Federal Register, Volume 73 Issue 102 (Tuesday, May 27, 2008)

[Federal Register Volume 73, Number 102 (Tuesday, May 27, 2008)]
[Proposed Rules]
[Pages 30322-30326]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-11700]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 909

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 151

[USCG-2007-0164]
RIN 0648-AV68; 1625-AB24

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.

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[[Page 30323]]

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: 202-493-2251.

NOAA

(1) On-line: http://www.regulations.gov. Follow the instructions
for submitting comments to docket USCG-2007-0164.
(2) E-mail: [email protected].
(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: 301-713-4389.

FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed
rule, call:
NOAA: Dr. Holly A. Bamford, NOAA Marine Debris Program at (301)
713-2989.
Coast Guard: LTJG David Major, Environmental Standards Division at
(202) 372-1402.
If you have questions on viewing or submitting material to the
docket, call Renee V. Wright, Program Manager, Docket Operations,
telephone 202-366-9826.

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 8\1/
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
Sec. 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

[[Page 30324]]

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

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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

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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

Sec.
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).

Sec. 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.

Sec. 151.3000 Definition of Marine Debris for the purposes of the
Marine Debris Research, Prevention, and Reduction Act.

[FR Doc. E8-11700 Filed 5-23-08; 8:45 am]
BILLING CODE 3510-JE-P, 4910-15-P