Clean Vessel Act Grant Program, 55078-55081 [2015-22723]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[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]



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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: https://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 https://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 https://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: https://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