[Federal Register Volume 74, Number 219 (Monday, November 16, 2009)]
[Proposed Rules]
[Pages 58923-58926]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-27453]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 922

[Docket No. 090122044-91248-01]
RIN 0648-AX58


Marine Sanitation Device Discharge Regulations for the Florida 
Keys National Marine Sanctuary

AGENCY: Office of National Marine Sanctuaries (ONMS), National Oceanic 
and Atmospheric Administration (NOAA), Department of Commerce (DOC).

ACTION: Proposed rule; request for public comments.

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SUMMARY: NOAA proposes to amend the regulations implementing the 
Florida Keys National Marine Sanctuary (FKNMS or sanctuary) to 
eliminate the exemption that allows discharges of biodegradable 
effluent incidental to vessel use and generated by marine sanitation 
devices, and to require marine sanitation devices be locked to prevent 
discharges. This action builds upon the Environmental Protection 
Agency's creation of a no discharge zone for the state waters of the 
FKNMS. This action will help protect the Florida Keys ecosystem from 
potentially harmful vessel sewage discharges and will eliminate at 
least one contributing factor to declining water quality within the 
FKNMS. Improved water quality is necessary for the maintenance and 
enhancement of the sanctuary's biological resources, as well as of the 
recreational opportunities they provide. A draft environmental 
assessment has been prepared for this proposed action pursuant to the 
National Environmental Policy Act.

DATES: Comments on the proposed rule and the draft environmental 
assessment will be accepted if received on or before February 17, 2010.

ADDRESSES: Comments may be submitted by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Submit electronic comments via the Federal eRulemaking Portal, FDMS 
Docket Number NOAA-NOS-2009-0181;
     Mail: Sean Morton, Acting Superintendent, Florida Keys 
National Marine Sanctuary, 33 East Quay Road, Key West, Florida 33040.
     Instructions: All comments received are a part of the 
public record and will be generally posted to http://www.regulations.gov without change. All Personal Identifying 
Information (for example, name, address, etc.) voluntarily submitted by 
the commenter may be publicly accessible. Do not submit confidential 
business information or otherwise sensitive or protected information. 
NOAA will accept anonymous comments (enter N/A in the required fields 
to remain anonymous). Attachments to electronic comments will be 
accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file 
formats only. Comments will be posted at the end of the public comment 
period.
    The draft environmental assessment is available for download at 
http://floridakeys.noaa.gov/.

FOR FURTHER INFORMATION CONTACT: Sean Morton, Acting Superintendent, 
Florida Keys National Marine Sanctuary, 33 East Quay Road, Key West, 
Florida 33040.

SUPPLEMENTARY INFORMATION:
    Electronic Access:
    This Federal Register document is also accessible via the Internet 
at [INSERT GPO ACCESS URL].

Statutory and Regulatory History of the FKNMS

    The National Marine Sanctuaries Act (NMSA) (16 U.S.C. 1431 et seq.) 
authorizes the Secretary of Commerce to designate and protect areas of 
the marine environment with special national significance due to their 
conservation, recreational, ecological, historical, scientific, 
cultural, archeological, educational, or esthetic qualities as national 
marine sanctuaries. Management of national marine sanctuaries has been 
delegated by the Secretary of Commerce to NOAA's Office of National 
Marine Sanctuaries. The primary objective of the NMSA is to protect 
marine resources, such as coral reefs, sunken historical vessels or 
unique habitats.
    The FKNMS was designated by Congress in 1990 through the Florida 
Keys National Marine Sanctuary Protection Act (FKNMSPA, Pub. L. 101-
605) and extends approximately 220 nautical miles southwest from the 
southern tip of the Florida peninsula, and is composed of both state 
and Federal waters. The sanctuary's marine ecosystem supports over 
6,000 species of plants, fishes, and invertebrates, including the 
Nation's only living coral reef that lies adjacent to the continent. 
The area includes one of the largest seagrass communities in this 
hemisphere. The primary goal of the sanctuary is to protect the marine 
resources of the Florida Keys.
    Other goals of the sanctuary include facilitating human uses that 
are consistent with the primary objective of resource protection as 
well as educating the public about the Florida Keys marine environment. 
Attracted by this subtropical diversity, tourists spend more than 
thirteen million visitor days in the Florida Keys each year. In 
addition, the region's natural and man-made resources provide 
recreation and livelihoods for approximately 80,000 residents. The 
region also has some of the most significant maritime heritage and 
historical resources of any coastal community in the nation.
    NOAA issued final regulations and a final management plan in 1997 
for the FKNMS (62 FR 32161; June 12, 1997). Those regulations were 
designed to protect the fragile and nationally significant marine 
resources of the Florida Keys ecosystem. In doing so, these regulations 
established a series of fully protected marine zones, managed certain 
human activities, and established a permitting system for allowing some 
activities that would otherwise be prohibited. Sanctuary-wide 
prohibitions include restrictions on discharges into the sanctuary, 
disturbing the seafloor of the sanctuary, and taking certain marine 
species.
    Currently, NOAA prohibits vessels from discharging or depositing 
materials or other matter in the sanctuary (15 CFR 922.163(a)(4)). 
Exceptions to this prohibition include discharging or depositing: (1) 
Fish, fish parts, and bait during traditional fishing operations; (2) 
cooling water or engine exhaust; (3) water generated by routine vessel 
operations (e.g., deck wash and graywater), excluding oily wastes from 
bilge pumping; and (4) biodegradable effluent from marine sanitation 
devices. However, in certain protected zones within the sanctuary, 
including

[[Page 58924]]

Ecological Reserves, Sanctuary Preservation Areas, and Research-only 
Areas, only discharges of engine exhaust and cooling water are allowed.
    In addition to NOAA, the U.S. Environmental Protection Agency 
(EPA), National Park Service, U.S. Coast Guard, the State of Florida, 
and local municipalities (e.g., City of Key West, Marathon) also have 
regulations governing MSDs and vessel discharges within the Florida 
Keys region.

Proposed Rule Background

    Water quality in the Florida Keys has been a long-standing concern. 
Under section 163.3177 of the Florida Statutes, all counties and 
municipalities throughout the State of Florida are required to develop 
and adopt a comprehensive plan that address principles, guidelines, and 
standards for balancing future economic, social, physical, 
environmental, and fiscal development of the area. In addition, local 
governments can use local comprehensive plans to conserve, develop, 
utilize, and protect natural resources within their jurisdictions (Fla. 
Stat. Sec.  163.3161(3)). The FKNMS resides in the jurisdiction of 
Monroe County. Monroe County developed the Monroe County Comprehensive 
Plan, which includes several objectives geared toward improving and 
protecting water quality from vessel discharges.
    In 1999, the Board of County Commissioners of Monroe County adopted 
a resolution requesting that the Governor of the State of Florida 
petition the EPA to declare all waters of the State within the 
boundaries of the FKNMS to be a NDZ. A NDZ is an area of a waterbody or 
an entire waterbody into which the discharge of sewage (whether treated 
or untreated) from all vessels is completely prohibited. NDZs are 
designed to give states an additional tool to address water quality 
issues associated with sewage contamination. Monroe County believed 
that this action would be a major step in protecting water quality 
around the Keys and especially those areas where there is a high 
concentration of vessels. The Governor of the State of Florida 
supported Monroe County's decision and in December 2000 submitted the 
county's request to EPA Region 4, asking EPA to designate all state 
waters within the boundary of the FKNMS as a NDZ under the authority of 
section 312 of the Clean Water Act (33 U.S.C. 1322 et seq.).
    Section 312 of the CWA gives the EPA and states the authority to 
designate NDZs in state waters. Pursuant to the authority provided in 
Sec.  312(f)(4)(a) the CWA, in 2002, the EPA issued a final rule that 
designated the state waters of the FKNMS a NDZ (67 FR 35735; May 21, 
2002). Effective June 19, 2002, the EPA's final rule prohibited all 
sewage discharges from vessels in state waters of the FKNMS. Although 
the EPA's rule under the CWA was limited to only state waters of the 
FKNMS, EPA recognized NOAA's intention to expand the prohibition on 
sewage discharges from vessels into the federal waters of the 
sanctuary.
    In December 2007, NOAA issued a revised management plan for the 
FKNMS that was the culmination of an extensive public process. The 
management plan included a water quality action plan and regulatory 
action plan. The strategies in the water quality action plan address 
sources of pollution, priority corrective actions and compliance 
schedule, and seek to maintain and improve a balanced, indigenous 
population of corals, shellfish, fish and wildlife, and recreation in 
and on the water. In particular, water quality Strategy L.1 identified 
the need to eliminate the discharge of wastewater, whether treated or 
not, from all vessels into sanctuary waters. The regulatory action plan 
identified the designation of a sanctuary-wide no discharge zone as a 
management priority.

Summary of the Proposed Rulemaking

    This rulemaking proposes to eliminate the exemption that allows 
discharges of biodegradable effluent incidental to vessel use and 
generated by MSDs and to add a new requirement that MSDs be locked to 
prevent discharges while in the FKNMS.
    A major challenge to scientists and managers working in the Florida 
Keys and elsewhere is being able to differentiate the natural 
variability of ecosystems from human-caused disturbances. Signs of 
ecosystem stress in the Florida Keys include loss of coral cover and 
diversity, particularly at offshore bank reefs, increasing nitrogen and 
phosphorus concentrations in the near shore waters, decreased water 
clarity, and changes in the natural benthic community composition. 
Comprehensive monitoring of coral reef resources was initiated in 1996 
because of the observed but poorly quantified loss of coral cover 
throughout the Florida Keys, and has documented a 37% reduction in 
stony coral coverage between 1996 and 2000. Habitat and water quality 
degradation in canals and other semi-confined waters within the Florida 
Keys has been measured and is related to human population density.
    There are many variables to consider in assessing the impacts of 
discharges from vessels transiting Keys waters including the volume of 
discharge, level of treatment, number of vessels, depth and distance 
from shore or other sources of pollution, current patterns, and habitat 
type at the discharge point. For example, the dilution of wastewater 
from a single vessel transiting the Keys may be great, but the 
discharge may not cause serious ecological problems and may not be 
detectable within a short distance from the point of discharge. 
However, the cumulative impact of discharges from many transiting 
vessels could significantly and negatively impact the sanctuary.
    In response to an increasing boating population, and the resulting 
higher discharge potential in south Florida, NOAA proposes to prohibit 
discharges of biodegradable effluent incidental to vessel use and 
generated by MSDs from all vessels while in the sanctuary. Recent data 
show a continued upward trend in the number of registered boaters in 
southern Florida, which would suggest an increased potential of 
transient visits to the Florida Keys and discharge in the FKNMS. The 
potential impacts are increased if the transiting vessels discharge in 
close proximity to coral reef or seagrass habitats. In consideration of 
the ever increasing boating population (discharge potential) in south 
Florida, the status quo is not compatible with long-term marine 
ecosystem protection strategies. NOAA considered an alternative that 
would allow vessels to discharge at various locations within the FKNMS, 
however this alternative was rejected as it may lead to confusion among 
boaters and enforcement problems. Thus, the prudent and expedient 
course of action is to eliminate all discharges of wastewater from all 
vessels in the FKNMS.
    If this rule is implemented, vessels would have to use a pump out 
station or discharge biodegradable effluent beyond the boundaries of 
the sanctuary. Florida boaters are already familiar with using pump out 
stations. Since discharges are prohibited in the EPA NDZ for the state 
waters of the FKNMS, many boaters already utilize the 38 pump out 
stations in the Florida Keys. In addition, access to pump out 
facilities is expected to increase due to additional funding under the 
Clean Water Act.
    NOAA is proposing to require that all vessels secure MSDs while in 
the boundaries of the FKNMS. This requirement would achieve the goal of 
helping to protect the Florida Keys ecosystem by prohibiting the 
discharge of potentially harmful vessel sewage because it would enhance 
the

[[Page 58925]]

enforceability of the prohibition. Without this requirement, 
enforcement personnel would have to witness the discharge of 
biodegradable effluent. The probability that personnel would be present 
at the exact moment of discharge is beyond reasonable expectations. In 
addition, although NDZ designation by EPA does not specifically require 
that MSDs be in a locked position, the final rule designating the state 
waters of the FKNMS as a NDZ does state that MSDs should be secured to 
prohibit discharge while navigating within the NDZ. Specifically, ``The 
NDZ designation would not cause existing Type 1 and 2 MSDs to be in 
violation by their mere presence onboard the vessel. However, it would 
be illegal for vessel operators to discharge from these devices while 
inside the NDZ. Type 1 and 2 MSDs should be secured to prohibit 
discharge while navigating or otherwise situated within the NDZ'' (67 
FR 35740). If this rule were implemented, all vessels in the sanctuary 
would have to secure MSDs to prevent discharges of biodegradable 
effluent into the sanctuary.

Classification

National Environmental Policy Act

    A draft environmental assessment (EA) has been prepared to evaluate 
the proposed rulemaking. NOAA proposes to prohibit discharges of 
biodegradable effluent incidental to vessel use and generated by MSDs 
in the entire FKNMS and to require MSDs be locked. This action will 
eliminate at least one contributing factor to declining water quality 
within the FKNMS. Improved water quality is necessary for the 
maintenance and enhancement of the sanctuary's biological resources, as 
well as of the recreational opportunities they provide. The no action 
alternative would continue the discharge of treated sewage from MSDs 
into the federal waters of the FKNMS and will continue to contribute to 
the decline of water quality. Poor water quality threatens not only the 
unique biological resources of the FKNMS, but also the viability of the 
local economy, which depends on the ability of these resources to 
attract visitors. Copies of the EA are available at the address and Web 
site listed in the ADDRESSES section of this proposed rule. Responses 
to comments received on this proposed rule will be published in the 
final environmental assessment and preamble to the final rule.

Executive Order 12866: Regulatory Impact

    This proposed rule has been determined to be not significant within 
the meaning of Executive Order 12866.

Executive Order 13132: Federalism Assessment

    NOAA has concluded this regulatory action does not have federalism 
implications as that term is defined under Executive Order 13132.

Paperwork Reduction Act

    This rule does not contain any new or revisions to the existing 
information collection subject to the requirements of the Paperwork 
Reduction Act of 1980, 44 U.S.C. 3501 et seq. Notwithstanding any other 
provision of the law, no person is required to respond to, nor shall 
any person be subject to a penalty for failure to comply with, a 
collection of information subject to the requirements of the PRA, 
unless that collection of information displays a currently valid OMB 
Control Number.

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 (SBA) that this proposed rule, if adopted, would not 
have a significant economic impact on a substantial number of small 
entities. The factual basis for this certification is analyzed in the 
EA and is summarized as follows:
    In response to an increasing boating population, and the resulting 
higher discharge potential, in south Florida, NOAA proposes to prohibit 
discharges of biodegradable effluent incidental to vessel use and 
generated by MSDs, and to add a new requirement that MSDs be locked to 
prevent discharges while in the FKNMS from all vessels in the 
sanctuary.
    There were 25,370 pleasure and 2,653 commercial vessels registered 
in Monroe County in 2007. Since no studies exist on transient vessels 
in the Florida Keys, these registrations represent the approximate 
population of vessels that utilize the Florida Keys. For purposes of 
this analysis, only commercial vessels will be analyzed since pleasure 
vessels are not considered small entities under the Regulatory 
Flexibility Act. Of the total number of commercial vessels, NOAA 
currently does not have an estimate of the number of vessels that use 
the Florida Keys that have MSDs on board. However, vessels 26 feet or 
longer with an enclosed cabin with berthing facilities (as noted in the 
Florida Clean Vessel Act) are currently required to have a holding tank 
installed. Therefore, NOAA will use this criteria to approximate the 
number of impacted entities as they are most likely to be required to 
use a pump out facility or discharge their waste outside of the 
sanctuary boundaries. But, NOAA acknowledges that the total universe of 
affected entities may be larger as there may be some unknown number of 
vessels smaller than 26 feet that may have MSDs. In Monroe County, 
1,080 of the 2,653 (40.7%) registered commercial vessels are 26 feet or 
longer. Of the 1,080 registered commercial vessels, NOAA is not able to 
estimate the number of small entities as it does not collect this data, 
and thus will consider all 1,080 vessels to be small entities.
    Any economic impact of the proposed regulation would be limited to 
those vessel operators who currently discharge sewage waste into the 
federal waters area of the FKNMS. FKNMS does not have any data on the 
number of vessels that do this as opposed to utilizing one of the 38 
pump out stations located throughout the sanctuary. FKNMS also does not 
have complete information on the number of boats that do use pump out 
stations to dispose of waste. Therefore, it is assumed that all 1,080 
estimated commercial vessels with MSDs that use the Florida Keys would 
be affected. The additional costs to those vessel operators could 
include additional fuel costs to travel to pump out stations, the cost 
of the pump outs, and the value of their travel time to the pump out 
station. Vessels 26 feet or longer with an enclosed cabin with berthing 
facilities (as noted in the Florida Clean Vessel Act) are currently 
required to have a holding tank installed. Therefore, the installation 
of that equipment would not be considered an additional cost under the 
proposed regulation.
    EPA, Florida Department of Environmental Protection, and Monroe 
County conducted a survey of the existing pump outs in the Florida Keys 
and determined that the range of costs to pump out was from $5.00 to 
$25.00, with the majority of pump out facilities charging $5.00. It is 
a condition of State grant funds that a marina that receives a grant 
for installation of pumpout facilities must charge a maximum of $5.00 
per pump out. The number of times a tank will need to be pumped out 
will depend on usage. Live-aboards will have to pump out regularly 
while less frequent boat users will need to empty the tank much less 
often. Using a range between $5 (most pump outs cost) to $10.00 (high 
end of pump out cost), and one pump out per week, results in an 
estimated annual cost of $130 to $520

[[Page 58926]]

per vessel per year. Therefore, if every registered vessel in Monroe 
County were previously discharging all waste into the federal waters as 
opposed to using a pumpout station, the annual cost to Monroe County 
boaters (assuming 1,080 vessels are affected) is expected to be 
$140,400 to $561,600. It should also be noted that pump out fees may 
qualify as a business expense and may be tax deductible for some vessel 
owners, so the actual economic impact may be less.
    The elimination of vessel discharges in the federal waters of the 
FKNMS may have a positive socioeconomic impact from improved water 
quality and healthier reefs and the indirect effects that has on the 
economy. For example, the tourist-based economy of the Florida Keys 
depends upon clean water and abundant natural resources. If vessels 
were allowed to continue to discharge the impacted area, the 
sanctuary's water quality would decrease, which would negatively impact 
the health and quantity of the sanctuary's unique biological resources, 
and ultimately impact the sanctuary as a tourist destination.
    For the reasons above, the Chief Counsel for Regulation certified 
that this rule, if adopted, would not have a significant economic 
impact on a substantial number of small entities.

John H. Dunnigan,
Assistant Administrator for Ocean Services and Coastal Zone Management.

List of Subjects in 15 CFR Part 922

    Administrative practice and procedure, Coastal zone, Fish, 
Fisheries, Historic preservation, Intergovernmental relations, Marine 
resources, Monuments and memorials, Natural resources, Wildlife, 
Wildlife refuges, Wildlife Management Areas, Sanctuary Preservation 
Areas, Ecological Reserves, Areas to be Avoided, State of Florida, U.S. 
Coast Guard.

    For the reasons above, NOAA proposes to amend title 15, part 922 of 
the Code of Federal Regulations as follows:

PART 922--NATIONAL MARINE SANCTUARY PROGRAM REGULATIONS

    1. The authority citation for part 922 continues to read as 
follows:

    Authority: 15 U.S.C. 1431 et seq.

    2. Amend Sec.  922.163 as follows:
    a. By removing paragraph (a)(4)(i)(B);
    b. By redesignating paragraphs (a)(4)(i)(C) and (a)(4)(i)(D) as 
(a)(4)(i)(B) and (a)(4)(i)(C), respectively;
    c. By adding a new paragraph (a)(5)(vi) as follows:


Sec.  922.163  Prohibited activities--Sanctuary wide.

    (a) * * *
    (5) * * *
    (vi) Having a marine sanitation device that is unlocked or that 
allows discharge or deposit of sewage.
* * * * *
[FR Doc. E9-27453 Filed 11-13-09; 8:45 am]
BILLING CODE 3510-NK-P