
[Federal Register: May 27, 2008 (Volume 73, Number 102)]
[Proposed Rules]               
[Page 30322-30326]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27my08-14]                         

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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: 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: 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

[[Page 30325]]

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

[[Page 30326]]

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.

    (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.

 [FR Doc. E8-11700 Filed 5-23-08; 8:45 am]

BILLING CODE 3510-JE-P
