(a) If any State determines that the protection and enhancement of the quality of some or all of the waters within the State require greater environmental protection, the Governor of a State (or a designee) may submit an application to the Administrator to establish a regulation prohibiting one or more discharges, whether treated or not treated, into such waters subject to the application.

(b) A prohibition by the Administrator under paragraph (a) of this section shall not apply until the Administrator, in concurrence with the Secretary, reviews the State application and makes the applicable determinations described in paragraph (d) of this section and publishes a regulation establishing the prohibition.

(c) An application submitted by the State under paragraph (a) of this section shall be signed by the Governor (or a designee) and must include:

(1) A narrative explanation of the location of the proposed waters and a map delineating the boundaries of the requested prohibition using geographic coordinates;

(2) A certification that a prohibition of the discharge(s) would protect and enhance the quality of the specific waters within the State to a greater extent than the applicable Federal standard provides;

(3) A detailed analysis of the direct and indirect benefits of the requested prohibition for each individual discharge for which the State is seeking a prohibition;

(4) A table identifying the types and number of vessels operating in the waterbody and a table identifying the types and number of vessels that would be subject to the prohibition;

(5) A table identifying the location, operating schedule, draft requirements, pumpout capacity, pumpout flow rate, connections, and fee structure of each existing facility capable of servicing the vessels that would be subject to the prohibition and available to receive the prohibited discharge;

(6) A description of the wastewater handling procedures of each facility identified in paragraph (c)(5) of this section, including information on how wastewater is stored, transported, treated, and/or disposed by each facility;

(7) A map indicating the location of each stationary facility, and the coverage area of each mobile facility, identified in paragraph (c)(5) of this section within the proposed waters;

(8) A detailed analysis of the impacts to vessels subject to the prohibition, including a discussion of how these vessels may feasibly collect and store the discharge, the extent to which retrofitting may be required, costs that are incurred as a result of the discharge prohibition, and any safety implications.

(d) On application of a State, the Administrator, in concurrence with the Secretary, shall, by regulation, prohibit the discharge from a vessel of one or more discharges subject to regulation under this part, whether treated or not treated, into the waters covered by the application if the Administrator determines that:

(1) The prohibition of the discharge(s) would protect and enhance the quality of the specified waters within the State;

(2) Adequate facilities for the safe and sanitary removal and treatment of the prohibited discharge(s) are reasonably available, including taking costs into consideration, for the water and all vessels to which the prohibition would apply. A determination of adequacy shall consider, at a minimum, water depth, dock size, pumpout facility capacity and flow rate, availability of year-round operations, proximity to navigation routes, the availability of operational changes as a means to reduce the discharge, and the ratio of pumpout facilities to the population and discharge capacity of vessels operating in those waters;

(3) The discharge(s) can be safely collected and stored until a vessel reaches an appropriate facility or location for discharge;

(4) In the case of an application for the prohibition of the discharge of ballast water in port (or in any other location where cargo, passengers, or fuel are loaded and unloaded):

(i) The considerations for adequate facilities described in paragraph (d)(2) of this section apply; and

(ii) The prohibition will not unreasonably interfere with the safe loading and unloading of cargo, passengers, or fuel.

(e) The Administrator shall submit to the Secretary a request for written concurrence on a determination made to establish a prohibition.

(1) A failure by the Secretary to concur with the Administrator 60 days after the date on which the Administrator submits a request for concurrence shall not prevent the Administrator from prohibiting the discharge or discharges, subject to the condition that the Administrator shall include in the administrative record of the promulgation:

(i) Documentation of the request for concurrence; and

(ii) The response of the Administrator to any written objections received from the Secretary relating to the prohibition during the 60-day period beginning on the date of the request for concurrence.

(f) If the Administrator determines that an application meets the criteria in paragraph (c) of this section and approves the application, the Administrator shall notify the State of the tentative approval and develop a Notice of Proposed Rulemaking for transmittal to the Office of the Federal Register.