    N. Executive Order 13089: Coral Reef Protection
    O. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    P. Congressional Review Act

I. General Information

A. Legal Authority for the Final Rule

    The EPA and DoD promulgate this rule under the authority of Clean 
Water Act (CWA) Section 312(n) (33 U.S.C. 1322(n)). Section 325 of the 
National Defense Authorization Act of 1996 (NDAA), titled ``Discharges 
from Vessels of the Armed Forces'' (Pub. L. 104-106, 110 Stat. 254), 
amended CWA Section 312, to require the Administrator of the U.S. 
Environmental Protection Agency (Administrator) and the Secretary of 
Defense of the U.S. Department of Defense (Secretary) to develop 
uniform national standards to control certain discharges incidental to 
the normal operation of a vessel of the Armed Forces. The term Uniform 
National Discharge Standards, or UNDS, is used in this preamble to 
refer to the provisions in CWA Section 312(a)(12) through (14) and (n) 
(33 U.S.C. 1322(a)(12) through (14) & (n)).

[[Page 43466]]

B. Purpose of the Final Rule

    The purpose of the statutory amendment for the establishment of the 
UNDS rules is to enhance the operational flexibility of vessels of the 
Armed Forces domestically and internationally, stimulate the 
development of innovative vessel pollution control technology, and 
advance the development of environmentally sound ships. Section 
312(n)(3)(A) of the CWA requires the EPA and DoD to promulgate uniform 
national discharge standards for certain discharges incidental to the 
normal operation of a vessel of the Armed Forces (CWA Section 
312(a)(12)), unless the Secretary finds that compliance with UNDS would 
not be in the national security interests of the United States (CWA 
Section 312(n)(1)).
    The final rule establishes discharge ``performance standards'' for 
11 discharges incidental to the normal operation of a vessel of the 
Armed Forces from among the 25 discharges for which the EPA and DoD 
previously determined (64 FR 25126, May 10, 1999) that it is reasonable 
and practicable to require a marine pollution control device (MPCD). 
The 11 discharges addressed in the rule include the following: catapult 
water brake tank and post-launch retraction exhaust, controllable pitch 
propeller hydraulic fluid, deck runoff, firemain systems, graywater, 
hull coating leachate, motor gasoline and compensating discharge, sonar 
dome discharge, submarine bilgewater, surface vessel bilgewater/oil-
water separator effluent, and underwater ship husbandry. However, the 
discharge performance standards do not become enforceable until after 
promulgation of regulations by DoD under CWA Section 312(n)(5)(C) to 
govern the design, construction, installation, and use of a MPCD. CWA 
Section 312(n)(5)(C) requires DoD to promulgate the regulations as soon 
as practicable after the promulgation of the discharge performance 
standards, but not later than one year. Additionally, upon the 
effective date of regulations by DoD under CWA Section 312(n)(5)(C), 
CWA Section 312(n)(6)(A) provides that neither a state nor a political 
subdivision of a state may adopt or enforce any statute or regulation 
of the state (or the political subdivision) with respect to the 
discharge or design, construction, installation or use of any MPCD 
required to control discharges from a vessel of the Armed Forces.

C. What vessels are regulated by the final rule?

    The final rule applies to vessels of the Armed Forces. For the 
purposes of the rulemaking, the term ``vessel of the Armed Forces'' is 
defined at CWA Section 312(a)(14). Vessel of the Armed Forces means any 
vessel owned or operated by the U.S. Department of Defense (i.e., U.S. 
Navy, Military Sealift Command, U.S. Marine Corps, U.S. Army, and U.S. 
Air Force), other than a time- or voyage-chartered vessel, as well as 
any U.S. Coast Guard vessel designated by the Secretary of the 
Department in which the U.S. Coast Guard is operating. The preceding 
list of vessels is not intended to be exhaustive, but rather provides a 
guide for the reader regarding the vessels of the Armed Forces to be 
regulated by the final rule. The final rule does not apply to 
commercial vessels; private vessels; vessels owned or operated by 
state, local, or tribal governments; vessels under the jurisdiction of 
the U.S. Army Corps of Engineers; certain vessels under the 
jurisdiction of the U.S. Department of Transportation; vessels 
preserved as memorials and museums; vessels under construction; vessels 
in drydock; amphibious vehicles; and, as noted above, time- or voyage-
chartered vessels. For answers to questions regarding the applicability 
of this action to a particular vessel, consult one of the contacts 
listed in the FOR FURTHER INFORMATION CONTACT section.

D. What is the geographic scope of the final rule?

    The final rule is applicable to discharges from a vessel of the 
Armed Forces operating in the navigable waters of the United States, 
including the territorial seas, and the contiguous zone (CWA Section 
312(n)(8)(A)). The final rule applies in both fresh and marine waters 
and can include bodies of water such as rivers, lakes, and oceans. The 
preamble refers to these waters collectively as ``waters subject to 
UNDS.''
    Sections 502(7), 502(8), and 502(9) of the CWA define the terms 
``navigable waters,'' ``territorial seas,'' and ``contiguous zone,'' 
respectively. The term ``navigable waters'' means waters of the United 
States including the territorial seas, and the ``United States'' 
includes the States, the District of Columbia, the Commonwealth of 
Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, the 
Commonwealth of the Northern Mariana Islands, and the Trust Territories 
of the Pacific Islands. The term ``territorial seas'' means the belt of 
seas that extends three miles seaward from the line of ordinary low 
water along the portion of the coast in direct contact with the open 
sea and the line marking the seaward limit of inland waters. The term 
``contiguous zone'' means the entire zone established or to be 
established by the United States under Article 24 of the Convention of 
the Territorial Sea and the Contiguous Zone. The contiguous zone 
extends seaward twelve miles from the baseline from which the breadth 
of the territorial sea is measured. The final rule is not applicable 
seaward of the contiguous zone.

E. Rulemaking Process

    The UNDS rulemaking is a three-phase, joint rulemaking between the 
EPA and DoD. The first two phases are joint rulemakings between the EPA 
and DoD; the third phase is a DoD-only rulemaking.
Phase I
    The EPA and DoD promulgated Phase I regulations on May 10, 1999 (64 
FR 25126), and these existing regulations are codified at 40 CFR part 
1700. During Phase I, the EPA and DoD identified the discharges 
incidental to the normal operation of a vessel of the Armed Forces for 
which it is reasonable and practicable to require control with a MPCD 
to mitigate potential adverse impacts on the marine environment (CWA 
Section 312(n)(2)), as well as those discharges for which it is not. 
Section 312(a)(13) of the CWA defines a MPCD as any equipment or 
management practice, for installation or use on a vessel of the Armed 
Forces, that is designed to receive, retain, treat, control, or 
discharge a discharge incidental to the normal operation of a vessel; 
and that is determined by the Administrator and the Secretary to be the 
most effective equipment or management practice to reduce the 
environmental impacts of the discharge consistent with the 
considerations set forth by UNDS.
    During Phase I, the EPA and DoD also identified the vessels with 
discharges to be regulated under UNDS. The Phase I Technical 
Development Document describes the range of vessels covered by UNDS 
which includes both active and inactive vessels. Inactive vessels are 
vessels owned by the Armed Forces that are not in operational status 
but are retained as mobilization assets or held in long-term storage 
for some other permanent disposition. The vessels are owned by the DoD, 
pending final disposition and as such are covered under UNDS.
    The Phase I Technical Development Document also describes the 25

[[Page 43467]]

discharges that the EPA and DoD identified as requiring control with a 
MPCD and the 14 discharges that do not require control. The 25 
discharges requiring control include: Aqueous film-forming foam; 
catapult water brake tank and post-launch retraction exhaust; chain 
locker effluent; clean ballast; compensated fuel ballast; controllable 
pitch propeller hydraulic fluid; deck runoff; dirty ballast; 
distillation and reverse osmosis brine; elevator pit effluent; firemain 
systems; gas turbine water wash; graywater; hull coating leachate; 
motor gasoline and compensating discharge; non-oily machinery 
wastewater; photographic laboratory drains; seawater cooling overboard 
discharge; seawater piping biofouling prevention; small boat engine wet 
exhaust; sonar dome discharge; submarine bilgewater; surface vessel 
bilgewater/oil-water separator effluent; underwater ship husbandry; and 
welldeck discharges (40 CFR 1700.4). The 14 discharges that do not 
require control with a MPCD include: Boiler blowdown; catapult wet 
accumulator discharge; cathodic protection; freshwater layup; mine 
countermeasures equipment lubrication; portable damage control drain 
pump discharge; portable damage control drain pump wet exhaust; 
refrigeration/air conditioning condensate; rudder bearing lubrication; 
steam condensate; stern tube seals and underwater bearing lubrication; 
submarine acoustic countermeasures launcher discharge; submarine 
emergency diesel engine wet exhaust; and submarine outboard equipment 
grease and external hydraulics.
    As of the effective date of the Phase I rule (June 9, 1999), states 
and political subdivisions of states are preempted from adoption or 
enforcement of any state or local statutes or regulations with respect 
to the 14 discharges that were identified as not requiring control, 
except as provided for in no-discharge zones (CWA Sections 312(n)(6)(A) 
and 312(n)(7)). In addition, CWA Section 312(n)(5)(D) authorizes the 
governor of any state to submit a petition to the EPA and DoD 
requesting the re-evaluation of a prior determination that a MPCD is 
required for a particular discharge (40 CFR 1700.4) or that a MPCD is 
not required for a particular discharge (40 CFR 1700.5), if there is 
significant new information not considered previously, that could 
reasonably result in a change to the determination (CWA Section 
312(n)(5)(D) and 40 CFR 1700.11).
Phase II
    Section 312(n)(3) of the CWA requires the EPA and DoD to develop 
discharge performance standards for each of the 25 discharges 
identified in Phase I as requiring control. Development of the 
discharge performance standards required the EPA and DoD to consult 
with the Department in which the U.S. Coast Guard is operating, the 
Secretary of Commerce, interested states, the Secretary of State, and 
other interested federal agencies. CWA Section 312(n)(2)(B) directs the 
EPA and DoD to consider seven factors when promulgating the Phase II 
discharge performance standards: The nature of the discharge; the 
environmental effects of the discharge; the practicability of using the 
MPCD; the effect that installation or use of the MPCD would have on the 
operation or the operational capability of the vessel; applicable U.S. 
law; applicable international standards; and the economic costs of 
installation and use of the MPCD. Section 312(n)(3)(C) of the CWA 
authorizes the EPA and DoD to establish discharge standards that (1) 
distinguish among classes, types, and sizes of vessels; (2) distinguish 
between new and existing vessels; and (3) provide for a waiver of 
applicability of standards as necessary or appropriate to a particular 
class, type, age, or size of vessel.
    The EPA and DoD developed a process to establish the Phase II 
discharge performance standards in three ``batches'' through three 
separate rulemakings. The first batch of discharge performance 
standards was published on January 11, 2017 (82 FR 3173), and addressed 
11 of the 25 discharges identified as requiring control in Phase I. The 
second batch of discharge performance standards, the subject of this 
final rule, addresses an additional 11 discharges previously identified 
as requiring control. The EPA and DoD are preparing the third batch of 
performance standards to address the remaining three discharges 
(relating to different variations of ballast water systems), which will 
be proposed later.
    In developing the Phase II discharge performance standards, the EPA 
and DoD referenced the 2013 National Pollutant Discharge Elimination 
System (NPDES) Vessel General Permit (VGP) (78 FR 21938, April 12, 
2013) and the 2014 NPDES Small Vessel General Permit (sVGP) (79 FR 
53702, September 10, 2014) (hereafter referred to collectively as the 
NPDES VGPs) as a baseline for each comparable discharge incidental to 
the normal operation of a vessel of the Armed Forces. Geographically, 
the NPDES VGPs applied seaward only to the CWA's three-mile territorial 
sea and only to discharges incidental to the normal operation of non-
military and non-recreational vessels. The NPDES VGPs included effluent 
limits that are based on both the technology available to treat 
pollutants (i.e., technology-based effluent limitations), and limits 
intended to be protective of the designated uses of the receiving 
waters (i.e., water quality-based effluent limits), including both non-
numeric and numeric limitations. Using the NPDES VGPs as a ``reasonable 
and practicable'' baseline to develop performance standards for 
discharges incidental to the normal operation of a vessel of the Armed 
Forces allowed the EPA and DoD to maximize the use of the EPA's 
scientific and technical work developed to support the NPDES VGPs. The 
NPDES VGPs technology-based and water quality-based effluent 
limitations were then adapted, as appropriate, for the relevant 
discharges from vessels of the Armed Forces. Additional information on 
NPDES permitting can be found on-line at http://www.epa.gov/npdes/.
Phase III
    CWA Section 312(n)(4) requires DoD within one year of finalization 
of Phase II and in consultation with the EPA and the Secretary of the 
Department in which the U.S. Coast Guard is operating, to promulgate 
Phase III UNDS regulations governing the design, construction, 
installation, and use of MPCDs necessary to meet the Phase II discharge 
performance standards. DoD will implement the Phase III regulations 
under the authority of the Secretary as a DoD publication. The Phase 
III regulations will be publicly released and are expected to be made 
available on the Defense Technical Information Center website: http://www.dtic.mil/whs/directives. Similar to Phase II, Phase III will be 
promulgated in three batches.
    Following the effective date of regulations under Phase III, it 
will be unlawful for a vessel of the Armed Forces to operate within 
waters subject to UNDS if the vessel is not equipped with a MPCD that 
meets the final Phase II discharge performance standards (CWA Section 
312(n)(8)). It also will be unlawful for a vessel of the Armed Forces 
to discharge a regulated UNDS discharge into an UNDS no-discharge zone 
(i.e., waters where a prohibition on a discharge has been established) 
(CWA Section 312(n)(8)). Any person in violation of this requirement 
shall be liable to a civil penalty of not more than $5,000 for each 
violation (CWA Section 312(j)). The Secretary of the Department in 
which the U.S. Coast Guard is operating enforces these provisions and 
may utilize law enforcement officers, EPA personnel and facilities, 
other

[[Page 43468]]

federal agencies, or the states to carry out these provisions. States 
may also enforce these provisions (CWA Sections 312(k) and (n)(9)).
    In addition, as of the effective date of the Phase III regulations, 
neither a state nor political subdivision of a state may adopt or 
enforce any state or local statute or regulation with respect to 
discharges identified as requiring control, except to establish no-
discharge zones (CWA Section 312(n)(7)). If a state determines that the 
protection and enhancement of the quality of some or all of its waters 
require greater environmental protection, the state may prohibit one or 
more discharges incidental to the normal operation of a vessel of the 
Armed Forces, whether treated or not, into those waters. CWA Section 
312(n)(7) provides for the establishment of no-discharge zones and the 
Phase I UNDS regulations established the criteria and procedures for 
establishing no-discharge zones (40 CFR 1700.9 and 40 CFR 1700.10).
    The statute also requires the EPA and DoD to review the UNDS 
determinations and standards every five years and, if necessary, to 
revise them based on significant new information. Specifically, CWA 
Sections 312(n)(5)(A) and (B) contain provisions for reviewing and 
modifying both of the following determinations: (1) Whether control 
should be required for a particular discharge, and (2) the substantive 
standard of performance for a discharge for which control is required. 
A governor also may petition the Administrator and the Secretary to 
review a UNDS determination or standard if there is significant new 
information, not considered previously, that could reasonably result in 
a change to the determination or standard (CWA Section 312(n)(5)(D) & 
40 CFR 1700.11).

F. Summary of Public Outreach and Consultation With Federal Agencies, 
States, Territories, and Tribes

    During the development of the proposed rule and the final rule, the 
EPA and DoD consulted with other federal agencies, states, and tribes 
regarding the reduction of adverse environmental impacts associated 
with discharges from vessels of the Armed Forces; development of 
innovative vessel pollution control technology; and advancement of 
environmentally sound vessels of the Armed Forces. In addition, the EPA 
and DoD reviewed comments on the NPDES VGPs. Documentation of the 
consultations is in the administrative docket for the rulemaking.

G. Supporting Documentation

    The rule is supported by the ``Technical Development Document Phase 
I Uniform National Discharge Standards for Vessels of the Armed 
Forces,'' the UNDS Phase I rules, the ``Final 2013 Vessel General 
Permit for Discharges Incidental to the Normal Operation of Vessels,'' 
the ``2013 Final Issuance of the National Pollutant Discharge 
Elimination Vessel General Permit Fact Sheet,'' the ``Final 2014 Small 
Vessel General Permit for Discharges Incidental to the Normal Operation 
of Vessels Less Than 79 Feet,'' the ``2014 Final Issuance of National 
Pollutant Discharge Elimination System Small Vessel General Permit for 
Discharges Incidental to the Normal Operation of Vessels Less than 79 
Feet Fact Sheet,'' the ``October 2016 Uniform National Discharge 
Standards for Vessels of the Armed Forces--Phase II Batch Two Proposed 
Rule,'' the ``Report to Congress: Study of Discharges Incidental to 
Normal Operation of Commercial Fishing Vessels and Other Non-
Recreational Vessels Less than 79 Feet,'' the ``Biological Evaluation 
for the Uniform National Discharge Standards Program Phase II--Batch 
Two,'' and the ``National Consistency Determination: Uniform National 
Discharge Standards Program for Phase II Batch Two Discharges.'' These 
documents, along with other supporting technical and scientific 
documents are available from the EPA Water Docket, Docket No. EPA-HQ-
OW-2016-0351 (Email: ow-docket@epa.gov; Phone Number: (202) 566-2426; 
Mail: Water Docket, Mail Code: 2822-IT, 1200 Pennsylvania Avenue NW, 
Washington, DC 20460; or Online: http://regulations.gov). The NPDES 
VGPs background documents also are available online: https://www.epa.gov/npdes/vessels.

II. UNDS Performance Standards Development

    During the development of the discharge performance standards, the 
EPA and DoD analyzed the information from the Phase I of UNDS, 
considered the relevant language in the NPDES VGPs, and took into the 
consideration the seven statutory factors listed in CWA Section 
312(n)(2)(B). These seven statutory factors include: The nature of the 
discharge; the environmental effects of the discharge; the 
practicability of using the MPCD; the effect that installation or use 
of the MPCD would have on the operation or operational capability of 
the vessel; applicable U.S. law; applicable international standards; 
and the economic costs of the installation and use of the MPCD. The EPA 
and DoD determined that the NPDES VGPs, which include technology-based 
and water quality-based effluent limitations, served as a sound 
baseline for developing the discharge performance standards for the 11 
discharges in this rule. The subsections below outline the EPA and 
DoD's approach to considering the seven statutory factors listed in CWA 
Section 312(n)(2)(B).

A. Nature of the Discharge

    During Phase I, the EPA and DoD gathered information on the 
discharges incidental to the normal operation of a vessel of the Armed 
Forces and developed nature of the discharge reports. The nature of the 
discharge reports discuss how the discharge is generated, volumes and 
frequencies of the generated discharge, where the discharge occurs, and 
the constituents present in the discharge. In addition, the EPA and DoD 
reviewed relevant discharge information in the supporting documentation 
of the NPDES VGPs. The EPA and DoD briefly describe the nature of each 
of the 11 discharges included in this rule; however, the complete 
nature of the discharge reports can be found in Appendix A of the 
Technical Development Document--EPA 821-R-99-001.

B. Environmental Effects

    Discharges incidental to the normal operation of a vessel of the 
Armed Forces have the potential to negatively impact the aquatic 
environment. The discharges contain a wide variety of constituents that 
have the potential to negatively impact aquatic species and habitats. 
These discharges can cause thermal pollution and can contain aquatic 
nuisance species, nutrients, bacteria or pathogens (e.g., E. coli and 
fecal coliforms), oil and grease, metals, most conventional pollutants 
(e.g., organic matter, biochemical oxygen demand, and suspended 
solids), and other toxic and non-conventional pollutants with toxic 
effects. While it is unlikely that these discharges would cause an 
acute or chronic exceedance of the EPA recommended water quality 
criteria across a large water body, these discharges have the potential 
to cause adverse environmental impacts on a more localized scale due to 
the end-of-pipe nature of the discharges. For each of the 11 discharges 
included in this rule, the EPA and DoD discuss the constituents of 
concern released into the environment and potential water quality 
impacts. The discharge performance standards will reduce the discharge 
of constituents of concern and mitigate the

[[Page 43469]]

environmental risks to the receiving waters.

C. Cost, Practicability, and Operational Impacts

    The universe of vessels of the Armed Forces affected by the rule 
encompasses more than 6,000 vessels distributed among the U.S. Navy, 
Military Sealift Command, U.S. Coast Guard, U.S. Army, U.S. Marine 
Corps, and U.S. Air Force. These vessels range in design and size from 
small boats with lengths of less than 20 feet for coastal operations, 
to aircraft carriers with lengths of over 1,000 feet for global 
operations. Approximately 80 percent of the vessels of the Armed Forces 
are less than 79 feet in length. Larger vessels (i.e., vessels with 
length greater than or equal to 79 feet) comprise 20 percent of the 
vessels of the Armed Forces. The EPA and DoD considered vessel class, 
type, and size when developing the discharge standards as not all 
vessels of the Armed Forces have the same discharges. For more 
information on the various vessel classes, characteristics, and 
missions, see the ``Technical Development Document Phase I Uniform 
National Discharge Standards for Vessels of the Armed Forces.''
    The EPA and DoD assessed the relative costs, practicability, and 
operational impacts of the rule by comparing current operating 
conditions and practices of vessels of the Armed Forces with the 
anticipated operating conditions and practices that would be required 
to meet the discharge performance standards. The EPA and DoD determined 
that the discharge performance standards applicable to operating 
conditions and practices for the 11 discharges will only result in a 
marginal increase in performance costs, practicability, and operational 
impacts.

D. Applicable U.S. and International Law

    The EPA and DoD reviewed U.S. laws and international standards that 
would be relevant to discharges incidental to the normal operation of a 
vessel of the Armed Forces. A number of U.S. environmental laws include 
specific provisions for federal facilities and properties that may 
result in different environmental requirements for federal and non-
federal entities. Similarly, many international treaties do not apply 
to vessels of the Armed Forces either because vessels of the Armed 
Forces are entitled to sovereign immunity under international law or 
because any particular treaty may apply different approaches to the 
adoption of appropriate environmental control measures consistent with 
the objects and purposes of such treaties. The EPA and DoD incorporated 
any relevant information in the development of the discharge standards 
after reviewing the requirements of the following treaties and domestic 
implementing legislation, as well as other relevant and potentially 
applicable U.S. environmental laws: International Convention for the 
Prevention of Pollution from Ships (also referred to as MARPOL); 
International Convention on the Control of Harmful Anti-Fouling Systems 
on Ships; Act to Prevent Pollution from Ships; CWA Section 311, as 
amended by the Oil Pollution Control Act of 1990; CWA Section 402 and 
the NPDES VGPs; Federal Insecticide, Fungicide, and Rodenticide Act 
(FIFRA); Hazardous Materials Transportation Act; Title X of the Coast 
Guard Authorization Act of 2010; National Marine Sanctuaries Act; 
Antiquities Act of 1906; Resource Conservation and Recovery Act; Toxic 
Substances Control Act; and the St. Lawrence Seaway Regulations.

E. Definitions

    The final rule adds UNDS definitions to 40 CFR part 1700. 
Specifically, the final rule defines the following terms: Great Lakes; 
minimally-toxic soaps, cleaners, and detergents; phosphate-free soaps, 
cleaners, and detergents; and State. These definitions clarify, 
simplify, or improve understanding of what the EPA and DoD intended in 
establishing the discharge performance standards. Some of the 
definitions are slightly different from the definitions established 
under the NPDES VGPs to improve clarity and understanding.

III. UNDS Performance Standards

    This section describes the discharge performance standards 
determined to be reasonable and practicable to mitigate the adverse 
impacts to the marine environment for the 11 discharges. The 11 
discharge performance standards described in each section below apply 
to vessels of the Armed Forces operating within waters subject to UNDS, 
except as otherwise expressly excluded in the ``exceptions'' in 40 CFR 
1700.39. In addition, if two or more regulated discharge streams are 
combined prior to discharge, then the resulting discharge will need to 
meet the discharge performance standards applicable to each of the 
discharges that are being combined (40 CFR 1700.40). Furthermore, 
recordkeeping (40 CFR 1700.41) and non-compliance reporting (40 CFR 
1700.42) apply generally to each discharge performance standard unless 
expressly provided in any particular discharge performance standard.

A. Catapult Water Brake Tank and Post-Launch Retraction Exhaust

    The performance standards prohibit the discharge of catapult water 
brake tank effluent. In addition, the number of post-launch retractions 
must be limited to the minimum required to test and validate the system 
and to conduct qualification and operational training.

B. Controllable Pitch Propeller Hydraulic Fluid

    The performance standards require that the protective seals on 
controllable pitch propellers (CPPs) be maintained in good operating 
order to minimize the leakage of hydraulic fluid. In addition, to the 
greatest extent practicable, maintenance activities on CPPs should be 
conducted when a vessel is in drydock. If maintenance and repair 
activities must occur when the vessel is not in drydock, appropriate 
spill response equipment (e.g., oil booms) must be used to contain and 
clean any oil leakage. The discharge of CPP hydraulic fluid must not 
contain oil in quantities that: Cause a film or sheen upon or 
discoloration of the surface of the water or adjoining shorelines; or 
cause a sludge or emulsion to be deposited beneath the surface of the 
water or upon adjoining shorelines; or contain an oil content above 15 
parts per million (ppm) as measured by EPA Method 1664a (as defined in 
40 CFR 136.3) or other appropriate method for determination of oil 
content as accepted by the International Maritime Organization (IMO) 
(e.g., ISO Method 9377) or U.S. Coast Guard; or otherwise are harmful 
to the public health or welfare of the United States.

C. Deck Runoff

    The performance standards prohibit flight deck washdowns and 
require minimization of other deck washdowns while in port and in 
federally-protected waters. Additionally, before non-flight deck 
washdowns occur, all exposed decks must be broom cleaned and on-deck 
debris, garbage, paint chips, residues, and spills must be removed, 
collected, and disposed of onshore in accordance with any applicable 
solid waste or hazardous waste management and disposal requirements.
    If a deck washdown or above water line hull cleaning will create a 
discharge, the washdown or above water line cleaning must be conducted 
with minimally-toxic and phosphate-free soaps, cleaners, and 
detergents. The use of soaps that are labeled as toxic is prohibited. 
All soaps and cleaners must be used as directed by the label. 
Furthermore, soaps, cleaners, and

[[Page 43470]]

detergents should not be caustic and must be biodegradable.
    Additionally, where feasible, machinery on deck must have coamings 
or drip pans where necessary to collect any oily discharge that may 
leak from machinery and prevent spills. The drip pans must be drained 
to a waste container for proper disposal onshore in accordance with any 
applicable oil and hazardous substance management and disposal 
requirements.
    The presence of floating solids, visible foam, halogenated phenol 
compounds, and dispersants and surfactants in deck washdowns must be 
minimized. Topside surfaces and other above-water-line portions of the 
vessel must be well-maintained to minimize the discharge of rust and 
other corrosion byproducts, cleaning compounds, paint chips, non-skid 
material fragments, and other materials associated with exterior 
topside surface preservation. Residual paint droplets entering the 
water must be minimized when conducting maintenance painting. The 
discharge of unused paint is prohibited. Paint chips and unused paint 
residues must be collected and disposed of onshore in accordance with 
applicable solid waste and hazardous substance management and disposal 
requirements.
    When vessels conduct underway fuel replenishment, scuppers must be 
plugged to prevent the discharge of oil. Any oil spilled must be 
cleaned, managed, and disposed of onshore in accordance with any 
applicable onshore oil and hazardous substance management and disposal 
requirements.

D. Firemain Systems

    The firemain system discharges to which UNDS applies include only 
the seawater pumped through the firemain system for firemain testing, 
maintenance, and training, and to supply water for the operation of 
certain vessel systems, rather than to operational firefighting 
discharges generally. The performance standards require minimization of 
discharges from firemain systems during testing and inspection and to 
the greatest extent practicable, firemain system maintenance and 
training must be conducted outside of port and as far away from shore 
as possible. In addition, firemain system effluent must not be 
discharged in federally-protected waters except when needed to comply 
with anchor washdown requirements in Subpart 1700.16 (Chain locker 
effluent). Firemain system effluent may be employed for secondary uses 
and discharged without MPCD controls if the intake comes directly from 
the surrounding waters or potable water supplies.

E. Graywater

    The performance standards require that cooking oils (e.g., from 
deep fryers), including animal fats and vegetable oils, must not be 
intentionally disposed through graywater systems. The performance 
standards further require that the addition of incidental quantities of 
cooking oils (e.g., associated with washing and rinsing pots and 
dishes) to the graywater system must be minimized when the vessel is 
within three miles of shore. The performance standards require that 
graywater discharges must not contain oil in quantities that cause a 
film or sheen upon or discoloration of the surface of the water or 
adjoining shorelines; or cause a sludge or emulsion to be deposited 
beneath the surface of the water or upon adjoining shorelines; or 
contain an oil content above 15 ppm as measured by EPA Method 1664a or 
other appropriate method for determination of oil content as accepted 
by the IMO (e.g., ISO Method 9377) or U.S. Coast Guard; or otherwise 
are harmful to the public health or welfare of the United States. In 
addition, minimally-toxic soaps, cleaners and detergents and phosphate-
free soaps, cleaners, and detergents must be used in the galley, 
scullery, and laundry. These soaps, cleaners, and detergents should 
also be free from bioaccumulative compounds and not lead to extreme 
shifts in the receiving water pH (i.e., pH to fall below 6.0 or rise 
above 9.0).
    For vessels designed with the capacity to hold graywater, the 
performance standards further require that graywater must not be 
discharged in federally-protected waters or the Great Lakes. In 
addition, such vessels are prohibited from discharging graywater within 
one mile of shore if an onshore facility is available and use of such a 
facility is reasonable and practicable. When an onshore facility is 
either not available or when use of such a facility is not reasonable 
and practicable (e.g., when the vessel must operate continuously within 
one mile of shore resulting in graywater generation that exceeds the 
vessel's holding capacity) production and discharge of graywater must 
be minimized within one mile of shore.
    For vessels that do not have the capacity to hold graywater, 
graywater production must be minimized in federally-protected waters or 
the Great Lakes. In addition, such vessels are prohibited from 
discharging graywater within one mile of shore if an onshore facility 
is available and use of such a facility is reasonable and practicable. 
When an onshore facility is either not available or use of such a 
facility is not reasonable and practicable (e.g., when the vessel must 
operate continuously within one mile of shore resulting in graywater 
generation), production and discharge of graywater must be minimized 
within one mile of shore.

F. Hull Coating Leachate

    The performance standards require that antifouling hull coatings 
subject to FIFRA (7 U.S.C 136 et seq.) must be applied, maintained, and 
removed in a manner consistent with requirements on the coatings' FIFRA 
label. The performance standards also prohibit the use of biocides or 
toxic materials banned for use in the United States (including those on 
EPA's List of Banned or Severely Restricted Pesticides). These 
performance standards apply to all vessels of the Armed Forces, 
including vessels with a hull coating applied outside of the United 
States. Antifouling hull coatings must not contain tributyltin (TBT) or 
other organotin compounds as a hull coating biocide. Antifouling hull 
coatings may contain small quantities of organotin compounds when the 
organotin is used as a chemical catalyst and is not present above 2,500 
milligrams of total tin per kilogram of dry paint film. Also, any 
organotin antifouling hull coatings used must be designed to not slough 
or peel from the vessel hull. In addition, the standards require the 
use of non-biocidal alternatives to copper coatings to the greatest 
extent practicable. The performance standards also require to the 
greatest extent practicable, the use of antifouling hull coatings with 
the lowest effective biocide release rates, rapidly biodegradable 
components (once separated from the hull surface), or use of non-
biocidal alternatives, such as silicone coatings. Finally, the 
performance standards require, to the greatest extent practicable, 
avoiding the use of antifouling hull coatings on vessels that are 
regularly removed from the water and unlikely to accumulate hull 
growth.

G. Motor Gasoline and Compensating Discharge

    The performance standards require that the discharge of motor 
gasoline and compensating effluent must not contain oil in quantities 
that cause a film or sheen upon or discoloration of the surface of the 
water or adjoining shorelines; or cause a sludge or emulsion to be 
deposited beneath the surface of the water or upon adjoining 
shorelines; or contain an oil content above 15 ppm as measured by EPA

[[Page 43471]]

Method 1664a or other appropriate method for determination of oil 
content as accepted by the IMO (e.g., ISO Method 9377) or U.S. Coast 
Guard; or otherwise are harmful to the public health or welfare of the 
United States. In addition, if an oily sheen is observed, the 
performance standards require that any spill or overflow of oil must be 
cleaned up, recorded, and reported to the National Response Center 
immediately. The discharge of motor gasoline and compensating discharge 
must be minimized in port and is prohibited in federally-protected 
waters.

H. Sonar Dome Discharge

    The performance standards require that the discharge of water from 
inside the sonar dome for maintenance activities is prohibited unless 
the use of a drydock for the maintenance activity is not feasible 
(e.g., when there is no drydock available to support the maintenance 
activity, or when the vessel's availability would be impacted to 
prevent the vessel from meeting its operational requirements). However, 
the water inside the sonar dome may be released for equalization of 
pressure between the interior and exterior of the dome. This would 
include the discharge of water required to protect the shape, 
integrity, and structure of the sonar dome due to internal and external 
pressures and forces. Under the performance standards, a biofouling 
chemical that is bioaccumulative should not be applied to the exterior 
of a sonar dome when a non-bioaccumulative alternative is available.

I. Submarine Bilgewater

    The performance standards require that the discharge of submarine 
bilgewater must not contain oil in quantities that cause a film or 
sheen upon or discoloration of the surface of the water or adjoining 
shorelines; or cause a sludge or emulsion to be deposited beneath the 
surface of the water or upon adjoining shorelines; or contain an oil 
content above 15 ppm as measured by EPA Method 1664a or other 
appropriate method for determination of oil content as accepted by the 
IMO (e.g., ISO Method 9377) or U.S. Coast Guard; or otherwise are 
harmful to the public health or welfare of the United States. In 
addition, the discharge of submarine bilgewater must not contain 
dispersants, detergents, emulsifiers, chemicals, or other substances 
added for the purpose of removing the appearance of a visible sheen. 
The performance standard does not, however, prohibit the use of these 
materials in machinery spaces for the purposes of cleaning and 
maintenance activities associated with vessel equipment and structures. 
The discharge of submarine bilgewater also must only contain substances 
that are produced in the normal operation of a vessel. Oil solidifiers, 
flocculants, or other additives (excluding any dispersants or 
surfactants) may be used to enhance oil-water separation during 
processing in an oil-water separator only if such solidifiers, 
flocculants, or other additives are minimized in the discharge and do 
not alter the chemical composition of the oils in the discharge. 
Solidifiers, flocculants, or other additives must not be directly 
added, or otherwise combined with, the water in the bilge.
    The performance standards prohibit submarine bilgewater discharges 
while the submarine is in port, if the port has the capability to 
collect and transfer the bilgewater to an onshore facility. If the 
submarine is not in port, then any such discharge must be minimized and 
discharged as far from shore as technologically feasible. The 
performance standards also require that submarine bilgewater discharges 
be minimized in federally-protected waters. Finally, the standards 
require that management practices minimize leakage of oil and other 
harmful pollutants into the bilge.

J. Surface Vessel Bilgewater/Oil-Water Separator Effluent (OWSE)

    The performance standards prohibit the discharge of bilgewater from 
surface vessels equipped with an oil-water separator and require that 
any discharge of oil-water separator effluent pass through an oil-
content monitor. All surface vessels greater than 400 gross tons must 
be equipped with an oil-water separator. If measurements for gross 
tonnage are not available to determine whether the prohibition against 
surface vessel bilgewater discharge applies for a particular vessel, 
full displacement measurements may be used instead. The performance 
standards also require that the discharge of oil-water separator 
effluent not occur in port, if the port has the capability to collect 
and transfer oil-water separator effluent to an onshore facility. In 
addition, the discharge of oil-water separator effluent must be 
minimized within one mile of shore, must occur at speeds greater than 
six knots if the vessel is underway, and must be minimized in 
federally-protected waters.
    For surface vessels not equipped with an oil-water separator, the 
performance standards require that bilgewater must not be discharged if 
the vessel has the capability to collect, hold, and transfer to an 
onshore facility.
    In addition, the discharge of bilgewater/oil-water separator 
effluent must not contain dispersants, detergents, emulsifiers, 
chemicals, or other substances added for the purpose of removing the 
appearance of a visible sheen. The performance standard does not, 
however, prohibit the use of these materials in machinery spaces for 
the purposes of cleaning and maintenance activities associated with 
vessel equipment and structures. The discharge of surface vessel 
bilgewater/oil-water separator effluent may only contain substances 
that are produced in the normal operation of a vessel. For the 
discharge of oil-water separator effluent, oil solidifiers, flocculants 
or other additives (excluding any dispersants or surfactants) may be 
used to enhance oil/water separation during processing only if such 
solidifiers, flocculants, or other additives are minimized and do not 
alter the chemical composition of the oils in the discharge. 
Solidifiers, flocculants, or other additives must not be directly added 
to, or otherwise combined with, the water in the bilge.
    The discharge of surface vessel bilgewater/oil-water separator 
effluent must not contain oil in quantities that cause a film or sheen 
upon or discoloration of the surface of the water or adjoining 
shorelines; or cause a sludge or emulsion to be deposited beneath the 
surface of the water or upon adjoining shorelines; or contain an oil 
content above 15 ppm as measured by EPA Method 1664a or other 
appropriate method for determination of oil content as accepted by the 
IMO (e.g., ISO Method 9377) or U.S. Coast Guard; or otherwise are 
harmful to the public health or welfare of the United States.
    When a visible sheen is observed as a result of a surface vessel 
bilgewater/oil-water separator effluent discharge, the discharge must 
be suspended immediately until the problem is corrected. Any spill or 
overflow of oil or other engine fluids to waters subject to UNDS must 
be cleaned, recorded, and reported immediately to the National Response 
Center. The surface vessel must also employ management practices to 
minimize leakage of oil and other harmful pollutants into the bilge. 
Such practices may include regular inspection and maintenance of 
equipment and remediation of oil spills or overflows into the bilge 
using oil-absorbent or other spill clean-up materials.

K. Underwater Ship Husbandry

    For vessels greater than 79 feet in length, the performance 
standards require that to the greatest extent practicable, vessel hulls 
with

[[Page 43472]]

antifouling hull coatings must not be cleaned within 90 days after the 
antifouling coating application and vessel hulls with a copper-based 
antifouling coating must not be cleaned within 365 days after the 
antifouling coating application.
    In addition, vessel hulls must be inspected, maintained, and 
cleaned to minimize the removal and discharge of antifouling hull 
coatings and transport of fouling organisms. To the greatest extent 
practicable, rigorous vessel hull cleanings must take place in drydock 
or at a land-based facility where the removed fouling organisms or 
spent antifouling hull coatings can be disposed of onshore in 
accordance with any applicable solid waste or hazardous substance 
management and disposal requirements. Vessel hull and niche cleanings 
that occur when the vessel is in drydock are not subject to UNDS 
because the vessel is not waterborne and, therefore, any materials 
removed during a dry dock cleaning would not be subject to UNDS. Vessel 
hull and niche cleanings that occur when the vessel is waterborne are 
considered to be in-water cleanings. For in-water cleanings, the 
performance standards require that cleanings be conducted in a manner 
that minimizes the release of antifouling hull coatings and fouling 
organisms (e.g., use less abrasive techniques and soft brushes to the 
greatest extent practicable) including the use of shore-side or in-
water capture technology as available. Shore-side or in-water cleaning 
systems that capture some or all of the removed materials can reduce 
the release of fouling organisms and paint particles into the 
surrounding environment and allow for collection and onshore disposal 
of solids scrubbed from vessel hulls and niches. Regardless, the 
discharge of solid, semi-solid, or liquid matter associated with 
underwater ship husbandry into waters subject to UNDS from the 
operation of a shore-side or in-water cleaning system represents a 
discharge incidental to the normal operation of a vessel of the Armed 
Forces as defined in 40 CFR 1700.4 because such system is used to 
maintain and clean hulls and niches, while the vessel is waterborne. 
Vessel hull cleanings must also adhere to any applicable cleaning 
requirements found on the coatings' FIFRA label.
    For vessels less than 79 feet in length, the performance standards 
require that, to the greatest extent practicable, vessel hulls with 
antifouling hull coatings must not be cleaned within 90 days after the 
antifouling coating application. In addition, vessel hulls must be 
inspected, maintained, and cleaned to minimize the removal and 
discharge of antifouling hull coatings and transport of fouling 
organisms. As with larger vessels, rigorous vessel hull cleanings must 
take place, to the greatest extent practicable, in drydock or at a 
land-based facility where the removed fouling organisms or spent 
antifouling hull coatings can be disposed of onshore in accordance with 
any applicable solid waste or hazardous substance management and 
disposal requirements. The performance standards also require that 
vessel hull and niche cleanings be conducted in a manner that minimizes 
the release of antifouling hull coatings and fouling organisms (e.g., 
use less abrasive techniques and soft brushes to the greatest extent 
practicable) including the use of capture technology as available. 
Shore-side or in-water cleaning systems that capture some or all of the 
removed materials can reduce the release of fouling organisms and paint 
particles into the surrounding environment and allow for collection and 
onshore disposal of solids scrubbed from vessel hulls and niches. 
Regardless, the discharge of solid, semi-solid, or liquid matter 
associated with underwater ship husbandry into waters subject to UNDS 
from the operation of a shore-side or in-water cleaning system 
represents a discharge incidental to the normal operation of a vessel 
of the Armed Forces as defined in 40 CFR 1700.4 because such system is 
used to maintain and clean hulls and niches, while the vessel is 
waterborne. Vessel hull cleanings must also adhere to any applicable 
cleaning requirements found on the coatings' FIFRA label and vessels 
less than 79 feet in length require inspection of the hull prior to 
transport overland to a different body of water to control invasive 
species.

IV. Additional Information in the Final Rule

    This section provides an overview of the additional amendments for 
40 CFR part 1700. These changes include the reservation of sections for 
the remaining discharge standards.
1. Reservation of Sections
    As noted previously, the EPA and DoD are promulgating the final 
Phase II standards in three batches. For the purpose of proposing the 
remaining batch, the rule reserves the following sections for a 
subsequent batch:

Section 1700.17 Clean Ballast
Section 1700.18 Compensated Fuel Ballast
Section 1700.21 Dirty Ballast

V. Changes and Improvements Since the Proposed Rule

A. Public Comment

    On October 7, 2016, the EPA and DoD proposed discharge performance 
standards for the 11 discharges, with a 60-day public comment period 
that closed on December 6, 2016. The EPA and DoD consider the public 
comment period important to creating a rule that is readily 
understandable and useful to the public. The EPA and DoD received one 
comment on the proposed rule during the comment period, which expressed 
support for finalizing the rule. The public comment received can be 
viewed under Docket No. EPA-HQ-OW-2013-0351.

B. Modifications to Proposed Standards

    The final rule includes minor modifications to the text of the 
proposed definitions and standards to make the final language clearer 
and more concise. These changes to the definitions and standards are 
intended to be non-substantive and to clarify, simplify, or improve 
understanding and readability of the definitions and discharge 
performance standards. There are no technical changes to the standards.

VI. Related Acts of Congress and Executive Orders

    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

    This action is not a deemed a significant regulatory action by the 
Office of Management and Budget (OMB) and was therefore not submitted 
to the OMB for review.

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

    This action is not an Executive Order 13771 regulatory action 
because this action is not significant under Executive Order 12866.

C. Paperwork Reduction Act

    This action does not impose any new information collection burden 
because UNDS Phase II does not create any additional collection of 
information beyond that information collection already specified under 
the Phase I of UNDS. OMB has previously approved the information 
collection requirements contained in the existing regulations (40 CFR 
part 1700) under the provisions of

[[Page 43473]]

the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned 
OMB control number 2040-0187. The OMB control numbers for the EPA's 
regulations in 40 CFR are listed in 40 CFR part 9.

D. Regulatory Flexibility Act

    We certify that this action will not have a significant economic 
impact on a substantial number of small entities under the Regulatory 
Flexibility Act. This action will not impose any requirements on small 
entities.

E. Unfunded Mandates Reform Act

    This action does not contain any unfunded mandate as described in 
the Unfunded Mandates Reform Act, 2 U.S.C. 1531-1538, and does not 
significantly or uniquely affect small governments.

F. Executive Order 13132: Federalism

    Executive Order 13132, titled ``Federalism'' (64 FR 43255, August 
10, 1999), requires federal agencies to develop an accountable process 
to ensure ``meaningful and timely input by state and local officials in 
the development of regulatory policies that have federalism 
implications.'' ``Policies that have federalism implications'' is 
defined in the Executive Order to include regulations that have 
``substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government.'' Under 
Executive Order 13132, federal agencies may not issue a regulation that 
has federalism implications and that preempts state law, unless the 
agency consults with state and local officials or their representative 
national organizations during the development of regulatory policies, 
including the proposed regulation.
    The EPA and DoD conclude that the rule, once operationalized in 
Phase III, will have federalism implications. When DoD promulgates the 
Phase III regulations, adoption and enforcement of new or existing 
state or local regulations for the discharge or the design, 
construction, installation or use of any MPCD required to control 
discharges from a vessel of the Armed Forces will be preempted. 
Accordingly, the EPA and DoD provide the following federalism summary 
impact statement (FSIS) as required by Section 6(c) of Executive Order 
13132.
    During Phase I of UNDS, the EPA and DoD conducted two rounds of 
consultation meetings (i.e., outreach briefings) to allow states and 
local governments to have meaningful and timely input into the 
development of the rulemaking process. Twenty-two states accepted the 
offer to be briefed on UNDS and discuss state concerns. The EPA and DoD 
provided clarification on the technical aspects of the UNDS process, 
including preliminary discharge determinations and analytical 
information supporting decisions to control or not control discharges. 
State representatives were provided with discharge summaries containing 
the description, analysis, and preliminary determination of each of the 
39 discharges from vessels of the Armed Forces, 25 of which were 
determined to require control.
    During Phase II of UNDS, the EPA and DoD consulted with 
intergovernmental associations in the process of developing the 
proposed regulation. On March 9, 2016, the EPA held a Federalism 
consultation in Washington, DC, and invited representatives from 10 key 
national organizations that represent state and local government 
associations, as well as groups representing intergovernmental water 
professionals, in order to obtain meaningful and timely input in the 
development of the proposed discharge standards. The EPA and DoD 
informed the state representatives that the two agencies planned to use 
the NPDES VGPs effluent limitations as a baseline for developing the 
proposed discharge performance standards for the 25 discharges 
identified in Phase I as requiring control. During the Federalism 
consultation period, the EPA and DoD did not receive any substantive 
comments from state and local government entities.
    As required by Section 8(a) of Executive Order 13132, EPA included 
a certification from its Federalism Official stating that EPA had met 
the Executive Order's requirements in a meaningful and timely manner. A 
copy of this certification is included in the official record for this 
final action.

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

    This action does not have tribal implications as specified in 
Executive Order 13175. This action will not impact vessels operated by 
tribes because the final rule only regulates discharges from vessels of 
the Armed Forces. However, tribes may be interested in this action 
because vessels of the Armed Forces, including U.S. Coast Guard 
vessels, may operate on or near tribal waters. The EPA hosted a 
National Teleconference on March 23, 2016, in order to obtain 
meaningful and timely input during the development of the proposed 
discharge standards. The EPA and DoD informed the tribal 
representatives that the NPDES VGPs effluent limitations would be used 
as a baseline for developing the discharge performance standards for 
the 25 discharges identified in Phase I as requiring control. During 
the tribal consultation period, the EPA and DoD did not receive any 
substantive comments from the Indian Tribal Governments.

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 the EPA and DoD determined that the environmental health or 
safety risks addressed by this action do not present a disproportionate 
risk to children. The 11 discharge standards are designed to control 
discharges incidental to the normal operation of a vessel of the Armed 
Forces that could adversely affect human health and the environment. 
The standards reduce the adverse impacts to the receiving waters and 
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 subject to Executive Order 13211, because it is 
not a significant regulatory action under Executive Order 12866.

J. National Technology Transfer and Advancement Act

    This action involves technical standards in some but not all of the 
performance standards. Some of the performance standards use ISO Method 
9377--determination of hydrocarbon oil index. ISO Method 9377 is a 
voluntary consensus standard developed by an independent, non-
governmental international organization.

K. Coastal Zone Management Act

    The Coastal Zone Management Act (CZMA) requires that each federal 
agency activity within or outside the coastal zone that affects any 
land or water use or natural resource of the coastal zone shall be 
carried out in a manner which is consistent to the maximum extent 
practicable with the enforceable policies of approved state management 
programs.
    Pursuant to Section 307 of the CZMA, the EPA and DoD have 
determined that

[[Page 43474]]

the performance standards are consistent to the maximum extent 
practicable with the enforceable policies of federally-approved Coastal 
Management Plans for the state and territorial coastal zones, that 
encompass waters where discharges from vessels of the Armed Forces 
would be regulated by UNDS. Following proposal of the UNDS Phase II 
Batch Two performance standards on October 7, 2016, the EPA and DoD 
provided 35 states and territories with the EPA and DoD's November 2018 
``National Consistency Determination: Uniform National Discharge 
Standards Program for Phase II Batch Two Discharges.'' In response, 16 
states and territories provided concurrence, 17 states and territories 
did not respond, so concurrence was conclusively presumed, and both 
Connecticut and North Carolina provided conditional concurrence. 
Connecticut and North Carolina requested that the UNDS Phase II rules 
incorporate certain requirements on discharges into waters under their 
respective jurisdictions. The DoD responded in writing to Connecticut 
and North Carolina, explaining that applying different requirements in 
each coastal water body would conflict with the statutory requirements 
set forth in CWA Section 312(n), to include the statutory prohibition 
on the adoption or enforcement of any state laws with respect to 
regulated discharges.

L. Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act (ESA) requires each 
federal agency, in consultation with and with the assistance of the 
U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries 
Service (NMFS), collectively ``the Services,'' to ensure that the 
actions they authorize, fund, or carry out are not likely to adversely 
affect the continued existence of any endangered or threatened species 
(referred to as ``listed species'') or result in the destruction or 
adverse modification of their designated critical habitats.
    The Services published regulations implementing ESA Section 7 at 50 
CFR part 402. The regulations provide that a federal agency (such as 
the EPA or DoD) must consult with FWS, NMFS, or both if the agency 
determines that an activity authorized, funded, or carried out by the 
agency may affect listed species or critical habitat. The EPA and DoD 
began informal communications with the Services in July 2017. The 
informal consultation process included multiple steps: Briefings with 
the Services on the content of the rulemaking; discussions of the 
proposed outline and methodological approach for development of the 
performance standards; information exchanges and requests on current 
species lists, rulemaking schedule, and approach to the biological 
evaluation; and ultimately the submission of a Biological Evaluation to 
the Services on November 16, 2018. The Biological Evaluation described 
the anticipated effects of the Uniform National Discharge Standards 
Batch Two (this final rule) on aquatic and water-dependent species 
listed as threatened or endangered under the ESA and their designated 
critical habitat. The Biological Evaluation concluded that the issuance 
of the final rule establishing performance standards for the UNDS Batch 
Two Rule once implemented, ``may affect'' but is ``not likely to 
adversely affect'' species listed or proposed for listing under the 
ESA, nor adversely modify designated critical habitat or critical 
habitat proposed for designation.
    On March 26, 2019, the FWS concurred in that determination for 
species and habitat within that agency's ESA jurisdiction. On December 
3, 2018, the NMFS initiated formal consultation due to the scope and 
nature of the discharges regulated under UNDS Batch Two Rule. On 
November 15, 2019, the NMFS issued a Biological Opinion determining 
that the action ``may affect'' and is ``likely to adversely affect,'' 
but is not likely to jeopardize the continued existence of, species 
that are listed or proposed for listing. The Biological Opinion 
concluded that hull coating leachate and underwater ship husbandry 
discharges may result in non-lethal incidental take of 21 listed 
species that occur in ports and harbors with high populations of 
vessels of the Armed Forces. The Biological Opinion also concluded that 
hull coating leachate and underwater ship husbandry discharges are not 
likely to destroy or adversely modify designated critical habitat for 
listed species. The incidental take statement in the Biological Opinion 
provides non-discretionary reasonable and prudent measures to minimize 
the amount and extent of incidental take from these two discharges by 
maintaining or reducing the area of impact. It also provides terms and 
conditions to implement the reasonable and prudent measures.

M. Executive Order 13112: Invasive Species

    Executive Order 13112, titled ``Invasive Species'' (64 FR 6183, 
February 8, 1999), requires each federal agency whose actions may 
affect the status of invasive species, to identify such actions, and, 
subject to the availability of appropriations, use relevant programs 
and authorities to, among other things, prevent, detect, control, and 
monitor the introduction of invasive species. As defined by this 
Executive Order, ``invasive species'' means an alien species whose 
introduction causes, or is likely to cause, economic or environmental 
harm or harm to human health.
    As part of the environmental effects analyses developed for each of 
the 11 performance standards promulgated in today's rule, the EPA and 
DoD considered the control of invasive species when developing the 
discharge performance standard (see Section II). Some of the 
performance standards provided opportunities for prevention, detection, 
control, and monitoring of the introduction of invasive species. For 
example, the underwater ship husbandry discharge performance standard 
requires the inspection of all vessels under 79 feet in length for the 
detection and removal of invasive species prior to transport overland 
from one body of water to another. This requirement as well as others 
help to prevent or control the introduction of invasive species into 
the receiving waters.

N. Executive Order 13089: Coral Reef Protection

    Executive Order 13089, titled ``Coral Reef Protection'' (63 FR 
32701, June 16, 1998), requires all federal agencies to identify 
actions that may affect U.S. coral reef ecosystems; utilize their 
programs and authorities to protect the conditions of such ecosystems; 
and, to the extent permitted by law, ensure that any actions they 
authorize, fund, or carry out will not degrade the conditions of such 
ecosystems. The discharge performance standards in this UNDS Batch II 
rulemaking are designed to control or eliminate the discharges 
incidental to the normal operation of vessels of the Armed Forces, 
ultimately minimizing the potential for causing adverse impacts to the 
marine environment including coral reefs.

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

    Executive Order 12898, titled ``Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations'' (59 FR 7629, February 16, 1994) requires all federal 
agencies to identify actions that may have a disproportionate negative 
impact on the human health or the environment for minority populations, 
low-income

[[Page 43475]]

populations and/or indigenous peoples. The EPA and DoD determined that 
this action does not have disproportionately high and adverse human 
health or environmental effects. The discharge performance standards 
only apply to vessels of the Armed Forces and reduce adverse impacts to 
the aquatic environment.

P. Congressional Review Act

    This action is subject to the Congressional Review Act, and the EPA 
will submit a rule report to each House of Congress and to Comptroller 
General of the United States. This action is not a ``major rule'' as 
defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 1700

    Environmental protection, Armed Forces, vessels, coastal zone, 
reporting and recordkeeping requirements, water pollution control.

Andrew Wheeler,
Administrator, Environmental Protection Agency.

Charles A. Williams,
Assistant Secretary of the Navy (Energy, Installations, and 
Environment)

    For the reasons stated in the preamble, amend title 40, chapter 
VII, of the Code of Federal Regulations as follows:

PART 1700--UNIFORM NATIONAL DISCHARGE STANDARDS FOR VESSELS OF THE 
ARMED FORCES

0
1. The authority citation for 40 CFR part 1700 continues to read as 
follows:

    Authority: 33 U.S.C. 1322, 1361.

Subpart A--Scope

0
2. Section 1700.3 is amended by adding in alphabetical order 
definitions of ``Great Lakes,'' ``Minimally-toxic soaps, cleaners, and 
detergents,'' ``Phosphate-free soaps, cleaners, and detergents,'' and 
``State'' to read as follows:


Sec.  1700.3  Definitions.

* * * * *
    Great Lakes means waters of the United States extending to the 
international maritime boundary with Canada in Lake Ontario, Lake Erie, 
Lake Huron (including Lake St. Clair), Lake Michigan, and Lake 
Superior, and the connecting channels (Saint Marys River, Saint Clair 
River, Detroit River, Niagara River, and Saint Lawrence River to the 
international maritime boundary with Canada).
* * * * *
    Minimally-toxic soaps, cleaners, and detergents means any substance 
or mixture of substances which has an acute aquatic toxicity value 
(LC50) corresponding to a concentration greater than 10 parts per 
million (ppm) and does not produce byproducts with an acute aquatic 
toxicity value (LC50) corresponding to a concentration less than 10 
ppm. Minimally-toxic soaps, cleaners, and detergents typically contain 
little to no nonylphenols.
* * * * *
    Phosphate-free soaps, cleaners, and detergents means any substance 
or mixture of substances which contain, by weight, 0.5% or less of 
phosphates or derivatives of phosphates.
* * * * *
    State means a state, the District of Columbia, the Commonwealth of 
Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth 
of the Northern Mariana Islands, and the Trust Territory of the Pacific 
Islands.
* * * * *

Subpart D--Marine Pollution Control Device (MPCD) Performance 
Standards

0
3. Add Sec.  1700.15 to read as follows:


Sec.  1700.15  Catapult water brake tank & post-launch retraction 
exhaust.

    (a) Discharges of catapult water brake tank effluent are 
prohibited.
    (b) The number of post-launch retractions must be limited to the 
minimum number required to test and validate the system and conduct 
qualification and operational training.

0
4. Add Sec.  1700.19 to read as follows:


Sec.  1700.19  Controllable pitch propeller hydraulic fluid.

    (a) The protective seals on controllable pitch propellers must be 
maintained to minimize the leaking of hydraulic fluid.
    (b) To the greatest extent practicable, maintenance activities on 
controllable pitch propellers must be conducted when a vessel is in 
drydock. If maintenance and repair activities must occur when the 
vessel is not in drydock, appropriate spill response equipment (e.g., 
oil booms) must be used to contain and clean any oil leakage.
    (c) The discharge of controllable pitch propeller hydraulic fluid 
must not contain oil in quantities that:
    (1) Cause a film or sheen upon or discoloration of the surface of 
the water or adjoining shorelines; or
    (2) Cause a sludge or emulsion to be deposited beneath the surface 
of the water or upon adjoining shorelines; or
    (3) Contain an oil content above 15 ppm as measured by EPA Method 
1664a (as defined in 40 CFR 136.3) or other appropriate method for 
determination of oil content as accepted by the International Maritime 
Organization (IMO) (e.g., ISO Method 9377) or U.S. Coast Guard; or
    (4) Otherwise are harmful to the public health or welfare of the 
United States.

0
5. Add Sec.  1700.20 to read as follows:


Sec.  1700.20  Deck runoff.

    (a) Flight deck washdowns are prohibited.
    (b) Minimize deck washdowns while in port and in federally-
protected waters.
    (c) Prior to performing a deck washdown, exposed decks must be 
broom cleaned and on-deck debris, garbage, paint chips, residues, and 
spills must be removed, collected, and disposed of onshore in 
accordance with any applicable solid waste or hazardous substance 
management and disposal requirements.
    (d) If a deck washdown or above water line hull cleaning will 
result in a discharge, it must be conducted with minimally-toxic and 
phosphate-free soaps, cleaners, and detergents. The use of soaps that 
are labeled toxic is prohibited. Furthermore, soaps, cleaners, and 
detergents should not be caustic and must be biodegradable. All soaps 
and cleaners must be used as directed by the label.
    (e) Where feasible, machinery on deck must have coamings or drip 
pans, where necessary, to prevent spills and collect any oily discharge 
that may leak from machinery. The drip pans must be drained to a waste 
container for disposal onshore in accordance with any applicable oil 
and hazardous substance management and disposal requirements. The 
presence of floating solids, visible foam, halogenated phenol 
compounds, dispersants, and surfactants in deck washdowns must be 
minimized.
    (f) Topside surfaces and other above water line portions of the 
vessel must be well maintained to minimize the discharge of rust (and 
other corrosion by-products), cleaning compounds, paint chips, non-skid 
material fragments, and other materials associated with exterior 
topside surface preservation. Residual paint droplets entering the 
water must be minimized when conducting maintenance painting. The 
discharge of unused paint is prohibited. Paint chips and unused paint 
residues must be collected and disposed of onshore in accordance with 
any applicable solid waste and hazardous substance management and 
disposal requirements.

[[Page 43476]]

    (g) When vessels conduct underway fuel replenishment, scuppers must 
be plugged to prevent the discharge of oil. Any oil spilled must be 
cleaned, managed, and disposed of onshore in accordance with any 
applicable oil and hazardous substance management and disposal 
requirements.

0
6. Add Sec.  1700.24 to read as follows:


Sec.  1700.24  Firemain systems.

    (a) Firemain systems may be discharged for testing and inspections 
of the firemain system. To the greatest extent practicable, conduct 
maintenance and training outside of port and as far away from shore as 
possible. Firemain systems may be discharged in port for certification, 
maintenance, and training requirements if the intake comes directly 
from the surrounding waters or potable water supplies and there are no 
additions (e.g., aqueous film-forming foam) to the discharge.
    (b) Firemain systems must not be discharged in federally-protected 
waters except when needed to washdown the anchor chain to comply with 
anchor washdown requirements in Subpart 1700.16.
    (c) Firemain systems may be used for secondary uses if the intake 
comes directly from the surrounding waters or potable water supplies.

0
7. Add Sec.  1700.26 to read as follows:


Sec.  1700.26  Graywater.

    (a) For discharges from vessels that have the capacity to hold 
graywater:
    (1) Graywater must not be discharged in federally-protected waters 
or the Great Lakes.
    (2) Graywater must not be discharged within one mile of shore if an 
onshore facility is available and disposal at such a facility is 
reasonable and practicable.
    (3) Production and discharge of graywater must be minimized within 
one mile of shore when an onshore facility is either not available or 
use of such a facility is not reasonable and practicable.
    (b) For discharges from vessels that do not have the capacity to 
hold graywater:
    (1) Production and discharge of graywater must be minimized in 
federally-protected waters or the Great Lakes.
    (2) Graywater must not be discharged within one mile of shore if an 
onshore facility is available and disposal at such a facility is 
reasonable and practicable.
    (3) Production and discharge of graywater must be minimized within 
one mile of shore when an onshore facility is either not available or 
use of such a facility is not reasonable and practicable.
    (c) Large quantities of cooking oils (e.g., from a deep fat fryer), 
including animal fats and vegetable oils, must not be added to the 
graywater system. Small quantities of cooking oils (e.g., from pot and 
dish rinsing) must be minimized if added to the graywater system within 
three miles of shore.
    (d) Minimally-toxic soaps, cleaners, and detergents and phosphate-
free soaps, cleaners, and detergents must be used in the galley, 
scullery, and laundry. These soaps, cleaners, and detergents should 
also be free from bioaccumulative compounds and not lead to extreme 
shifts in the receiving water pH. For purposes of this subparagraph, 
extreme shifts means causing the receiving water pH to fall below 6.0 
or rise above 9.0 as a direct result of the discharge.
    (e) The discharge of graywater must not contain oil in quantities 
that:
    (1) Cause a film or sheen upon or discoloration of the surface of 
the water or adjoining shorelines; or
    (2) Cause a sludge or emulsion to be deposited beneath the surface 
of the water or upon adjoining shorelines; or
    (3) Contain an oil content above 15 ppm as measured by EPA Method 
1664a (as defined at 40 CFR 136.3) or other appropriate method for 
determination of oil content as accepted by the International Maritime 
Organization (IMO) (e.g., ISO Method 9377) or U.S. Coast Guard; or
    (4) Otherwise are harmful to the public health or welfare of the 
United States.

0
8. Add Sec.  1700.27 to read as follows:


Sec.  1700.27  Hull coating leachate.

    (a) Antifouling hull coatings subject to registration under the 
Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) (7 U.S.C 
136 et seq.) must be applied, maintained, and removed in a manner 
consistent with requirements on the coatings' FIFRA label.
    (b) Antifouling hull coatings not subject to FIFRA registration 
(i.e., exempt or not produced for sale and distribution in the United 
States) must not contain any biocides or toxic materials banned for use 
in the United States. This performance standard applies to all vessels, 
including vessels with a hull coating applied outside the United 
States.
    (c) Antifouling hull coatings must not contain tributyltin (TBT).
    (d) Antifouling hull coatings must not contain any organotin 
compounds when the organotin is used as a biocide. Antifouling hull 
coatings may contain small quantities of organotin compounds other than 
tributyltin (e.g., dibutyltin) when the organotin is acting as a 
chemical catalyst and not present above 2,500 milligrams total tin per 
kilogram of dry paint film. In addition, any antifouling hull coatings 
containing organotin must be designed to not slough or peel from the 
vessel hull.
    (e) Antifouling hull coatings that contain TBT or other organotin 
compounds that are used as a biocide must be removed or an overcoat 
must be applied.
    (f) Incidental amounts of antifouling hull coating discharged after 
contact with other hard surfaces (e.g., moorings) are permissible.
    (g) To the greatest extent practicable, use non-copper based and 
less toxic antifouling hull coatings. To the greatest extent 
practicable, use antifouling hull coatings with the lowest effective 
biocide release rates, rapidly biodegradable components (once separated 
from the hull surface), or use non-biocidal alternatives, such as 
silicone coatings.
    (h) To the greatest extent practicable, avoid use of antifouling 
hull coatings on vessels that are regularly removed from the water and 
unlikely to accumulate hull growth.

0
9. Add Sec.  1700.28 to read as follows:


Sec.  1700.28  Motor gasoline and compensating discharge.

    (a) The discharge of motor gasoline and compensating effluent must 
not contain oil in quantities that:
    (1) Cause a film or sheen upon or discoloration of the surface of 
the water or adjoining shorelines; or
    (2) Cause a sludge or emulsion to be deposited beneath the surface 
of the water or upon adjoining shorelines; or
    (3) Contain an oil content above 15 ppm as measured by EPA Method 
1664a (as defined at 40 CFR136.3) or other appropriate method for 
determination of oil content as accepted by the International Maritime 
Organization (IMO) (e.g., ISO Method 9377) or U.S. Coast Guard; or
    (4) Otherwise are harmful to the public health or welfare of the 
United States.
    (b) The discharge of motor gasoline and compensating effluent must 
be minimized in port. If an oily sheen is observed, any spill or 
overflow of oil must be cleaned up, recorded, and reported to the 
National Response Center immediately.
    (c) The discharge of motor gasoline and compensating effluent is 
prohibited in federally-protected waters.

0
10. Add Sec.  1700.34 to read as follows:


Sec.  1700.34  Sonar dome discharge.

    (a) The water inside the sonar dome must not be discharged for 
maintenance

[[Page 43477]]

activities unless the use of a drydock for the maintenance activity is 
not feasible.
    (b) The water inside the sonar dome may be discharged for 
equalization of pressure between the interior and exterior of the dome.
    (c) A biofouling chemical that is bioaccumulative should not be 
applied to the exterior of a sonar dome when a non-bioaccumulative 
alternative is available.

0
11. Add Sec.  1700.35 to read as follows:


Sec.  1700.35  Submarine bilgewater.

    The discharge of submarine bilgewater:
    (a) Must not contain oil in quantities that:
    (1) Cause a film or sheen upon or discoloration of the surface of 
the water or adjoining shorelines; or
    (2) Cause a sludge or emulsion to be deposited beneath the surface 
of the water or upon adjoining shorelines; or
    (3) Contain an oil content above 15 parts per million (ppm) as 
measured by EPA Method 1664a (as defined at 40 CFR 136.3) or other 
appropriate method for determination of oil content as accepted by the 
International Maritime Organization (IMO) (e.g., ISO Method 9377) or 
U.S. Coast Guard; or
    (4) Otherwise are harmful to the public health or welfare of the 
United States.
    (b) Must not contain dispersants, detergents, emulsifiers, 
chemicals, or other substances added for the purposes of removing the 
appearance of a visible sheen. This performance standard does not 
prohibit the use of these materials in machinery spaces for the 
purposes of cleaning and maintenance activities associated with vessel 
equipment and structures.
    (c) Must only contain substances that are produced in the normal 
operation of a vessel. Oil solidifiers, flocculants or other additives 
(excluding any dispersants or surfactants) may be used to enhance oil-
water separation during processing in an oil-water separator only if 
such solidifiers, flocculants, or other additives are minimized in the 
discharge and do not alter the chemical makeup of the oils being 
discharged. Solidifiers, flocculants, or other additives must not be 
directly added, or otherwise combined with, the water in the bilge. 
Additionally, the vessel must employ management practices that will 
minimize the leakage of oil and other harmful pollutants into the 
bilge.
    (d) Must not occur in port if the port has the capability to 
collect and transfer the submarine bilgewater to an onshore facility.
    (e) Must be minimized and, if technologically feasible, discharged 
as far from shore as possible.
    (f) Must be minimized in federally-protected waters.

0
12. Add Sec.  1700.36 to read as follows:


Sec.  1700.36   Surface vessel bilgewater/oil-water separator effluent.

    (a) All surface vessels must employ management practices that will 
minimize leakage of oil and other harmful pollutants into the bilge.
    (b) Surface vessels equipped with an oil-water separator must not 
discharge bilgewater and must only discharge oil-water separator 
effluent through an oil-content monitor consistent with paragraph (c) 
of this section. All surface vessels greater than 400 gross tons must 
be equipped with an oil-water separator. Surface vessels not equipped 
with an oil-water separator must only discharge bilgewater consistent 
with paragraph (d) of this section.
    (c) The discharge of oil-water separator effluent:
    (1) Must not contain oil in quantities that:
    (i) Cause a film or sheen upon or discoloration of the surface of 
the water or adjoining shorelines; or
    (ii) Cause a sludge or emulsion to be deposited beneath the surface 
of the water or upon adjoining shorelines; or
    (iii) Contain an oil content above 15 ppm as measured by EPA Method 
1664a (as defined at 40 CFR 136.3) or other appropriate method for 
determination of oil content as accepted by the International Maritime 
Organization (IMO) (e.g., ISO Method 9377) or U.S. Coast Guard; or
    (iv) Otherwise are harmful to the public health or welfare of the 
United States.
    (2) Must not contain dispersants, detergents, emulsifiers, 
chemicals, or other substances added for the purposes of removing the 
appearance of a visible sheen. This performance standard does not 
prohibit the use of these materials in machinery spaces for the 
purposes of cleaning and maintenance activities associated with vessel 
equipment and structures.
    (3) Must only contain substances that are produced in the normal 
operation of a vessel. Oil solidifiers, flocculants or other additives 
(excluding any dispersants or surfactants) may be used to enhance oil-
water separation during processing in an oil-water separator only if 
such solidifiers, flocculants, or other additives are minimized in the 
discharge and do not alter the chemical make-up of the oils being 
discharged. Solidifiers, flocculants, or other additives must not be 
directly added, or otherwise combined with, the water in the bilge.
    (4) Must not occur in port if the vessel has the capability to 
collect and transfer oil-water separator effluent to an onshore 
facility.
    (5) Must be minimized within one mile of shore.
    (6) Must occur while sailing at speeds greater than six knots, if 
the vessel is underway.
    (7) Must be minimized in federally-protected waters.
    (d) The discharge of bilgewater (i.e., wastewater from the bilge 
that has not been processed through an oil-water separator):
    (1) Must not occur if the vessel has the capability to collect, 
hold, and transfer bilgewater to an onshore facility.
    (2) Notwithstanding the prohibition of the discharge of bilgewater 
from vessels that have the capability to collect, hold, and transfer 
bilgewater to an onshore facility; the discharge of bilgewater:
    (i) Must not contain dispersants, detergents, emulsifiers, 
chemicals, or other substances added for the purposes of removing the 
appearance of a visible sheen. This performance standard does not 
prohibit the use of these materials in machinery spaces for the 
purposes of cleaning and maintenance activities associated with vessel 
equipment and structures.
    (ii) Must only contain substances that are produced in the normal 
operation of a vessel. Routine cleaning and maintenance activities 
associated with vessel equipment and structures are considered to be 
normal operation of a vessel.
    (iii) Must not contain oil in quantities that:
    (A) Cause a film or sheen upon or discoloration of the surface of 
the water or adjoining shorelines; or
    (B) Cause a sludge or emulsion to be deposited beneath the surface 
of the water or upon adjoining shorelines; or
    (C) Contain an oil content above 15 ppm as measured by EPA Method 
1664a (as defined at 40CFR 136.3) or other appropriate method for 
determination of oil content as accepted by the International Maritime 
Organization (IMO) (e.g., ISO Method 9377) or U.S. Coast Guard; or
    (D) Otherwise are harmful to the public health or welfare of the 
United States.
    (iv) Must be suspended immediately if a visible sheen is observed. 
Any spill or overflow of oil or other engine fluids must be cleaned up, 
recorded, and reported to the National Response Center immediately.

0
13. Add Sec.  1700.37 to read as follows:

[[Page 43478]]

Sec.  1700.37   Underwater ship husbandry.

    (a) For discharges from vessels that are less than 79 feet in 
length:
    (1) To the greatest extent practicable, vessel hulls with an 
antifouling hull coating must not be cleaned within 90 days after the 
antifouling coating application.
    (2) Vessel hulls must be inspected, maintained, and cleaned to 
minimize the removal and discharge of antifouling coatings and the 
transport of fouling organisms. To the greatest extent practicable, 
rigorous vessel hull cleanings must take place in drydock or at a land-
based facility where the removed fouling organisms or spent antifouling 
coatings can be disposed of onshore in accordance with any applicable 
solid waste or hazardous substance management and disposal 
requirements.
    (3) Prior to the transport of the vessel overland from one body of 
water to another, vessel hulls must be inspected for any visible 
attached living organisms. If fouling organisms are found, they must be 
removed and disposed of onshore in accordance with any applicable solid 
waste and hazardous substance management and disposal requirements.
    (4) Vessel hull cleanings must be conducted in a manner that 
minimizes the release of antifouling hull coatings and fouling 
organisms, including:
    (i) Adhere to any applicable cleaning requirements found on the 
coatings' FIFRA label.
    (ii) Use soft brushes or less abrasive cleaning techniques to the 
greatest extent practicable.
    (iii) Use hard brushes only for the removal of hard growth.
    (iv) Use a vacuum or other collection/control technology, when 
available and feasible. Residues filtered, precipitated, or otherwise 
removed by any vacuum technology must be disposed of onshore in 
accordance with any applicable solid waste and hazardous substance 
management and disposal requirements.
    (b) For discharges from vessels that are greater than or equal to 
79 feet in length:
    (1) To the greatest extent practicable, vessel hulls with an 
antifouling hull coating must not be cleaned within 90 days after the 
antifouling coating application. To the greatest extent practicable, 
vessel hulls with copper-based antifouling coatings must not be cleaned 
within 365 days after coating application.
    (2) Vessel hulls must be inspected, maintained, and cleaned to 
minimize the removal and discharge of antifouling coatings and the 
transport of fouling organisms. To the greatest extent practicable, 
rigorous vessel hull cleanings must take place in drydock or at a land-
based facility where the removed fouling organisms or spent antifouling 
coatings can be disposed of onshore in accordance with any applicable 
solid waste or hazardous substance management and disposal 
requirements.
    (3) Vessel hull cleanings must be conducted in a manner that 
minimizes the release of antifouling hull coatings and fouling 
organisms, including:
    (i) Adhere to any applicable cleaning requirements found on the 
coatings' FIFRA label.
    (ii) Use soft brushes or less abrasive cleaning techniques to the 
greatest extent practicable.
    (iii) Use hard brushes only for the removal of hard growth.
    (iv) Use a vacuum or other collection/control technology, when 
available and feasible. Residues filtered, precipitated, or otherwise 
removed by any vacuum technology must be disposed of onshore in 
accordance with any applicable solid waste and hazardous substance 
management and disposal requirements.

[FR Doc. 2020-12571 Filed 7-16-20; 8:45 am]
BILLING CODE 6560-50-P


