E8-11700. Definition of Marine Debris for Purposes of the Marine Debris Research, Prevention, and Pollution Act

AGENCIES:

National Ocean Service (NOS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce; Coast Guard, Department of Homeland Security.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

NOAA and the Coast Guard propose to define marine debris for purposes of the Marine Debris Research, Prevention, and Reduction Act. NOAA and the Coast Guard propose a joint definition of marine debris. Interested parties may submit comments on this proposed rule.

DATES:

Comments and related material must be received by July 28, 2008.

ADDRESSES:

Comments and related material received from the public, as well as documents mentioned in this preamble as being available in the docket, are part of docket USCG-2007-0164. When submitting comments, please indicate whether your comments are directed to the Coast Guard, NOAA, or both, and include in the subject line “Comments on marine debris definition”. To avoid duplication, please use only one of the following methods to comment. Comments received by any of these methods will be posted on the docket and will be available for review at http://www.regulations.gov:

Coast Guard

(1) Online: http://www.regulations.gov. Follow the instructions for submitting comments to docket USCG-2007-0164.

(2) Mail: Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001.

(3) Hand delivery: Room W12-140 on the Ground Floor of the West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.

(4) Fax: [phone].

NOAA

(1) On-line: http://www.regulations.gov. Follow the instructions for submitting comments to docket USCG-2007-0164.

(2) E-mail: NOAA.MarineDebris.FRNcomments.noaa.gov.

(3) Mail: NOAA Ocean Service, Office of Response and Restoration, N/ORR, 1305 East-West Hwy., Silver Spring, MD 20910 c/o Dr. Holly A. Bamford.

(5) Fax: [phone].

FOR FURTHER INFORMATION CONTACT:

If you have questions on this proposed rule, call:

NOAA: Dr. Holly A. Bamford, NOAA Marine Debris Program at [phone].

Coast Guard: LTJG David Major, Environmental Standards Division at [phone].

If you have questions on viewing or submitting material to the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone [phone].

SUPPLEMENTARY INFORMATION:

The proposed rule would define the term ‘marine debris' for purposes of the Marine Debris Research, Prevention, and Reduction Act (the Act). The definition was developed jointly by the National Oceanic and Atmospheric Administration (NOAA) and the United States Coast Guard (Coast Guard), in consultation with the Interagency Marine Debris Coordinating Committee (IMDCC).

The proposed rule defining marine debris states: “For the purposes of the Marine Debris Research, Prevention, and Reduction Act (33 U.S.C. 1951-1958 (2006)) only, marine debris is defined as any persistent solid material that is manufactured or processed and directly or indirectly, intentionally or unintentionally, disposed of or abandoned into the marine environment or the Great Lakes.”

I. Public Participation and Request for Comments

We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted, without change, to http://www.regulations.gov and will include any personal information you have provided. The Coast Guard has an agreement with the Department of Transportation (DOT) to use the Docket Management Facility. Please see DOT's “Privacy Act” paragraph below.

A. Submitting Comments

If you submit a comment, please include the docket number for this rulemaking (USCG-2007-0164), indicate the specific section of this document to which each comment applies, and give the reason for each comment. The Coast Guard recommends that you include your name and a mailing address, an e-mail address, or a phone number in the body of your document so that the Coast Guard can contact you if they have questions regarding your submission. You may submit your comments and material by electronic means, mail, fax, or delivery to the Docket Management Facility at the address under ADDRESSES; but please submit your comments and material by only one means. If you submit them by mail or delivery, submit them in an unbound format, no larger than 81/2 by 11 inches, suitable for copying and electronic filing. If you submit them by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. The Coast Guard and NOAA will consider all comments and material received during the comment period. They may change this proposed rule in view of them.

B. Viewing Comments and Documents

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov at any time, click on “Search for Dockets,” and enter the docket number for this rulemaking (USCG-2007-0164) in the Docket ID box, and click enter.

C. Privacy Act

Anyone can search the electronic form of all comments received into the docket by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review the Department of Transportation's Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477), or you may visit http://DocketsInfo.dot.gov.

D. Public Meeting

The Coast Guard and NOAA do not now plan to hold a public meeting. But you may submit a request for one to the Docket Management Facility at the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register.

II. Acronyms

IMDCC Interagency Marine Debris Coordinating Committee

MARPOL 73/78 International Convention for the Prevention of Pollution from Ships, 1973, as modified by the protocol of 1978

NEPA National Environmental Policy Act

NOAA National Oceanic and Atmospheric Administration

NOS National Ocean Service

§ Section

III. Background and Purpose

The quantity of marine debris has increased over the years in spite of both domestic and international efforts to minimize it. As society develops new uses for materials, in particular plastics, the variety and quantity of items found in the marine environment has increased dramatically. These products range from common domestic material (e.g. bags, cups, bottles, balloons) to industrial products (e.g. strapping bands, plastic sheeting, hard hats, resin pellets) to lost or discarded fishing gear (e.g. nets, buoys, traps, lines, light sticks). Modern fishing gear (e.g. nets, lines, pots, and other recreational or commercial fishing equipment) is generally made of synthetic materials and metal, and can persist when disposed of, abandoned, or discarded in the marine environment.

In 2005, Congress instructed NOAA to create a centralized program within the agency to coordinate existing activities related to marine debris and to develop effective strategies for research, prevention, and reduction of marine debris. Subsequently, in 2006, Congress passed the Marine Debris Research, Prevention, and Reduction Act (the Act) (33 U.S.C. 1951-1958 (2006)), the purposes of which include to identify, determine the sources of, assess, reduce, and prevent marine debris and its adverse impacts on the marine environment and navigation safety. The Act also reactivated the Interagency Marine Debris Coordinating Committee (IMDCC), an interagency Federal body responsible for developing and recommending comprehensive and multi-disciplinary approaches to reduce the sources and impacts of marine debris to the nation's marine environment, natural resources, public safety, and economy. The IMDCC meets quarterly to ensure coordination of research, monitoring, education, and regulatory actions addressing the persistent marine debris problem. The Act requires NOAA and the Coast Guard to consult with the IMDCC on the development of this proposed definition of marine debris. Furthermore, the Act requires NOAA to develop a federal marine debris clearinghouse to make accessible the most recent information on marine debris including prevention and reduction strategies, literature on marine debris impacts, and outreach and education material for multiple audiences.

The Act makes permanent a Marine Debris Prevention and Removal Program within NOAA (NOAA Program) which, among other things, is aimed at reducing and preventing the occurrence and adverse impacts of marine debris on the marine environment and navigational safety. The NOAA Program includes mapping, identification, impact assessment, removal, and prevention of marine debris with a focus on threats to living marine resources including commercial fisheries, species protected under the Endangered Species Act and Marine Mammal Protection Act, and the habitat upon which they depend. The NOAA Program is also intended to include use of non-regulatory approaches to reduce and prevent the loss of fishing gear, including the development of local or regional protocols for lost gear reduction and prevention. Such measures could include new gear technology, incentives to reduce the risk of lost gear, outreach and education, and other non-regulatory measures to cooperatively minimize the volume of lost and discarded fishing gear and to aid in its recovery. The Act authorizes NOAA to provide grants to entities whose activities affect research or regulation of marine debris and entities with expertise in a field related to marine debris.

The Act requires the Coast Guard to enforce the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the 1978 Protocol (MARPOL 73/78), Annex V and the Act to Prevent Pollution from Ships, 33 U.S.C. 1901-1915 (1996). The Coast Guard will continue to monitor and enforce the requirements of these acts among the appropriate regulated industries and communities. The Coast Guard also intends to maintain its voluntary reporting program, to report damage to vessels and disruption to navigation caused by marine debris and increase international cooperation to reduce marine debris. The Act also requires the Coast Guard to submit to Congress a report evaluating the Coast Guard's progress on these initiatives. In addition, the Act requires the Coast Guard to obtain a report from the National Research Council on the effectiveness of international and domestic measures to prevent and reduce marine debris and its impacts. The Coast Guard is actively working to fulfill these requirements.

IV. Discussion of Proposed Rule

The Act requires NOAA and the Coast Guard, in consultation with the IMDCC, to “jointly develop and promulgate through regulations a definition of the term ‘marine debris', [f]or the purposes of the Act.” 33 U.S.C. 1954(b)(2006). The Act expressly limits the application of the definition of marine debris to the implementation and requirements of the Act. The Act does not authorize NOAA or the Coast Guard to undertake regulatory actions other than the promulgation of this definition, and the proposed definition of marine debris does not affect the regulatory or management activities of other federal agencies.

NOAA and the Coast Guard worked together to develop the proposed definition and considered both agencies' responsibilities under the Act when developing the proposed definition. NOAA and the Coast Guard are committed to continuing to work together to jointly develop any future revisions of the definition of marine debris for the purposes of the Act.

Generally, the term “marine debris” has a variety of meanings to the many entities working in and affecting the marine environment. The proposed definition, however, focuses on solid debris from both land-based and ocean-based sources and its adverse impacts on the marine environment and navigation safety. While alternative definitions were considered, the proposed definition would allow NOAA to consider the broadest possible range of marine debris projects for funding pursuant to the Act while providing the Coast Guard sufficient parameters to conduct useful and focused studies and reports required by the Act.

As required by the Act, NOAA and the Coast Guard consulted with the IMDCC during the development of the definition of marine debris in this proposed rule. Among the comments received from IMDCC members was a suggestion to include the phrase “unauthorized” in the definition in order to exclude those materials explicitly permitted to be discharged into the marine environment.

NOAA and the Coast Guard decided not to include the term “unauthorized” in the proposed definition because it would inappropriately narrow the definition. Such a limited definition would be inconsistent with the objectives of the Act, which are to identify, determine the sources of, assess, reduce, and prevent the full range of marine debris and its adverse effects on the marine environment and navigation safety. Several laws, such as the Act to Prevent Pollution from Ships, and the Ocean Dumping Act, allow the discharge, disposal or placement of persistent material into the ocean that could be considered “marine debris” as defined in this regulation. Authorities to dispose of or abandon material that is otherwise authorized by law, and may be considered marine debris as defined in this regulation, are not prohibited from disposal or otherwise affected by the programs implemented pursuant to the Act or the promulgation of this definition.

Some IMDCC members also commented that the definition of marine debris should be limited to debris with adverse effects on the marine environment. NOAA and the Coast Guard chose not to include this limitation because it would restrict opportunities to conduct research projects where the adverse impacts of marine debris are already known to be harmful and limit opportunities for conducting research where impacts are unknown or uncertain. Limiting the range of research opportunities in this way would diminish the ability of NOAA and the Coast Guard to fulfill the objectives of the Act.

Promulgation of this definition will help fulfill the requirements of the Act and define the scope of the NOAA and Coast Guard programs pursuant to the Act. The NOAA Program will meet the objectives of the Act through coordination with the Coast Guard, the IMDCC, other Federal agencies, across NOAA line offices, and through partnerships with State and local governments, non-governmental organizations, universities, and marine related industries, particularly the fishing industry and the Regional Fishery Management Councils. The implementation of the Act will contribute to accomplishing NOAA's mission to promote marine ecosystem health, commerce, and transportation.

V. Regulatory Evaluation

We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analysis based on these statutes and executive orders.

A. Executive Order 12866

This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.

B. Regulatory Flexibility Act

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. Under the Regulatory Flexibility Act (5 U.S.C. 601-612), the Coast Guard has considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The factual basis for this certification is set forth below.

Under 33 U.S.C. 1954, NOAA and the Coast Guard, in consultation with the Interagency Marine Debris Coordinating Committee (IMDCC), are required to promulgate jointly a definition of “marine debris” for the purposes of the Act. This proposed rule is relevant only to the scope and implementation of the NOAA and Coast Guard programs established by the Act and does not regulate any on-going activities. It serves only to define the scope of the grants and other cooperative funding that may be available through NOAA to federal and non-federal entities. The Coast Guard program provides for the Coast Guard to take certain actions in consultation with the IMDCC, pertaining to compliance with MARPOL Annex V and development and implementation of a plan to improve ship-board waste management, as well as actions to improve international cooperation to reduce marine debris and establish a voluntary marine debris reporting program for vessel operators. The NOAA program provides for NOAA, subject to available funding, to carry out activities with regard to the mapping, identification, impact assessment, removal and prevention of marine debris, as well as improve efforts to reduce and prevent the loss of fishing gear and outreach and education of the public. The Act further establishes a grant program administered by NOAA and makes funding opportunities available to non-federal entities, including private and public entities, to conduct activities that fulfill the requirements of the Act.

Therefore, the Coast Guard and NOAA certify under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment through one of the mechanisms listed in the ADDRESSES section. In your comment, explain why you think it qualifies and how and to what degree this rule would economically affect it.

C. Collection of Information

This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

D. Federalism

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism.

E. Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

F. Taking of Private Property

This proposed rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

G. Civil Justice Reform

This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

H. Protection of Children

We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.

I. Indian Tribal Governments

This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

J. Energy Effects

We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

K. Technical Standards

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. If you are aware of voluntary consensus standards that might apply but are not listed, please identify them in a comment to the Docket Management Facility at the address under ADDRESSES and explain why they should be used.

L. National Environmental Policy Act

The Coast Guard has analyzed this proposed rule under Commandant Instruction M16475.lD which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and NOAA has analyzed the proposed rule under NOAA Administrative Order 216-6, which sets forth NOAA's environmental review procedures for implementing NEPA. NOAA and the Coast Guard have made a preliminary determination this action is not likely to have a significant effect on the human environment.

A preliminary Coast Guard “Environmental Analysis Check List” supporting this preliminary determination is available in the docket where indicated under the “Public Participation and Request for Comments” section of this preamble. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule. This proposed rule has no expected direct, indirect or cumulative impacts for the purposes of NEPA and is not likely to have a significant effect on the human environment. The proposed rule does not regulate any on-going activities and serves only to define the scope of the grants and other cooperative funding that may be available through NOAA to federal and non-federal entities.

M. Department of Commerce Docket Number

The clearance docket number for the Department of Commerce is: 070615197-7864-02.

NOAA signature,

Dated: March 14, 2008.

John H. Dunnigan,

Assistant Administrator for Ocean Services and Coastal Zone Management.

Coast Guard signature,

Dated: May 19, 2008.

B.M. Salerno,

RADM, Coast Guard, Assistant Commandant for Marine Safety, Security and Stewardship.

List of Subjects

15 CFR Part 909

• Marine resources
• Marine debris
• Marine pollution
• Ocean dumping

33 CFR Part 151

• Administrative practice and procedure
• Oil pollution
• Penalties
• Reporting and recordkeeping requirements, and Water pollution control

For the reasons discussed in the preamble, NOAA proposes to add 15 CFR part 909 and the Coast Guard proposes to amend 33 CFR part 151 as follows:

1. 15 CFR part 909 is added to read as follows:

PART 909—MARINE DEBRIS

909.1

Definition of marine debris for the purposes of the Marine Debris Research, Prevention, and Reduction Act.

Authority: 33 U.S.C. 1951-1958 (2006).

§ 909.1

Definition of marine debris for the purposes of the Marine Debris Research, Prevention, and Reduction Act.

(a) Marine debris. For the purposes of the Marine Debris Research, Prevention, and Reduction Act (33 U.S.C. 1951-1958 (2006)) only, marine debris is defined as any persistent solid material that is manufactured or processed and directly or indirectly, intentionally or unintentionally, disposed of or abandoned into the marine environment or the Great Lakes.

(b) NOAA and the Coast Guard have jointly promulgated the definition of marine debris in this part. Coast Guard's regulation may be found in 33 CFR 151.3000.

PART 151—VESSELS CARRYING OIL, NOXIOUS LIQUID SUBSTANCES, GARBAGE, MUNICIPAL OR COMMERCIAL WASTE, AND BALLAST WATER

2. Add subpart E, to part 151 to read as follows:

Subpart E—Definition of Marine Debris for the Purposes of the Marine Debris Research, Prevention, and Reduction Act

Authority: 33 U.S.C. 1951-1958 (2006); 33 CFR 1.05-1; Department of Homeland Security Delegation No. 0170.1.

§ 151.3000

Definition of Marine Debris for the purposes of the Marine Debris Research, Prevention, and Reduction Act.

(a) Marine debris. For the purposes of the Marine Debris Research, Prevention, and Reduction Act (33 U.S.C. 1951-1958 (2006)) only, marine debris is defined as any persistent solid material that is manufactured or processed and directly or indirectly, intentionally or unintentionally, disposed of or abandoned into the marine environment or the Great Lakes.

(b) NOAA and the Coast Guard have jointly promulgated the definition of marine debris in this part. NOAA's regulation may be found in 15 CFR 909.