[Federal Register: December 29, 2008 (Volume 73, Number 249)]
[Notices]               
[Page 79473-79481]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29de08-62]                         

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ENVIRONMENTAL PROTECTION AGENCY

[FRL-8757-3, EPA-HQ-OW-2008-0055]

 
Final National Pollutant Discharge Elimination System (NPDES) 
General Permit for Discharges Incidental to the Normal Operation of a 
Vessel

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of availability.

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SUMMARY: EPA Regions 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10 are finalizing 
an NPDES Vessel General Permit (VGP) to cover discharges incidental to 
the normal operation of vessels. This action is in response to a 
District Court ruling that vacates, as of December 19, 2008, a long-
standing EPA regulation that excludes discharges incidental to the 
normal operation of a vessel from the need to obtain an NPDES permit. 
As of December 19, 2008, discharges incidental to the normal operation 
of a vessel that had formerly been exempted from NPDES permitting by 
the regulation will be subject to the prohibition in CWA Section 301(a) 
against the discharge of pollutants without a permit.
    EPA solicited information and data on discharges incidental to 
normal vessel operations to assist in developing two NPDES general 
permits in a Federal Register Notice published June 21, 2007 (72 FR 
32421). The majority of information and data in response to that notice 
came from seven different groups: Individual citizens, commercial 
fishing representatives, commercial shipping groups, environmental or 
outdoor recreation groups, the oil and gas industry, recreational 
boating-related businesses, and state governments. EPA considered all 
the information and data received along with other publicly available 
information in developing two proposed vessel permits.
    EPA published the two proposed permits and accompanying fact sheets 
for public comment on June 17, 2008 (73 FR 34296). As proposed, the VGP 
would have covered all commercial and non-recreational vessels and 
those recreational vessels longer or equal to 79 feet, and the proposed 
RGP would have covered recreational vessels less than 79 feet in 
length. However, after the permits were proposed, Congress enacted two 
new laws that impact the universe of vessels covered under today's 
permit. On July 29, 2008, Senate bill S. 2766 (``the Clean Boating Act 
of 2008'') was signed into law (Pub. L. 110-288). This law provides 
that recreational vessels shall not be subject to the requirement to 
obtain an NPDES permit to authorize discharges incidental to their 
normal operation. As a result of this legislation, EPA is not 
finalizing the proposed recreational vessel NPDES permit and has also 
modified the VGP, which included those recreational vessel over 79 
feet, to eliminate that coverage. On July 31, 2008, Senate bill S. 3298 
was signed into law (Pub. L. 110-299). This law generally imposes a 
two-year moratorium during which time neither EPA nor states can 
require NPDES permits for discharges (except ballast

[[Page 79474]]

water discharges) incidental to the normal operation of vessels of less 
than 79 feet and commercial fishing vessels of any length. EPA is not 
taking final action on the proposed permit as it would apply to these 
vessels and has revised the final VGP to reflect the new law.

DATES: This permit is effective December 19, 2008. This effective date 
is necessary to provide affected vessels the necessary permit coverage 
under the Clean Water Act in light of the vacatur of the 40 CFR 
122.3(a) NPDES permitting exemption. EPA notes that on December 18, 
2008, a motion was filed with the U.S. District Court for the Northern 
District of California seeking a delay of vacatur of the 40 CFR 
122.3(a) exclusion from NPDES permitting until February 6, 2009. As of 
the time today's notice was ready for signature, the Court had not 
taken action on that motion; thus, EPA could not adjust the effective 
date of the permit to coincide with a new vacatur date. EPA advises 
that should the court grant the motion to delay the vacatur date, the 
effective date of today's permit will not change. In addition, 
compliance dates for those permit provisions that require compliance at 
some explicit amount of time after the effective date will not be 
extended, regardless of whether the Court delays vacatur of the 
exclusion. However, because permit authorization is not required until 
vacatur of the 40 CFR 122.3(a) permitting exclusion occurs, the 
regulated community need not comply with the terms of today's permit 
until the date of vacatur ordered by the Court.
    In accordance with 40 CFR Part 23, this permit shall be considered 
issued for the purpose of judicial review on the day 2 weeks after 
Federal Register Publication. Under section 509(b) of the Clean Water 
Act, judicial review of this general permit can be had by filing a 
petition for review in the United States Court of Appeals within 120 
days after the permit is considered issued for purposes of judicial 
review. Under section 509(b)(2) of the Clean Water Act, the 
requirements in this permit may not be challenged later in civil or 
criminal proceedings to enforce these requirements. In addition, this 
permit may not be challenged in other agency proceedings. Deadlines for 
submittal of notices of intent are provided in Part 1.5 of the VGP. 
This permit also provides additional dates for compliance with the 
terms of these permits.

FOR FURTHER INFORMATION CONTACT: For further information on this final 
vessel NPDES general permit, contact Ryan Albert at EPA Headquarters, 
Office of Water, Office of Wastewater Management, Mail Code 4203M, 1200 
Pennsylvania Ave., NW., Washington, DC 20460; or at tel. 202-564-0763; 
or Juhi Saxena at EPA Headquarters, Office of Water, Office of 
Wastewater Management, Mail Code 4203M, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460; or at tel. 202-564-0719; or e-mail: 
CommercialVesselPermit@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does This Final Permit Apply To Me?

    This action applies to all vessels operating in a capacity as a 
means of transportation, except recreational vessels as defined in CWA 
section 502(25), Public Law 110-288, that have discharges incidental to 
their normal operations into waters subject to this permit. With 
respect to (1) commercial fishing vessels of any size as defined in 46 
U.S.C. 2101 and (2) those non-recreational vessels that are less than 
79 feet in length, the coverage under this permit is limited to ballast 
water discharges only. Unless otherwise excluded from coverage by Part 
6 of the permit, waters subject to this permit, means waters of the 
U.S. as defined in 40 CFR 122.2.

B. How Can I Get Copies of These Documents and Other Related 
Information?

    1. Docket. EPA has established an official public docket for this 
action under Docket ID No. EPA-HQ-OW-2008-0055 VGP. The official public 
docket is the collection of materials, including the administrative 
record, for the final permit, required by 40 CFR 124.18. It is 
available for public viewing at the Water Docket in the EPA Docket 
Center, (EPA/DC) EPA West, Room 3334, 1301 Constitution Ave., NW., 
Washington, DC 20460. Although all documents in the docket are listed 
in an index, some information is not publicly available, i.e., CBI or 
other information whose disclosure is restricted by statute. Publicly 
available docket materials are available electronically through http://
www.regulations.gov and in hard copy at the EPA Docket Center Public 
Reading Room, open from 8:30 a.m. to 4:30 p.m., Monday through Friday, 
excluding legal holidays. The telephone number for the Public Reading 
Room is (202) 566-1744 and the telephone number for the Water Docket is 
(202) 566-2426. In addition, the comments and information that EPA 
received in response to its June 21, 2007, Federal Register notice can 
be found in the public docket at http://www.regulations.gov by 
searching Docket ID No. EPA-HQ-OW-2007-0483.
    2. Electronic Access. You may access this Federal Register document 
electronically through the EPA Internet under the Federal Register 
listings at http://www.epa.gov/fedrgstr/.
    An electronic version of the public docket is available through the 
Federal Docket Management System (FDMS) found at http://
www.regulations.gov. You may use the FDMS to view public comments, 
access the index listing of the contents of the official public docket, 
and to access those documents in the public docket that are available 
electronically. Once at the Web site, enter the appropriate Docket ID 
No. in the ``Search'' box to view the docket.
    Certain types of information will not be placed in the EPA dockets. 
Information claimed as CBI and other information whose disclosure is 
restricted by statute, which is not included in the official public 
docket, will not be available for public viewing in EPA's electronic 
public docket. EPA policy is that copyrighted material will not be 
placed in EPA's electronic public docket but will be available only in 
printed, paper form in the official public docket. Although not all 
docket materials may be available electronically, you may still access 
any of the publicly available docket materials through the docket 
facility identified in Section I.A.1.
    Response to public comments. EPA received 173 comments on the 
proposed VGP from the shipping industry (108), States (28), 
Environmental Groups and the public (37). EPA has responded to all 
comments received and has included these responses in a separate 
document in the public docket for this permit. See the document titled 
Proposed VGP: EPA's Response to Public Comments.

C. Public Outreach: Public Hearing and Public Meetings, Webcast

    Because EPA anticipated a significant degree of public interest in 
the draft permit, EPA held a public hearing Monday, July 21, 2008, to 
receive public comment and answer questions concerning the proposed 
permit. In addition, EPA and the U.S. Coast Guard co-hosted three (3) 
public meetings on Thursday, June 19, 2008, in Washington, DC; Tuesday, 
June 24, 2008, in Portland, OR; and Thursday, June 26, 2008, in 
Chicago, IL; to present the proposed requirements of the VGP and the 
basis for those requirements, as well as to answer questions concerning 
the proposed permit. The public meetings and public hearing were 
attended by a wide variety of

[[Page 79475]]

stakeholders including representatives from industry, government 
agencies, and environmental organizations.
    In addition, EPA held a Webcast on July 2, 2008, to provide 
information on the proposed permits and to answer questions from 
interested parties that were unable to attend the public meetings or 
hearing.

D. Who Are the EPA Regional Contacts for This Proposed Permit?

    For EPA Region 1, contact Sara Green at USEPA REGION 1, 1 Congress 
Street, Suite 1100, Mail Code: CIP, Boston, MA 02114-2023; or at tel.: 
(617) 918-1574; or e-mail at greene.sara@epa.gov.
    For EPA Region 2, contact James Olander at USEPA REGION 2, 290 
Broadway, New York, NY 10007-1866; or at tel.: (212) 637-3833; or e-
mail at olander.james@epa.gov.
    For EPA Region 3, contact Mark Smith at USEPA REGION 3, 1650 Arch 
Street, Mail Code: 3WP41, Philadelphia, PA 19103-2029; or at tel.: 
(215) 814-3105; or e-mail at smith.mark@epa.gov.
    For EPA Region 4, contact Marshall Hyatt at USEPA REGION 4, 61 
Forsyth Street, SW., Atlanta, GA 30303-8960; or at tel.: (404) 562-
9304; or e-mail at hyatt.marshall@epa.gov.
    For EPA Region 5, contact Sean Ramach at USEPA REGION 5, 77 West 
Jackson Boulevard, Mail Code: WN-16J, Chicago, IL 60604-3507; or at 
tel.: (312) 886-5284; or e-mail at ramach.sean@epa.gov.
    For EPA Region 6, contact Paul Kaspar at USEPA REGION 6, 1445 Ross 
Avenue, Suite 1200, Mail Code: 6WQPP, Dallas, TX 75202-2733; or at 
tel.: (214) 665-7459; or e-mail at kaspar.paul@epa.gov.
    For EPA Region 7, contact Alex Owutaka at USEPA REGION 7, 901 North 
Fifth Street, Mail Code: WWPDWIMB, Kansas City, KS 66101; or at tel: 
(913) 551-7584; or e-mail at owutaka.alex@epa.gov.
    For EPA Region 8, contact Sandy Stavnes, at USEPA REGION 8, 1595 
Wynkoop St., Mail Code: 8P-W-WW, Denver, CO 80202-1129; or at tel: 
(303) 312-6117; or e-mail at stavnes.sandra@epa.gov.
    For EPA Region 9, contact Eugene Bromley at USEPA REGION 9, 75 
Hawthorne Street, Mail Code: WTR-5, San Francisco, CA 94105; or at 
tel.: (415) 972-3510; or e-mail at bromley.eugene@epa.gov.
    For EPA Region 10, contact Cindi Godsey at USEPA Region 10--Alaska 
Operations Office, Federal Building Room 537, 222 West 7th Avenue 
19, Mail Code: AOO/A, Anchorage, AK 99513-7588; or at tel.: 
(907) 271-6561; or e-mail at godsey.cindi@epa.gov.

II. Statutory and Regulatory History

A. The Clean Water Act

    Section 301(a) of the Clean Water Act (CWA) provides that ``the 
discharge of any pollutant by any person shall be unlawful'' unless the 
discharge is in compliance with certain other sections of the Act. 33 
U.S.C. 1311(a). The CWA defines ``discharge of a pollutant'' as ``(A) 
any addition of any pollutant to navigable waters from any point 
source, (B) any addition of any pollutant to the waters of the 
contiguous zone or the ocean from any point source other than a vessel 
or other floating craft.'' 33 U.S.C. 1362(12). A ``point source'' is a 
``discernible, confined and discrete conveyance'' and includes a 
``vessel or other floating craft.'' 33 U.S.C. 1362(14).
    The term ``pollutant'' includes, among other things, ``garbage * * 
* chemical wastes * * * and industrial, municipal, and agricultural 
waste discharged into water.'' The Act's definition of ``pollutant'' 
specifically excludes ``sewage from vessels or a discharge incidental 
to the normal operation of a vessel of the Armed Forces'' as defined in 
Clean Water Act section 312. 33 U.S.C. 1362(6). One way a person may 
discharge a pollutant without violating the section 301 prohibition is 
by obtaining a section 402 National Pollutant Discharge Elimination 
System (NPDES) permit (33 U.S.C. 1342). Under section 402(a), EPA may 
``issue a permit for the discharge of any pollutant, or combination of 
pollutants, notwithstanding section 1311(a)'' upon certain conditions 
required by the Act.

B. The History of the Exclusion of Vessels From the NPDES Program

    Less than one year after the CWA was enacted, EPA promulgated a 
regulation that excluded discharges incidental to the normal operation 
of vessels from NPDES permitting. 38 FR 13528, May 22, 1973. After 
Congress re-authorized and amended the CWA in 1977, EPA invited another 
round of public comment on the regulation. 43 FR 37078, August 21, 
1978. In 1979, EPA promulgated the final revision that established the 
regulation largely in its current form. 44 FR 32854, June 7, 1979. The 
regulation identifies several types of vessel discharges as being 
subject to NPDES permitting, but specifically excludes discharges 
incidental to the normal operation of a vessel.

    The following discharges do not require NPDES permits:
    (a) Any discharge of sewage from vessels, effluent from properly 
functioning marine engines, laundry, shower, and galley sink wastes 
or any other discharge incidental to the normal operation of a 
vessel. This exclusion does not apply to rubbish, trash, garbage, or 
other such materials discharged overboard; nor to other discharges 
when the vessel is operating in a capacity other than as a means of 
transportation such as when used as an energy or mining facility, a 
storage facility or a seafood processing facility, or when secured 
to a storage facility or a seafood processing facility, or when 
secured to the bed of the ocean, contiguous zone or waters of the 
United States for the purpose of mineral or oil exploration or 
development. 40 CFR 122.3(a).

Although other subsections of 40 CFR 122.3 and its predecessor were the 
subject of legal challenges (See NRDC v. Costle, 568 F.2d 1369 (D.C. 
Cir. 1977)), following its promulgation, the regulatory text relevant 
to discharges incidental to the normal operation of vessels went 
unchallenged at that time, and has been in effect ever since.

C. The Legal Challenge

    In December 2003, the long-standing exclusion of discharges 
incidental to the normal operation of vessels from the NPDES program 
became the subject of a lawsuit in the U.S. District Court for the 
Northern District of California. The lawsuit arose from a January 13, 
1999, rulemaking petition submitted to EPA by a number of parties 
concerned about the effects of ballast water discharges. The petition 
asked the Agency to repeal its regulation at 40 CFR 122.3(a) that 
excludes certain discharges incidental to the normal operation of 
vessels from the requirement to obtain an NPDES permit. The petition 
asserted that vessels are ``point sources'' requiring NPDES permits for 
discharges to U.S. waters; that EPA lacks authority to exclude point 
source discharges from vessels from the NPDES program; that ballast 
water must be regulated under the NPDES program because it contains 
invasive plant and animal species as well as other materials of concern 
(e.g., oil, chipped paint, sediment and toxins in ballast water 
sediment); and that enactment of CWA section 312(n) (Uniform National 
Discharge Standards, also known as the UNDS program) demonstrated 
Congress' rejection of the exclusion.
    In response to the 1999 petition, EPA first prepared a detailed 
report for public comment, Aquatic Nuisance Species in Ballast Water 
Discharges: Issues and Options (September 10, 2001). See, 66 FR 49381, 
September 27, 2001. After considering the comments received, EPA 
declined to reopen the exclusion for additional rulemaking, and denied 
the petition on September 2, 2003. EPA explained that since enactment 
of the CWA, EPA has consistently interpreted the Act to provide for 
NPDES regulation of

[[Page 79476]]

discharges from industrial operations that incidentally occur onboard 
vessels (e.g., seafood processing facilities or oil exploration 
operations at sea) and of discharges overboard of materials such as 
trash, but not of discharges incidental to the normal operation of a 
vessel (e.g., ballast water) subject to the 40 CFR 122.3(a) exclusion. 
EPA further explained that Congress had expressly considered and 
accepted the Agency's regulation in the years since its promulgation, 
and that Congress chose to regulate discharges incidental to the normal 
operation of vessels through programs other than CWA section 402 
permitting. Thus, it was EPA's understanding that Congress had 
acquiesced to EPA's long-standing interpretation of how the CWA applied 
to vessels. Denial of the petition did not reflect EPA's dismissal of 
the significant impacts of aquatic invasive species, but rather the 
understanding that other programs had been enacted to specifically 
address the issue and that the CWA does not currently provide an 
appropriate framework for addressing ballast water and other discharges 
incidental to the normal operation of non-military vessels.
    In the denial of the petition, EPA noted that when Congress 
specifically focused on the problem of aquatic nuisance species in 
ballast water, it did not look to or endorse the NPDES program as the 
means to address the problem. Instead, Congress enacted new statutes 
which directed and authorized the Coast Guard, rather than EPA, to 
establish a regulatory program for discharges incidental to the normal 
operation of vessels, including ballast water (i.e., Nonindigenous 
Aquatic Nuisance Prevention and Control Act as amended, 16 U.S.C. 4701 
et seq.; Act to Prevent Pollution from Ships, 33 U.S.C. 1901 et seq.). 
Furthermore, Congress made no effort to legislatively repeal EPA's 
interpretation of the NPDES program or to expressly mandate that 
discharges incidental to the normal operation of vessels be addressed 
through the NPDES permitting program. EPA reasoned that this 
Congressional action and inaction in light of Congress' awareness of 
the regulatory exclusion confirmed that Congress accepted EPA's 
interpretation and chose the Coast Guard as the lead agency under other 
statutes.
    In addition, EPA found significant practical and policy reasons not 
to re-open the longstanding CWA regulatory exclusion, reasoning that 
there are a number of ongoing activities within the Federal government 
related to control of invasive species in ballast water, many of which 
are likely to be more effective and efficient than use of NPDES permits 
under the CWA. EPA also noted that nothing in the CWA prevents states 
from independently regulating ballast water discharges under State law, 
should they choose to do so, pursuant to CWA section 510.
    After EPA's September 2003 denial of the petition, a number of 
groups filed a complaint in the U.S. District Court for the Northern 
District of California. The complaint was brought pursuant to the 
Administrative Procedure Act (APA), 5 U.S.C. 701 et seq., and set out 
two causes of action. First, the complaint challenged EPA's 
promulgation of 40 CFR 122.3(a), an action the Agency took in 1973. The 
second cause of action challenged EPA's September 2003 denial of their 
petition to repeal the Sec. 122.3(a) exclusion.

D. District Court Decision

    In March 2005, the Court determined that the exclusion exceeded the 
Agency's authority under the CWA. Specifically, in March 2005 the Court 
granted summary judgment to the plaintiffs:

    The Court DECLARES that EPA's exclusion from NPDES permit 
requirements for discharges incidental to the normal operation of a 
vessel at 40 CFR 122.3(a) is in excess of the Agency's authority 
under the Clean Water Act * * *.

    Northwest Envtl. Advocates v. United States EPA, 2005 U.S. Dist. 
LEXIS 5373 (N.D. Cal. 2005). After this ruling, the Court granted 
motions to intervene on behalf of the Plaintiffs by the States of 
Illinois, New York, Michigan, Minnesota, Pennsylvania, and Wisconsin, 
and on behalf of the Government-Defendant by the Shipping Industry 
Ballast Water Coalition.
    Following submission of briefs and oral argument by the parties and 
interveners on the issue of a proper remedy, the Court issued a final 
order in September 2006 providing that:

    The blanket exemption for discharges incidental to the normal 
operation of a vessel, contained in 40 CFR 122.3(a), shall be 
vacated as of September 30, 2008.

Northwest Envtl. Advocates v. United States EPA, 2006 U.S. Dist. LEXIS 
69476 (N.D. Cal. Sept. 18, 2006).
    EPA filed an appeal in the U.S. Court of Appeals for the Ninth 
Circuit, and on July 23, 2008, the Court upheld the District Court's 
decision, leaving the September 30, 2008 vacatur date intact. Northwest 
Envtl. Advocates v. EPA 537 F.3d 1006 (9th Cir. 2008). EPA subsequently 
petitioned the District Court to extend the date for vacatur of the 40 
CFR 122.3(a) exclusion to December 19, 2008, and the District Court 
granted this request. Northwest NW. Envt'l Advocates et al. v. United 
States EPA, 2008 U.S. Dist. LEXIS 66738 (N.D. Cal. August 31, 2008)
    This means that, effective December 19, discharges incidental to 
the normal operation of vessels currently excluded from NPDES 
permitting by that regulation will become subject to CWA section 301's 
discharge prohibition, unless covered under an NPDES permit. The CWA 
authorizes civil and criminal enforcement for violations of that 
prohibition and also allows for citizen suits against violators.
    Additional material related to the lawsuit is contained in the 
docket accompanying these proposed permits and fact sheets.

III. Scope and Applicability of the 2008 VGP

A. CWA Section 401 Certification and Coastal Zone Management Act 
Concurrence

    EPA may not issue a permit authorizing discharges into the waters 
of a State until that State has granted certification under CWA section 
401 or has waived its right to certify (or been deemed to have waived). 
33 U.S.C. 1341(a)(1); 40 CFR 124.53(a). For this permit, a State was 
deemed to have waived its right to certify if it did not exercise that 
right within 60 days from the date the State was notified of the draft 
permit, unless EPA granted that State more time to certify based on 
``unusual circumstances.'' 40 CFR 124.53(c)(3). If a State believed 
that any permit condition(s) more stringent than those contained in the 
draft permit were necessary to meet the applicable requirements of 
either the CWA or State law, the State had an opportunity to include 
those condition(s) in its certification. 40 CFR 124.53(e)(1). A number 
of States provided such conditions in their certifications, and EPA has 
added them to the VGP pursuant to CWA section 401(d). 33 U.S.C. 
1341(d).
    Similarly, the EPA may not issue a general permit authorizing 
discharges into waters of a State if the State objects, in the case of 
this general permit, with EPA's National Consistency Determination, 
pursuant to the regulations implementing of the Coastal Zone Management 
Act (``CZMA''), specifically the regulations at 15 CFR 930.31(d) and 
930.36(e). Several States provided conditions to the VGP, based on 
specific enforceable coastal policies of the State, which allowed the 
State to concur with EPA's consistency determination. According to the 
regulations, EPA incorporated these

[[Page 79477]]

conditions to the maximum extent practicable. If a State coastal zone 
management agency's conditions are not incorporated into the general 
permit or if the State coastal zone management agency objects to the 
general permit, then the general permit is not available for use by 
potential general permit users in that State unless the applicant who 
wants to use the general permit provides the State agency with the 
applicant's consistency determination and the State agency concurs. 15 
CFR 930.31(d), NOAA has explained that ``a State objection to a 
consistency determination for the issuance of a general permit would 
alter the form of CZMA compliance required, transforming the general 
permit into a series of case by case CZMA decisions and requiring an 
individual who wants to use the general permit to submit an individual 
consistency certification to the State agency in compliance with 15 CFR 
part 930.'' 71 FR 788, 793. In States that have not provided conditions 
for incorporation into the permit to allow the State to concur, as well 
as States that have not objected to the permit, EPA's CZMA compliance 
requirements derive from CZMA section 307(c)(1). Id.

B. Geographic Coverage of VGP

    The VGP applies to discharges incidental to the normal operation of 
a vessel identified as being eligible for coverage in the final permit, 
into waters subject to the permit. These waters are ``waters of the 
United States'' as defined in 40 CFR 122.2 (extending to the reach of 
the 3-mile territorial sea as defined in section 502(8) of the CWA). 
The final permit covers vessel discharges in the waters of the U.S. in 
all States, Territories and Indian Country Land, regardless of whether 
a ``state'' is otherwise authorized to implement the NPDES permit 
program within its jurisdiction. For more information on this approach, 
see the fact sheet accompanying the final permit.
    As of the issuance date of this permit, the following jurisdictions 
have not yet granted, denied, waived (or been deemed to have waived) 
certifications pursuant to Section 401 of the Clean Water Act and/or 
final responses on the national consistency determination required by 
section 307(c)(1) of the Coastal Zone Management Act. Therefore, this 
permit does not yet provide coverage in the following jurisdictions:
    [ctrcir] The State of Alaska
    [ctrcir] The State of Hawaii
EPA will announce the availability of coverage under the VGP discharges 
in these jurisdictions in a separate Federal Register notice as soon as 
possible should it receive the appropriate 401 certifications or 
waivers, and/or final responses on the national consistency 
determination. In addition, the VGP is not effective in the Taos Pueblo 
Indian Country Land (New Mexico) because they have denied certification 
under CWA section 401.

C. Categories of Vessels Covered Under VGP

    The final vessel general permit (VGP) applies to owners and 
operators of non-recreational vessels that are 79 feet (24.08 meters) 
and greater in length, as well as to owners and operators of commercial 
vessels of less than 79 feet and commercial fishing vessels of any 
length which discharge ballast water.
    The final VGP does not apply to recreational vessels of any size, 
commercial fishing vessels of any size which do not discharge ballast 
water, and non-recreational vessels of less than 79 feet which do not 
discharge ballast water. For Commercial fishing vessels and non-
recreational vessels of less than 79 feet in length that discharge 
ballast water, the only effluent limit these vessels are subject to are 
the VGP standards that apply to ballast water discharges.

D. Summary of VGP Terms and Requirements

    The final VGP addresses 26 vessel discharge streams by establishing 
effluent limits, including Best Management Practices (BMPs), to control 
the discharge of the waste streams and constituents found in those 
waste streams. The discharge streams eligible for coverage under this 
final permit are: Deck washdown and runoff and above water line hull 
cleaning; bilge water; ballast water; anti-fouling leachate from anti-
fouling hull coatings; aqueous film forming foam (AFFF); boiler/
economizer blowdown; cathodic protection; chain locker effluent; 
controllable pitch propeller hydraulic fluid and thruster hydraulic 
fluid and other oil sea interfaces including lubrication discharges 
from paddle wheel propulsion, stern tubes, thruster bearings, 
stabilizers, rudder bearings, azimuth thrusters, and propulsion pod 
lubrication; distillation and reverse osmosis brine; elevator pit 
effluent; firemain systems; freshwater layup; gas turbine wash water; 
graywater; motor gasoline and compensating discharge; non-oily 
machinery wastewater; refrigeration and air condensate discharge; 
seawater cooling overboard discharge; seawater piping biofouling 
prevention; small boat engine wet exhaust; sonar dome discharge, 
underwater ship husbandry; welldeck discharges; graywater mixed with 
sewage from vessels; and exhaust gas scrubber wash water discharge.
    For each discharge type, among other things, the final permit 
establishes effluent limits pertaining to the constituents found in the 
effluent, including BMPs designed to decrease the amount of 
constituents entering the waste stream. A vessel might not produce all 
of these discharges, but a vessel owner or operator is responsible for 
meeting the applicable effluent limits and complying with all the 
effluent limits for every listed discharge that the vessel produces.
Discharge Authorization Timeframe
    To obtain authorization, the owner or operator of a vessel that is 
either 300 or more gross tons or has the capacity to hold or discharge 
more than 8 cubic meters (2113 gallons) of ballast water is required to 
submit a Notice of Intent (NOI) to receive permit coverage, beginning 
June 19, 2009, but no later than September 19, 2009. Until September 
19, 2009 these vessels will be automatically authorized upon permit 
issuance to discharge according to the permit requirements. For vessels 
that were delivered to the owner or operator on or before September 19, 
2009, the vessel will receive final permit coverage on the date that 
EPA receives the complete NOI. New vessels that are delivered after 
September 19, 2009 will receive permit coverage 30 days after EPA 
receives the complete NOI. When ownership of a vessel previously 
authorized to discharge under this permit is transferred to a new 
owner, the discharge authorization date is the later of the date EPA 
receives an NOI from the new owner or the date of transfer. In the case 
of an existing vessel which was not previously authorized to discharge 
under this permit, delivered to the owner after September 19, 2009, the 
discharge authorization date is 30 days after EPA receives the complete 
NOI.
    Vessels that are less than 300 gross tons or are able to carry or 
discharge no more than 8 cubic meters of ballast water capacity will be 
automatically authorized upon permit issuance to discharge according to 
the permit requirements.
Monitoring and Reporting
    The VGP requires routine self-inspection and monitoring of all 
areas of the vessel that the permit addresses. The routine self-
inspection must be documented in the ship's logbook. Analytical 
monitoring is required for certain types of vessels. The VGP also 
requires comprehensive annual vessel

[[Page 79478]]

inspections, to ensure even the hard-to-reach areas of the vessel are 
inspected for permit compliance. If the vessel is placed in dry dock 
while covered under this permit, a dry dock inspection and report must 
be completed. Additional monitoring requirements are imposed on certain 
classes of vessels, based on unique characteristics not shared by other 
vessels covered under the VGP.
Vessel Type-Specific Requirements
    The permit imposes additional requirements for 8 specific types of 
vessels which have unique characteristics resulting in discharges not 
shared by other types of vessels. These vessel types are medium cruise 
ships, large cruise ships, large ferries, barges, oil or petroleum 
tankers, research vessels, rescue boats, and vessels employing 
experimental ballast water treatment systems. The permit requirements 
are designed to address the discharges from features unique to those 
vessels, such as parking decks on ferries and overnight accommodations 
for passengers on cruise ships.

E. Summary of Significant Changes From Proposal to Final Permit

    The final VGP differs from the proposed permit in several ways, the 
most significant of which are discussed below. These changes include 
modifying the graywater discharge requirements for existing medium 
cruise ships unable to voyage more than 1 nautical mile (nm) from 
shore, adding requirements for the discharge of pool and spa water from 
cruise ships, prohibiting the discharge of tetrachloroethylene 
degreasers, expanding the prohibition against discharge of Tributyltin 
to a prohibition against discharge of any organotin compounds, and the 
addition of whole effluent toxicity (WET) testing to the requirements 
for vessels employing a ballast water treatment system which discharge 
certain biocides. Other changes made include revising the universe of 
vessels eligible for coverage of the permit in response to two new laws 
(see Summary section above), combining three discharge categories into 
a new category that includes all oil to sea interfaces, modifying 
discharges and limits for large ferries, and additional clarifications 
added to several cruise ship discharges.
    In addition to seeking public comment on all requirements of the 
proposed VGP, EPA specifically sought comment on several specific 
aspects of the VGP (for more detail on each element see the Permit Fact 
Sheet). The following sections summarize each topic for which EPA 
requested comment and what, if anything, EPA changed in the final VGP. 
For specific and full responses to public comment, please see the 
response to comments document included in the docket for this permit.
Tetrachloroethylene (TCE)
    EPA sought information on whether uses of Tetrachloroethylene (TCE) 
other than dry cleaning should be explicitly included or excluded from 
permit coverage. EPA was also interested in comments on the frequency 
and nature of the use of TCE-containing products on vessels. (TCE 
discharges associated with dry-cleaning activities on vessels were not 
proposed to be eligible for coverage because they are not considered to 
be incidental to the normal operation of a vessel).
    Based on public comments received, discharges of TCE degreasers and 
other TCE containing products were made ineligible for coverage under 
the permit.
Notice of Intent (NOI) Requirements
    EPA specifically requested comment on the approach for requiring 
NOIs from vessels. Comments received on this topic were split, with 
some in favor of the proposed requirements, and some recommending 
changes. The most concern was raised over unmanned barges and the 
difficulty of submitting NOIs for an entire fleet of vessels. EPA 
acknowledges these comments and is attempting to make its e-NOI system 
as user friendly as possible. The Agency intends to consider the needs 
of users who must fill in multiple forms when designing the electronic 
system. The e-NOI is expected to be operational six months from the 
date of permit issuance (June 19, 2009).
    Additionally, based on public comment noting that most regulations 
were changing to use ``gross ton'' instead of ``gross registered ton'' 
as a unit for regulation, EPA has changed the NOI requirements to 
require an NOI from those vessels of more than 300 gross tons, rather 
than 300 gross registered tons. Vessels that have the ability to hold 
or discharge more than 8 cubic meters of ballast are also required to 
submit an NOI. The majority of commenters supported EPA's decision to 
require NOIs of only a subset of vessels covered by the permit.
Numeric Discharge Limits in Place of Best Management Practices (BMPs)
    EPA specifically requested comment on whether the permit should 
establish numeric discharge limits for any of those discharges for 
which the proposed permit would have solely imposed best management 
practices (BMPs). The proposed permit included numeric discharge limits 
for graywater from cruise ships; oily discharges, including oily 
mixtures; and residual biocide limits from vessels utilizing 
experimental ballast water treatment systems. For the remainder of the 
discharges incidental to the normal operation of vessels, the proposed 
permit would have imposed BMPs, based on EPA's conclusion that numeric 
effluent limitations are not feasible for vessel discharges in this 
permit iteration. EPA requested that if commenters provide suggested 
numeric limits, that they should also provide any supporting data that 
identifies technologies or BMPs available to meet those limits, and if 
those limits are more stringent than requirements of the proposed 
permit, provide the costs and non-water quality impacts of setting 
those limits, and any other relevant information that would be helpful 
in setting those limits.
    While several commenters recommended establishing numeric limits 
for more discharges than were included in the proposed permit, EPA has 
not added additional numeric limits except for experimental ballast 
water treatment discharges and for Pool and Spa discharges (see section 
titled ``Operational Limits for Large Cruise Ships'' below for 
discussion about Pool and Spa discharges). In the proposal for this 
general permit, EPA specifically requested comment on whether whole 
effluent toxicity (``WET'') tests should be used in addition to, or in 
lieu of, analytical monitoring of residual biocides and derivatives and 
if so, what appropriate toxicity-based endpoints might be used for this 
purpose. Based on public comment, the final VGP establishes WET 
testing, as a requirement for VGP coverage for ballast water treatment 
systems using biocides, or which have derivatives from such biocides, 
for which there are not acute water quality criteria. This approach is 
based on existing EPA WET methods and WET testing for ballast water 
discharges adopted by the State of Washington, and relies primarily on 
the methods specified in 40 CFR Part 136. The principal public comment 
on WET referenced the Washington State WET testing provisions for 
ballast water, which can be found at http://www.ecy.wa.gov/pubs/
9580.pdf, appendix H. EPA used this manual as a reference in addition 
to WET tests consistent with past Agency practice (including Denton et 
al. 2007).
    Several commenters noted that EPA should include numeric treatment 
standards for Ballast Water. EPA notes that although ballast water 
treatment technologies are not currently available

[[Page 79479]]

within the meaning of BAT under the CWA, such technologies are rapidly 
developing and might become ``available'' using a BAT standard within 
this permit term. EPA commits to continuing to review the evolution of 
ballast water treatment technologies and may, if appropriate, use the 
permit reopener in light of that evolution. See Part 4 of the VGP Fact 
Sheet for additional discussion. Additional discussion about ballast 
water discharge standards can be found in the fact sheet for this 
permit and in the response to comments document.
Bilgewater Discharges in Embayments
    EPA requested comment on whether the permit should limit discharges 
of bilgewater in embayments, such as the Chesapeake Bay, for large 
vessels that regularly leave waters subject to the permit.
    A few commenters recommended limiting discharges of bilgewater in 
embayments, but provided no additional information on which EPA could 
base such a decision. EPA notes that defining embayments is difficult 
and the information before the Agency does not demonstrate that there 
are available and economically achievable approaches for limiting such 
discharges in embayments. Hence, EPA has not specifically limited 
discharges of bilgewater in embayments. Nonetheless, other proposed 
requirements restricting discharge location and concentration for 
certain vessels remain in the permit. For instance, vessels greater 
than 400 gross tons, which regularly leave waters subject to the VGP, 
are subject to additional restrictions on the discharge of bilgewater, 
including a prohibition on the discharge of untreated bilgewater and 
restrictions when operating in the specially protected waters 
referenced in Part 12.1 of the permit, many of which may include bays 
and other similarly enclosed areas.
Saltwater Flushing for Vessels with Unpumpable Ballast Water and 
Residual Sediment
    EPA requested comment on whether the requirement of mandatory 
saltwater flushing for all vessels with unpumpable ballast water and 
residual sediment which sail more than 200 nm (nautical mile) from any 
shore is appropriate.
    Comments were received which both supported and opposed the 
mandatory saltwater flushing requirement. The final VGP retains the 
requirement for mandatory saltwater flushing for two classes of 
vessels: those defined as ocean-going vessels and those engaged in 
Pacific near shore voyages.
Ballast Water Exchange Requirements for Coastwise Trade Vessels on 
Atlantic and Gulf Coasts
    EPA requested comment on whether ballast water exchange 
requirements similar to those proposed for Pacific near shore voyages 
should be applied to vessels engaged in coastwise trade on the Atlantic 
or Gulf Coasts that will discharge to waters subject to this permit. 
After considering the range of public comment on the issue, which both 
supported and opposed inclusion of Atlantic and Gulf ballast water 
exchange, EPA has not included Atlantic and Gulf nearshore ballast 
water exchange and saltwater flushing requirements. None of the 
commenters provided directly applicable data to support their views. 
EPA will, however, continue to investigate whether Atlantic and Gulf 
coast ballast water exchange is an appropriate best management practice 
for vessel owner/operators engaged in nearshore voyages. This 
exploration may include several elements such as examining vessel 
traffic and operation patterns along the Eastern and Gulf seaboards, 
the volume of ballast water transported and released, and the number of 
miles traveled by the average Atlantic and Gulf nearshore voyage.
Adequacy of the One-Time Report
    EPA requested comment on whether the questions developed for the 
one-time report are appropriate and whether alternative or supplemental 
questions should be considered. The proposed permit would have required 
owner/operators to submit a one-time report that contains basic 
information about the vessel after the 30th month of permit coverage.
    Many commenters suggested that the one-time report was an added 
burden on permittees and would not provide useful information to EPA 
while other commenters recommended requesting more information in the 
report and increasing the frequency of reporting. EPA has decided to 
retain the one-time report as it was proposed in the final VGP. EPA 
believes it will provide additional, useful information for future 
permit decisions without creating a substantial administrative burden 
on permittees.
Operational Limits for Large Cruise Ships
    EPA requested comment on whether the proposed operational limits 
for large cruise ships are appropriate and whether the discharge 
standards proposed for within 1 nm of any shore should be extended to 3 
nm from any shore, regardless of the speed of the vessel. For large 
cruise ships, the proposed permit would have prohibited the discharge 
of graywater within 1 nautical mile of shore unless the graywater has 
been treated to treatment standards in part 5.2.1.1.2 of the proposed 
permit. The proposed permit would also have required the discharge to 
either meet the effluent limits outlined in this proposed permit under 
Part 5.2.1.1.2 or be discharged while the vessel is moving at least 6 
knots for discharges between 1 nm and 3 nm of shore.
    Several commenters, primarily environmental groups, recommended 
extending the discharge standards to 3nm from any shore, regardless of 
the speed of the vessel, or to impose even more stringent limits on 
cruise ship discharges. Other commenters, including those from the 
cruise ship industry, commented that the permit should include the 
graywater treatment standards, but should not prohibit the discharge of 
treated graywater provided the discharge met those standards. EPA has 
clarified in the final permit that discharges of graywater are allowed 
within 1 nm of shore, provided that those discharges meet the standards 
in Parts 5.1 or 5.2 of the permit.
    As part of comments received, several cruise ship representatives 
noted that they must discharge pool and spa water into waters subject 
to this permit. The commenters noted that they completely dechlorinate 
or debrominate this discharge as applicable. As a result of these 
comments, EPA has authorized the direct discharge of pool and spa 
water, provided it is dechlorinated and debrominated (as applicable), 
the vessel is underway at least 6 knots, and the permittee monitors the 
effluent before every discharge event. See Part 7.1 and 7.2 of the VGP 
fact sheet for additional discussion of these requirements.
Discharge of Untreated Graywater within 1nm of Shore or Nutrient 
Impaired Waters
    EPA requested comment on whether the proposed prohibition on 
discharges of untreated graywater within 1 nm of shore for large and 
medium cruise ships, and into nutrient-impaired waters such as the 
Chesapeake Bay for large cruise ships, is appropriate and whether EPA's 
economic analyses are accurate.
    Comments received on this issue were split, with commenters both 
supporting the prohibition on discharges of untreated graywater within 
1nm of shore and nutrient impaired estuaries as well as opposing the 
requirements as too stringent or burdensome. Primarily, several 
comments raised concern about

[[Page 79480]]

certain medium cruise ships which are unable to travel more than 1nm 
from shore, whether due to geographic constraints, such as traveling on 
inland waters, or restrictions on the vessel based on the license 
issued by the U.S. Coast Guard. In response to these comments, the 
final permit changes the permit conditions for medium cruise ships that 
are unable to travel outside 1nm. Medium cruise ships constructed after 
the issuance of this permit must meet the same permit conditions as 
those that are able to travel outside 1nm from shore. Additionally, 
medium cruise ships which undergo a major renovation must also meet the 
same permit conditions as those able to travel more than 1 nm from 
shore.
Graywater Treatment Standards for Large Ferries
    EPA requested comment on whether large ferries should be subject to 
additional graywater treatment standards similar to those proposed for 
medium and large cruise ships.
    EPA received comments that both supported and opposed adding 
graywater treatment standards similar to the requirements for large 
cruise ships to the requirements for large ferries. No additional 
supporting data for either approach was submitted during the comment 
period. In the final permit, EPA has not altered the proposed permit 
requirements for large ferries.

IV. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    The legal question of whether a general permit (as opposed to an 
individual permit) qualifies as a ``rule'' or as an ``adjudication'' 
under the Administrative Procedure Act (APA) has been the subject of 
periodic litigation. In a recent case, the court held that the CWA 
Section 404 Nationwide general permit before the court did qualify as a 
``rule'' and therefore that the issuance of the general permit needed 
to comply with the applicable legal requirements for the issuance of a 
``rule.'' National Ass'n of Home Builders v. U.S. Army Corps of 
Engineers, 417 F.3d 1272, 1284-85 (DC Cir.2005) (Army Corps general 
permits under Section 404 of the Clean Water Act are rules under the 
APA and the Regulatory Flexibility Act; ``Each NWP [nationwide permit] 
easily fits within the APA's definition `rule' * * * As such, each NWP 
constitutes a rule * * * '').
    As EPA stated in 1998, ``the Agency recognizes that the question of 
the applicability of the APA, and thus the RFA, to the issuance of a 
general permit is a difficult one, given the fact that a large number 
of dischargers may choose to use the general permit.'' 63 FR 36489, 
36497 (July 6, 1998). At that time, EPA ``reviewed its previous NPDES 
general permitting actions and related statements in the Federal 
Register or elsewhere,'' and stated that ``[t]his review suggests that 
the Agency has generally treated NPDES general permits effectively as 
rules, though at times it has given contrary indications as to whether 
these actions are rules or permits.'' Id. at 36496. Based on EPA's 
further legal analysis of the issue, the Agency ``concluded, as set 
forth in the proposal, that NPDES general permits are permits [i.e. , 
adjudications] under the APA and thus not subject to APA rulemaking 
requirements or the RFA.'' Id. Accordingly, the Agency stated that 
``the APA's rulemaking requirements are inapplicable to issuance of 
such permits,'' and thus ``NPDES permitting is not subject to the 
requirement to publish a general notice of proposed rulemaking under 
the APA or any other law * * * [and] it is not subject to the RFA.'' 
Id. at 36497.
    However, the Agency went on to explain that, even though EPA had 
concluded that it was not legally required to do so, the Agency would 
voluntarily perform the RFA's small-entity impact analysis. Id. EPA 
explained the strong public interest in the Agency following the RFA's 
requirements on a voluntary basis: ``[The notice and comment] process 
also provides an opportunity for EPA to consider the potential impact 
of general permit terms on small entities and how to craft the permit 
to avoid any undue burden on small entities.'' Id. Accordingly, with 
respect to the NPDES permit that EPA was addressing in that Federal 
Register notice, EPA stated that ``the Agency has considered and 
addressed the potential impact of the general permit on small entities 
in a manner that would meet the requirements of the RFA if it 
applied.'' Id.
    Subsequent to EPA's conclusion in 1998 that general permits are 
adjudications, rather than rules, as noted above, the DC Circuit 
recently held that nationwide general permits under section 404 are 
``rules'' rather than ``adjudications.'' Thus, this legal question 
remains ``a difficult one'' (supra). However, EPA continues to believe 
that there is a strong public policy interest in EPA applying the RFA's 
framework and requirements to the Agency's evaluation and consideration 
of the nature and extent of any economic impacts that a CWA general 
permit could have on small entities (e.g., small businesses). In this 
regard, EPA believes that the Agency's evaluation of the potential 
economic impact that a general permit would have on small entities, 
consistent with the RFA framework discussed below, is relevant to, and 
an essential component of, the Agency's assessment of whether a CWA 
general permit would place requirements on dischargers that are 
appropriate and reasonable. Furthermore, EPA believes that the RFA's 
framework and requirements provide the Agency with the best approach 
for the Agency's evaluation of the economic impact of general permits 
on small entities. While using the RFA framework to inform its 
assessment of whether permit requirements are appropriate and 
reasonable, EPA will also continue to ensure that all permits satisfy 
the requirements of the Clean Water Act.
    Accordingly, EPA has committed that the Agency will operate in 
accordance with the RFA's framework and requirements during the 
Agency's issuance of CWA general permits (in other words, the Agency 
commits that it will apply the RFA in its issuance of general permits 
as if those permits do qualify as ``rules'' that are subject to the 
RFA). In satisfaction of this commitment, during the course of this VGP 
proceeding, the Agency conducted the analysis and made the appropriate 
determinations that are called for by the RFA. In addition, and in 
satisfaction of the Agency's commitment, EPA will apply the RFA's 
framework and requirements in any future issuance of other NPDES 
general permits. EPA anticipates that for most general permits the 
Agency will be able to conclude that there is not a significant 
economic impact on a substantial number of small entities. In such 
cases, the requirements of the RFA framework are fulfilled by including 
a statement to this effect in the permit fact sheet, along with a 
statement providing the factual basis for the conclusion. A 
quantitative analysis of impacts would only be required for permits 
that may affect a substantial number of small entities, consistent

[[Page 79481]]

with EPA guidance regarding RFA certification.\1\
---------------------------------------------------------------------------

    \1\ EPA's current guidance, entitled Final Guidance for EPA 
Rulewriters: Regulatory Flexibility Act as Amended by the Small 
Business Regulatory Enforcement and Fairness Act, was issued in 
November 2006 and is available on EPA's Web site: http://
www.epa.gov/sbrefa/documents/rfafinalguidance06.pdf. After 
considering the Guidance and the purpose of CWA general permits, EPA 
concludes that general permits affecting less than 100 small 
entities do not have a significant economic impact on a substantial 
number of small entities.
---------------------------------------------------------------------------

V. Analysis of Economic Impacts of VGP and RGP

    EPA determined that, in consideration of the discussion in Section 
IV above, the issuance of the VGP may have the potential to affect a 
substantial number of small entities. Therefore, in order to determine 
what, if any, economic impact this permit may have on small businesses, 
EPA conducted an economic assessment of these general permits. This 
economic analysis is included in the records for these permits. Based 
on this assessment, EPA concludes that despite a minimal economic 
impact on all entities, including small businesses, this permit is not 
likely to have a significant economic impact on a substantial number of 
small entities.
    Including the ballast water and other discharge requirements, the 
draft economic impact analysis indicates that the best management 
practices in this permit would cost between $ 6.7 million and $16.7 
million annually. Including paperwork requirements, the permit is 
estimated to cost between $7.7 and $21.9 million dollars annually for 
domestic vessels. Including estimates of ballast water costs for 
foreign vessels, the permit is expected to cost between $8.9 and $23.0 
million dollars annually. Depending upon sector (vessel type), median 
costs per firm range from $1 to $795 in the low-end assumptions and 
from $5 to $1,967 in the high-end assumptions (excluding median values 
from commercial fishing vessels which are expected to be $0). Costs for 
the 95th percentile range from $7 for the Deep Sea Coastal and Great 
Lakes Passenger Vessels to $20,355 for marine cargo handling under low-
end cost estimates and from $88 to $35,190 for the same vessel classes 
for high-end cost estimates (see table 7.1 of the economic assessment 
cost estimates across vessel classes). EPA applied a cost-to-revenue 
test which calculates annualized pre-tax compliance cost as a 
percentage of total revenues and used a threshold of 1 and 3 percent to 
identify entities that would be significantly impacted as a result of 
this Permit. The total number of entities expected to exceed a 1% cost 
ratio ranges from 213 under low cost assumptions to 308 under high cost 
assumptions. Of this universe, the total number of entities expected to 
exceed a 3% cost ratio ranges from 55 under low cost assumptions to 73 
under high cost assumptions. The total universe that would be affected 
by this permit includes approximately 61,000 domestic flagged vessels 
and 8,000 foreign flagged vessels. Accordingly, EPA concludes that this 
permit is unlikely to result in a significant economic impact on any 
businesses and in particular, small businesses. The economic analyses 
are available in the record for these permits.

VI. Paperwork Reduction Act

    The information collection requirements in this permit have been 
submitted for approval to the Office of Management and Budget (OMB) 
under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. as part of 
the NPDES Consolidated ICR. On September 28, 2008 EPA published the 
first public notice of this ICR under the OMB number 2040-0004 and on 
December 17, 2008, EPA published the final public notice for a 30 day 
comment period. The information collection requirements for this permit 
are not enforceable until OMB approves the ICR.
    This information must be collected in order to appropriately 
administer and enforce the terms and conditions of the Vessel General 
Permit. This information collection is mandatory as authorized by Clean 
Water Act Section 308 and all information collected will be treated as 
Confidential Business Information (CBI).
    The information collection burden for the paperwork collection 
requirements of this permit is estimated to be 135,693 hours per year, 
which represents a burden of 0.64 hours per response per year, 
multiplied by a total of 210,759 responses per year from 65,625 
respondents (Note: to ensure that an adequate number of burden hours 
are requested, the number of respondents is slightly higher than the 
estimated 61,000 domestically flagged vessels identified in the 
economic analysis that would be affected by this permit). The frequency 
of responses varies, but includes every five years, annual, quarterly, 
and occasionally/as needed, depending on the specific reporting 
requirements. No reporting and record keeping costs beyond labor costs 
are estimated for this permit.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR Part 9. When this ICR is 
approved by OMB, the Agency will publish a technical amendment to 40 
CFR Part 9 in the Federal Register to display the OMB control number 
for the approved information collection requirements contained in this 
final permit.

    Authority: Clean Water Act, 33 U.S.C. 1251 et seq.

    Dated: December 18, 2008.
Robert W. Varney,
Regional Administrator, EPA Region 1.
    Dated: December 18, 2008.
Barbara A. Finazzo,
Director, Division of Environmental Planning and Protection, EPA Region 
2.
    Dated: December 18, 2008.
Carl-Axel P. Soderberg,
Division Director, Caribbean Environmental Protection Division, EPA 
Region 2.
    Dated: December 18, 2008.
Jon M. Capacasa,
Director, Water Protection Division, EPA Region 3.
    Dated: December 18, 2008.
James D. Giattina,
Director, Water Protection Division, EPA Region 4.
    Dated: December 18, 2008.
Peter Swenson,
Acting Director, Water Division, Water Division, EPA Region 5.
    Dated: December 18, 2008.
William K. Honker,
Acting Director, Water Quality Protection Division, EPA Region 6.
    Dated: December 18, 2008.
William A. Spratlin,
Director Water, Wetlands and Pesticides Division, EPA Region 7.
    Dated: December 18, 2008.
Eddie A. Sierra,
Acting Assistant Regional Administrator, Office of Partnerships and 
Regulatory Assistance, EPA Region 8.
    Dated: December 18, 2008.
Nancy Woo,
Associate Director, Water Division, EPA Region 9.
    Dated: December 18, 2008.
Michael Gearheard,
Director, Office of Water and Watersheds, EPA Region 10.

 [FR Doc. E8-30816 Filed 12-24-08; 8:45 am]

BILLING CODE 6560-50-P