[Federal Register Volume 80, Number 177 (Monday, September 14, 2015)]
[Proposed Rules]
[Pages 55078-55081]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-22723]
[[Page 55078]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 85
[Docket No: FWS-HQ-WSR-2015-0006; FVWF94100900000-XXX-FF09W11000]
RIN 1018-AW66
Clean Vessel Act Grant Program
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Advance notice of proposed rulemaking; notice of intent.
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SUMMARY: The U.S. Fish and Wildlife Service (Service) is seeking
comments to assist us in developing a proposed rule for the Clean
Vessel Act Grant Program (CVA). The proposed rule will use plain
language to clarify topics that have led to varying interpretations and
will incorporate changes in legislation and technology. We seek public
input to advise us on topics of interest to the boating community in
regard to projects funded through CVA. We ask for response from anyone
having an interest in CVA and associated topics, but particularly from
members of the public having experience, expertise, or both in
administering CVA; entities receiving services from CVA-funded
facilities; entities manufacturing, selling, or installing CVA-funded
facilities and equipment; or persons possessing other professional or
practical knowledge of the subjects we present in this document. We
present topics of interest, but encourage comments on any topic
relevant to CVA and the proposed rulemaking. The terms you or your in
this document refer to those members of the public from whom we seek
response. The terms we, us, and our refer to the U.S. Fish and Wildlife
Service.
DATES: Submit comments on or before November 13, 2015.
ADDRESSES: You may submit comments, identified by docket number FWS-R9-
WSR-2015-0006, by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
U.S. mail: Public Comments Processing, Attn: Docket No.
FWS-R9-WSR-2015-0006; U.S. Fish and Wildlife Service; Division of
Policy, Performance, and Management Programs; MS: BPHC; 5275 Leesburg
Pike, Falls Church, VA 22041-4501.
Hand Delivery/Courier: U.S. Fish and Wildlife Service;
Division of Policy, Performance, and Management Programs; 5275 Leesburg
Pike, Falls Church, VA 22041-4501.
We will not accept email or faxes. All submissions received must
include the agency name and docket number for this rulemaking. We will
post all comments received without change to http://www.regulations.gov, including any personal information provided. For
detailed instructions on submitting comments and other information on
the rulemaking process, see the ``Public Participation'' heading in
SUPPLEMENTARY INFORMATION.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov and search for FWS-
R9-WSR-2015-0006.
FOR FURTHER INFORMATION CONTACT: Lisa E. Van Alstyne, Wildlife and
Sport Fish Restoration Program, Division of Policy and Programs, U.S.
Fish and Wildlife Service, 703-358-1942.
SUPPLEMENTARY INFORMATION:
Background
The Clean Vessel Act of 1992 (Act) (Pub. L. 102-587, title V,
subtitle F) amends the Sport Fish Restoration Act (16 U.S.C. 777c) and
establishes a program that provides matching grants to States for
projects that address septic waste from recreational vessels. Grants
may be used to conduct coastal surveys and establish plans; construct,
renovate, operate, and maintain pumpout and other waste reception
facilities for recreational vessels; and conduct programs to educate
boaters about the environmental and health issues associated with
improperly disposing of human waste. Priority consideration was
established in the Act for projects that are in coastal States, include
public/private partnerships, and include innovative ways to increase
project availability and use. The Sportfishing and Recreational Boating
Safety Act of 2005 (SAFETEA-LU) (Pub. L. 109-59, Title X, section
10131) amends the Clean Vessel Act to remove the preference for
projects in coastal States.
Since inception, the Clean Vessel Act grant program (CVA) has
awarded more than $246 million. The projects funded have helped States
to build an infrastructure that links services within and between
States and raised awareness of the benefits of properly disposing of
septic waste. As a result, States have experienced a reduction in beach
and shellfish bed closures, enhanced boater awareness and satisfaction,
and improved water quality in recreational areas.
In the 1990s, we published in the Federal Register three documents
related to CVA: Clean Vessel Act Pumpout Grant Program, Final rule (59
FR 11204, March 10, 1994); Clean Vessel Act: Pumpout Station and Dump
Station Technical Guidelines, Notice of final guidelines (59 FR 11290,
March 10, 1994); and Clean Vessel Act Pumpout Symbol, Slogan, and
Program Crediting, Final rule (62 FR 45344, August 27, 1997). The CVA
regulations are located in title 50 of the Code of Federal Regulations
(CFR) in part 85 (50 CFR part 85).
As we move forward in the program, we propose not only to build on
the success of CVA to date, but also to seek new and innovative ways to
serve the boating public into the future. We hosted four open forum
discussions between October 2014 and February 2015 in which we asked
States and other stakeholders to share their knowledge and opinions on
topics associated with implementing CVA nationally. Participants
informed us on challenges to implementation and consistency that have
arisen since the program began, changes in focus that have evolved as
the program has matured, and successful approaches they would like to
continue. These discussions prompted us to seek input on certain topics
from a larger audience.
Information Requested
With this advance notice of proposed rulemaking (ANPR), the Service
is seeking information, comments, and suggestions that will help us to
consider how best to address updating the CVA regulations and Technical
Guidelines. We ask for your help in identifying significant issues that
interfere with participation in CVA, administration of CVA, services
provided under CVA, or successful implementation of CVA projects. We
ask for your responses on successful approaches or foundational
benefits that you suggest we should preserve in future rulemaking. We
intend to use your input to develop updated regulations and guidelines
in one location at 50 CFR part 85. After receiving and considering your
responses to our requests in this ANPR, we will publish a proposed rule
in the Federal Register for public review and comment. In particular,
we encourage you to give comments and suggestions on the issues
described in the body of the ANPR. When commenting, please indicate
which of the listed issues your comment addresses and to which question
you are responding. If your comments cover issues outside of those
listed, please identify them as Other.
There are several topics where your response may reference a State
or local law, regulation, standard, or other legal
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reference. When your comments include a legal reference, please
specifically cite the legal document. We recommend you use citation
formats in Association of Legal Writing Directors (ALWD) Guide to Legal
Citation or Bluebook: A Uniform System of Citation as your guide. If
possible, please give a location where we may access the document
electronically.
Issue 1: Technical information
(a) The Technical Guidelines (Guidelines) issued on March 10, 1994,
reflect a collaborative effort between the Service and various entities
that have expertise or interest in boating, clean water, waste disposal
equipment, and other associated topics. We consulted with the
Environmental Protection Agency (EPA), the U.S. Coast Guard (USCG), and
the National Oceanic and Atmospheric Administration (NOAA) when
developing the guidelines. We also asked for advice and input from
States, local municipalities, boat users, manufacturers of pumpout
equipment, marina operators, conservation groups, interest
organizations, and the public. The resulting document reflects the best
available knowledge at that time and informs the public on basic
principles that were foundational to the grant program in the beginning
stages of development.
(b) We are aware that advances have been made in technology,
technique, and approach since we published the Guidelines. Through this
notice, we ask for those same groups and any new user and interest
groups, technical experts, and practitioners to advise us on some
specific and some general technology issues. When responding to a
topic, please address to the extent possible the following regarding
the technology, technique, or approach:
(1) For technology, if it is currently available or would need to
be developed;
(2) Cost;
(3) Expertise needed;
(4) Supporting infrastructure or other technology needed;
(5) Long-term personnel investment; and
(6) Any known obstacles.
(c) We ask that if you have knowledge of such advancements, you
discuss developments that have been made since 1994, or are anticipated
in the next few years, that improve, support, or otherwise affect CVA.
Discuss how you suggest we should use this information to inform new
guidelines.
(d) We ask your comments on these specific topics:
(1) States that experience seasonal cold weather likely have
pumpout facility operators that choose to close for the season,
winterize their pumpout equipment, or both. However, boaters may travel
to those areas seeking pumpout services. What technology, technique, or
approach would address the need to provide pumpout services in cold
weather areas?
(2) How important is it for States to monitor the amount of waste
removed through pumpouts? Should the guidelines strongly recommend
meters or other ``add-on'' equipment to accomplish this? Should the
regulations require it? If so, when should the new requirement be
effective?
(3) Floating restrooms are eligible for CVA funding. However, with
the emphasis of the program on providing facilities that benefit
boaters, the current regulations state they cannot be connected to land
or anything else that is connected to land, restricting floating
restrooms to water-only access. Therefore, floating restrooms connected
to an attached dock cannot be funded through CVA. (Land-based restrooms
are currently ineligible.) We have received requests to revisit this
restriction and consider the possibility of allowing floating restrooms
to be attached to a dock and to allow piping to run directly from the
floating restroom to a land connection for waste disposal. We ask you
to comment on:
(i) Whether we should allow floating restrooms to be connected to
land or docks. What are the advantages and disadvantages? Should there
be limitations?
(ii) Are you aware of legal issues that affect floating restrooms,
such as State or local regulations, permit restrictions, or building
standards? If so, please discuss the effect and cite the regulation,
code, or standard.
(iii) There are concerns with protecting floating restrooms from
vandalism and other damage. If floating restrooms are allowed to be
connected to land or docks, the potential for vandalism may increase
with easier land-side access. Do you have any suggestions for how to
address these concerns?
(iv) Is it important to maintain the emphasis on floating restrooms
serving only the boating public? If we were to allow floating restrooms
to be connected to docks, what approaches would restrict use to serve
only the boating public?
(v) What approaches would ensure that floating restrooms are
designed to limit land-side access and potential over-use by the non-
boating public?
(vi) Should we participate in efforts to develop standards or best
management practices for floating restrooms?
Issue 2: State Participation in Offering Operation and Maintenance
(O&M) Funds for CVA Projects
(a) Some States offer CVA O&M, and some do not. We suggest that
offering O&M greatly benefits CVA by:
(1) Increasing the number of pumpout facilities by supporting
operators that otherwise might not be able to financially support
ongoing service;
(2) Providing a mechanism to reimburse operators when they respond
to equipment failures, increasing pumpout facility availability and
functionality; and
(3) Helping to extend the useful life of the investment.
(b) The Service does not have a comprehensive list of how many and
which States do not participate in offering O&M for pumpout projects,
or the reasons why these States have chosen this approach. We would
like to know more about those States that participate, and those that
do not, in order to identify if changes in regulations or guidelines
could improve this aspect of CVA. We ask States to respond telling us:
(1) Does your State offer O&M grant funding to subgrantees and
operators?
(2) If your State does offer O&M funding, describe your program,
including:
(i) Any restrictions on the type of projects that may receive O&M
funds;
(ii) Any limits on O&M funds;
(iii) How you administer O&M processing; and
(iv) Any obstacles you currently experience that you suggest we may
alleviate either through regulation or other means.
(3) If your State does not offer O&M funding, describe the reasons
why your State has chosen not to offer O&M funding. If the reasons
include laws or regulations, please cite as directed under Information
Requested. Include in your comments changes you suggest we consider
that might assist your State to begin a CVA O&M program.
Issue 3: Do any existing or proposed State or local laws affect CVA?
(a) Please cite, as directed under Information Requested, and
discuss any State or local laws or regulations that either support or
impede CVA projects. When available, include web links to the law or
regulation.
(b) Discuss specifically how the law or regulation affects CVA
projects. If it is a positive effect, tell us if you believe the
Service should consider adopting similar principles. If it is a
negative effect, tell us how it restricts your ability to complete
successful projects. Please
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suggest any changes in the CVA regulation that would increase your
ability to complete successful projects within the parameters of
current or proposed State and local laws and regulations.
Issue 4: User Fees
(a) The current regulations at 50 CFR 85.44 allow operators of
facilities constructed, operated, or maintained with CVA grant funds to
charge users a maximum $5 fee, with no justification. If an operator
chooses to charge a higher fee, it must be justified. The proceeds must
be accounted for and used by the operator to defray the operation and
maintenance costs of the facility as long as the facility is needed and
serves its intended purpose. The Service was to evaluate the maximum
fee each year for inflation and other potential considerations. The
Service has not taken this action to date.
(b) During an open forum discussion at the States Organization for
Boating Access Conference on October 6, 2014, we asked States to
comment on the following questions:
(1) Should the maximum fee be increased? Decreased?
(2) What are the pros and cons of higher fees?
(3) What alternatives do you suggest other than a maximum fee (Ex:
sliding scale)?
(4) Should fees correspond to usage (Ex: gallons pumped, holding
tank size)?
(5) Should the method of service influence the fees charged (Ex:
self-serve vs. pumpout assistance)?
(c) We received a range of responses that fall into five general
categories:
(1) Support no change to the current regulations. The $5 maximum
fee works well, and boaters are used to it.
(2) Suggest the regulations be changed to mandate or encourage free
pumpout services. Offering free pumpout services increases the number
of boaters using pumpouts, decreases the amount of inappropriately
disposed boater septic waste, and reduces the burden for operators in
States that offer CVA O&M funding.
(3) Suggest the regulations be changed to allow a sliding scale
with a $5 maximum for boats with smaller holding tanks, increasing fees
with the size of the holding tank. An issue with this option is that
not all pumpout equipment is installed with monitoring capability to
gauge the number of gallons pumped.
(4) Address the fee issue by maintaining a similar approach as in
the current regulations, but increase the fee.
(5) Allow operators to charge a fee according to the prevailing
market rate for the area they serve.
(d) We are interested in comments from States, boaters, operators,
and interest organizations that address the questions and responses
above. When responding, please consider:
(1) The maximum fee that boaters will accept as reasonable for the
service they receive;
(2) How the fee schedule may influence boater usage;
(3) How the fee schedule may affect water quality;
(4) If we need to consider State and local laws or codes when
establishing a fee schedule; and
(5) How reduced fees may affect operators that incur additional
costs for:
(i) Removing septic waste via a waste hauler from an on-site
holding tank where municipal sewer service is not available;
(ii) Disposing of boater waste via municipal sewer connections
where the municipality charges an additional fee for boater waste (Ex:
hazardous waste disposal fee); or
(iii) Other actions to process or dispose of boater waste.
Issue 5: Defining ``Recreational Vessel'' and Access to CVA-Funded
Services
(a) We have received many comments requesting clarity on how to
define ``recreational vessel'' in the context of CVA and whether we
should consider allowing CVA-funded facilities to be available to non-
recreational vessels (Ex: house boats, commercial vessels). We ask your
comments on the following:
(1) How should we define ``recreational vessel'' for CVA? Should
the term include vessels that are not for personal use, but that
transport the public to recreational opportunities? (Ex: dive boats,
fishing charters)
(2) What criteria might we use that would clearly separate a
recreational vessel from a non-recreational vessel?
(b) We have considered that the ultimate benefit of CVA is clean
recreational waters that benefit all users. We have engaged in
discussions that ask us to consider allowing CVA-funded pumpouts to be
available for use by other than what we define as a ``recreational
vessel.'' We ask for comments on the following:
(1) Should CVA-funded facilities be available to serve all vessels,
regardless of their designation as recreational or non-recreational?
What are the advantages and disadvantages?
(2) If CVA-funded facilities are used to service other than non-
recreational vessels, should operators be allowed to charge a higher
fee for non-recreational use? (The rationale is that the higher fees
would help pay for replacement/repairs of the equipment that will have
a reduced useful life due to the additional burden on the equipment.)
(3) Are there any user groups or vessel types that should be fully
excluded from consideration for expanding availability of CVA-funded
pumpouts? Why or why not?
(4) If we choose to expand eligible use, what restrictions, if any,
should be imposed on non-recreational vessels using CVA-funded
pumpouts?
Issue 6: Definition of ``Useful Life''
(a) The term ``useful life'' as used in the current CVA regulations
was intended to relate to the functional longevity of the equipment.
Using this approach, there are multiple considerations that could
influence the useful life of a pumpout project, such as environmental
effects (marine vs. freshwater environment, weather), biological
effects (quagga mussels), amount and type of usage, adequate
maintenance, boater education on proper use, and equipment components
that are more vulnerable to wear or failure. In addition, it is likely
that more than one of these considerations are present at one time,
compounding potential impacts. Many States indicate that they have
moved away from looking at the operational longevity of the equipment
and instead have set a contractual requirement for the number of years
the operator must maintain the equipment.
The above information has led us to reconsider our regulatory
approach for how long a pumpout facility must be maintained and
operational for its intended purpose. We also consider that a primary
goal of CVA is to have sufficient available and functional pumpout
facilities and that they contribute to a network of pumpout facilities
for continued boater access and use.
(b) We typically employ useful life consideration for capital
improvements. We define a ``capital improvement'' as: (1) a new
structure that costs at least $25,000 to build; or (2) altering,
renovating, or repairing an existing structure if it increases the
structure's useful life by 10 years or if it costs at least $25,000.
The focus is on structures attached to real property.
The cost of a typical land-based pumpout facility is below the
threshold for a capital improvement. Mobile or movable pumpout
facilities, such as boats and floating restrooms, we consider personal
property and not a capital improvement. We, therefore, must consider
that using useful life to
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measure obligation for a pumpout facility may not benefit the
consistency and viability of the CVA program mission.
We suggest the alternative approach of applying in regulation an
obligation for a minimum number of years that an operator must maintain
an operational pumpout for its intended purpose. After this time, an
operator may choose to continue the obligation for another period under
the CVA grant program, continue operation outside the CVA grant
program, or cease operation of the pumpout facility.
The majority of States responding to an inquiry suggested 10 years,
but other suggestions ranged from 4 to 20 years.
(c) We ask for your comments on the following:
(1) Which approach do you suggest is the best for the continued
success of CVA, and why do you prefer it?
(2) What obligation do you suggest an operator assume when
participating in CVA, including how long an operator must maintain a
CVA-funded pumpout facility?
(3) If a State offers O&M funding for existing facilities, should
participation in O&M extend the obligation to maintain and operate the
facility? For example, if we assume a fixed-year obligation for
maintaining a pumpout facility, for each year that the operator
receives O&M funding should it extend the obligation an additional
year?
(4) What CVA-funded actions would you suggest we identify that, if
completed, will restart the fixed-year obligation period? (Ex:
replacement, major renovation, etc.)
(5) We discussed in Issue 5 the possibility of expanding the type
of vessels that could be serviced by CVA-funded facilities. If we
choose the approach to require a fixed-year obligation for a CVA-funded
facility, the CVA-funded facility would be obligated to be maintained
and functional for the designated period regardless of use, so
additional wear and tear would be the responsibility of the operator to
address during that period. What advantages, disadvantages, or other
effects should we consider regarding this combined approach?
Public Participation
We seek comments from you in response to the topics and questions
above. We also seek any relevant comments on other issues related to
this proposed rulemaking. We especially seek recommendations for
effective and efficient approaches to CVA. After analyzing the comments
received from this ANPR, we will proceed with a proposed rulemaking.
All submissions received must include the Service docket number for
this notice. Before including your address, phone number, email
address, or other personal identifying information in your comment, you
should be aware that your entire comment--including your personal
information--may be made publicly available. While you can ask us in
your comment to withhold your personal identifying information from
public review, we cannot guarantee that we will be able to do so.
The Service supports a collaborative process as we develop the
proposed rule. After the comment period ends for the ANPR, we will post
information on other opportunities to comment prior to the proposed
rule, background, and past comments received at: http://fawiki.fws.gov/display/CR5C8/CVA+Review+50+CFR+85+Home.
Dated: August 31, 2015.
Karen Hyun,
Acting Principal Deputy Assistant Secretary for Fish and Wildlife and
Parks.
[FR Doc. 2015-22723 Filed 9-11-15; 8:45 am]
BILLING CODE 4310-55-P