Federal Register Vol. 81, No.81,

NASA is proposing the following changes to NASA regulation Uniform Administrative Requirements, Cost Principles and Audit Requirements for Federal Awards (2 CFR part 1800):

1. Modify the requirement related to information contained in a Federal award for commercial firms with no cost sharing requirement. NASA requirements for information contained in a Federal award can be found at 2 CFR 1800.210, which adopts and supplements 2 CFR 200.210. Title 2 CFR 200.210 includes a list of data elements that must be included in a Federal award, including indirect cost rate for the Federal award (including if the de minimis rate is charged per § 200.414 Indirect (F&A) costs). Although 2 CFR part 200 does not apply to commercial firms, NASA, in its adoption of the regulation at 2 CFR 1800.3, Applicability, added commercial firms with no cost sharing requirement to the list of applicable entities. Therefore, the requirement to include an indirect cost rate on a notice of Federal award is applicable to commercial firms with no cost sharing requirement.

2. Add a new term and condition to address those instances when a recipient has a change in its negotiated indirect cost rate agreement during the period of performance of an award. See 2 CFR 200.56, 200.57, and 200.414 for more information on indirect (facilities & administrative) costs. NASA has discovered that, on occasion, when a recipient's indirect cost rate has changed as a result of a new negotiated indirect cost rate agreement, the change in rate has not always been captured when indirect costs have been charged to NASA. As a result, some recipients have either overcharged or undercharged NASA for indirect costs.

3. Modify an existing term and condition and add a new term and condition to ensure recipients meet requirements associated with, “NASA Plan: Increasing Access to the Results of Scientific Research” (see http://science.nasa.gov/media/medialibrary/2015/07/08/NASA_Plan_for_increasing_access_to_results_of_federally_funded_research1.pdf). This plan was issued in response to the Executive Office of the President's, Office of Science and Technology Policy (OSTP) Memorandum for the Heads of Executive Departments and Agencies, dated February 22, 2013, “Increasing Access to the Results of Federally Funded Scientific Research.” Through this memorandum, OSTP directed all agencies with more than $100 million in annual research and development expenditures to prepare a plan for improving the public's access to the results of federally funded research. Part A of NASA's plan focuses on digital unclassified scientific research data, which are research data that can be stored digitally and accessed electronically.

To facilitate increased access to such data, NASA has updated its research data policy to require all investigators submitting a research proposal or research project plan to NASA to include a Data Management Plan for managing and providing access to final research data or to state why their data cannot or need not be made publicly available. Part B of the plan focuses on the public access to peer-reviewed scientific research manuscripts. The scope of applicability of this part includes all final peer-reviewed scientific research manuscripts authored or coauthored by investigators funded for this research by NASA-appropriated funds.

After consideration of feedback from commercial firms expressing concern that indirect cost rates are sensitive financial information which should not be available on documents that could potentially be released to the public, NASA has determined that excluding indirect cost rates from notices of Federal award to commercial firms with no cost sharing requirement is a prudent business decision that protects sensitive financial information.

In order to ensure that the permitted amount of indirect costs is being charged to an award, NASA is proposing a new term and condition requiring recipients that have changes to their indirect cost rate agreement during the period of performance of an award to apply the approved rate to covered direct costs expended during the time frame of the rate agreement, even if the agreement is not on file with NASA. This will prevent NASA from overpaying or underpaying for indirect charges and ensure recipients are receiving what they are legally allowed. To address the NASA plan requirements for awardees from non-NASA organizations that publish scientific research or compile digital datasets resulting from research, development, and technology programs, NASA is proposing the following revisions:

• Modify an existing term and condition, 2 CFR 1800.902 Technical Publications and Reports, to add a requirement for awardees with research and research-related awards to follow additional reporting requirements at 2 CFR 1800.930 Access to Research Results.

• Add a new term and condition requiring recipients to comply with their approved Data Management Plan submitted with their proposal, and as modified upon agreement by the recipient and NASA from time to time during the course of the period of performance. In addition, this new term and condition will ensure that any Final Peer-Reviewed Manuscripts are submitted to the NASA-designated repository, currently the PubMed Central system at www.ncbi.nlm.nih.gov, within one year of peer-review or publication by a journal, whichever is earlier. Furthermore, it will ensure that any publisher's agreements entered into by an awardee will allow for the awardee to comply with these requirements including submission of Final Peer-Reviewed Manuscripts to the NASA-designated repository, currently the PubMed Central system, with sufficient rights to permit such repository to use such Final Peer-Reviewed Manuscript in its normal course, including rights to permit users to download XML and plain text formats. Finally, the grantee agrees to be responsible for, and defend NASA against, any royalties, fees, or other costs claimed against NASA or for which NASA may be held liable as a consequence of awardee failing to comply with the foregoing and include in annual and final reports a list of Final Peer-Reviewed Manuscripts covered by this term and condition.

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This proposed rule is not a major rule under 5 U.S.C. 804.

This proposed rule contains information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C chapter 35; however, these changes to 2 CFR part 1800 do not impose additional information collection requirements to the paperwork burden previously approved under OMB Control Number 2700-0092, entitled Financial Assistant Awards/Grants and Cooperative Agreements.

Accordingly, 2 CFR part 1800 is proposed to be amended as follows:

The additions read as follows:

OPM is issuing a proposed rule that would redefine the geographic boundaries of the Asheville, NC, and Charlotte, NC, appropriated fund FWS wage areas. The proposed rule would redefine Alexander and Catawba Counties, NC, from the Charlotte wage area to the Asheville wage area.

OPM considers the following regulatory criteria under 5 CFR 532.211 when defining FWS wage area boundaries:

(i) Distance, transportation facilities, and geographic features;

(ii) Commuting patterns; and

(iii) Similarities in overall population, employment, and the kinds and sizes of private industrial establishments.

In addition, OPM regulations at 5 CFR 532.211 do not permit splitting Metropolitan Statistical Areas (MSAs) for the purpose of defining a wage area, except in very unusual circumstances.

Alexander, Burke, Caldwell, and Catawba Counties, NC, comprise the Hickory-Lenoir-Morganton, NC, MSA. The Hickory-Lenoir-Morganton MSA is split between the Asheville, NC, and Charlotte, NC, wage areas. Burke and Caldwell Counties are part of the area of application of the Asheville wage area and Alexander and Catawba Counties are part of the area of application of the Charlotte wage area.

Based on an analysis of the regulatory criteria for Caldwell County, the core county in the Hickory-Lenoir-Morganton MSA, the entire Hickory-Lenoir-Morganton MSA would be defined to the Asheville wage area. When measuring to cities, the distance criterion does not favor one wage area more than another. When measuring to host installations, the distance criterion favors the Asheville wage area more than the Charlotte wage area. The commuting patterns criterion does not favor one wage area more than another. Caldwell County resembles the Asheville survey area more than the Charlotte survey area in terms of the overall population and employment and the kinds and sizes of private industrial establishments criteria.

Based on this analysis, we believe Caldwell County is appropriately defined to the Asheville wage area. OPM regulations at 5 CFR 532.211 permit splitting MSAs only in very unusual circumstances. There appear to be no unusual circumstances that would permit splitting the Bloomsburg-Berwick MSA. To comply with OPM regulations not to split MSAs, Alexander and Catawba Counties would be redefined to the Asheville wage area. The remaining county in the Hickory-Lenoir-Morganton MSA, Burke County, is already defined to the Asheville wage area. There are currently no FWS employees working in Alexander and Catawba Counties.

FPRAC, the national labor-management committee responsible for advising OPM on matters concerning the pay of FWS employees, recommended this change by consensus. This change would be effective on the first day of the first applicable pay period beginning on or after 30 days following publication of the final regulations.

I certify that these regulations would not have a significant economic impact on a substantial number of small entities because they would affect only Federal agencies and employees.

Accordingly, the U.S. Office of Personnel Management is proposing to amend 5 CFR part 532 as follows:

Section 107(4) of the Federal Credit Union Act (FCU Act) authorizes an FCU to purchase, hold, and dispose of property necessary or incidental to its operations.1 NCUA's occupancy rule (formerly referred to as the fixed assets rule) interprets and implements this provision of the FCU Act by establishing occupancy, planning, and disposal requirements for acquired and abandoned premises. The rule also prohibits certain transactions to avoid conflicts of interest in the acquisition or lease of FCU premises.2

Over the past several years, the Board has proposed and adopted several regulatory amendments to modernize § 701.36.3 Most recently, in July 2015, the Board approved a final rule to eliminate the five percent aggregate limit on investments in fixed assets for FCUs with $1,000,000 or more in assets and to streamline the partial occupancy requirements. Public comment in response to these recent amendments has been generally supportive of the Board's ongoing efforts to provide regulatory relief to FCUs in this area. However, commenters have continued to ask for more regulatory relief to provide FCUs with greater flexibility in the management of property necessary or incidental to FCU operations. In particular, commenters have strongly advocated the elimination of regulatory occupancy requirements, especially the requirement for full occupancy.

In general, commenters have maintained that the FCU Act does not expressly mandate specific timeframes for occupancy or otherwise prescribe occupancy requirements for FCU premises. Thus, commenters have urged the Board to liberalize NCUA's occupancy rules.4 For example, commenters have said that NCUA should not set a specific time period for full occupancy; that FCU boards and management should determine the best timeframe in which to fully develop property; and that the full occupancy requirement should be eliminated entirely.5 Commenters have also suggested that NCUA should replace the “full” occupancy requirement with a “significant” or “substantial” occupancy requirement, defined as fifty-one percent occupancy.6

In addition, commenters urging NCUA to reconsider its position on full occupancy have indicated that it oftentimes makes sense for a credit union to own a building and lease out part or all of the building to help offset the cost of property ownership.7 Commenters have argued that prescriptive occupancy requirements reduce access to commercial space and limit an FCU's ability to acquire space in the most cost-effective manner. As an example, commenters have noted that some local zoning or mixed-use ordinances, city entitlements, or other use requirements may require a portion of the property to be dedicated to retail business.8 Commenters have also posited that generating long-term income from FCU premises would generate value for the FCU's membership.9

The Board has carefully considered the numerous comments received on this subject since at least 2013.10 The Board also has reconsidered the regulatory position that the limited authority for FCUs to invest in property granted by Section 107(4) of the FCU Act means that an FCU may not hold real property indefinitely without fully occupying the premises. Accordingly, as discussed in more detail below, the Board is proposing to eliminate from the current occupancy rule the requirement that an FCU must plan for, and eventually achieve, full occupancy of its premises. The proposal generally retains the current regulatory timeframes for partial occupancy and the related waiver provisions, including those finalized in July 2015.11 However, the current definition of “partially occupy” is modified in the proposal to reflect that an FCU need not fully occupy premises, but the FCU (or a combination of the FCU and a CUSO in which the FCU has a controlling interest in accordance with GAAP) must utilize at least fifty percent of the premises on a full-time basis within the required timeframe to achieve partial occupancy. For consistency, the proposal also amends the excess capacity provision in the incidental powers rule and makes technical and conforming amendments 12 to reflect the proposed policy change regarding full occupancy for FCU premises.

The proposed rule is discussed in greater detail below.

Under the current rule, if an FCU acquires premises for future expansion and does not fully occupy them within one year, it must have an FCU board resolution in place by the end of that year with definitive plans for full occupation.13 For purposes of the rule, “premises” means any office, branch office, suboffice, service center, parking lot, other facility, or real estate where the FCU transacts or will transact business.14 The current rule does not set a specific time period within which an FCU must achieve full occupation of premises acquired for future expansion. However, partial occupancy of the premises is required within a reasonable period, but no later than six years after the date of acquisition, regardless of whether the premises are improved or unimproved.15 Partial occupancy must be sufficient to show, among other things, that the FCU will fully occupy the premises within a reasonable time and consistent with its plan for the premises.16

The occupancy requirements in the current rule have a statutory basis, but full occupancy of FCU premises is not expressly or specifically mandated by statute. Section 107(4) of the FCU Act authorizes an FCU to purchase, hold, and dispose of property necessary or incidental to its operations. 17 NCUA has long held that the limited authority granted by this provision means that an FCU may not hold, or lease to unrelated third parties, real property indefinitely without fully occupying the premises.18

After further consideration, however, the Board believes the language in Section 107(4) of the FCU Act supports an interpretation that provides FCUs' with more flexibility to acquire and hold real property. Accordingly, the Board has reconsidered its current approach of ensuring that FCU investment in and use of real property is consistent with the FCU Act by requiring FCUs to fully occupy premises. Section 107(4) neither explicitly mentions nor expressly requires full occupancy of FCU property. Accordingly, the Board proposes to eliminate the full occupancy and related planning requirements in the current occupancy rule. Specifically, the proposed rule deletes the requirement in current § 701.36(c)(1) that, if an FCU acquires premises for future expansion and does not fully occupy them within one year, it must have a board resolution in place by the end of that year with definitive plans for full occupation.

While this proposed change represents a departure from the Board's previous interpretation of Section 107(4), it is both reasonable and consistent with the requirements of the FCU Act. The United States Supreme Court has emphasized that an “initial agency interpretation is not instantly carved in stone,” and “to engage in informed rulemaking, [an agency] must consider varying interpretations and the wisdom of its policy on a continuing basis,” indicating that an agency may change its interpretive position on the statutes it administers.19 In light of the continuing requests from commenters for relief from the full occupancy requirement, the proposed change is required to avoid unnecessarily imposing undue hardship on FCUs that may have difficulty realizing their growth potential and member service strategies under the current rule.

The Board emphasizes, however, that it maintains its current view that there is no authority in the FCU Act for an FCU to invest in real estate for speculative purposes or to otherwise engage in real estate activities that do not generally support its purpose of providing financial services to its members. The statute is clear that any property acquired or held by an FCU must be “necessary or incidental to its operations.” 20 NCUA has stated consistently that an FCU may only invest in property it intends to use to transact credit union business or in property that supports its internal operations or member services.21

Although the Board's position on full occupancy has evolved, it continues to read the FCU Act as requiring that an FCU may purchase or hold property only for a permissible purpose or activity; that is, to support the FCU's provision of financial services to its members. As the Board noted in the preamble to the July 2015 final rule, the requirement for an FCU to partially occupy its acquired premises within a specified timeframe is intended to function as a reasonable safeguard against speculative real estate investments or other real estate activities that are not permitted for FCUs under the FCU Act.22 Making speculative investments in real property exceeds an FCU's authority and can lead to safety and soundness problems. Making speculative investments in real property increases an FCU's exposure to market factors unrelated to financial services. As well, managing unoccupied real property or commercial leases creates operational risk exposures which are significantly different from those related to managing authorized financial services permissible for FCUs. By maintaining the requirement that FCUs must partially occupy real property, NCUA reduces the opportunity for speculative investment and helps FCUs align their real property investment decisions with the operational needs of the FCU and its members.

Requiring an FCU to fully occupy its acquired premises may, under certain circumstances: (1) Hinder its ability to obtain cost-effective office space necessary to serve its members; (2) restrict its growth; or (3) place it at a competitive disadvantage. However, without a reasonable occupancy requirement, there is little to inhibit an FCU from: (1) Speculating on real property with the sole intent of realizing a profit from its future sale; (2) acting as a property developer or full-time landlord; or (3) otherwise venturing into real estate activities that are beyond the scope of its authority under Section 107(4). Accordingly, the Board has determined that an FCU must at least partially occupy each of its acquired real property. For both legal and safety and soundness reasons, the proposed rule retains the requirement that an FCU premises, including unimproved property, must be partially occupied within six years from the date of its acquisition. An FCU may apply for a waiver if it is not able to achieve partial occupancy of its premises within six years.23

Under the current rule, “partially occupy” means occupation, on a full-time basis, of a portion of the premises that is: (1) Consistent with the FCU's usage plan for the premises; (2) significant enough that the FCU is deriving practical utility from the occupied portion relative to the scope of the usage plan; and (3) sufficient to show that the FCU will fully occupy the premises within a reasonable time.24 The Board proposes to modify the current definition of “partial occupancy” to eliminate references to the current requirement to plan for full occupancy (usage plan) and the need to show that the FCU will fully occupy the premises. Additionally, the Board proposes to amend that definition to emphasize that at least fifty percent of FCU premises must be occupied and used, on a full-time basis, by the FCU or a combination of the FCU and a CUSO in which the FCU has a controlling interest in accordance with GAAP.25 Occupancy of FCU premises with third-party vendors or CUSOs in which the FCU does not maintain a controlling interest will not count towards the fifty percent partial occupancy requirement because these entities operate at the direction of other owners and may not be obligated to primarily support the FCU that acquired the premises or to primarily serve that FCU's members. The proposed definition, which incorporates elements from the current rule's definition of full occupancy,26 will ensure that any property acquired or held by an FCU is primarily utilized for a purpose that is necessary or incidental to its operations, as required by the FCU Act.

The Board recognizes that in planning for future expansion, FCUs should be permitted to sell or lease their excess capacity as a matter of good business practice.27 The incidental powers rule permits an FCU to sell or lease its excess capacity with respect to its property and services.28 Under that rule, excess capacity refers to the excess use or capacity remaining in FCU facilities, equipment, or services.29 An FCU's sale or lease of excess capacity, for example, may involve leasing excess office space, sharing employees, or using data processing systems to process information for third parties.30 However, while an FCU has the authority under the rule to obtain income by selling or leasing excess capacity in its facilities, equipment, or services to third parties, that authority is subject to the following conditions: (1) The facilities, equipment, or services must have been acquired by an FCU, in good faith, for the purpose of providing financial services to its members; and (2) the FCU must reasonably anticipate that the excess capacity will be taken up by the future expansion of services to its members.31

To conform to the above proposed amendments to the occupancy rule, the Board proposes to amend the incidental powers rule regarding the sale or lease of excess capacity by removing the condition that excess capacity in FCU facilities must eventually be fully occupied by the FCU. The Board continues to believe, however, that the sale or lease of excess capacity in equipment or services, including employee-sharing and data processing for third parties, should be limited to circumstances where an FCU reasonably anticipates that the excess capacity will be taken up by the future expansion of services to its members.

In adopting the excess capacity provision in the incidental powers rule, the Board reasoned in 2001 that “[t]he sale of excess capacity offers FCUs the opportunity to provide financial services to its members, even though member demand for the services does not initially meet the FCU's capacity.” 32 However, the Board also noted:

While the Board has reconsidered its position with respect to requiring full occupancy of FCU facilities, the Board maintains its view that FCUs are not, and should not be, in the business of providing third parties with data processing capacity or other equipment or services outside their express or incidental powers. Accordingly, under this proposal, an FCU's authority to sell or lease excess capacity in equipment and services continues to be conditioned on the FCU's reasonable anticipation that its members will eventually fully utilize the excess capacity.

The Regulatory Flexibility Act (RFA) generally requires that, in connection with a notice of proposed rulemaking, an agency prepare and make available for public comment an initial regulatory flexibility analysis that describes the impact of a proposed rule on small entities. A regulatory flexibility analysis is not required, however, if the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities (defined for purposes of the RFA to include credit unions with assets less than $100 million) and publishes its certification and a short, explanatory statement in the Federal Register together with the rule. The proposed rule would provide regulatory relief by eliminating the need to develop a plan for full occupancy. However, FCUs currently have limited flexibility to purchase real estate with excess capacity. NCUA certifies that the proposed rule will not have a significant economic impact on a substantial number of small credit unions.

The Paperwork Reduction Act of 1995 (PRA) applies to rulemakings in which an agency by rule creates a new paperwork burden on regulated entities or modifies an existing burden.34 For purposes of the PRA, a paperwork burden may take the form of either a reporting or a recordkeeping requirement, both referred to as information collections. The proposed rule provides regulatory relief to FCUs by eliminating the requirement that, if an FCU does not fully occupy premises acquired for future expansion within one year, it must have a board resolution in place by the end of that year with definitive plans for full occupation. The proposed rule does not impose new paperwork burdens. The proposed rule would relieve FCUs from the current requirement to have a board-approved plan for full occupation of its premises.

According to NCUA estimates, approximately 15 FCUs are required to develop a plan for full occupation premises each year. Accordingly, the reduction to existing paperwork burdens that would result from the proposal is analyzed below:

Estimate of the reduced burden by eliminating the full occupancy planning requirement.

Estimated FCUs: 15.

Frequency of waiver request: Annual.

Reduced hour burden: 15 hours.

15 FCUs × 15 hours = 225 hours reduced burden.

In accordance with the requirements of the PRA, NCUA intends to obtain a modification of its OMB Control Number, 3133-0040, to support these changes. NCUA is submitting a copy of the proposed rule to OMB, along with an application for a modification of the OMB Control Number.

The PRA and OMB regulations require that the public be provided an opportunity to comment on the paperwork requirements, including an agency's estimate of the burden of the paperwork requirements. The Board invites comment on: (1) Whether the paperwork requirements are necessary; (2) the accuracy of NCUA's estimates on the burden of the paperwork requirements; (3) ways to enhance the quality, utility, and clarity of the paperwork requirements; and (4) ways to minimize the burden of the paperwork requirements.

Comments should be sent to the NCUA Contact and the OMB Reviewer listed below:

NCUA Contact: Dawn Wolfgang, National Credit Union Administration, 1775 Duke Street, Alexandria, Virginia 22314-3428, Fax No. 703-837-2861, Email: [email protected].

OMB Contact: Office of Management and Budget, ATTN: Desk Officer for the National Credit Union Administration, Office of Information and Regulatory Affairs, Washington, DC 20503.

Executive Order 13132 encourages independent regulatory agencies to consider the impact of their actions on state and local interests. NCUA, an independent regulatory agency, as defined in 44 U.S.C. 3502(5), voluntarily complies with the executive order to adhere to fundamental federalism principles. Because the occupancy and incidental powers regulations apply only to FCUs, the proposed rule would not have a substantial direct effect on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. As such, NCUA has determined that this rule does not constitute a policy that has federalism implications for purposes of the executive order.

NCUA has determined that this rule will not affect family well-being within the meaning of Section 654 of the Treasury and General Government Appropriations Act of 1999.35

For the reasons stated above, NCUA proposes to amend 12 CFR parts 701 and 721 as follows:

(c) Premises not currently used to transact credit union business. (1) If a federal credit union acquires premises, including unimproved land or unimproved real property, it must partially occupy each of them within a reasonable period, but no later than six years after the date of acquisition. NCUA may waive the partial occupation requirements. To seek a waiver, a federal credit union must submit a written request to its Regional Office and fully explain why it needs the waiver. The Regional Director will provide the federal credit union a written response, either approving or disapproving the request. The Regional Director's decision will be based on safety and soundness considerations.

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2016-6123; Directorate Identifier 2016-CE-007-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

We will post all comments we receive, without change, to http://regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued AD No.: 2016-0027, dated February 9, 2016 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

You may examine the MCAI on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-6123.

Schempp-Hirth Flugzeugbau GmbH has issued Technical Note No. 349-39, 360-29, 825-55, 863-22; dated January 29, 2016 (published as a single document), and Arbeitsanweisung (English translation: Working instructions) for Technische Mitteilung Nr. (English translation: Technical Note No.) 349-39, 360-29, 825-55, 863-22, Ausgabe (English translation: Issue) 1, Datum (English translation: Dated) January 22, 2016. The service information describes procedures for inspection of the overlap of the airbrake panels and, if necessary, replacement of the airbrake panels. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this NPRM.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.

We estimate that this proposed AD will affect 86 products of U.S. registry. We also estimate that it would take about 2 work-hours per product to comply with the basic requirements of this proposed AD.

Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $14,620, or $170 per product.

In addition, we estimate that any necessary follow-on actions would take about 4 work-hours and require parts costing $100, for a cost of $440 per product. We have no way of determining the number of products that may need these actions.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this proposed regulation:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),

(3) Will not affect intrastate aviation in Alaska, and

(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2016-5596; Directorate Identifier 2015-NM-121-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

On June 4, 2014, we issued AD 2014-12-06, Amendment 39-17867 (79 FR 34403, June 17, 2014) (“AD 2014-12-06”). AD 2014-12-06 requires actions intended to address an unsafe condition on certain Airbus Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called Model A300-600 series airplanes); and Airbus Model A310 series airplanes.

Since we issued AD 2014-12-06, we have determined it is necessary to require that the HFEC inspections be performed repetitively.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2015-0150, dated July 23, 2015 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called Model A300-600 series airplanes); and Airbus Model A310 series airplanes. The MCAI states:

You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-5596.

Airbus has issued Service Bulletin A300-53-6179, dated December 12, 2014; and Service Bulletin A310-53-2139, dated December 12, 2014. The service information describes procedures for repetitive HFEC inspections of the cargo door sill beam, lock fitting, and torsion box plate.

Airbus has also issued AOT A53W005-14, Revision 01, dated April 29, 2014. The service information describes procedures for doing an ultrasonic inspection or detailed inspection of the aft cargo door sill beam external area for cracking.

This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of these same type designs.

We estimate that this proposed AD affects 75 airplanes of U.S. registry.

The actions required by AD 2014-12-06, and retained in this proposed AD, take about 12 work-hours per product, at an average labor rate of $85 per work-hour. Based on these figures, the estimated cost of the actions that are required by AD 2014-12-06 and retained in this AD is $1,020 per product.

We also estimate that it would take about 1 work-hour per product to comply with the reporting requirements of this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this proposed AD on U.S. operators to be $6,374, or $85 per product.

We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this proposed AD.

A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB control number. The control number for the collection of information required by this AD is 2120-0056. The paperwork cost associated with this AD has been detailed in the Costs of Compliance section of this document and includes time for reviewing instructions, as well as completing and reviewing the collection of information. Therefore, all reporting associated with this AD is mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at 800 Independence Ave. SW., Washington, DC 20591, ATTN: Information Collection Clearance Officer, AES-200.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this proposed regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);

3. Will not affect intrastate aviation in Alaska; and

4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

The supporting document for this site designation is the DSEIS. The DSEIS is considered supplemental because it updates and builds on analyses that were conducted for the 2005 Long Island Sound Environmental Impact Statement that supported the designation of the Central and Western Long Island Sound dredged material disposal sites. This document is available for public inspection at the following locations:

1. EPA Web site: https://www.epa.gov/ocean-dumping/dredged-material-management-long-island-sound.

2. Regulations.gov: Docket No. EPA-R01-OW-2016-0239.

3. In person: EPA Region 1 Library, 5 Post Office Square, Boston, MA 02109.

Organization of this document. The following outline is provided to aid in locating information in this preamble.

Section 102(c) of the Marine Protection, Research, and Sanctuaries Act of 1972 (MPRSA), as amended, 33 U.S.C. 1412, gives the Administrator of EPA the authority to designate sites where ocean disposal may be permitted. On October 1, 1986, the Administrator delegated the authority to designate ocean dredged material disposal sites to the Regional Administrator of the Region in which the sites are located. The preferred alternative site, ELDS, and the other two alternatives, NBDS and CSDS, are all located within Connecticut state waters, which is within the area assigned to EPA Region 1, see 40 CFR 1.7(b)(1); therefore the designation of one or more of these sites is being proposed pursuant to the EPA Region 1 Administrator's delegated authority.

EPA regulations (40 CFR 228.4(e)(1)) promulgated under the MPRSA require, among other things, that EPA designate ocean disposal sites by promulgation in 40 CFR 228. Designated ocean disposal sites are codified at 40 CFR 228.15.

The primary authorities that govern the aquatic disposal of dredged material in the United States are the MPRSA, 33 U.S.C. 1401 et seq., and the Clean Water Act of 1972, 33 U.S.C. 1251 et seq. (CWA). While the CWA does not apply specifically to an EPA designation of a long-term dredged material disposal site under the MPRSA, future federal and non-federal projects involving dredged material disposal in Long Island Sound will require both a section 404 permit as well as a State Water Quality Certification pursuant to section 401 of the CWA. In 1980, the MPRSA was amended to add Section 106(f) to the statute. 33 U.S.C. 1416(f). This provision is commonly referred to as the “Ambro Amendment,” named after its author, Congressman Jerome Ambro. MPRSA section 106(f), 33 U.S.C. 1416(f), was itself amended in 1990. Under this provision, the disposal of dredged material in Long Island Sound from both federal projects (i.e., projects carried out by the USACE Civil Works Program or the actions of other federal agencies) and from non-federal projects generating more than 25,000 cubic yards of material must satisfy the requirements of both CWA section 404 and the MPRSA. Disposal from non-federal projects generating less than 25,000 cubic yards of material, however, are subject only to CWA section 404.

This rule proposes to designate the ELDS for open-water disposal of dredged material. While EPA is currently proposing the designation of the ELDS as its preferred alternative, EPA also has concluded, based on the analysis in the DSEIS, that two other alternatives, the Niantic Bay and Cornfield Shoals disposal sites (NBDS and CSDS), or portions thereof, could potentially be designated in addition to, or instead of, the ELDS. All three sites are described in detail in section IV, Disposal Site Descriptions.

EPA has conducted the disposal site designation process consistent with the requirements of the MPRSA, the National Environmental Policy Act (NEPA), the Coastal Zone Management Act (CZMA), and other relevant statutes and regulations. The site designations are intended to be effective for an indefinite period of time.

It is important to understand that the designation of a dredged material disposal site by EPA does not by itself authorize the disposal at that site of dredged material from any particular dredging project. For example, designation of the ELDS would only make that site available to receive dredged material from a specific project if no environmentally preferable, practicable alternative for managing that dredged material exists, and if analysis of the dredged material indicates that it is suitable for open-water disposal. See 40 CFR 227.1(b), 227.2 and 227.3; 40 CFR part 227, subparts B and C.

Thus, each proposed dredging project will be evaluated on a case-by-case basis to determine whether there are practicable, environmentally preferable alternatives to open-water disposal (i.e., whether there is a need for open-water disposal). In addition, the dredged material from each proposed disposal project will be subjected to MPRSA and/or CWA sediment testing requirements to determine its suitability for possible open-water disposal at an approved site. Alternatives to open-water disposal that will be considered include upland disposal and beneficial uses such as beach nourishment. If environmentally preferable, practicable disposal alternatives exist, open-water disposal will not be allowed. EPA also will not approve dredged material for open-water disposal if it determines that the material has the potential to cause unacceptable adverse effects to the marine environment or human health. The review process for proposed disposal projects is discussed in more detail below and in the DSEIS.

Dredged material disposal sites designated by EPA under the MPRSA are subject to detailed management and monitoring protocols to track site conditions and prevent the occurrence of unacceptable adverse effects. EPA and the USACE typically share responsibility for the management and monitoring of these disposal sites. The management and monitoring protocols for the ELDS are described in the Site Management and Monitoring Plan (SMMP) that is incorporated in the DSEIS as Appendix I. See 33 U.S.C. 1412(c)(3). EPA is authorized to close or limit the use of these sites to further disposal activity if their use causes unacceptable adverse impacts to the marine environment or human health.

As described in the DSEIS, the purpose of EPA's proposed action is to determine whether one or more environmentally sound open-water dredged material disposal sites should be authorized for future long-term use in the eastern Long Island Sound region and, if so, to designate the site or sites accordingly and consistent with applicable law. The need for this effort derives from the following facts: (1) There are currently no disposal sites designated for long-term use in the eastern Long Island Sound region; (2) the two currently used sites in this region are only authorized for use until December 23, 2016; (3) periodic dredging is necessary to maintain safe navigation and marine commerce, and dredged material disposal is necessary when practicable alternative means of managing the material are not available; (4) EPA determined, based on the evaluation of projected dredging needs over a 30-year planning horizon and alternatives to open-water disposal conducted for the USACE's DMMP, that there are dredging and dredged material disposal/handling needs that exceed the available disposal/handling capacity in the eastern region of Long Island Sound; and (5) the MPRSA requires an EPA designation for any long-term dredged material disposal site.

In addition, the closest designated sites outside the eastern Long Island Sound region (and outside the “Zone of Siting Feasibility,” or ZSF, which is discussed in Section 1.3 of the DSEIS), are the Central Long Island Sound Disposal Site (CLDS) and the Rhode Island Sound Disposal Site (RISDS), which are 29.9 nautical miles (nmi) and 51.4 nmi, respectively, from the Saybrook Outer Bars at the mouth of the Connecticut River. The Saybrook Outer Bars is the southernmost project in the Connecticut River dredging center, which is the largest dredging center in the eastern Long Island Sound region. The Western Long Island Sound Disposal Site (WLDS) is even farther to the west than the CLDS, lying 58.4 nmi from the Connecticut River dredging center (DMMP, Section 5.3).

While the CLDS, WLDS, and RISDS have all been determined to be environmentally sound sites for receiving suitable dredged material, proposing to use any of them for suitable dredged material from the eastern region of Long Island Sound would be problematic and EPA would consider them to be options of last resort. Indeed, EPA does not consider the WLDS to be a truly viable option for eastern Long Island Sound material given how distant it is and given the fact that if material was being hauled long distance to the west from the eastern region of the Sound, the material would be taken to the CLDS and not hauled even farther to the WLDS. At the same time, using the CLDS or RISDS (not to mention the WLDS) would greatly increase the transport distance for, and duration of, open-water disposal for dredging projects from the eastern Long Island Sound region. This, in turn, would greatly increase the cost of such projects and would likely render many dredging projects too expensive to conduct, thus threatening safe navigation and interfering with marine recreation and commerce. Furthermore, the greater transport distance would also be environmentally detrimental in that it would entail greater energy use, increased air emissions, and increased risk of spills and short dumps (DSEIS, Section 2.1). Regarding air emissions, increased hauling distances may require using larger scows with more powerful tug boats, which would use more fuel and cause more emission of air pollutants.

As determined by the USACE through the development of its recently completed Long Island Sound Dredged Material Management Plan (DMMP), and described in the DSEIS (Section 2.3 and Tables 2-2 and 2-3), dredging in eastern Long Island Sound is projected to generate approximately 22.6 million cubic yards (mcy) of dredged material over the next 30 years, including 17.9 mcy from Connecticut ports and harbors and 4.7 mcy from ports and harbors in New York. Of the total amount of 22.6 mcy, approximately 13.5 mcy are projected to be fine-grained sediment that meets MPRSA and CWA standards for aquatic disposal (i.e., “suitable” material), and 9.1 mcy are projected to be coarse-grained sand that also meets MPRSA and CWA standards for aquatic disposal (i.e., also “suitable” material). In addition, the DMMP estimates that approximately 80,900 cy of material from eastern Long Island Sound will be fine-grained sediment that does not meet MPRSA and CWA standards for aquatic disposal (i.e., “unsuitable” material).

Although Rhode Island is included in the ZSF for an eastern Long Island Sound dredged material disposal site—the ZSF is described later in section V, Compliance with Statutory and Regulatory Authorities—the volume of material estimated to come from two Rhode Island dredging centers (Block Island and South-Central/Southeast Washington County) located within the ZSF in Rhode Island is not included in the total amount of material estimated to come from the eastern portion of the Sound. This is because these dredging centers are closer to the RISDS. In addition, much of the dredged material from these two dredging centers is sand and will end up being used beneficially to nourish beaches.

The DMMP also estimates the total dredging needs for the entire Long Island Sound region at 52.9 mcy, meaning the central and western regions are projected to generate approximately 30.3 mcy of dredged material over the 30-year planning horizon (DMMP, Section 4.7 and Table 4.1). Of the total of 30.3 mcy, 20.9 mcy are projected to be fine-grained sediment that meets MPRSA and CWA standards for aquatic disposal (i.e., “suitable” material), 6.1 mcy are projected to be course-grained sand that also would be suitable for open-water disposal, and 3.3 mcy is projected to be fine-grained sediment unsuitable for open-water disposal. This leaves a total of 27 mcy of dredged material that could be suitable for open-water disposal, although EPA expects most, if not all, of the 6.1 mcy of sand would be used beneficially. The combined capacity of the CLDS and WLDS is approximately 40 mcy, which is enough to handle the 27 mcy from those regions. Those sites, however, neither have the capacity nor were intended also to meet the dredging needs of the eastern Long Island Sound region, which, as stated above, has been estimated to be approximately 22.6 mcy of suitable material (which, when added to the 27 mcy of suitable material from the central and western regions, amounts to a total of 49.6 mcy of suitable material from all of Long Island Sound). Furthermore, the distances from mouth of the Connecticut River to the CLDS and WLDS are 29.9 nmi and 58.4 nmi, respectively. Thus, both sites are outside the ZSF for the eastern Long Island Sound Region and for the reasons discussed above, neither would be a viable as a long-term solution for dredged material from the eastern Long Island Sound region, even if the CLDS could conceivably be used for material from the eastern Sound in an emergency situation.

The DMMP also included a detailed assessment of alternatives to open-water disposal and determined that, while all the sand generated in this region should be able to be used beneficially to nourish beaches, there are not practicable alternatives to open-water disposal with sufficient capacity to handle the projected volume of fine-grained sediment. As described in section VI, Restrictions, and in the proposed rule itself, there will be restrictions on the use of all Long Island Sound dredged material disposal sites that are designed to facilitate and promote the use of practicable alternatives to open-water disposal whenever available, but one or more designated open-water disposal sites are needed in eastern Long Island Sound.

EPA designation of a long-term dredged material disposal site(s) provides environmental benefits. First, when use of a site under the USACE short-term site selection authority is due to expire, designation by EPA is the only way to authorize continued use of that site, even if the site is environmentally suitable or even environmentally preferable to all other sites. With the NLDS and CSDS closing in December 2016, EPA's site designation studies were designed to determine whether or not these or any other sites should be designated for continued long-term use. Congress has directed that the disposal of dredged material should take place at EPA-designated sites, rather than USACE-selected sites, when EPA-designated sites are available (see MPRSA 103(b)). Thus, Congress has identified a preference for use of EPA-designated sites.

Second, MPRSA criteria for selecting and designating sites require EPA to consider previously used disposal sites or areas, with active or historically used sites given preference in the evaluation (40 CFR 228.5(e)). This preference is intended to concentrate the effects, if any, of disposal practices to small, discrete areas that have already received dredged material, and avoid distributing any effects over a larger geographic area. Finally, EPA designated sites require a SMMP that will help ensure environmentally sound monitoring and management of the sites.

Periodic dredging of harbors and channels and, therefore, dredged material management, are essential for ensuring safe navigation and facilitating marine commerce. This is because the natural processes of erosion and siltation result in sediment accumulation in federal navigation channels, harbors, port facilities, marinas, and other important areas of our water bodies. Unsafe navigational conditions not only threaten public health and safety, but also pose an environmental threat from an increased risk of spills from vessels involved in accidents. Navigation safety is a regulatory requirement for such agencies as the USACE and U.S. Coast Guard.

Economic considerations also contribute to the need for dredging (and the environmentally sound management of dredged material). There are a large number of important navigation-dependent businesses and industries in the eastern Long Island Sound region and Block Island Sound, ranging from shipping (especially the movement of petroleum fuels and the shipping of bulk materials), to recreational boating-related businesses, marine transportation, commercial and recreational fishing, interstate ferry operations, and military navigation, such as that associated with the U.S. Naval Submarine Base in New London. These businesses and industries contribute substantially to the region's economic output, the gross state product (GSP) of the bordering states and tax revenue. Continued access to harbors, berths, and mooring areas is vital to ensuring the continued economic health of these industries, and to preserving the ability of the region to import fuels, bulk supplies, and other commodities at competitive prices. In addition, preserving navigation channels, marinas, harbors, berthing areas, and other marine resources, improves the quality of life for residents and visitors to the eastern Long Island Sound region by facilitating recreational boating and associated activities, such as fishing and sightseeing.

Finally, maintaining these marine areas (i.e., navigation channels, harbors, berthing areas) also is important for homeland security and public safety, as they support the operation of the U.S. Naval Submarine Base and USCG facilities in the region, as well as other governmental entities that operate on the waters of Long Island Sound.

Entities potentially affected by this proposed action are persons, organizations, or government bodies seeking to dispose of dredged material in waters of eastern Long Island Sound, subject to the requirements of the MPRSA and/or the CWA and their implementing regulations. This proposed rule is expected to be primarily of relevance to: (a) Private parties seeking permits from the USACE to transport more than 25,000 cubic yards of dredged material for the purpose of disposal into the waters of eastern Long Island Sound; (b) the USACE for its own dredged material disposal projects; and (c) other federal agencies seeking to dispose of dredged material in eastern Long Island Sound. Potentially affected entities and categories of entities that may seek to use the proposed dredged material disposal site and would be subject to the proposed rule include:

This table is not intended to be comprehensive, but rather provides a guide for readers regarding the types of entities that could potentially be affected should the proposed rule become a final rule. EPA notes that nothing in this proposed rule alters the jurisdiction or authority of EPA, the USACE, or the types of entities regulated under the MPRSA and/or CWA. Questions regarding the applicability of this proposed rule to a particular entity should be directed to the contact person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

This rule proposes to designate the ELDS for open-water disposal of dredged material for several reasons. First, unlike the other two alternatives (i.e., Cornfield Shoals and portions of the Niantic Bay site), the entire ELDS is a containment site, which would support effective management and monitoring. Second, the NLDS, a part of which makes up part of the ELDS, has been used for dredged material disposal for over 35 years, and monitoring of the site has determined that past and present management practices have been successful in minimizing short-term, long-term, and cumulative impacts to water quality and benthic habitat. Third, designating the ELDS, which includes a portion of the NLDS, would be consistent with USEPA's ocean disposal regulations, which indicate a preference for designating disposal sites in areas that have been used in the past, rather than new, relatively undisturbed areas (40 CFR 228.5(e)). Finally, the capacity of the ELDS is approximately 27 million cy (based on water volume below 59 feet [18 m]), which would be sufficient to meet the dredging needs of the eastern Long Island Sound region for the next 30 years and beyond.

While EPA is currently proposing the designation of the ELDS as its preferred alternative, EPA also has concluded, based on the analysis in the DSEIS, that two other alternatives, the Niantic Bay and Cornfield Shoals disposal sites (NBDS and CSDS), or portions thereof, could potentially be designated in addition to, or instead of, the ELDS. The Niantic Bay alternative, located just to the west of the existing NLDS, contains an area that was historically used (i.e., the NBDS), which is a criterion in the regulations. It also has a capacity of up to 27 million cy (based on water volume below 59 feet [18 m]), which is sufficient to meet the dredging needs of the eastern Long Island Sound region. However, the Niantic Bay site is predominately a transitional area, with a containment area in the northeastern corner, and the remainder of the site being dispersive. EPA is not recommending this site as a preferred alternative at this time primarily because it is not fully a containment site, as is the ELDS site.

The CSDS, located in the western part of eastern Long Island Sound, has been used for dredged material disposal for over 30 years. Because the site is located in a highly dispersive environment, disposal there has been limited to certain types of sediment (e.g., sandy material). Monitoring of the site has determined that past and present management practices have been successful in minimizing short-term, long-term, and cumulative impacts to water quality and benthic habitat from dredged material disposal. Designation of this site in addition to one of the other alternatives would provide a disposal site on both ends of eastern Long Island Sound, which could reduce travel time for tugs/scows transporting dredged material for disposal at the CSDS. This, in turn, could reduce costs and further minimize any risks of spills or short dumps. Due to the high energy and dispersive nature of the area, the site has unlimited capacity, but disposal at the site would be restricted to only certain types of sediments, such as sand, consistent with past practice.

Despite these considerations, EPA does not currently recommend designating the CSDS. Given the site's dispersive characteristics, EPA concludes that the CSDS would not be appropriate to designate as the sole disposal site in eastern Long Island Sound. See 40 CFR 228.6(a)(5) and (6). Furthermore, EPA is not proposing to designate the Cornfield Shoals site even as a limited complement to one or more other sites because of the growing opportunities for sand and other dredged sediments to be beneficially used, such as for beach nourishment.

The following site descriptions are based on information in section 3.4.3 of the DSEIS and other support documents. Specifically, Figures 3-9 and 3-10 in the DSEIS show the locations of the sites, and Table 3-8 provides corner coordinates.

The ELDS alternative is located to the south of the mouth of Thames River estuary, approximately halfway between Connecticut and New York. The ELDS encompasses approximately the western half of the existing New London Disposal Site (NLDS), along with Sites NL-Wa and NL-Wb, which are adjacent areas immediately to the west of the NLDS (see DSEIS, Figure 3-9). The dimensions of the ELDS, which combines these three areas, are 1 × 2 nautical miles (nmi), for a total size of 2 square nautical miles (nmi2). The closest upland points to the ELDS are Goshen Point, Connecticut, approximately 1.2 nmi (2.2 km) to the north, and Fishers Island, New York, approximately 1.4 nmi (2.6 km) to the southeast. The following are descriptions of the three areas that together would comprise the ELDS.

The NLDS is located in the eastern part of the eastern Long Island Sound region and has been used for dredged material disposal since 1955 (SAIC, 2001b). This active open-water dredged material disposal site was previously selected by the USACE using their site selection authority under MPRSA 103(b), 33 U.S.C. 1413(b). The statute limits the use of USACE-selected sites to two five-year periods, 33 U.S.C. 1413(b), but Congress extended the period of use of the NLDS by five additional years by Public Law on December 23, 2011 (Pub. L. 112-74, Title I, Sec 116).

The center of the NLDS is located 3.1 nmi (5.4 km) south of Eastern Point in Groton, Connecticut. The site has an area of 1 nmi2 (3.4 km2) centered at 41°16.306′ N., 72°04.571′ W. (NAD83); corner coordinates are presented in Table 3-8. Water depths in the site range from approximately 46 to 79 feet (14 to 24 m). Most of the site is located within Connecticut waters, while a small portion in the southeastern corner of the site is located in New York state waters. However, this rule proposes to include only the western half of the NLDS, which would exclude the portion of the site that is in New York waters.

Approximately 5.4 mcy (4.1 million m3) were disposed at the NLDS between 1955 and 1976. A total of approximately 3.5 mcy (2.6 million m3) of dredged material have been placed at this location since it was formally selected in 1982. The dredged materials mounds on the seafloor result in an uneven seafloor within the site; the dredged material deposits can rise as much as 16 to 20 feet (5 to 6 m) above the surrounding seafloor.

The USGS mapped the sediment at the NLDS as predominantly sand, while sediments in the northernmost part of the site were mapped as gravelly. NUSC (1979) described the sediment at the site as generally fine sand. Much of the surface sediment at the site consists of placed dredged material. Sediment sampled by the DAMOS program at locations approximately 0.5 nmi (1 km) to the east and west of the NLDS consisted of silt/clay and very fine silty sand, which may reflect pre-disposal sediment textures at the NLDS.

Site NL-Wa is immediately to the west of the NLDS and also has an area of 1 nmi2 (3.4 km2). Water depths range from approximately 45 feet (14 m) in the north, to 100 feet (30 m) in the south. The site consists of mostly sandy areas, but also an area of boulders and rocks in the northern part of the site (WHG, 2014). This boulder area may be a lag deposit of a glacial moraine. The water depth in parts of the boulder area is shallower than 59 feet (18 m).

Site NL-Wb is immediately to the west of Site NL-Wa and has an area of 0.5 nmi2 (1.7 km2). Water depths across the site range from approximately 59 feet (18 m) in the north, to 95 feet (28 m) in the south. The site consists of an extension of the sandy areas of Site NL-Wa. The southwestern corner of Site NL-Wb contains an area of bedrock and boulders; this area is an extension of a larger area with a similar substrate further to the south. The bedrock appears as parallel ridges of dipping, layered rock that can be correlated to bedrock on shore. The bedrock area within Site NL-Wb also contains some sand waves. Bartlett Reef is located approximately 0.5 nmi (0.9 km) to the west of the western boundary of the site.

The NBDS alternative is located to the south of Niantic Bay, between the Connecticut and Thames Rivers (DSEIS, Figure 3-9). It consists of the historic NBDS and Site NB-E immediately to the east. The NBDS alternative includes areas that were used historically for dredged material disposal, but it has not been used since at least 1972.

The northern edge of the alternative site is located approximately 0.6 nmi (1.1 km) from Black Point (southwestern corner of Niantic Bay) and 1.6 nmi (3.0 km) from the Millstone Nuclear Power Station (southeastern corner of Niantic Bay). The Niantic Bay alternative has an area of 2.8 nmi2, with a length of 2.08 nmi and a width of 1.33 nmi. Water depths at the site range from approximately 60 to 130 feet (18 to 40 m). The site is located entirely within Connecticut waters.

The NBDS was used historically for the disposal of dredged materials between 1969 and 1972, when a total of 176,000 cy (135,000 m3) of dredged material was disposed at this location. The site, however, has not been used for many years and it is not currently an active disposal site. Sediments at the site mostly consist of sand to the north and northwest and gravelly sediment with patches of gravel in the remainder of the area. There is a boulder area in the north-central part of the site and scour depressions in the south. The southeastern corner of the site abuts a bedrock area. The historic NBDS has an area of approximately 1.8 nmi2 (6.2 km2).

Water depths at Site NB-E range from 43 feet (13 m) in the north to 230 feet (70 m) in the southeast. Surface sediments at the site are generally similar to sediments at the NBDS. The southwestern corner of Site NB-E contains a bedrock area, which is an extension of an exposed area of dipping bedrock layers to the south of the site. Site NB-E has an area of 1.0 nmi2 (3.4 km2). Bartlett Reef, a bedrock shoal, is located approximately 0.5 nmi (1 km) to the east of the site.

The CSDS alternative consists entirely of the active CSDS, which is located in the westernmost part of eastern Long Island Sound, approximately halfway between the states of Connecticut and New York (Figure 3-10). Like the NLDS, the CSDS was selected by the USACE using its site selection authority, and use of the site was then further extended by Congress on December 23, 2011 (Pub. L.-112-74, Title I, Sec 116). An estimated 1.2 mcy (0.95 million m3) were disposed at the site between 1960 and 1976, and an additional 1.7 mcy (1.3 million m3) between 1982 and 2013.

The center of the site is located 3.3 nmi (6.1 km) south of Cornfield Point in Old Saybrook, Connecticut. The site has an area of 1 nmi2 (3.4 km2) centered at 41°12.6858′ N., 72°21.4914′ W., (NAD83). The water depth is around 150 feet (50 m). The site is located mostly within Connecticut waters, with only approximately 17 percent in New York state waters.

Bottom currents generally move in an ENE-WSW direction. The seafloor around the CSDS is relatively flat, with longitudinal ripples and other bedforms that suggests that this area is sediment-starved. The site is classified as erosional/non-depositional in the DSEIS. The surface of the seafloor at the CSDS consists predominantly of gravel and gravelly sediment. Gravelly sediment consists of a mixture of 50 to 90% sand, silt and clay, with the remaining fraction consisting of gravel.

In proposing to designate a dredged material disposal site for the eastern portion of Long Island Sound, EPA has conducted the dredged material disposal site designation process consistent with the requirements of the MPRSA, NEPA, CZMA, the Endangered Species Act (ESA), the Magnuson-Stevens Fishery Conservation and Management Act (MSFCMA), and any other applicable legal requirements.

Section 102(c) of the MPRSA, as amended, 33 U.S.C. 1412(c) et seq., gives the Administrator of EPA authority to designate sites where ocean disposal of dredged material may be permitted. See also 33 U.S.C. 1413(b) and 40 CFR 228.4(e). The statute places no specific time limit on the term for use of an EPA-designated disposal site. Thus, EPA site designations can be for an indefinite term and are generally thought of as long-term designations. EPA may, however, place various restrictions or limits on the use of a site based on the site's capacity to accommodate dredged material or other environmental concerns. See 33 U.S.C. 1412(c).

Section 103(b) of the MPRSA, 33 U.S.C. 1413(b), provides that any ocean disposal of dredged material should occur at EPA-designated sites to the maximum extent feasible. In the absence of an available EPA-designated site, however, the USACE is authorized to “select” appropriate disposal sites. In 1992, Congress amended MPRSA section 103(b) to place maximum time limits on the use of USACE-selected disposal sites. Specifically, the statute restricted the use of such sites to two separate five-year terms. There are no EPA-designated dredged material disposal sites in the eastern portion of Long Island Sound and past open-water disposal of dredged material from projects subject to MPRSA requirements under section 106(f) has been conducted in this area of Long Island Sound at sites used pursuant to the USACE site selection authority. The two active USACE-selected sites, the NLDS and CSDS, will no longer be available after December 23, 2016, however, when their Congressionally-authorized term of use expires.

The Ocean Dumping Regulations, see generally 40 CFR Subchapter H, prescribe general and specific criteria at 40 CFR 228.5 and 228.6, respectively, to guide EPA's choice of disposal sites for final designation. EPA regulations at 40 CFR 228.4(e)(1) provide, among other things, that EPA will designate any disposal sites by promulgation in 40 CFR part 228. Ocean dumping sites designated on a final basis are promulgated at 40 CFR 228.15. Section 102(c) of the MPRSA, 33 U.S.C. 1412(c), and 40 CFR 228.3 also establish requirements for EPA's ongoing management and monitoring, in conjunction with the USACE, of disposal sites designated by EPA to ensure that unacceptable, adverse environmental impacts do not occur. Examples of such management and monitoring include the following: Regulating the times, rates, and methods of disposal, as well as the quantities and types of material that may be disposed; conducting pre- and post-disposal monitoring of sites; conducting disposal site evaluation and designation studies; and, if warranted, recommending modification of site use and/or designation conditions and restrictions. See also 40 CFR 228.7, 228.8, 228.9.

Finally, a disposal site designation by EPA does not actually authorize any dredged material to be disposed of at that site. It only makes that site available as a possible management option if various other conditions are met first. Use of the site for dredged material disposal must be authorized by the Corps under MPRSA section 103(b), subject to EPA review, and such disposal at the site can only be authorized if: (1) It is determined that there is a need for open-water disposal for that project (i.e., that there are no practicable alternatives to such disposal that would cause less harm to the environment); and (2) the dredged material satisfies the applicable environmental impact criteria specified in EPA's regulations at 40 CFR part 227. See 40 CFR 227.1(b), 227.2 and 227.16. Furthermore, the authorization for disposal is also subject to review for compliance with other applicable legal requirements, which may include the ESA, the MSFCMA, the CWA (including any applicable state water quality standards), NEPA, and the CZMA. The following describes EPA's evaluation of the ELDS, NBDS, and CSDS alternatives pursuant to the applicable site evaluation criteria, and its compliance with site management and monitoring requirements.

EPA undertook its evaluation of whether to designate any dredged material disposal sites in the eastern Long Island Sound region pursuant to its authority under MPRSA section 102(c) in response to several factors. These factors include the following:

• The determination by EPA, based on the evaluation of projected dredging needs over the 30-year planning horizon and alternatives to open-water disposal conducted for the USACE's DMMP, that the potential alternatives to open-water disposal do not provide sufficient capacity to accept the quantity of dredged material expected to be generated over the next 30 years in the region;

• The prohibition on use of the NLDS and CSDS disposal sites after December 23, 2016, pursuant to the USACE site selection authority under MPRSA section 103(b) and the five-year extension provided by Congress under Public Law 112-74, Title I, Sec 116.

• The understanding that in the absence of an EPA-designated disposal site or sites, any necessary open-water disposal would either be stymied, despite the importance of dredging for ensuring navigational safety and facilitating marine commercial and recreational activities, or the USACE would have to undertake additional short-term site selections, perhaps many of them, in the future;

• The clear Congressional preference expressed in MPRSA section 103(b) that any open-water disposal of dredged material take place at EPA-designated sites, if feasible;

• The fact that the two closest EPA-designated sites outside the eastern Long Island Sound region, the CLDS and RISDS, do not have the capacity to accept the quantity of suitable dredged material estimated to be generated from the eastern region of Long Island Sound, which was not anticipated when these sites were designated in 2005, and the additional fact that the two sites are 29.9 nmi and 51.4 nmi respectively from the Connecticut River dredging center, which would significantly increase transportation costs and project durations, while also increasing energy use, air emissions, and the risk of spills or short-dumps; and

• EPA's policy view that it is generally environmentally preferable to concentrate any open-water disposal at sites that have been used historically and at fewer sites, rather than relying on the selection of multiple sites to be used for a limited time, see 40 CFR 228.5(e).

EPA's evaluation considered whether there was a need to designate one or more disposal sites for long-term dredged material disposal, including an assessment of whether other dredged material management methods could reasonably be judged to obviate the need for such designations. Having concluded that there was a need for open-water disposal sites, EPA then assessed whether there were sites that would satisfy the applicable environmental criteria to support a site designation under MPRSA section 102(c). The MPRSA and EPA regulations promulgated thereunder impose a number of requirements related to the designation of dredged material disposal sites. These include procedural requirements, specification of criteria for use in site evaluations, and the requirement that a SMMP must be developed for all designated sites. As discussed below, EPA complied with each of these requirements in proposing to designate the ELDS.

MPRSA sections 102(c) and 103(b) indicate that EPA may designate ocean disposal sites for dredged material. EPA regulations at 40 CFR 228.4(e) specify that dredged material disposal sites will be “designated by EPA promulgation in this [40 CFR] part 228 . . . .” EPA regulations at 40 CFR 228.6(b) direct that if an EIS is prepared by EPA to assess the proposed designation of one or more disposal sites, it should include the results of an environmental evaluation of the proposed disposal site(s), the Draft EIS (DEIS) should be presented to the public along with a proposed rule for the proposed disposal site designation(s), and that a Final EIS (FEIS) should be provided at the time of final rulemaking for the site designation. EPA has complied with all procedural requirements related to the publication of this proposed rule and associated DSEIS. The Agency has prepared a thorough environmental evaluation of the recommended alternative site being proposed for designation, the other two alternative sites still being considered, and other courses of action (including the option of not designating open-water disposal sites). This evaluation is presented in the DSEIS (and related documents) and this proposed rule.

EPA regulations under the MPRSA identify four general criteria and 11 specific criteria for evaluating locations for the potential designation of dredged material disposal sites. See 40 CFR 228.4(e), 228.5 and 228.6. The evaluation of the ELDS with respect to the four general and 11 specific criteria is discussed in detail in the DSEIS and supporting documents and is summarized below. The evaluation of the NBDS and CSDS with respect to the criteria also is discussed in detail in the DSEIS and supporting documents, but is not discussed in detail below because EPA is not currently proposing to designate these sites.

As described in the DSEIS, and summarized below, EPA has determined that the ELDS, NBDS, and CSDS satisfy the four general criteria specified in 40 CFR 228.5. This is discussed in Chapter 5 and summarized in Table 5-9, “Summary of Impacts for Action and No Action Alternatives,” of the DSEIS.

i. Sites must be selected to minimize interference with other activities in the marine environment, particularly avoiding areas of existing fisheries or shellfisheries, and regions of heavy commercial or recreational navigation (40 CFR 228.5(a)).

EPA's evaluation determined that use of the ELDS would cause minimal interference with the aquatic activities identified in the criterion. The site is not located in shipping lanes or any other region of heavy commercial or recreational navigation. In addition, the site is not located in an area that is important for commercial or recreational fishing or shellfish harvesting. EPA used Geographic Information System (GIS) software to overlay the locations of various uses and natural resources of the marine environment on the disposal site location and surrounding areas (including their bathymetry). Analysis of this data indicated that use of the site would have minimal potential for interfering with other existing or ongoing uses of the marine environment in and around the ELDS, including lobster harvesting or fishing activities. In addition, the western half of the ELDS has been used for dredged material disposal for many years (as the NLDS) and not only has this activity not significantly interfered with the uses identified in the criterion, but mariners in the area are accustomed to use of this site. Finally, time-of-year restrictions (also known as “environmental windows”) imposed to protect fishery resources will typically limit dredged material disposal activities to the months of October through April, thus further minimizing any possibility of interference with the various activities specified in the criterion. The NBDS and CSDS also meet this criterion for largely the same reasons.

ii. Sites must be situated such that temporary perturbations to water quality or other environmental conditions during initial mixing caused by disposal operations would be reduced to normal ambient levels or to undetectable contaminant concentrations or effects before reaching any beach, shoreline, marine sanctuary, or known geographically limited fishery or shellfishery (40 CFR 228.5(b)).

EPA's analysis concludes that the ELDS satisfies this criterion. First, the site is a significant distance from any beach, shoreline, marine sanctuary (in fact, there are no federally-designated marine sanctuaries in Long Island Sound), or known geographically limited fishery or shellfishery. Second, the site will be used only for the disposal of dredged material determined to be suitable for open-water disposal by application of the MPRSA's ocean dumping criteria. See 40 CFR part 227. These criteria include provisions related to water quality and account for initial mixing. See 40 CFR 227.4, 227.5(d), 227.6(b) and (c), 227.13(c), 227.27, and 227.29. Data evaluated during development of the DSEIS, including data from monitoring conducted during and after past disposal activities, indicates that any temporary perturbations in water quality or other environmental conditions at the site during initial mixing from disposal operations will be limited to the immediate area of the site and will neither cause any significant environmental degradation at the site nor reach any beach, shoreline, marine sanctuary, or other important natural resource area. The NBDS and CSDS also meet this criterion for the same reasons.

iii. The sizes of disposal sites will be limited in order to localize for identification and control any immediate adverse impacts, and to permit the implementation of effective monitoring and surveillance to prevent adverse long-range impacts. Size, configuration, and location are to be determined as part of the disposal site evaluation (40 CFR 228.5(d)).

EPA has determined, based on the information presented in the DSEIS, that the ELDS, NBDS, and CSDS alternatives are sufficiently limited in size to allow for the identification and control of any immediate adverse impacts, and to permit the implementation of effective monitoring and surveillance to prevent adverse long-range impacts. The maximum combined size of the three sites is approximately 5.8 nmi2, which is just 0.015 (1.5 percent) of the approximately 370 nmi2 surface area of the eastern Long Island Sound region (the ZSF excluding Block Island Sound), and just 0.0043 (less than one-percent) of the surface area of the entire Long Island Sound. The long history of dredged material disposal site monitoring in New England through the DAMOS program, and specifically at active and historic dredged material disposal sites in Long Island Sound, provides ample evidence that these surveillance and monitoring programs are effective at determining physical, chemical, and biological impacts at sites of the size of the options considered in this case.

All three alternative sites are identified by specific coordinates spelled out in the DSEIS, and the use of precision navigation equipment in both dredged material disposal operations and monitoring efforts will enable accurate disposal operations and contribute to effective management and monitoring of the sites. Detailed plans for the management and monitoring of the ELDS are described in the SMMP (Appendix I of the DSEIS). Finally, as discussed herein and in the DEIS, EPA has tailored the boundaries of each of the alternative sites in light of site characteristics, such as local currents and bottom features, so that the area and boundaries of the sites are optimized for environmentally sound dredged material disposal operations.

iv. EPA will, wherever feasible, designate ocean dumping sites beyond the edge of the continental shelf and other such sites that have been historically used (40 CFR 228.5(e)).

EPA evaluated sites beyond the edge of the continental shelf and historical disposal sites in Long Island Sound as part of the alternatives analysis conducted for the DSEIS. The continental shelf extends about 60 nmi seaward from Montauk Point, New York, and a site located on the continental slope would result in a transit of approximately 80 nmi from New London. This evaluation determined that the long distances and travel times between the dredging locations in eastern Long Island Sound and the continental shelf posed significant environmental, operational, safety, and financial concerns, rendering such options unreasonable. Environmental concerns include increased risk of encountering endangered species during transit, increased fuel consumption and air emissions, and greater potential for accidents in transit that could lead to dredged material being dumped in unintended areas.

As described in the Disposal Site Descriptions section, the ELDS, NBDS, and CSDS all encompass the footprints of historically used sites. To the extent that the site boundaries have been adjusted to include adjacent areas outside of the existing sites, EPA has concluded that these adjustments will be environmentally beneficial, as discussed in the DSEIS. For example, rather than propose designation of the existing NLDS, the eastern half of which is at capacity and nearing depths that could lead to scouring of the sediment by surface currents and storms, EPA is proposing a new ELDS that encompasses the western half of the existing NLDS along with two adjacent areas immediately to the west of the NLDS. These two adjacent areas have been determined to be containment areas by physical oceanographic modeling. Long-term monitoring of the three alternative sites, or at least the historically used parts of them, has shown minimal adverse impacts to the adjacent marine environment and rapid recovery of the benthic community in the disposal mounds. While there are also other historically used disposal sites in eastern Long Island Sound, the analysis in the DSEIS concludes that the ELDS, NBDS, and CSDS are the preferable locations. Thus, designation of the ELSD, NBDS, and/or CSDS would be consistent with this criterion.

In addition to the four general criteria discussed above, 40 CFR 228.6(a) lists eleven specific factors to be used in evaluating the impact of using the site(s) for dredged material disposal under the MPRSA. Compliance with the eleven specific criteria is discussed below. It is also discussed in detail in Chapter 5 and summarized in Table 5-13, “Summary of Impacts at the Alternative Sites,” of the DSEIS.

i. Geographical Position, Depth of Water, Bottom Topography and Distance From Coast (40 CFR 228.6(a)(1)).

Based on analyses in the DSEIS, EPA has concluded that the geographical position (i.e., location), water depth, bottom topography (i.e., bathymetry), and distance from coastlines of the ELDS (and part of the NBDS) will facilitate containment of dredged material within site boundaries, and reduce the likelihood of material being transported away from the site to adjacent sea floor areas. As described in the preceding Disposal Sites Description section and in the above discussion of compliance with general criteria iii and iv (40 CFR 228.5(c) and (d)), all three sites (ELDS, NBDS and CSDS) are located far enough from shore and are in deep enough water to avoid adverse impacts to the coastline.

The ELDS and northeastern portion of the NBDS are containment areas, so disposal of dredged material there is expected to stay in those sites and not cause adverse effects to the adjacent seafloor areas. The CSDS and remaining portions of the NBDS are dispersive, so any dredged material disposed there would not be expected to stay within the site boundaries. However, disposal site monitoring, ambient water quality monitoring, and fisheries surveys have not documented any adverse impacts from the use of the CSDS since the early 1980s. The closest points of land to the ELDS are Goshen Point, Connecticut, approximately 1.2 nmi (2.2 km) to the north, and Fishers Island, New York, approximately 2 nmi (3.2 km) to the southeast, in water depths ranging from approximately 45 feet (14 m) in the north to 100 feet (30 m) in the south. The northern edge of the NBDS alternative is located approximately 0.6 nmi (1.1 km) from Black Point (southwestern corner of Niantic Bay) and 1.6 nmi (3.0 km) from the Millstone Nuclear Power Station (southeastern corner of Niantic Bay). Water depths at the site range from approximately 60 to 130 feet (18 to 40 m). The center of the CSDS is 3.3 nmi (6.1 km) south of Cornfield Point in Old Saybrook, Connecticut, and the water depth at the site is around 150 feet (50 m).

As discussed in the DSEIS, long-term monitoring of disposal sites in Long Island Sound has indicated that creating mounds above a depth of 46 feet (14 meters) can result in material being removed from the mounds by currents. All three sites are of a sufficient depth to allow the disposal of the amount of material that is projected over the 30-year planning horizon without exceeding this depth threshold. As discussed in the DSEIS, the entire ELDS and the northeastern part of the NBDS are containment areas and, as a result, EPA expects material placed at these sites to remain there. As a result, any short-term impacts from dredged material placement will be localized and this, together with other regulatory requirements described elsewhere in this document, will facilitate prevention of any adverse impacts at the sites.

The CSDS alternative and a part of the NBDS, however, are dispersive areas from which dredged material disposed there would likely be eroded over time. This material would then be dispersed in the water column and transported predominantly toward the west. As a result, past disposal at the CSDS has been limited to certain types of sediments (i.e., sandy material). If the NBDS were designated, similar restrictions would likely be appropriate regarding any use of the dispersive areas of the site. Monitoring of the CSDS has determined that past and present management practices have been successful in minimizing short-term, long-term, and cumulative impacts to water quality and benthic habitat from dredged material disposal. EPA expects that similar results would follow from using the dispersive portions of the NBDS with similar restrictions.

ii. Location in Relation To Breeding, Spawning, Nursery, Feeding, or Passage Areas of Living Resources in Adult or Juvenile Phases (40 CFR 228.6(a)(2)).

EPA considered the proposed ELDS and the other two sites in relation to breeding, spawning, nursery, feeding, and passage areas for adult and juvenile phases (i.e., life stages) of living resources in Long Island Sound. From this analysis, EPA concluded that, while disposal of suitable dredged material at the ELDS, NBDS, or CSDS would cause some short-term, localized effects, overall it would not cause adverse effects to the habitat functions and living resources specified in the above criterion. As previously noted, the maximum combined size of the three sites is approximately 5.8 nmi 2, which is just 0.015 (1.5 percent) of the approximately 370 nmi2 surface area of the eastern Long Island Sound region (the ZSF excluding Block Island Sound), and just 0.0043 (less than one-percent) of the surface area of the entire Long Island Sound.

Generally, there are three primary ways that dredged material disposal could potentially adversely affect marine resources. First, disposal can cause physical impacts by injuring or burying less mobile fish, shellfish, and benthic organisms, as well as their eggs and larvae. Second, tug and barge traffic transporting the dredged material to a disposal site could possibly collide or otherwise interfere with marine mammals and reptiles. Third, contaminants in the dredged material could potentially bioaccumulate through the food chain. However, EPA and the other federal and state agencies that regulate dredging and dredged material disposal impose requirements that prevent or greatly limit the potential for these types of impacts to occur.

For example, the agencies impose “environmental windows,” or time-of-year restrictions, for both dredging and dredged material disposal. This type of restriction has been a standard practice for more than a decade in Long Island Sound, and New England generally, and is incorporated in USACE permits and authorizations in response to consultation with federal and state natural resource agencies (e.g., NMFS). Dredged material disposal in Long Island Sound is generally limited to the period between October 1 and April 30 to avoid time periods when any threat of effects on aquatic organisms would be greater. Indeed, environmental windows are often set depending on the location of specific dredging projects in relation to certain fish and shellfish species. For example, dredging in nearshore areas where winter flounder spawning occurs is generally prohibited between February 1 and April 1; dredging that may interfere with anadromous fish runs is generally prohibited between April 1 and May 15; and dredging that may adversely affect shellfish is prohibited between June 1 and September 30. These environmental windows, in effect, serve to further restrict periods during which dredged material disposal would occur.

Another benefit of using environmental windows is that they reduce the likelihood of dredged material disposal activities interfering with marine mammals and reptiles. While there are several species of marine mammal or reptile, such as harbor porpoises, long-finned pilot whales, seals, and sea turtles, that either inhabit or migrate through Long Island Sound, most of them either leave the Sound during the winter months for warmer waters to the south or are less active and remain near the shore. There also are many species of fish (e.g., striped bass, bluefish, scup) and invertebrates (e.g., squid) that leave the Sound during the winter for either deeper water or warmer waters to the south, thus avoiding the time of year when most dredging and dredged material disposal occurs. The use of environmental windows has been refined over time and is considered an effective management tool to minimize impacts to marine resources.

Dredged material disposal will, however, have some localized impacts to fish, shellfish, and benthic organisms, such as clams and worms, that are present at a disposal site (or in the water column directly above the site) during a disposal event. The sediment plume may entrain and smother some fish in the water column, and may bury some fish, shellfish, and other marine organisms on the sea floor. It also may result in a short-term loss of forage habitat in the immediate disposal area, but the DAMOS program has documented the recolonization of disposal mounds by benthic infauna within 1-3 years after disposal and this pattern would be expected at the sites evaluated in the DSEIS. As discussed in the DSEIS (section 5.2.2), over time, disposal mounds recover and develop abundant and diverse biological communities that are healthy and able to support species typically found in the ambient surroundings. Some organisms may burrow deeply into sediments, often up to 20 inches, and are more likely to survive a burial event.

To further reduce potential environmental impacts associated with dredged material disposal, the dredged material from each proposed dredging project will be subjected to the MPRSA sediment testing requirements set forth at 40 CFR part 227 to determine its suitability for open-water disposal. Suitability for open-water disposal is determined by testing the proposed dredged material for toxicity and bioaccumulation and by quantifying the risk to human health from consuming marine organisms that are exposed to dredged material and its associated contaminants using a risk assessment model. If it is determined that the sediment is unsuitable for open-water disposal—that is, that it may unreasonably degrade or endanger human health or the marine environment—it cannot be disposed at disposal sites designated under the MPRSA. See 40 CFR 227.6. Therefore, EPA does not anticipate significant effects on marine organisms from dredged material disposal at the sites under evaluation.

EPA also is complying with the ESA by consulting with the NMFS and U.S. Fish and Wildlife Service (USFWS) concerning EPA's conclusion that the designation of the ELDS, NBDS, or CSDS would not likely adversely affect federally listed species under their respective jurisdictions or any habitat designated as critical for such species. Additionally, EPA consulted with NMFS under the MSFCMA on potential impacts to essential fish habitat (EFH). NMFS determined that the use of environmental windows and the stringent testing requirements were sufficient steps to minimize any impacts to EFH and did not offer additional conservation recommendations. Further details on these consultations are provided in the DSEIS and the section below describing compliance with the ESA and MSFCMA.

EPA recognizes that dredged material disposal causes some short-term, localized adverse effects to marine organisms in the immediate vicinity of each disposal event. But because dredged material disposal would be limited to suitable material at the 1-3 small sites under consideration here (see above regarding compliance with general criteria (40 CFR 2285(e)), and during only several months of the year, EPA concludes that designating ELDS, NBDS, or CSDS would not cause unacceptable or unreasonable adverse impacts to breeding, spawning, nursery, feeding, or passage areas of living resources in adult or juvenile phases. There is no evidence of long-term effects on benthic processes or habitat conditions.

iii. Location in Relation to Beaches and Other Amenity Areas (40 CFR 228.6(a)(3)).

EPA's analysis concludes that the ELDS, NBDS, and CSDS all satisfy this criterion. All three sites are far enough away from beaches, parks, wildlife refuges, and other areas of special concern to prevent adverse impacts to these amenities and, as previously noted, there are no marine sanctuaries in Long Island Sound. As previously described, the ELDS, NBDS, and CSDS are 1.2 nmi (2.2 km), 0.6 nmi (1.1 km), and 2.8 nmi (5.2 km) from the nearest shore, respectively, and none of the sites is closer than 1.7 nmi (3.2 km) to public beaches in either Connecticut or New York. Based on modeling results that are presented in section 5.5.3 of the DSEIS, and past monitoring of actual disposal activities, this distance is beyond any expected transport of dredged material due to tidal motion or currents. As noted above, any temporary perturbations in water quality or other environmental conditions at the sites during initial mixing from disposal operations will be limited to the immediate area of the sites and will not reach any beach, parks, wildlife refuges, or other areas of special concern.

Thus, EPA does not anticipate that the use of the ELDS, NBDS, or CSDS would cause any adverse impacts to beaches or other amenity areas.

iv. Types and Quantities of Wastes Proposed To Be Disposed of, and Proposed Methods of Release, Including Methods of Packing the Waste, if Any (40 CFR 228.6(a)(4)).

The typical composition of dredged material to be disposed at the sites is expected to range from predominantly “clay-silt” to “mostly sand.” This expectation is based on data from historical dredging projects from the eastern region of Long Island Sound. For federal dredging projects and private projects generating more 25,000 cubic yards of dredged material, EPA and the USACE will conduct sediment suitability determinations applying the criteria for testing and evaluating dredged material under 40 CFR 227 and further guidance in the “Regional Implementation Manual for the Evaluation of Dredged Material Proposed for Disposal in New England Waters” (EPA, 2004), and the material would have to satisfy these suitability criteria before it could be authorized for disposal under the MPRSA. Private dredging projects generating up to 25,000 cubic yards will continue to be regulated under CWA section 404. The requirements under the MPRSA and the CWA are discussed in detail in the DSEIS.

The ELDS, NBDS, and CSDS would receive dredged material that is transported by either government or private contractor hopper dredges or oceangoing bottom-dump barges (“scows”) towed by tugboat. Both types of equipment release the material at or very near the surface, which is the standard operating procedure for this activity. The disposal of this material will occur at specific coordinates marked by buoys and will be placed so as to concentrate material from each disposal project. This concentrated placement is expected to help minimize bottom impacts to benthic organisms. In addition, there are no plans to pack or package dredged material prior to disposal.

Furthermore, it should be emphasized that the three alternative sites are only being considered for the disposal of dredged material; disposal of other types of material will not be allowed at these sites. It also should be noted that the disposal of certain other types of material is expressly prohibited by the MPRSA and EPA regulations (e.g., industrial waste, sewage sludge, chemical warfare agents, insufficiently characterized materials) (33 U.S.C. 1414b; 40 CFR 227.5).

As previously discussed, dredging in eastern Long Island Sound is projected to generate approximately 22.6 million cubic yards (mcy) of dredged material over the next 30 years, including 17.9 mcy from Connecticut ports and harbors and 4.7 mcy from ports and harbors in New York. Of the total amount of 22.6 mcy, approximately 13.5 mcy are projected to be fine-grained sediment that meets MPRSA and CWA standards for aquatic disposal (i.e., “suitable” material), and 9.1 mcy are projected to be course-grained sand that also meets MPRSA and CWA standards for aquatic disposal (i.e., also “suitable” material). Even if none of the sand is used beneficially, which is highly unlikely given the high demand for this resource, the maximum quantity of dredged material that may possibly be disposed of at one or more of the three alternatives is approximately 22.6 mcy, and EPA expects that increased efforts to develop and use practicable alternatives to open-water disposal will reduce that amount significantly. Since the estimated capacity of the ELDS, NBDS, and CSDS is 27 mcy, 27 mcy, and unlimited respectively, there is more than sufficient capacity even if only ELDS or one of the other two alternatives is designated for long-term use. (As previously stated, EPA is not considering designating the CSDS alone because it is a dispersive site.) For all of these reasons, no significant adverse impacts are expected to be associated with the types and quantities of dredged material that may be disposed at the sites.

v. Feasibility of Surveillance and Monitoring (40 CFR 228.6(a)(5)).

Monitoring and surveillance are expected to be feasible at all three sites, although the ELDS and the northeast portion of the NBDS would be most conducive to monitoring because they're containment sites and material disposed there is expected to stay there. The ELDS, NBDS, and CSDS are all readily accessible for bathymetric and side-scan sonar surveys and the NLDS portion of the ELDS and the CSDS have been successfully monitored by the USACE over the past 35 years under the DAMOS program. Upon designation of a site or sites, monitoring would continue under the DAMOS program in accordance with the most current approved Site Management and Monitoring Plan (SMMP) for each site. A draft SMMP has been developed only for the ELDS at this time, since it is EPA's preferred alternative, but EPA will develop SMMPs for any other sites that may be designated following a similar format. As a containment site, the ELDS is conducive to the type of monitoring most commonly conducted at dredged material disposal sites, including side-scan sonar, sediment profile imaging, and sediment grab sampling. The draft SMMP for the ELDS is included as Appendix I of the DSEIS.

While the CSDS and transitional part of the NBDS can be monitored, they are more dispersive sites, which means that currents take dredged sediments away from the sites over time. Therefore, it is not possible to accurately track the fate of material placed at these sites. As explained above, that is why use of the CSDS has been limited over the years to receiving sediments from non-industrial harbors and channels, like the mouth of the Connecticut River. EPA is not currently proposing to designate the NBDS or CSDS, but if that changes after consideration of public comments, EPA would prepare an SMMP for public review and comment in conjunction with a proposal to designate the site. The SMMPs are subject to review and updating at least once every ten years, if necessary, and may be subject to additional revisions based on the results of site monitoring and other new information. Any such revisions will be closely coordinated with other federal and state resource management agencies and stakeholders during the review and approval process and will become final only when approved by EPA, in conjunction with the USACE. See 33 U.S.C. 1413 (c)(3).

vi. Dispersal, Horizontal Transport and Vertical Mixing Characteristics of the Area, Including Prevailing Current Direction and Velocity, if Any (40 CFR 228.6(a)(6)).

Although the interactions of bathymetry, wind-generated waves, and river and ocean currents in Long Island Sound are complex, the ELDS, NBDS, and CSDS are located in areas that are generally calm except during storms. (Dredging and dredged material disposal would not be conducted during storm events. See e.g., 40 CFR 228.15(b)(4)(vi)(L)). Consistent with this, past monitoring during disposal operations at the NLDS (in the vicinity of the proposed ELDS), NBDS, and CSDS revealed minimal drift of sediment out of the disposal site area as it passed through the water column.

Conditions are more complicated at the seafloor within the alternative disposal sites. Disposal site monitoring has confirmed that peak wave-induced bottom current velocities are not sufficient to cause significant erosion of dredged material placed at either the ELDS or the containment portions of the NBDS. As noted above, physical oceanographic monitoring and modeling has indicated that the ELDS and portions of the NBDS are depositional locations that collect, rather than disperse, sediment. For these reasons, EPA has determined that the dispersal, horizontal transport, and vertical mixing characteristics, as well as the current velocities and directions at the ELDS and within portions of the NBDS are appropriate to support their designation as dredged material disposal sites.

As discussed above, EPA also has determined that the CSDS and portions of the NBDS are dispersive sites with bottom currents that would likely move dredged material away from the site to surrounding areas. Therefore, EPA does not currently favor designating these sites, but they could be designated for limited use for the placement of suitable sediments with similar characteristics to native sediments in the general vicinity of the sites. This is how the CSDS was used in the past. EPA is interested in receiving comments concerning the option of designating the CSDS for such limited use.

vii. Existence and Effects of Current and Previous Discharges and Dumping in the Area (Including Cumulative Effects) (40 CFR 228.6(a)(7)).

As previously described in the Disposal Sites Descriptions section, the portion of the ELDS that was used historically as the NLDS has received approximately 8.9 mcy (6.7 million m3) since 1955. The NBDS is not currently an active disposal site, but it was used between 1969 and 1972, when a total of 176,000 cy (135,000 m3) of dredged material was disposed at this location. The CSDS has received an estimated 2.9 mcy of dredged material (2.25 million m3) since 1960.

Until the passage of the CWA in 1972, dredged material disposal was not a heavily regulated activity. Since 1972, open-water disposal in Long Island Sound has been subject to the sediment testing and alternatives analysis provisions of section 404 of the CWA. With passage of the Ambro Amendment in 1980 (which was further amended in 1990), dredged material disposal from all federal projects and non-federal projects generating more than 25,000 cubic yards of material became subject to the requirements of both CWA section 404 and the MPRSA. The result of these increasingly stringent regulatory requirements for dredged material disposal, combined with the reduction in contaminants entering waterways from other Clean Water Act programs, is that there has been a steady, measurable improvement in the quality of material that has been allowed to be placed at the NLDS portion of the ELDS and CSDS over the past 35 years.

The NLDS portion of the ELDS and CSDS both have been used on a consistent basis since the early 1980s pursuant to the USACE's short-term site selection authority under section 103(b) of the MPRSA (33 U.S.C. 1413(b)). Since then, disposal operations at these sites have been carefully managed and the material disposed there has been monitored. In EPA's view, past use of these sites generally makes them preferable to more pristine sites that have either not been used or have been used in the more distant past. See 40 CFR 228.5(e). Continuing to use existing sites, as long as they have remaining capacity, rather using a multitude of sites, helps to limit or concentrate the footprint of dredged material disposal on the seafloor of Long Island Sound. While the effects of placing suitable dredged material at a disposal site are primarily limited to short-term physical effects, such as burying benthic organisms in the location where the material is placed, EPA regards it to be preferable to concentrate such effects in particular areas and leave other areas untouched as much as possible.

That said, EPA's evaluation of data and modeling results indicates that past disposal operations have not resulted in unacceptable or unreasonable environmental degradation, and that there should be no such adverse effects in the future from the projected use of any of the three sites, although it would be easier to determine this at the ELDS and the containment portion of the NBDS, since the material is expected to stay at those sites and could be monitored. As part of this conclusion, discussed in detail in the DSEIS, EPA found that there should be no significant adverse cumulative environmental effects from using these sites on a long-term basis for dredged material disposal in compliance with all applicable regulatory requirements regarding sediment quality and site usage.

viii. Interference With Shipping, Fishing, Recreation, Mineral Extraction, Desalination, Fish and Shellfish Culture, Areas of Special Scientific Importance and Other Legitimate Uses of the Ocean (40 CFR 228.6(a)(8)).

In evaluating whether disposal activity at the sites could interfere with shipping, fishing, recreation, mineral extraction, desalination, fish or shellfish culture, areas of scientific importance, and other legitimate uses of the ocean, EPA considered both the effects of placing dredged material on the bottom of the Sound at the ELDS, NBDS, and CSDS and any effects from vessel traffic associated with transporting the dredged material to the disposal sites. From this evaluation, EPA concluded there would be no unacceptable or unreasonable adverse effects on the considerations noted in this criterion. Some of the factors listed in this criterion have already been discussed above due to the overlap of this criterion with aspects of certain other criteria. Nevertheless, EPA will address each point below.

The ELDS is the only site in close proximity to significant shipping activity. The eastern boundary of the proposed ELDS is one-half mile west of the eastern boundary of the current NLDS; this shift to the west would move the disposal site out of about half of the Submarine Transit Corridor into New London Harbor, further reducing the potential for conflicts between the disposal site and submarine traffic. Vessel traffic generated by disposal activity is expected to be similar to that which has occurred over the past 20-30 years, which has not interfered with other shipping activity. Moreover, research by EPA and the USACE concluded that after disposal at any of the three sites, resulting water depths will be sufficient to permit navigation in the area without interference. (And by providing an open-water alternative for dredged material disposal in the absence of environmentally preferable, practicable alternatives, the sites are likely to improve and facilitate navigation in many of the harbors, bays, rivers and channels around eastern Long Island Sound.)

EPA also carefully evaluated the potential effects on commercial and recreational fishing for both finfish and shellfish (including lobster) of designating the ELDS, NBDS, and CSDS for dredged material disposal and concluded that there would be no unreasonable or unacceptable adverse effects. As discussed above in relation to other site evaluation criteria, dredged material disposal will only have short-term, incidental, and insignificant effects on organisms in the disposal sites and no appreciable effects beyond the sites. Indeed, since past dredged material disposal has been determined to have no significant adverse effects on fishing, the similar projected levels of future disposal activities at the designated sites also are not expected to have any significant adverse effects.

Four main reasons that EPA concluded that no unacceptable adverse effects would occur from placing dredged material at the site alternatives are discussed below. First, as discussed above, EPA has concluded that any contaminants in material permitted for disposal—having satisfied the dredged material criteria in the regulations that restrict any toxicity and bioaccumulation—will not cause any significant adverse effects on fish, shellfish, or other aquatic organisms. Because both the ELDS and portions of the NBDS are containment areas, dredged material disposed at those sites is expected to remain there. If the CSDS and/or dispersive portion of the NBDS were to be designated, EPA would restrict the types of material to be placed at those sites, as discussed above.

Second, as also discussed above, the disposal sites do not encompass any especially important, sensitive, or limited habitat for the Sound's fish and shellfish, such as key spawning or nursery habitat for species of finfish. Numerous studies and data reviewed by EPA and the USACE indicate that there is low potential for any future incremental risk from the placement of dredged sediments at the three alternative sites, either in the long- or short-term.

Third, while EPA found that a small number of demersal fish (e.g., winter flounder), shellfish (e.g., clams and lobsters), benthic organisms (e.g., worms), and zooplankton and phytoplankton could be lost due to the physical effects of disposal (e.g., burial of organisms on the bottom by dredged material and entrainment of plankton in the water column by dredged material upon its release from a disposal barge), EPA also determined that these minor, temporary adverse effects would be neither unreasonable nor unacceptable. This determination was based on EPA's conclusion that the numbers of organisms potentially affected represent only a minuscule percentage of those in eastern Long Island Sound, and on DAMOS monitoring that consistently documents the rapid recovery of the benthic community in an area that has received dredged material. In addition, any physical effects will be further limited by the relatively few months in which disposal activities could be permitted by the environmental window (or time-of-year) restrictions.

Fourth, EPA has determined that vessel traffic associated with dredged material disposal will not have any unreasonable or unacceptable adverse effects on fishing. As explained above, environmental window restrictions will limit any disposal to the period between October 1 and April 30, and often to fewer months depending on species-specific restrictions for each dredging project, each year. Moreover, there is generally far less vessel traffic in the months when disposal would occur due to the seasonal nature of recreational boating and commercial shipping. There currently are no mineral extraction activities or desalinization facilities in the eastern Long Island Sound region with which disposal activity could potentially interfere. Energy transmission pipelines and cables are located near the sites, but none are within their boundaries. No finfish aquaculture currently takes place in Long Island Sound and the only form of shellfish culture in the area, oyster production, occurs in nearshore locations far enough away from the three alternative sites that it should not be impacted in any manner by this proposed action. Finally, none of the disposal site options are in an area of special scientific importance; in fact, areas with such characteristics were screened out very early in the alternatives screening process. Accordingly, depositing dredged material at any of the three sites will not interfere with any of the activities described in this criterion or other legitimate uses of Long Island Sound.

ix. The Existing Water Quality and Ecology of the Sites as Determined by Available Data or by Trend Assessment or Baseline Surveys (40 CFR 228.6(a)(9)).

EPA's analysis of existing water quality and ecological conditions at the site in light of available data, trend assessments and baseline surveys indicates that use of the designated disposal sites will cause no unacceptable or unreasonable adverse environmental effects. Considerations related to water quality and various ecological factors (e.g., sediment quality, benthic organisms, fish and shellfish) have already been discussed above in relation to other site selection criteria, and are discussed in detail in the DSEIS and supporting documents. In considering this criterion, EPA took into account existing water quality and sediment quality data collected at the disposal sites, including from the USACE's DAMOS site monitoring program, as well as water quality data from the Department of Energy and Environmental Protection's (CT DEEP) Long Island Sound Water Quality Monitoring Program. As discussed herein, EPA has determined that placement of suitable dredged material at the disposal site alternatives should not cause any significant adverse environmental effects to water quality or to ecological conditions at the disposal sites. EPA and the USACE have prepared a draft SMMP for the ELDS to guide future monitoring of site conditions (DSEIS Appendix I), and would prepare SMMPs for the NBDS and/or CSDS if either of them were to be designated.

x. Potentiality for the Development or Recruitment of Nuisance Species in the Disposal Sites (40 CFR 228.6(a)(10)).

Monitoring at disposal sites in Long Island Sound over the past 35 years has shown no recruitment of nuisance (invasive, non-native) species and no such adverse effects are expected to occur at the ELDS, NBDS, or CSDS in the future. EPA and the USACE will continue to monitor EPA-designated sites under their respective SMMPs, which include a “management focus” on “changes in composition and numbers of pelagic, demersal, or benthic biota at or near the disposal sites” (section 6.1.5 of the SMMP, Appendix I of the DSEIS).

xi. Existence at or in Close Proximity to the Sites of Any Significant Natural or Cultural Feature of Historical Importance (40 CFR 228.6(a)(11)).

There are no natural features of historical importance in the ELDS, NBDS, or CSDS, and the cultural resources that have the greatest potential for being impacted in eastern Long Island Sound are shipwrecks. As discussed in the DSEIS, a review of submerged vessel reports in the NOAA and Connecticut State Historic Preservation Office (CT SHPO) shipwreck databases indicate that there are three charted shipwrecks within 0.5 nmi (0.9 km) of the alternative sites. One of these charted shipwrecks is located within Site NL-Wa of the ELDS; this wreck was also identified by the side-scan sonar survey. The side-scan sonar survey identified two additional wrecks within the 0.5-nm (0.9-km) perimeter outside of the NBDS. None of these known shipwrecks are currently considered to be of historical significance. Consultation with the New York Office of Parks, Recreation and Historic Preservation (OPRHP; acts as the NY SHPO) revealed that there are no submerged vessels or historic resources within the portion of the CSDS that is located in New York State waters.

As additional side-scan sonar surveys are conducted at the disposal sites in the future under the SMMPs, and if potential shipwrecks are identified, EPA will take appropriate action in cooperation with federal and state historic preservation officials in response to any significant cultural resources. The CT SHPO also determined that there are no known aboriginal artifacts at the ELDS, NBDS, or CSDS. EPA coordinated with Indian tribes in Connecticut, Rhode Island, and New York throughout the development of the DSEIS and the tribes did not identify any important natural, cultural, spiritual, or historical features or areas within any of the three disposal sites under consideration.

In summary, there are no historic or archaeological resources within the NBDS or CSDS, and while the NL-Wa portion of the ELDS contains a shipwreck near its southern boundary, this wreck is not considered to be of historical significance. Nevertheless, any impacts to that wreck from dredged material disposal could be minimized by establishing a 164-foot (50 m) avoidance buffer surrounding the shipwreck and appropriate site management, which accommodates both the minimum buffer of 30 m recommended by the CT SHPO, and the 40-50 m minimum buffer applied by the NY OPRHP.

The ELDS, NBDS, and CSDS would be subject to specific management requirements to ensure that unacceptable adverse environmental impacts do not occur. Examples of these requirements include: (1) Restricting the use of the sites to the disposal of dredged material that has been determined to be suitable for ocean disposal following MPRSA and/or CWA requirements in accordance with the provisions of MPRSA section 106(f), as well as to material from waters in the vicinity of the disposal sites; (2) monitoring the disposal sites and their associated reference sites, which are not used for dredged material disposal, to assess potential impacts to the marine environment by providing a point of comparison to an area unaffected by dredged material disposal; and (3) retaining the right to limit or close these sites to further disposal activity if monitoring or other information reveals evidence of unacceptable adverse impacts to the marine environment. As mentioned above, dredged material disposal will not be allowed when weather and sea conditions could interfere with safe, effective placement of any dredged material at a designated site. In addition, although not technically a site management requirement, disposal activity at the sites will generally be limited to the period between October 1 and April 30, but often less depending on environmental windows to protect certain species, as described above.

EPA and the USACE have managed and monitored dredged material disposal activities at the CSDS and the historically used portion of the ELDS since the early 1980s. Site monitoring has been conducted under the USACE's DAMOS disposal site monitoring program. In accordance with the requirements of MPRSA section 102(c) and 40 CFR 228.3, EPA and the USACE have developed a draft SMMP for the ELDS, and are prepared to do so for the NBDS and/or CSDS if a decision is made to propose either for designation. The draft SMMP is incorporated in the DSEIS as Appendix I and is available for review and comment. The SMMP describes in detail the specific management and monitoring requirements for the ELDS. With respect to site monitoring, the SMMP builds on the USACE's DAMOS monitoring program, which will continue to provide the backbone of the site monitoring effort.

The NEPA, 42 U.S.C. 4321 et seq., requires the public analysis of the potential environmental effects of proposed federal agency actions and reasonable alternative courses of action to ensure that these effects, and the differences in effects among the different alternatives, are understood. The goal of this analysis is to ensure high quality, informed decision-making, to facilitate avoiding or minimizing any adverse effects of proposed actions, and to help restore and enhance environmental quality. See 40 CFR 6.100(a) and 1500.1(c) and 1500.2(d)-(f). NEPA requires public involvement throughout the decision-making process. See 40 CFR 6.400(a) and 40 CFR 1503 and 1501.7, 1506.6.

Section 102(c) of NEPA, 42 U.S.C. 4321 et seq., requires federal agencies to prepare an EIS for major federal actions significantly affecting the quality of the human environment. An EIS should assess: (1) The environmental impact of the proposed action; (2) any adverse environmental effects that cannot be avoided should the proposal be implemented; (3) alternatives to the proposed action; (4) the relationship between local short-term uses of the environment and the maintenance and enhancement of long-term productivity; and (5) any irreversible and irretrievable commitments of resources that would be involved in the proposed action should it be implemented. The required content of an EIS is further described in regulations promulgated by the President's Council on Environmental Quality (CEQ). See 40 CFR 1502.

EPA disposal site designation evaluations conducted under the MPRSA have been determined to be “functionally equivalent” to NEPA reviews, so that they are not subject to NEPA analysis requirements as a matter of law. Nevertheless, as a matter of policy, EPA voluntarily uses NEPA procedures when evaluating the potential designation of ocean dumping sites. See 63 FR 58045 (Notice of Policy and Procedures for Voluntary Preparation of National Environmental Policy Act Documents, October 29, 1998). While EPA voluntarily uses NEPA review procedures in conducting MPRSA disposal site designation evaluations, EPA also has explained that “[t]he voluntary preparation of these documents in no way legally subjects the Agency to NEPA's requirements” (63 FR 58046).

In this case, EPA has prepared a Draft Supplemental EIS (DSEIS) to evaluate the possibility of designating one or more open-water disposal sites to serve the eastern Long Island Sound region. As previously noted, the DSEIS is considered supplemental because it updates and builds on the analyses that were conducted for the 2005 Long Island Sound Environmental Impact Statement that supported the designation of the Central and Western Long Island Sound disposal sites. As part of the NEPA process, federal agencies prepare a public record of decision (ROD) at the time of their final decision on any action for which an FEIS has been prepared. If EPA decides to proceed with this proposed action after full consideration of public comments, the Agency will publish a final rule (in conjunction with the FEIS) that will serve as the ROD for the site designation. See 40 CFR 1505.2 and 1506.4 (the ROD may be integrated into any other agency document prepared in carrying out its action). In addition, EPA will also publish a Responses to Comments document in conjunction with publication of a FSEIS and final rule. The Responses to Comments will identify and respond to comments received on the DSEIS and proposed rule. EPA's use of NEPA procedures to evaluate this proposed action is further described below.

Consistent with its voluntary NEPA policy, as described and referenced above, EPA has followed the NEPA process and undertaken NEPA analyses as part of its decision-making process for the disposal site designations. EPA published a Notice of Intent to prepare an EIS, held public meetings regarding the scope of issues to be addressed by the SEIS, and has now published a DSEIS for public review and comment. The DSEIS, entitled, “Draft Supplemental Environmental Impact Statement for the Designation of Dredged Material Disposal Site(s) in Eastern Long Island Sound, Connecticut and New York,” assesses and compares the effects, including the environmental effects, of designating dredged material disposal sites in eastern Long Island Sound, and of various alternative approaches to managing dredging needs, including the “no action” alternative (i.e., the alternative of not designating any open-water disposal sites). See 40 CFR 1502.14.

EPA is the agency authorized by the MPRSA to designate dredged material disposal sites and is responsible for the DSEIS. However, EPA does not receive appropriations to support disposal site designation studies, so the state of Connecticut provided funding to hire contractors to carry out the studies, support the public participation program, and help to produce the DSEIS, all with participation and close supervision by EPA. CEQ regulations state that an EIS can be prepared by a contractor under contract to and paid directly by the applicant (i.e., a “third-party contract”). 40 CFR 1506.5(c); Forty Most Asked Questions Concerning CEQ's National Environmental Policy Act Regulations, 46 FR 18026, 18031 (1981). The contractor answers to the federal agency preparing the EIS (in this case, the EPA), not the applicant, for preparing an EIS that meets the requirements of the National Environmental Policy Act (NEPA). 40 CFR 1506.5(c).

Because EPA is ultimately responsible for the SEIS, the Agency worked closely with the state of Connecticut to select the contractors and then maintained close involvement with production of the SEIS and control over its analyses and conclusions. The state of Connecticut is not an “applicant” because it is not applying directly for the disposal site designation. Nevertheless, because Connecticut has expressed past support for designating one or more dredged material disposal sites in the eastern region of Long Island Sound, EPA followed the third-party contracting method described in 40 CFR 1506.5 to ensure the impartiality of the EIS.

Under the third-party contracting method, EPA must be involved in the selection of the contractor, furnish guidance and participate in the preparation of the EIS, and independently evaluate the EIS prior to approval. See 40 CFR 1506.5(c). The third-party contracting process used by EPA requires the third party (or parties) to pay for the contractor's services while EPA retains control of and supervisory authority over the analysis. See 66 FR 15527, 15531 (2001). While EPA retains final control over the selection of the contractor, applicants are allowed some input. Id. Once a contractor is selected, EPA and the applicant enter into a Memorandum of Understanding (MOU) outlining a general timeframe for the completion of the EIS and defining the scope of the EIS. Id. If EPA determines more information is needed, the MOU may be amended or EPA can complete the analysis itself. Id. The applicant and the contractor also enter into an agreement. Id. Additionally, the contractor must sign a disclosure statement for EPA declaring that it has no financial or other interest in the outcome of the project. Id.; 46 FR at 18031; 40 CFR 6.604(g)(3)(ii).

The Connecticut Department of Transportation (CT DOT) was the lead agency for the state with regard to preparation of the DSEIS, with technical assistance provided by the CT DEEP. CT DOT, with extensive input from EPA and CT DEEP, selected as its primary contractor the University of Connecticut, in large part due to its expertise in physical oceanography. The university selected as its subcontractor the Louis Berger Group (LBG). EPA worked in close partnership with CT DOT to ensure both that all project components carried out through third-party contracting would meet federal statutory and regulatory requirements, and that CT DOT's contractors were qualified to support public participation and other necessary processes under NEPA and the MPRSA, including scoping and site screening.

The U.S. Navy also contributed to the site designation process by funding biological and other environmental studies in support of the DSEIS. The Navy, with extensive input from EPA and CT DEEP, used its contractor Tetra Tech due to its expertise in biological resources studies and risk assessment.

The USACE was a “cooperating agency” in the development of the DSEIS because of its knowledge concerning the region's dredging needs, its technical expertise in monitoring dredged material disposal sites and assessing the environmental effects of dredging and dredged material disposal, its history in the regulation of dredged material disposal in Long Island Sound and elsewhere, and its ongoing legal role in regulating dredging, dredged material disposal and the management and monitoring of disposal sites. Other cooperating agencies were NMFS, CT DEEP, CT DOT, New York Department of State (NY DOS), New York Department of Environmental Conservation (NY DEC), and Rhode Island Coastal Resources Management Council (RI CRMC). To take advantage of expertise held by other entities, and to promote strong inter-agency communications, EPA also coordinated with the U.S. Fish and Wildlife Service; the Mashantucket (Western) Pequot Tribal Nation, Mohegan Tribe, Eastern Pequot Tribal Nation, and Paucatuck Eastern Pequot Indians (in Connecticut); the Narragansett Indian Tribe (in Rhode Island); the Shinnecock Indian Nation (in New York), and, as previously discussed, the CT SHPO and NY OPRHP.

Throughout the SEIS development process, EPA communicated with the cooperating federal and state agencies and tribes to keep them apprised of progress on the project and to solicit input. EPA conducted approximately ten interagency meetings and teleconferences between October 2012 and January 2016 to review progress and get feedback, and EPA was in regular contact with representatives of these agencies throughout the SEIS process.

Consistent with the public participation provisions of the NEPA regulations, EPA conducted an extensive public participation program throughout the development of the DSEIS as described in detail in Chapter 7 and Appendix A of the DSEIS.

As one of the first steps in the SEIS process, EPA, in cooperation with other federal and state agencies delineated a “Zone of Siting Feasibility” (ZSF). The ZSF is the geographic area from which reasonable and practicable open-water dredged material disposal site alternatives should be selected for evaluation. EPA's 1986 site designation guidance manual describes the factors that should be considered in delineating the ZSF and recommends locating open-water disposal sites within an economically and operationally feasible radius from areas where dredging occurs. Other factors to be considered include navigational restrictions, political or other jurisdictional boundaries, the distance to the edge of the continental shelf, the feasibility of surveillance and monitoring, and operation and transportation costs. In 2012, consistent with the guidance and in cooperation with the other agencies, EPA established the ZSF to include the eastern region of Long Island Sound, with a western boundary consisting of a line from Mulberry Point in Guilford, CT, to Mattituck Point in Mattituck, NY, a southern boundary from Montauk Point to the southern tip of Block Island, and an eastern boundary from the northern tip of Block Island due north to the Rhode Island shoreline.

The DSEIS evaluates whether—and if so, which—open-water dredged material disposal sites should be designated in the eastern region of Long Island Sound. The DSEIS describes the purpose and need for any such designations, evaluates several alternatives to this action, including the option of “no action” (i.e., no designation). From this evaluation, EPA concludes that designation of the ELDS under the MPRSA is the preferred alternative.

The purpose of this designation is to provide a long-term, open-water dredged material disposal site as a potential option for the future disposal of such material. The action is necessary because periodic dredging and dredged material disposal is unavoidably necessary to maintain safe navigation and marine commerce in Long Island Sound. As previously noted, dredging in eastern Long Island Sound is projected to generate approximately 22.6 million cubic yards (mcy) of dredged material over the next 30 years, including 17.9 mcy from Connecticut ports and harbors and 4.7 mcy from ports and harbors in New York. Of the total amount of 22.6 mcy, approximately 13.5 mcy are projected to be suitable, fine-grained sediment, and 9.1 mcy are projected to be suitable, coarse-grained sand. In addition, the DMMP estimates that approximately 80,900 cy of material from eastern Long Island Sound will be fine-grained sediment that does not meet MPRSA and CWA standards for aquatic disposal (i.e., “unsuitable” material).

With the USACE's DMMP as its primary source, EPA evaluated potential alternatives to open-water disposal in Long Island Sound but determined that they are not sufficient to meet the regional dredging needs. In accordance with EPA regulations, use of alternatives to open-water disposal will be required for dredged material management when they provide a practicable, environmentally preferable option for the dredged material from any particular disposal project. See 40 CFR 227.16. When no such practicable alternatives exist, however, EPA's designation of the ELDS will provide an open-water disposal site as a potential management option for dredged material regulated under the MPRSA that has been tested and determined to be environmentally suitable for open-water disposal. Sediments found to be unsuitable for open-water disposal will not be authorized for placement at a disposal site designated by EPA under the MPRSA and will have to be managed in other ways.

EPA's initial screening of alternatives, which involved input from other federal and state agencies, local governments, academic institutions, and the public, led to the determination that the open-water disposal sites were the most environmentally sound, cost-effective, and operationally feasible options for the full quantity of dredged material expected to be found suitable for open-water disposal over the 30-year planning horizon. Regardless of this conclusion, in practice, each individual dredging project will be analyzed on a case-specific basis and open-water disposal of dredged material at a designated site would only be authorized when there is a need for such disposal (i.e., there are no practicable, environmentally preferable alternatives). See 40 CFR 227.2(a)(1), 227.16(b). EPA analyzed alternatives for the management of dredged material from navigation channels and harbors in eastern Long Island Sound. This analysis was informed by the DMMP and evaluated several different potential alternatives, including open-water disposal sites, upland disposal, beneficial uses, sediment treatment, and the no-action alternative. From this analysis, EPA determined that at least one open-water disposal site, such as the ELDS, was necessary to provide sufficient capacity to meet long-term dredged material disposal needs in the eastern Long Island Sound region, in the event that practicable alternatives to open-water disposal are not available for all the material. Again, EPA's analysis also acknowledged that options for dredged material management other than open-water disposal might be identified and required for specific dredged material disposal projects in the future.

EPA also evaluated several open-water disposal site alternatives other than the ELDS, NBDS, and CSDS. This evaluation considered multiple factors, such as reasonable distances to transport dredged material, the potential for adverse effects on important natural resources, and other measures that might indicate incompatibility for use as a disposal site. Specific factors evaluated included: The sensitivity and value of natural resources; geographically limited habitats; fisheries and shellfisheries; shipping and navigation lanes; physical and environmental parameters; and economic and operational feasibility. The analysis was carried out in a tiered process in which some options were “screened out” at an earlier stage based on certain factors, while other options were retained for further evaluation. The final tier involved a detailed analysis of the no-action alternative and the following three open-water alternative sites: ELDS, NBDS, and CSDS. Based on this analysis, designating the ELDS as an open-water dredged material disposal site was identified as the preferred alternative, but we are soliciting public comments on the other two alternative sites (NBDS and CSDS). A management and monitoring strategy was developed for the ELDS and is set forth in the SMMP for the site.

The CZMA, 16 U.S.C. 1451 et seq., authorizes states to establish coastal zone management programs to develop and enforce policies to protect their coastal resources and promote uses of those resources that are desired by the state. These coastal zone management programs must be approved by the Department of Commerce's National Oceanic and Atmospheric Administration (NOAA), which is responsible for administering the CZMA. Sections 307(c)(1)(A) and (C) of the CZMA require federal agencies to provide relevant states with a determination that each federal agency activity, whether taking place within or outside the coastal zone, that affects any land or water use or natural resource of the state's coastal zone, will be carried out in a manner consistent to the maximum extent practicable with the enforceable policies of the state's approved coastal zone management program. EPA's compliance with the CZMA is described below.

Based on the evaluations presented in the DSEIS and supporting documents, and a review of the federally approved Connecticut and New York coastal zone programs and policies, EPA has determined that designation of the ELDS, and/or the NBDS and CSDS for open-water dredged material disposal under the MPRSA would be consistent to the maximum extent practicable with the enforceable policies of the coastal zone management programs of Connecticut, New York, and Rhode Island. EPA will provide a written determination to that effect to each of the three states within the statutory and regulatory mandated timeframes.

In EPA's view, there are several broad reasons why the proposed designation of the ELDS would be consistent with the applicable, enforceable policies of both states' coastal zone programs. First, the designation is not expected to cause any significant adverse impacts to the marine environment, coastal resources, or uses of the coastal zone. Indeed, EPA expects the designation to benefit uses involving navigation and berthing of vessels by facilitating needed dredging, and to benefit the environment by concentrating any open-water dredged material disposal at a small number of environmentally appropriate sites designated by EPA and subject to the previously described SMMP, rather than at a potential proliferation of USACE-selected sites. Second, designation of the sites does not actually authorize the disposal of any dredged material at the sites, since any proposal to dispose dredged material from a particular project at a designated site will be subject to case-specific evaluation and be allowed only if: (a) The material satisfies the sediment quality requirements of the MPRSA and the CWA; (b) no practicable alternative method of management with less adverse environmental impact can be identified; and (c) the disposal complies with the site restrictions for the site. (EPA is proposing a number of restrictions on the potential use of the ELDS in today's Proposed Rule. See Proposed 40 CFR 228.15(b)(6)). These restrictions are described and discussed in the next section of the preamble. Third, the designated disposal site(s) will be managed and monitored pursuant to a SMMP and if adverse impacts are identified, use of the sites will be modified to reduce or eliminate those impacts. Such modification could further restrict, or even terminate, use of the sites, if appropriate. See 40 CFR 228.3, 228.11.

On December 22, 2015, as suggested by NOAA guidance on federal consistency determinations, EPA sent letters to NY DOS and CT DEEP (1) identifying EPA's effort to prepare a DSEIS to assess whether to propose designation of one or more dredged material disposal sites in the eastern portion of Long Island Sound, and (2) requesting information from each state concerning their respective coastal zone management programs to assist EPA with its federal consistency determination. On March 11, 2016, EPA sent a similar letter to the State of Rhode Island Coastal Resources Management Council. All three states responded in writing to EPA's letters and provided the most current information on their respective coastal management programs.

Under section 7(a)(2) of the ESA, 16 U.S.C. 1536(a)(2), federal agencies are required to ensure that their actions are “not likely to jeopardize the continued existence of any endangered species or result in the destruction or adverse modification of habitat of such species, which is determined * * * to be critical * * * .” Depending on the species involved, a federal agency is required to consult with the NMFS and/or USFWS if the agency's action “may affect” an endangered or threatened species or its critical habitat (50 CFR 402.14(a)). Thus, the ESA requires consultation with NMFS and/or USFWS to adequately address potential impacts to threatened and endangered species that may occur at the proposed dredged material disposal alternative sites from any proposal to dispose dredged material.

To comply with the ESA, EPA has coordinated with NMFS and USFWS and will request consultation concurrent with the release of the draft SEIS. EPA has determined that the designation of a disposal site will not result in adverse impacts to threatened or endangered species, species of concern, marine protected areas, or essential fish habitat. In addition, the USACE would coordinate with the NMFS and USFWS for individual permitted projects to further ensure that impacts would not adversely impact any threatened or endangered species.

The 1996 Sustainable Fisheries Act amendments to the MSFCMA, 16 U.S.C. 1801 et seq., require the designation of essential fish habitat (EFH) for federally managed species of fish and shellfish. The goal of the these amendments is to ensure that EFH is not adversely impacted by fishing or other human activities, including dredged material disposal, and to further the enhancement of these habitats, thereby protecting both ecosystem health and the fisheries industries. Pursuant to section 305(b)(2) of the MSFCMA, federal agencies are required to consult with NMFS regarding any action they authorize, fund, or undertake that may adversely affect EFH. An adverse effect has been defined by the Act as, “[a]ny impact which reduces the quality and/or quantity of EFH [and] may include direct (e.g., contamination or physical disruption), indirect (e.g., loss of prey, reduction in species' fecundity), site-specific or habitat-wide impacts, including individual, cumulative, or synergistic consequences of actions” (50 CFR 600.810(a)).

EPA is coordinating with NMFS to ensure compliance with the EFH provisions of the MSFCMA and has prepared an essential fish habitat assessment in compliance with the Act. EPA will incorporate any conservation recommendations from NMFS or explain why it has not done so in its final action.

EPA proposes to restrict use of the ELDS in the same manner that it has restricted use of the CLDS and WLDS. The existing site use restrictions for the CLDS are detailed in 40 CFR 228.15(b)(4)(vi) and are incorporated for the WLDS by the cross-references in 40 CFR 228.15(b)(4)(vi) and 228.15(b)(5)(vi). Similarly, EPA is proposing to apply to the ELDS the same restrictions as are applied to the CLDS and WLDS by including simple cross-references to those restrictions in the new proposed regulations at 40 CFR 228.15(b)(4) and 228.15(b)(6)(vi).

While EPA is planning for the restrictions applicable to the CLDS and WLDS to also be applied to the ELDS, it also should be understood that EPA is currently proposing amendments to the CLDS/WLDS restrictions. Specifically, on February 10, 2016, EPA published in the Federal Register (81 FR 7055) a proposed rule to amend the restrictions on the CLDS and WLDS. EPA is currently considering public comments received on the proposed regulatory amendments.

EPA has proposed amendments to the CLDS/WLDS restrictions in order to incorporate new standards and procedures for the use of those sites consistent with the recommendations of the Long Island Sound DMMP completed by the USACE on January 11, 2016. The DMMP identifies a wide range of alternatives to open-water disposal and recommends standards and procedures to help determine whether and which of these alternatives should be pursued for particular dredging projects. The goal of EPA's proposed regulatory amendments based on these standards and procedures is to reduce or eliminate the open-water disposal of dredged material in Long Island Sound wherever practicable.

The DMMP addresses dredging and dredged material management issues for all of Long Island Sound, including the eastern portion of the Sound. Therefore, EPA concludes that it makes sense to apply site use restrictions based on the DMMP to the ELDS as well as to the CLDS and WLDS. Again, it is intended that these restrictions will help to reduce or eliminate dredged material disposal in the Eastern portion of Long Island Sound as well as in the Central and Western portions. That said, no final decisions have been made about final restrictions for the ELDS and such final decisions will only be made after EPA considers public comments received on this proposed rule and other relevant information.

In order to understand the nature of the site use restrictions that EPA is considering for the ELDS, reviewers of this proposed rule for the ELDS should review the site use restrictions in 40 CFR 228.15(b)(4)(vi), as cross-referenced in proposed 40 CFR 228.15(b)(6)(vi). Reviewers can also review the regulatory amendments that EPA has proposed for 40 CFR 228.15(b)(4)(vi). See 81 FR 7055. EPA is currently considering public comments submitted on these proposed amendments and, as explained above, EPA expects that the amendments, including any changes made to them based on public comments, will ultimately be applied to the ELDS, as well as to the CLDS and WLDS. This expectation is, however, subject to EPA considering the final amendments to the restrictions for the CLDS and WLDS, public comments received on this proposed rule for the ELDS, and other relevant information. The proposed restrictions on site use are summarized below.

The proposed restrictions provide that disposal at the site shall be allowed only if there is no practicable alternative to open-water disposal and that any practicable alternative will be fully utilized for the maximum volume of dredged material practicable. EPA recognizes that an alternative to open-water disposal may add additional costs. The decision regarding whether there is a “practicable alternative” will continue to be made on a case-by-case basis, in connection with the permitting process. The term “practicable alternative” is defined in 40 CFR 227.16(b) of the EPA's ocean disposal regulations as an alternative which is “available at reasonable incremental cost and energy expenditures, [and] which need not be competitive with the costs of ocean dumping, taking into account the environmental benefits derived from such activity, including the relative adverse environmental impacts associated with the use of alternatives to ocean dumping.”

The following standards for the disposal of dredged material, by type of material, are derived from the DMMP. These proposed restrictions do not make decisions about the suitability of any particular dredged material for open-water disposal or any other type of management. Each dredging project will have to go through project-specific permitting evaluations.

“Unsuitable fine-grained materials” are those determined by physical, chemical and biological testing to be unsuitable for unconfined open-water placement. Accordingly, EPA's proposed rule specifies that unsuitable fine-grained materials shall not be disposed of at the designated sites.

“Sandy material” in Long Island Sound is coarse-grained material of generally up to 20 percent fines when used for direct beach placement, or up to 40 percent fines when used for nearshore bar/berm nourishment. Clean sandy material should be used for beach or nearshore bar/berm nourishment whenever practicable. Sandy material has a high value as nourishment or in other coastal resiliency applications, and recent experience is that state and local governments, as well as property owner groups, are willing to fund the additional cost for such material even where there is no other federal project authority to assist in that cost. As long as beach or nearshore placement is a practicable alternative, project proponents will need to identify and secure funding for any needed non-federal cost-sharing. Accordingly, the proposed restriction specifies that coarse-grained material should be used for beach or nearshore bar/berm nourishment, or other beneficial use whenever practicable.

“Suitable fine-grained material” in Long Island Sound is typically clay and silty material of more than 20 to 40 percent fines that is not suitable for beach or nearshore placement, yet is determined through testing and analysis to be suitable for open-water placement. Although the most likely cost-effective and environmentally acceptable method of placement of this material is at open-water disposal sites, EPA proposes that every proposed project will continue to have to exhaust the possibility for a practicable alternative to open-water disposal. More specifically, for materials dredged from upper river channels in the Connecticut, Housatonic and Thames Rivers, whenever practicable, the one existing Confined Open Water site, and on-shore or in-river placement, should be used for such projects.

The proposed restrictions specify that beneficial uses such as marsh creation, should be examined and used whenever practicable. If no other alternative is determined to be practicable, suitable fine-grained material may be placed at the designated site.

Efforts to control sediment entering waterways can reduce the need for maintenance dredging of harbor features and facilities by reducing shoaling rates. Reducing sediment loads could help reduce the volumes dredged in each maintenance operation as well as reduce the frequency of maintenance. In addition, efforts to prevent introduction of contaminants into the watershed (e.g., multi-sector and municipal stormwater permits, measures to control nonpoint agricultural runoff) can result in reduced contaminant levels in sediments that can increase the range of options available to beneficially use those sediments. Continued source reduction efforts for both sediment and contaminants will assist in further reducing the need for open-water placement of dredged material in Long Island Sound. The EPA expects that federal, state and local agencies tasked with regulating those discharges into the watersheds tributary to Long Island Sound will exercise their authority under various statues and regulations in a continuing effort to reduce the flow of sediments and contaminants into state waterways and harbors.

The Long Island Sound Regional Dredging Team (RDT) was formed to identify practicable alternatives to open-water disposal and recommend their use for projects proposed while the USACE was preparing the DMMP. EPA proposes to include restrictions that redefine the role of the RDT to ensure that the Standards described above are utilized in evaluating proposed dredging projects in Long Island Sound. EPA proposes restrictions that make explicit the RDT's purpose, geographic scope, membership, structure and general process as described below.

The primary purpose of the LIS RDT is to reduce or eliminate wherever practicable the open-water disposal of dredged material in Long Island Sound. The LIS RDT will accomplish this by reviewing all proposed dredging projects subject to MPRSA (namely all federal projects and non-federal projects that generate greater than 25,000 cubic yards) to assess whether there are practicable alternatives to open-water disposal, by recommending that any available alternative(s) to open-water disposal be utilized for the maximum volume of dredged material practicable, and to provide documented findings and recommendations to USACE on these points so that the USACE and the EPA can consider the LIS RDT's recommendations. The LIS RDT should review the alternatives analysis for all projects submitted to help ensure that available alternatives as described in the DMMP for each harbor and dredging center have been thoroughly evaluated and are implemented where practicable. While the LIS RDT will conduct project reviews and make submissions and recommendations to the USACE, the LIS RDT will not supplant the regulatory obligations or authorities of participant agencies under the MPRSA, CWA, CZMA or other applicable laws.

Other purposes of the LIS RDT include: Serving as a forum for continuing exploration of new beneficial use alternatives to open-water disposal; promoting the use of such alternatives; and suggesting approaches for cost-sharing opportunities. For example, the LIS RDT could further investigate and develop opportunities for approving and funding long-term regional Confined Disposal Facilities which could accommodate suitable and unsuitable dredged material and provide environmental and social benefits such as parkland and habitat once filled and closed.

The LIS RDT and its member agencies should also assist USACE and EPA in continuing a number of long term activities to continue the environmentally sound implementation of dredging and dredged material management in Long Island Sound. These activities include supporting USACE's dredged material tracking system, supporting USACE's DAMOS (Disposal Area Monitoring System) program and related efforts to study the long-term impacts of open-water placement, and promoting opportunities for beneficial use of clean, parent marine sediments often generated in the development of CAD cells.

The geographic range of the LIS RDT will include all of Long Island Sound and adjacent waters landward of the seaward edge of the territorial sea (three mile limit) or, in other words, from Throgs Neck to a line three miles east of the baseline across western Block Island Sound. These boundaries would encompass all harbors and areas included in the DMMP except Block Island. The WLDS, CLDS, and ELDS would all be within the RDT's purview.

The LIS RDT should include representatives from affected federal and state government organizations. EPA anticipates that federal participation would include EPA Regions 1 & 2; the New England and New York Districts and the North Atlantic Division of the USACE and the National Oceanic and Atmospheric Administration. EPA encourages the participation of the U.S. Navy, the U.S. Coast Guard and the U.S. Fish & Wildlife Service. EPA expects that the states of Connecticut, New York and Rhode Island would be participants through their environmental agencies, coastal zone management programs and relevant port authorities. EPA requests that, to the extent possible, member organizations will provide sufficient funding to enable their active participation in the LIS RDT.

EPA proposes that the specific details for structure (e.g., chair, committees, working groups) and process (e.g., how projects come before the LIS RDT, coordination with other entities) be left for the LIS RDT to determine and allowed to evolve as best accomplishes the team's purpose.

The LIS RDT is encouraged to establish and maintain cooperative working relationships with other Long Island Sound-based organizations (e.g., the Long Island Sound Study's Science and Technical Advisory Committee, non-governmental organizations, relevant university-based programs) so that relevant scientific, program and policy information is effectively shared and resources are leveraged to the maximum extent.

EPA is proposing this rule to designate the ELDS for the purpose of providing an environmentally sound, open-water disposal option for possible use in managing dredged material from harbors and navigation channels in eastern Long Island Sound and its vicinity in the states of Connecticut, New York, and Rhode Island. Without this dredged material disposal site designation, there will be no open-water disposal site available in the eastern region of Long Island Sound after December 23, 2016. In developing the DMMP, described previously in several sections, the USACE conducted a “dredging needs” assessment that estimated that a total volume of 22.6 mcy of dredged material that from the eastern region of Long Island Sound over the 30-year planning horizon.

The site designation process has been conducted consistent with the requirements of the MPRSA, CWA, NEPA, CZMA, and other applicable federal and state statutes and regulations. The basis for this federal action is further described in a DSEIS that identifies EPA designation of the ELDS as the preferred alternative. The DSEIS also is being released for public comment in conjunction with the publication of this proposed rule. Upon completion of the public comment period and EPA's consideration of all comments received, EPA will publish a final Supplemental Environmental Impact Statement (FSEIS) specifying a preferred alternative, and a final rule that will serve as EPA's Record of Decision (ROD) in the NEPA process.

The ELDS is subject to management and monitoring protocols to prevent the occurrence of unacceptable adverse environmental impacts. These protocols are spelled out in a SMMP for the site. The SMMP is included as Appendix I to the DSEIS. Under 40 CFR 228.3(b), the Regional Administrator of EPA Region 1 is responsible for the overall management of this site. As previously explained, the designation of these disposal sites does not constitute or imply EPA's approval of open-water disposal at either site of dredged material from any specific project. Disposal of dredged material will not be allowed at the ELDS until the proposed disposal operation first receives proper authorization from the USACE under MPRSA section 103. In addition, any such authorization by the Corps is subject to EPA review under MPRSA section 103(c), and EPA may condition or “veto” the authorization as a result of such review in accordance with MPRSA section 103(c). In order to properly obtain authorization to dispose of dredged material at the ELDS disposal site under the MPRSA, the dredged material proposed for disposal must first satisfy the applicable criteria for testing and evaluating dredged material specified in EPA regulations at 40 CFR part 227, and it must be determined in accordance with EPA regulations at 40 CFR part 227, subpart C, that there is a need for open-water disposal (i.e., that there is no practicable dredged material management alternative to open-water disposal with less adverse environmental impact). In addition, any proposal to dispose of dredged material under the MPRSA at the designated site will need to satisfy all the site Restrictions included in the final rule as part of the site designations. See 40 CFR 228.8 and 228.15(b)(6).

1. EPA Region 1/USACE NAE. 2005. Response to Comments on the Final Environmental Impact Statement for the Designation of Dredged Material Disposal Sites in Central and Western Long Island Sound, Connecticut and New York. U.S. Environmental Protection Agency, Region 1, Boston, MA and U.S. Army Corps of Engineers, New England District, Concord, MA. April 2005.

2. EPA Region 1. 2005. Memorandum to the File Responding to the Letter from the New York Department of State Objecting to EPA's Federal Consistency Determination for the Dredged Material Disposal Site Designations. U.S. Environmental Protection Agency, Region 1, Boston, MA. May 2005.

3. EPA Region 1/USACE NAE. 2004. Final Environmental Impact Statement for the Designation of Dredged Material Disposal Sites in Central and Western Long Island Sound, Connecticut and New York. U.S. Environmental Protection Agency, Region 1, Boston, MA and U.S. Army Corps of Engineers, New England District, Concord, MA. March 2004.

4. EPA Region 1/USACE NAE. 2004. Regional Implementation Manual for the Evaluation of Dredged Material Proposed for Disposal in New England Waters. U.S. Environmental Protection Agency, Region 1, Boston, MA, and U.S. Army Corps of Engineers, New England District, Concord, MA. April 2004.

5. EPA Region 2/USACE NAN. 1992. Guidance for Performing Tests on Dredged Material Proposed for Ocean Disposal. U.S. Environmental Protection Agency, Region 2, New York, NY and U.S. Army Corps of Engineers, New York District, New York, NY. Draft Release. December 1992.

6. EPA/USACE. 1991. Evaluation of Dredged Material Proposed for Ocean Disposal-Testing Manual. U.S. Environmental Protection Agency, Washington, DC, and U.S. Army Corps of Engineers, Washington, DC. EPA-503/8-91/001. February 1991.

7. Long Island Sound Study. 2015. Comprehensive Conservation and Management Plan for Long Island Sound. Long Island Sound Management Conference. September 2015.

8. NY DEC and CT DEP. 2000. A total maximum daily load analysis to achieve water quality standards for dissolved oxygen in Long Island Sound. Prepared in conformance with section 303(d) of the Clean Water Act and the Long Island Sound Study. New York State Department of Environmental Conservation, Albany, NY and Connecticut Department of Environmental Protection, Hartford, CT. December 2000.

9. USACE NAE. 2016. Final Long Island Sound Dredged Material Management Plan and Final Programmatic Environmental Impact Statement—Connecticut, Rhode Island and New York. U.S. Army Corps of Engineers, New England District. December 2015.

This action is not a significant regulatory action, as defined in the Executive Order, and was therefore not submitted to the Office of Management and Budget (OMB) for review.

This action does not impose an information collection burden under the PRA because it would not require persons to obtain, maintain, retain, report or publicly disclose information to or for a federal agency.

This action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (RFA). The amended restrictions in this proposed rule are only relevant for dredged material disposal projects subject to the MPRSA. Non-federal projects involving 25,000 cubic yards or less of material are not subject to the MPRSA and, instead, are regulated under CWA section 404. This action will, therefore, have no effect on such projects. “Small entities” under the RFA are most likely to be involved with smaller projects not covered by the MPRSA. Therefore, EPA does not believe a substantial number of small entities will be affected by today's rule. Furthermore, the proposed amendments to the restrictions also will not have significant economic impacts on a substantial number of small entities because they primarily will create requirements to be followed by regulatory agencies rather than small entities, and will create requirements (i.e., the standards and procedures) intended to help ensure satisfaction of the existing regulatory requirement (see 40 CFR 227.16) that practicable alternatives to the ocean dumping of dredged material be utilized.

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local or tribal governments or the private sector.

This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. Through the RDT process, however, this action will provide a vehicle for facilitating the interaction and communication of interested federal and state agencies concerned with regulating dredged material disposal in Long Island Sound.

This action does not have tribal implications as specified in Executive Order 13175 because the proposed restrictions will not have substantial direct effects on Indian tribes, on the relationship between the federal government and Indian Tribes, or the distribution of power and responsibilities between the federal government and Indian Tribes. EPA consulted with the potentially affected Indian tribes in making this determination.

This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because the EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children.

This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

This rulemaking does not involve technical standards.

The EPA believes the human health or environmental risk addressed by this action will not have a disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations.

Executive Order 13158 (65 FR 34909, May 31, 2000) requires EPA to “expeditiously propose new science-based regulations, as necessary, to ensure appropriate levels of protection for the marine environment.” EPA may take action to enhance or expand protection of existing marine protected areas and to establish or recommend, as appropriate, new marine protected areas. The purpose of the Executive Order is to protect the significant natural and cultural resources within the marine environment, which means, ”those areas of coastal and ocean waters, the Great Lakes and their connecting waters, and submerged lands thereunder, over which the United States exercises jurisdiction, consistent with international law.”

The EPA expects that this proposed rule will afford additional protection to the waters of Long Island Sound and organisms that inhabit them. Building on the existing protections of the MPRSA and the ocean dumping regulations, the proposed regulatory amendments are designed to promote the reduction of open-water disposal of dredged material in Long Island Sound.

Section 6(a)(i) of Executive Order 13547, (75 FR 43023, July 19, 2010) requires, among other things, EPA and certain other agencies “. . . to the fullest extent consistent with applicable law [to] . . . take such action as necessary to implement the policy set forth in section 2 of this order and the stewardship principles and national priority objectives as set forth in the Final Recommendations and subsequent guidance from the Council.” The policies in section 2 of Executive Order 13547 include, among other things, the following: “. . . it is the policy of the United States to: (i) protect, maintain, and restore the health and biological diversity of ocean, coastal, and Great Lakes ecosystems and resources; [and] (ii) improve the resiliency of ocean, coastal, and Great Lakes ecosystems, communities, and economies . . ..” As with Executive Order 13158 (Marine Protected Areas), the overall purpose of the Executive Order is to promote protection of ocean and coastal environmental resources.

The EPA expects that this proposed rule will afford additional protection to the waters of Long Island Sound and the organisms that inhabit them. Building on the existing protections of the MPRSA and the ocean dumping regulations, the proposed regulatory amendments are designed to promote the reduction or elimination of open-water disposal of dredged material in Long Island Sound.

For the reasons stated in the preamble, title 40, Chapter I, of the Code of Federal Regulations is proposed to be amended as set forth below.

This is a synopsis of the Commission's Notice of Proposed Rule Making, MB Docket No. 16-93, adopted April 14, 2016, and released April 14, 2016. The full text of this document is available for public inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY-A257, 445 12th Street SW., Washington, DC, 20554. This document will also be available via ECFS (http://www.fcc.gov/cgb/ecfs/). (Documents will be available electronically in ASCII, Word 97, and/or Adobe Acrobat.). To request this document in accessible formats (computer diskettes, large print, audio recording, and Braille), send an email to [email protected] or call the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY). This document does not contain proposed information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding. Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all ex parte contacts (other than ex parte presentations exempt under 47 CFR 1.1204(a)) are prohibited in Commission proceedings, such as this one, which involve channel allotments. See 47 CFR 1.1208 for rules governing restricted proceedings.

For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:

This is a synopsis of the Commission's Notice of Proposed Rule Making, MB Docket No. 16-123, adopted April 14, 2016, and released April 14, 2016. The full text of this document is available for public inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY-A257, 445 12th Street SW., Washington, DC 20554. This document will also be available via ECFS (http://www.fcc.gov/cgb/ecfs/). (Documents will be available electronically in ASCII, Word 97, and/or Adobe Acrobat.). To request this document in accessible formats (computer diskettes, large print, audio recording, and Braille), send an email to [email protected] or call the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY). This document does not contain proposed information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding. Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all ex parte contacts (other than ex parte presentations exempt under 47 CFR 1.1204(a)) are prohibited in Commission proceedings, such as this one, which involve channel allotments. See 47 CFR 1.1208 for rules governing restricted proceedings.

For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:

This advanced notice of proposed rulemaking (ANPRM) is organized as follows:

If you submit a comment, please include the docket number for this ANPRM (Docket No. FMCSA-2014-0470), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so that FMCSA can contact you if there are questions regarding your submission.

To submit your comment online, go to http://www.regulations.gov, put the docket number, FMCSA-2014-0470, in the keyword box, and click “Search.” When the new screen appears, click on the “Comment Now!” button and type your comment into the text box on the following screen. Choose whether you are submitting your comment as an individual or on behalf of a third party and then submit.

If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the facility, please enclose a stamped, self-addressed postcard or envelope.

We will consider all comments and material received during the comment period and may develop a notice of proposed rulemaking (NPRM) based on your comments and other information and analysis.

To view comments, as well as any documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov. Insert the docket number, FMCSA-2014-0470, in the keyword box, and click “Search.” Next, click the “Open Docket Folder” button and choose the document to review. If you do not have access to the Internet, you may view the docket online by visiting the Docket Management Facility in Room W12-140 on the ground floor of the DOT West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., e.t., Monday through Friday, except Federal holidays.

In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.

Section 32710 of Motorcoach Enhanced Safety Act of 2012, enacted as part of MAP-21, requires that the Secretary of Transportation complete a rulemaking proceeding to consider requiring States to establish a program for annual inspections of vehicles designed or used to transport passengers (Pub. L. 112-141). As part of this proceeding, FMCSA must assess: (1) The risks associated with improperly maintained or inspected CMVs designed or used to transport passengers; (2) the effectiveness of existing Federal inspection standards in mitigating the risks associated with improperly maintained vehicles and ensuring safe and proper operation; and (3) the costs and benefits of a mandatory inspection program.

Section 210 of the Motor Carrier Safety Act of 1984 required the Secretary of Transportation to prescribe standards for the inspection of CMVs. See 49 U.S.C. 31142. Under the Federal Motor Carrier Safety Regulations (FMCSR), a CMV, including qualifying passenger vehicles,1 must be inspected at least once every 12 months. See 49 CFR 396.17. Subject to exceptions under § 396.23, a motor carrier must either conduct the inspection using its own qualified personnel or use a qualified third party that maintains appropriate facilities and employs inspectors qualified under § 396.19. In lieu of conducting a self-inspection or relying on a third-party inspector under § 396.17, a motor carrier may satisfy the FMCSR annual inspection requirement through a State or other jurisdiction's inspection program in accordance with § 396.23(a), provided that the inspection satisfies regulatory requirements.

However, in those States that have a mandatory State inspection requirement that the FMCSA Administrator has determined to be as effective as inspections under § 396.17, a motor carrier may rely on the State inspection process in order to satisfy the annual inspection requirement. 49 CFR 396.23(b)(1). A State inspection under this provision might be conducted by State personnel, at a State-authorized commercial facility, or by the motor carrier under the auspices of a State-authorized self-inspection program. Id. According to the latest list published by FMCSA, 22 States are among the governmental entities that have mandatory inspections programs recognized by the FMCSA Administrator. 73 FR 63040 (October 22, 2008).2

In 2012, Congress enacted legislation requiring the Secretary of Transportation to complete a rulemaking proceeding to consider requiring States to establish an annual inspection program as discussed under the Legal Basis section, above. Subsequently, FMCSA conducted three public listening sessions that provided interested parties with the opportunity to share their views on the merits of requiring State inspections of passenger CMVs.3 Transcripts of these sessions are available in the public docket noted above. Stakeholders' presentations proved valuable in developing the questions posed in today's ANPRM. While the Agency received a broad range of comments, recurring themes included the costs of mandatory inspection programs, the value of a nation-wide uniform inspection standard, and the need for national training of inspectors to eliminate inconsistencies in how inspection standards are applied. Both industry and the enforcement community identified concerns about the cost of the inspection programs. Stakeholders' estimates of costs for program administration and individual inspections varied significantly. Industry stakeholders expressed concern about inconsistent inspections under existing programs.

Section 32710 of MAP-21 did not address the Agency's authority to require mandatory State inspection programs. While Congress has granted the Secretary broad regulatory authority over the interstate operation of CMVs, under Federalism principles and the 10th Amendment, the Federal government may not compel the States to enact or administer a Federal regulatory program (New York v. United States, 505 U.S. 144, 188 (1992)), or compel State officers to administer or enforce a Federal regulatory program (Printz v. United States, 521 U.S. 898, 935 (1997)). Thus, FMCSA assumes Congress intended that State participation would be required as a condition of receiving Federal funds. See, e.g., South Dakota v. Dole, 483 U.S. 203, 206-207 (1987). However, Congress neither established a new financial assistance program for funding State inspection programs nor specified what existing financial assistance program FMCSA might employ to incentivize States to adopt inspection programs. Thus, in posing its final question below, the Agency is seeking its State partners' views on how to implement and incentivize a required State inspection program, should the Agency propose such a program.

FMCSA is considering a rulemaking under which States would establish a program for annual inspections of CMVs designed or used to transport passengers. The Agency will use information gathered through this ANPRM to quantify the economic benefits and costs of this action if it issues an NPRM. The Agency encourages parties with knowledge of the industry to provide information about the impact that such a rule would have on current regulations, operating costs, business practices, safety, and any other areas that would be affected by a rule requiring States to establish inspection programs.

FMCSA also requests responses to the following issues and questions. Again, whenever possible, commenters should provide data. FMCSA also encourages stakeholders to describe any applicable regulatory inspection process under which they operate. FMCSA recognizes that an individual commenter may choose to respond to all of the issues or only a subset, based on his or her interest or area of expertise.

1. Does your State or the States in which you register your passenger-carrying CMV conduct mandatory inspections of such vehicles? Please indicate the State(s) in which your passenger-carrying CMVs are registered.

2. What vehicle types are included in the mandatory passenger-carrying CMV inspection program (e.g., motorcoaches, school buses, mini-buses, 9-15 passenger vans, etc.) and which are not included?

3. If your State has a mandatory program, briefly describe your inspection procedures and indicate which vehicle components are inspected.

4. How many total inspections are performed by your State annually for each of the following types of vehicles?

5. What is the estimated time required to complete each vehicle inspection?

6. What procedures are used to record the vehicle inspection?

7. If a vehicle does not pass an inspection, who addresses the issues? If it is done by someone other than the inspecting entity, is there a second inspection after the issues are addressed? On average, how many follow up inspections does it take to pass a vehicle?

8. Are mandatory vehicle inspections performed by State employees, by third-party inspectors authorized by the State, or by passenger carrier employees through a State-authorized self-inspection program?

9. If vehicle inspections are conducted by a State-authorized third party or by passenger-carrier employees authorized by the State, are there differences in safety outcomes between those conducted by State employees and those conducted by third-party inspectors or through a passenger carrier's State-authorized self-inspection facilities?

10. Are there any specific benefits or concerns related to using third-party inspectors or by others?

11. If inspections are conducted by third-party inspectors or by passenger carrier-employed mechanics or technicians, what oversight is or should be required?

12. Should self-inspection or third-party inspections be options for compliance with a mandatory State inspection?

13. How does/would the cost of inspections differ between those conducted by State employees or by third-party inspectors?

14. What might be other preferable options?

15. Does your State have information on violations discovered during inspections that are attributable to maintenance issues that should have been found during a required vehicle inspection?

16. Has your State considered implementing a mandatory passenger-carrying CMV inspection program, but declined to do so? If so, what are your State's reasons for not implementing a program?

17. If your State imposes mandatory inspection of passenger-carrying CMVs, how is the effectiveness of that program measured?

18. What are the most common vehicle defects discovered during these mandatory vehicle inspections? What safety conclusions do you draw from the results of these inspections?

19. Has your State or organization collected data related to crashes, injuries, or fatalities attributable to improperly maintained or inspected passenger-carrying CMVs? If so, please provide summary information or links to detailed data associated with these areas.

20. Has the occurrence of passenger-carrying CMV-involved crashes, injuries, or fatalities before and after the implementation of a mandatory inspection requirement been evaluated? If so, please provide summary information or links to detailed data associated with these areas.

21. After a State inspection requirement was instituted, what changes were observed over time in the number of safety violations discovered during inspections, if any.

22. Do programs that inspect only a sample of vehicles have significantly different outcomes than those where all vehicles are inspected, please provide examples of how they differ?

23. Where does your State conduct mandatory passenger-carrying CMV inspections (e.g., State owned/leased facility, third party facility, carrier's place of business, or other type of facility)?

24. Where should mandatory passenger-carrying CMV inspections be performed?

25. If mandatory passenger-carrying CMV inspections are conducted at the carrier's place of business, what accommodations must be made to ensure appropriate access (e.g., pits, lifts, etc.) to conduct full inspections of motorcoaches and other large passenger vehicles?

26. How does facility location or accessibility for mandatory inspections impact inspections or compliance?

27. What delays may the State experience in completing mandatory inspections (e.g. lack of sufficient number of inspection facilities)?

28. What is the cost per mandatory vehicle inspection to the carrier?

29. Do inspection fees differ based on the type of vehicle being inspected?

30. Do vehicle inspection fees differ based on location of the inspections?

31. How much does it cost the State to establish and run inspection programs on an annual basis?

32. If a vehicle does not pass an inspection, is there an additional cost for the second inspection?

33. If fees are collected by the State, does the State dedicate the revenue to the administration of the program?

34. What qualifications should be applicable to individuals authorized to perform mandatory passenger-carrying CMV inspections?

35. Should minimum training elements be required for passenger-carrying CMV inspections? If so, how much training should be required and who should administer the training?

36. What should be the minimum vehicle components inspected under a mandatory bus inspection program?

37. How does the existence of different vehicle inspection requirements among the States affect carrier business practices?

38. How might business practices change under a uniform mandatory bus inspection program?

39. How effective are existing Federal standards for the inspection of passenger-carrying CMVs in (1) mitigating the risks associated with improperly maintained vehicles and (2) ensuring the safe and proper operating condition of the vehicles?

40. What is an effective and efficient way for the FMCSA to track inspected carriers to reduce burden on States and carriers?

41. How should FMCSA incentivize the States to establish mandatory passenger-carrying CMV inspection programs?

Background on the Convention

The Convention focuses on the conservation and management of fisheries for highly migratory species (HMS). The objective of the Convention is to ensure, through effective management, the long-term conservation and sustainable use of HMS in the WCPO. To accomplish this objective, the Convention established the Commission for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (Commission or WCPFC), which includes Members, Cooperating Non-members, and Participating Territories (collectively referred to here as “members”). The United States of America is a Member. American Samoa, Guam, and the Commonwealth of the Northern Mariana Islands (CNMI) are Participating Territories.

As a Contracting Party to the Convention and a Member of the Commission, the United States implements conservation and management measures and other decisions adopted by the Commission. The WCPFC Implementation Act (16 U.S.C. 6901 et seq.), authorizes the Secretary of Commerce, in consultation with the Secretary of State and the Secretary of the Department in which the United States Coast Guard is operating (currently the Department of Homeland Security), to promulgate such regulations as may be necessary to carry out the obligations of the United States under the Convention, including the decisions of the Commission. The WCPFC Implementation Act further provides that the Secretary of Commerce shall ensure consistency, to the extent practicable, of fishery management programs administered under the WCPFC Implementation Act and the Magnuson-Stevens Fishery Conservation and Management Act (MSA; 16 U.S.C. 1801 et seq.), as well as other specific laws (see 16 U.S.C. 6905(b)). The Secretary of Commerce has delegated the authority to promulgate regulations under the WCPFC Implementation Act to NMFS. A map showing the boundaries of the area of application of the Convention (Convention Area), which comprises the majority of the WCPO, can be found on the WCPFC Web site at: www.wcpfc.int/doc/convention-area-map.

This proposed rule includes three elements, described in detail below, that would be included in regulations at 50 CFR part 300, subpart O. The three elements would implement specific provisions of the Commission's Conservation and Management Measure (CMM) 2015-01, “Conservation and Management Measure for Bigeye, Yellowfin, and Skipjack Tuna in the Western and Central Pacific Ocean.” CMM 2015-01 was adopted by the Commission at its twelth regular annual session, in December 2015, went into effect February 6, 2016, and is generally applicable for the 2016-2017 period. CMM 2015-01 is the latest in a series of CMMs devoted to the conservation and management of tropical tuna stocks, particularly stocks of bigeye tuna (Thunnus obesus), yellowfin tuna (Thunnus albacares), and skipjack tuna (Katsuwonus pelamis). CMM 2015-01 maintains the provisions of its predecessor, CMM 2014-01. The stated objective of CMM 2015-01 and several of its predecessor CMMs is to ensure that the stocks of bigeye tuna, yellowfin tuna, and skipjack tuna in the WCPO are, at a minimum, maintained at levels capable of producing their maximum sustainable yield as qualified by relevant environmental and economic factors. The CMM includes specific objectives for each of the three stocks: For each, the fishing mortality rate is to be reduced to or maintained at levels no greater than the fishing mortality rate associated with maximum sustainable yield.

CMM 2015-01 requires that each member of the Commission ensure that any of its flagged purse seine vessels fishing in the Convention Area between the latitudes of 20° N. and 20° S.—with the exception of fishing exclusively in waters under the jurisdiction of a single nation—carry a WCPFC observer. Additionally, CMM 2015-01 requires that each member of the Commission ensure that any purse seine vessel fishing exclusively in that member's waters in the Convention Area between the latitudes of 20° N. and 20° S. carry an observer (not necessarily a WCPFC observer). A WCPFC observer is an observer deployed from an observer program that has been authorized by the Commission to be part of the WCPFC Regional Observer Programme (see 50 CFR 300.211).

NMFS proposes to satisfy these provisions of CMM 2015-01 by prohibiting U.S. purse seine vessels from fishing in the Convention Area between the latitudes of 20° N. and 20° S. without a WCPFC observer on board, with the exception of fishing trips during which any fishing in the Convention Area takes place entirely within areas under the jurisdiction of a single nation other than the United States. Although U.S. purse seine vessels would be exempt from this requirement on trips in which fishing occurs only in the waters of a single foreign nation, it is expected that such foreign nations would require that U.S. purse seine vessels carry observers if fishing in their waters.

Currently, the Pacific Islands Forum Fisheries Agency (FFA) observer program, from which observers for the U.S. WCPO purse seine fleet have traditionally been deployed, and the NMFS observer program, among others, are authorized as part of the WCPFC Regional Observer Programme. Thus, observers deployed by these programs are considered WCPFC observers.

The Commission has had purse seine observer requirements similar to those in CMM 2015-01 since 2008, when it adopted CMM 2008-01. In recent years, NMFS has been implementing those requirements through the regulation at 50 CFR 300.215(c), which authorizes NMFS to direct owners and operators of fishing vessels to carry WCPFC observers on fishing trips during which the vessel at any time enters or is within the Convention Area. NMFS has been issuing directives annually, by letter to the owners of affected purse seine vessels. To help ensure that all affected parties have effective notice of the requirement, NMFS proposes here to establish specific observer requirements for purse seine vessels in the regulations, rather than by letter directives issued under 50 CFR 300.215(c).

Paragraphs 14-19 of CMM 2015-01 require WCPFC members to implement certain restrictions on the use of FADs by purse seine fishing vessels. All the restrictions are to be applied in the Convention Area between the latitudes of 20° N. and 20° S.

Under paragraph 14, Commission members are to prohibit their purse seine vessels from setting on FADs during the three-month period July through September in each of 2016 and 2017. Under paragraphs 15-18, members have the option of applying either: (1) Two additional FAD closure months (January and February in addition to July through September), or (2) in addition to the three-month FAD closure referenced in paragraph 14, limiting the total number of FAD sets by its vessels to the number listed in Column B of Attachment A of CMM 2015-01 (i.e., for the United States, 2,202 sets for each of 2015 and 2016).

Importantly, however, under paragraph 15, the provisions regarding a fifth FAD closure month and the annual FAD set limits identified in paragraph 17 do not take effect until the Commission adopts arrangements to ensure that the action does not result in transferring, directly or indirectly, a disproportionate burden of conservation action onto small island developing states. The Commission has not yet adopted such arrangements. Until these decisions are taken, NMFS construes the obligations of the United States under paragraphs 15-18 to require either adding a fourth month, October, to the July-September FAD prohibition period in each of 2016 and 2017, or alternatively, limiting the number of FAD sets in each of those two years to 2,522 (from Column A of Attachment A of CMM 2015-01).

Finally, under paragraph 18, Commission members are to prohibit setting on FADs on the high seas in the Convention Area in 2017.

In accordance with paragraph 14 of the CMM, NMFS proposes to establish a FAD prohibition period from July through September in each of 2016 and 2017. Regarding the choice between an additional month of closure in October each year and a limit of 2,522 FAD sets each year, the Commission designed the CMM such that the two options were roughly equivalent in terms of their expected effects on the fishing mortality of bigeye tuna. The Commission provides no guidance to inform the selection of either option, which is left to the discretion of individual Commission members. After considering the objectives of CMM 2015-01, the expected economic impacts on U.S. fishing operations and the nation as a whole, and expected environmental and other effects, NMFS expects that for both 2016 and 2017, a limit of 2,522 FAD sets is likely to be somewhat more cost-effective than a FAD prohibition period in October. For this reason, NMFS is proposing to implement this option for 2016 and 2017. We specifically seek public comment on which option is more appropriate. A comparison of the two options' expected economic impacts on affected fishing businesses is provided in the IRFA.

Finally, this proposed rule would establish specific measures that NMFS deems necessary to implement the prohibition on FAD sets on the high seas for 2017, in accordance with paragraph 18 of CMM 2015-01. As currently defined in 50 CFR 300.211, a FAD is “any artificial or natural floating object, whether anchored or not and whether situated at the water surface or not, that is capable of aggregating fish, as well as any object used for that purpose that is situated on board a vessel or otherwise out of the water. The definition of FAD does not include a vessel.” Under this proposed rule, the regulatory definition of a FAD would not change. Although the definition of a FAD does not include a vessel, the restrictions during the FAD prohibition periods would include certain activities related to fish that have aggregated in association with a vessel, or drawn by a vessel, as described below.

In summary, this proposed rule would establish: FAD prohibition periods from July 1 through September 30 in each of 2016 and 2017; a limit of 2,522 FAD sets that may be made in each of 2016 and 2017; and specific measures that are necessary to implement the United States' obligation to prohibit its purse seine vessels from setting on FADs on the high seas throughout 2017. The prohibitions applicable to these proposed FAD-related measures are in existing regulations at 50 CFR 300.223(b)(1)(i)-(v). Specifically, during the July-September FAD prohibition periods in each of 2016 and 2017, after the 2,522 FAD set limit is reached in either 2016 or 2017 (until the end of the respective calendar year), and on the high seas throughout 2017, owners, operators, and crew of fishing vessels of the United States would be prohibited from doing any of the following activities in the Convention Area in the area between 20° N. latitude and 20° S. latitude:

(1) Set a purse seine around a FAD or within one nautical mile of a FAD.

(2) Set a purse seine in a manner intended to capture fish that have aggregated in association with a FAD or a vessel, such as by setting the purse seine in an area from which a FAD or a vessel has been moved or removed within the previous eight hours, setting the purse seine in an area in which a FAD has been inspected or handled within the previous eight hours, or setting the purse seine in an area into which fish were drawn by a vessel from the vicinity of a FAD or a vessel.

(3) Deploy a FAD into the water.

(4) Repair, clean, maintain, or otherwise service a FAD, including any electronic equipment used in association with a FAD, in the water or on a vessel while at sea, except that: a FAD may be inspected and handled as needed to identify the FAD, identify and release incidentally captured animals, un-foul fishing gear, or prevent damage to property or risk to human safety; and a FAD may be removed from the water and if removed may be cleaned, provided that it is not returned to the water.

(5) From a purse seine vessel or any associated skiffs, other watercraft or equipment, submerge lights under water; suspend or hang lights over the side of the purse seine vessel, skiff, watercraft or equipment, or direct or use lights in a manner other than as needed to illuminate the deck of the purse seine vessel or associated skiffs, watercraft or equipment, to comply with navigational requirements, and to ensure the health and safety of the crew. These prohibitions would not apply during emergencies as needed to prevent human injury or the loss of human life, the loss of the purse seine vessel, skiffs, watercraft or aircraft, or environmental damage.

Under paragraphs 40-42 CMM 2015-01, Commission members are to limit catches by their longline vessels of bigeye tuna in the Convention Area to specified levels in each of 2016 and 2017. The applicable limits for the United States in 2016 and 2017 are 3,554 metric tons (mt) and 3,345 mt, respectively. In addition, paragraph 40 of the CMM states that any catch overage in a given year shall be deducted from the catch limit for the following year. This provision was also in CMM 2014-01, the predecessor to CMM 2015-01, so it pertains to the catch limit for 2016 as well as 2017. The Commission has not adopted limits for the longline fisheries of any of the U.S. Participating Territories, American Samoa, Guam, and the CNMI.

As stated above, the Commission-adopted limit for 2016 is 3,554 mt less any overage of the limit applicable in 2015. The limit for 2015 was 3,502 mt (see the final rule that established the 2015 limit at 80 FR 43634; published July 23, 2015). NMFS has not yet made the final estimate of bigeye tuna catches in 2015 with respect to the 2015 limit. NMFS anticipates being able to do so sometime in April of 2016. Because that estimate is not yet available, NMFS proposes here a limit for 2016 set at 3,554 mt, which assumes there was no overage in 2015. If NMFS later determines that there was an overage in 2015, NMFS would adjust the 2016 limit as follows: an amount equal to that overage will be subtracted from 3,554 mt to determine the annual limit for 2016. NMFS also proposes here a limit for 2017 set at 3,345 mt, which similarly assumes that there will be no overage of the 2016 limit. If NMFS, when it makes its final estimate of the 2016 catch in early 2017, determines that an overage has occurred, it would revise the 2017 limit accordingly.

These proposed limits for 2016 and 2017 would be applied in the manner set out in existing regulations at 50 CFR 300.224(b)-(f), which would not be revised by this proposed rule. Following is a description of the application of these existing regulations, subject to the proposed limits for 2016 and 2017.

The 2016 and 2017 longline bigeye tuna catch limits would apply only to U.S-flagged longline vessels operating as part of the U.S. longline fisheries. The limits would not apply to U.S. longline vessels operating as part of the longline fisheries of American Samoa, the CNMI, or Guam. Existing regulations at 50 CFR 300.224(b), (c), and (d) detail the manner in which longline-caught bigeye tuna is attributed among the fisheries of the United States and the U.S. Participating Territories.

Consistent with the basis for the limits prescribed in CMM 2015-01 and with previous rules issued by NMFS to implement bigeye tuna catch limits in U.S. longline fisheries, the catch limits would be measured in terms of retained catches—that is, bigeye tuna that are caught by longline gear and retained on board the vessel.

As set forth under the existing regulations at 50 CFR 300.224(e), if NMFS determines that the 2016 or 2017 limit is expected to be reached before the end of the respective calendar year, NMFS would publish a notice in the Federal Register to announce specific fishing restrictions that would be effective from the date the limit is expected to be reached until the end of that calendar year. NMFS would publish the notice of the restrictions at least 7 calendar days before the effective date to provide vessel owners and operators with advance notice. Periodic forecasts of the date the limit is expected to be reached would be made available to the public on the Web site of the NMFS Pacific Islands Regional Office, at www.fpir.noaa.gov/SFD/SFD_regs_3.html, to help vessel owners and operators plan for the possibility of the limit being reached.

As set forth under the existing regulations at 50 CFR 300.224(f), if the 2016 or 2017 limit is reached, the following restrictions would go into effect:

(1) Retaining on board, transshipping, or landing bigeye tuna: Starting on the effective date of the restrictions and extending through December 31 of the applicable year, it would be prohibited to use a U.S. fishing vessel to retain on board, transship, or land bigeye tuna captured in the Convention Area by longline gear, with three exceptions, as described below.

First, any bigeye tuna already on board a fishing vessel upon the effective date of the restrictions may be retained on board, transshipped, and/or landed, provided that they are landed within 14 days after the restrictions become effective. A vessel that had declared to NMFS pursuant to 50 CFR 665.803(a) that the current trip type is shallow-setting would not be subject to this 14-day landing restriction, so these vessels would be able to land bigeye tuna more than 14 days after the restrictions become effective.

Second, bigeye tuna captured by longline gear may be retained on board, transshipped, and/or landed if they are caught by a fishing vessel registered for use under a valid American Samoa Longline Limited Access Permit, or if they are landed in American Samoa, Guam, or the CNMI. However, the bigeye tuna must not be caught in the portion of the U.S. EEZ surrounding the Hawaiian Archipelago, and must be landed by a U.S. fishing vessel operated in compliance with a valid permit issued under 50 CFR 660.707 or 665.801.

Third, bigeye tuna captured by longline gear may be retained on board, transshipped, and/or landed if they are caught by a vessel that is included in a valid specified fishing agreement under 50 CFR 665.819(d), in accordance with 50 CFR 300.224(f)(1)(iv).

(2) Transshipping bigeye tuna to certain vessels: To the extent authorized under the prohibition described above on “retaining on board, transshipping, or landing bigeye tuna,” starting on the effective date of the restrictions and extending through December 31 of the applicable year, it would be prohibited to transship bigeye tuna caught by longline gear in the Convention Area to any vessel other than a U.S. fishing vessel operated in compliance with a valid permit issued under 50 CFR 660.707 or 665.801.

(3) Fishing inside and outside the Convention Area: To help ensure compliance with the restrictions related to bigeye tuna caught by longline gear in the Convention Area, the proposed rule would establish two additional, related prohibitions that would go into effect starting on the effective date of the restrictions and extending through December 31 of the applicable year. First, vessels would be prohibited from fishing with longline gear both inside and outside the Convention Area during the same fishing trip, with the exception of a fishing trip that is in progress at the time the announced restrictions go into effect. In the case of a fishing trip that is in progress at the time the restrictions go into effect, the vessel still must land any bigeye tuna taken in the Convention Area within 14 days of the effective date of the restrictions, as described above. Second, if a vessel is used to fish using longline gear outside the Convention Area and enters the Convention Area at any time during the same fishing trip, the longline gear on the fishing vessel must be stowed in a manner so as not to be readily available for fishing while the vessel is in the Convention Area. These two prohibitions would not apply to vessels on declared shallow-setting trips pursuant to 50 CFR 665.803(a), or vessels operating for the purposes of this rule as part of the longline fisheries of American Samoa, Guam, or the CNMI. This second group includes vessels registered for use under valid American Samoa Longline Limited Access Permits; vessels landing their bigeye tuna catch in one of the three U.S. Participating Territories, so long as these vessels conduct fishing activities in accordance with the conditions described above; and vessels included in a specified fishing agreement under 50 CFR 665.819(d), in accordance with 50 CFR 300.224(f)(1)(iv).

The Administrator, Pacific Islands Region, NMFS, has determined that this proposed rule is consistent with the WCPFC Implementation Act and other applicable laws, subject to further consideration after public comment.

This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

An initial regulatory flexibility analysis (IRFA) was prepared, as required by section 603 of the RFA. The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained in the SUMMARY section of the preamble and in other sections of this SUPPLEMENTARY INFORMATION section of the preamble. The analysis follows:

Small entities include “small businesses,” “small organizations,” and “small governmental jurisdictions.” The Small Business Administration (SBA) has established size standards for all major industry sectors in the United States, including commercial finfish harvesters (NAICS code 114111). A business primarily involved in finfish harvesting is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $20.5 million for all its affiliated operations worldwide.

The proposed rule would apply to owners and operators of U.S. purse seine and longline vessels used for fishing for HMS in the Convention Area. The number of purse seine vessels that would be affected by the rule is approximated by the number with WCPFC Area Endorsements, which are the NMFS-issued authorizations required to use a vessel to fish commercially for HMS on the high seas in the Convention Area. As of March 2016 the number of purse seine vessels with WCPFC Area Endorsements was 41.

The proposed rule would apply to U.S. longline vessels used to fish for HMS in the Convention Area, except those operating as part of the longline fisheries of American Samoa, the CNMI, or Guam. The total number of affected longline vessels is approximated by the number of vessels with Hawaii Longline Limited Access Permits (issued under 50 CFR 665.13), although some such vessels might be able to operate as part of the longline fisheries of the U.S. Participating Territories and thus not be affected. Under the Hawaii longline limited access program, no more than 164 permits may be issued. During 2006-2012 the number of permitted vessels ranged from 130 to 145. The current number of permitted vessels (as of March 2016) is 113, but NMFS expects the number to increase to more typical historical levels soon, as vessel owners renew their permits, which expire in March each year. U.S. longline vessels based on the U.S. west coast without Hawaii Longline Limited Access Permits also could be affected by this proposed rule if they fish in the Convention Area. However, the number of such vessels is very small and fishing in the Convention Area by such vessels is rare, so it is expected that very few, if any, such vessels would be affected.

Most of the Hawaii longline fleet targets bigeye tuna using deep sets, and during certain parts of the year, portions of the fleet target swordfish using shallow sets. In the years 2005 through 2012, the estimated numbers of Hawaii longline vessels that actually fished ranged from 124 to 129. Of the vessels that fished, the number of vessels that engaged in deep-setting in the years 2005 through 2012 ranged from 122 to 129, and the number of vessels that engaged in shallow-setting ranged from 18 to 35. The number of vessels that engaged in both deep-setting and shallow-setting ranged from 17 to 35. The number of vessels that engaged exclusively in shallow-setting ranged from zero to two.

Based on limited available financial information about the affected fishing vessels and the SBA's small entity size standards for commercial finfish harvesters, and using individual vessels as proxies for individual businesses, NMFS believes that all the affected fish harvesting businesses—in both the purse seine and longline sectors—are small entities. NMFS used average per-vessel returns over recent years to estimate annual revenue, because gross receipts and ex-vessel price information specific to the individual affected vessels are not available to NMFS.

For the affected purse seine vessels, 2013 is the most recent year for which complete catch data are available, and NMFS estimates that the average annual receipts over 2011-2013 for each purse seine vessel were less than the $20.5 million threshold for finfish harvesting businesses. The greatest was about $20 million, and the average was about $12 million. This is based on the estimated catches of each vessel in the purse seine fleet during that period, and indicative regional cannery prices developed by the FFA (available at https://www.ffa.int/node/425). Since 2013, cannery prices for purse seine-caught tuna have declined dramatically, so the vessels' revenues in 2014 and 2015 very likely declined as well.

For the longline fishery, the ex-vessel value of catches by the Hawaii longline fleet in 2012 was about $87 million. With 129 active vessels in that year, per-vessel average revenues were about $0.7 million, well below the $20.5 million threshold for finfish harvesting businesses.

The recordkeeping, reporting, and other compliance requirements are discussed below for the proposed purse seine observer requirements, as described earlier in the SUPPLEMENTARY INFORMATION section of the preamble. Fulfillment of these requirements is not expected to require any professional skills that the affected vessel owners and operators do not already possess. The costs of complying with the proposed requirements are described below to the extent possible:

This element of the proposed rule would not establish any new reporting or recordkeeping requirements. The new compliance requirement would be for affected vessel owners and operators to carry WCPFC observers on all fishing trips in the Convention Area between the latitudes of 20° N. and 20° S., with the exception of fishing trips during which any fishing in the Convention Area takes place entirely within areas under the jurisdiction of a single nation other than the United States.

Fulfillment of this requirement is not expected to require any professional skills that the vessel owners and operators do not already possess. The expected costs of complying with this requirement are described below.

Under the South Pacific Tuna Treaty (SPTT), U.S. purse seine vessels operating in the Treaty Area (which is almost entirely in the Convention Area) are required to carry observers on about 20 percent of their fishing trips, which equates to roughly one trip per year per vessel. The observers required under the terms of the SPTT are deployed by the FFA, which acts as the SPTT Administrator on behalf of the Pacific Island Parties to the SPTT. The FFA observer program has been authorized to be part of the WCPFC observer program, so FFA-deployed observers are also WCPFC observers. Thus, in a typical year for a typical U.S. purse seine vessel, the cost of carrying observers to satisfy requirements under the SPTT can be expected to constitute 20 percent of the costs of the proposed requirement considered here. However, recent events associated with the SPTT make 2016 an atypical year. Because of late negotiations among the SPTT parties on the terms of access in foreign zones in the SPTT Area for 2016, no U.S. vessels were licensed under the SPTT until March of 2016, and thus none were authorized to fish in foreign zones or on the high seas in the Treaty Area until then. The terms of access for future years, and the SPTT itself, are uncertain. Given this uncertainty, an upper-bound estimate of the costs of compliance is provided here. For this purpose, it is assumed that fishing patterns in the Convention Area will be similar to the pattern in recent years, and that observer coverage under the terms of the SPTT will not contribute at all to the costs of complying with this proposed requirement.

Based on the U.S. purse seine fleet's fishing patterns in 2011-2013, it is expected that each vessel will spend about 252 days at sea per year, on average, with some vessels spending as many as about 354 days at sea per year.

The compliance costs of the proposed requirement can be broken into two parts: (1) The costs of providing food, accommodation, and medical facilities to observers (observer accommodation costs); and (2) the fees imposed by observer providers for deploying observers (observer deployment costs). Observer accommodation costs are expected to be about $20 per vessel per day-at-sea.

With respect to observer deployment costs, affected fishing companies could use observers from any program that has been authorized by the Commission to be part of the WCPFC Regional Observer Programme. In other words, they would not be required to use FFA observers, which they have traditionally used until now. Nonetheless, the costs of deploying FFA observers are probably good indications of observer deployment costs in the region generally, and they are used for this analysis. Based on budgets and arrangements for the deployment of observers under the FFA observer program, observer deployment costs are expected to be about $230 per vessel per day-at-sea. Thus, combined observer accommodation costs and observer deployment costs are expected to be about $250 per vessel per day-at-sea. For the average vessel, which is expected to spend about 252 days at sea per year, the total cost of compliance would therefore be about $63,000 per year. The cost for vessels that spend fewer days at sea would be accordingly less. At the other extreme, if a vessel spends 354 days at sea (the top of the range in 2011-2013), the total cost of compliance would be about $88,500 per year. Both of these figures are upper-bound estimates. If arrangements under the SPTT return to something like they have been in the past, then the numbers of days spent at sea on fishing trips in the Convention Area are likely be close to the levels described above, but the compliance costs would be about 20 percent less than estimated above because observer coverage under the SPTT would satisfy about 20 percent of the coverage required under this rule. If arrangements under the SPTT do not return to something like they have been in the recent past, then the number of days spent at sea on fishing trips in the Convention Area could be substantially lower than as described above, and the costs of complying with this proposed requirement would be accordingly less.

This element of the proposed rule would not establish any new reporting or recordkeeping requirements. The new requirement would be for affected vessel owners and operators to comply with the FAD restrictions described earlier in the SUPPLEMENTARY INFORMATION section of the preamble, including FAD prohibition periods from July 1 through September 30 in each of 2016 and 2017; limits of 2,522 FAD sets that may be made in each of 2016 and 2017; and prohibitions on specific uses of FADs on the high seas in 2017.

Compliance with these restrictions is not expected to require any professional skills that the vessel owners and operators do not already possess. The expected costs of complying with this requirement are described below to the extent possible.

The proposed FAD restrictions would substantially constrain the manner in which purse seine fishing could be conducted in the specified areas and periods in the Convention Area; in those areas and during those periods, vessels would be able to set only on free, or “unassociated,” schools.

The costs associated with the proposed FAD restrictions cannot be quantitatively estimated, but the fleet's historical use of FADs can give a qualitative indication of the costs. In the years 1997-2013, the proportion of sets made on FADs in the U.S. purse seine fishery ranged from less than 30 percent in some years to more than 90 percent in others. Thus, the importance of FAD sets in terms of profits appears to be quite variable over time, and is probably a function of many factors, including fuel prices (unassociated sets involve more searching time and thus tend to bring higher fuel costs than FAD sets) and market conditions (e.g., FAD fishing, which tends to result in greater catches of lower-value skipjack tuna and smaller yellowfin tuna and bigeye tuna than unassociated sets, might be more attractive and profitable when canneries are not rejecting small fish). Thus, the costs of complying with the FAD restrictions would depend on a variety of factors.

In 2010-2013, the last 4 years for which complete data are available and for which there was 100 percent observer coverage, the U.S. WCPO purse seine fleet made about 39 percent of its sets on FADs. During the months when setting on FADs was allowed, the percentage was about 58 percent. The fact that the fleet has made such a substantial portion of its sets on FADs indicates that prohibiting the use of FADs in the specified areas and periods could bring substantial costs and/or revenue losses.

To mitigate these impacts, vessel operators might choose to schedule their routine vessel and equipment maintenance during the FAD prohibition periods. However, the limited number of vessel maintenance facilities in the region might constrain vessel operators' ability to do this. It also is conceivable that some vessels might choose not to fish at all during the FAD prohibition periods rather than fish without the use of FADs. Observations of the fleet's behavior in 2009-2013, when FAD prohibition periods were in effect, do not suggest that either of these responses occurred to an appreciable degree. The proportion of the fleet that fished during the two- and three-month FAD prohibition periods of 2009-2013 did not appreciably differ from the proportion that fished during the same months in the years 1997-2008, when no FAD prohibition periods were in place.

The proposed FAD restrictions for 2016 would be similar to those in place in 2013-2015, except that there would be a limit of 2,522 FAD sets instead of the October FAD prohibition period that was in place in 2013-2015. 2016 is an unusual year in that SPTT licenses for 2016 were not issued until March, and the number of licensed vessels (34 as of March 2016) is fewer than in recent years. Thus, there has been relatively little purse seine fishing effort to date in the Convention Area in 2016. As a result, the expected amount of fishing effort in the Convention Area in 2016 is expected to be substantially less than in recent years. Consequently, the 2,522 FAD set limit would be less constraining than it would be if fishing effort were greater. For example, if total fishing effort in 2016 is 5,000 fishing days (about 62% of the average in 2010-2013), and the average number of sets made per fishing day is the same as in 2010-2013 (0.97), and the average number of all sets that are FAD sets (“FAD set ratio”) during periods when FAD sets are allowed is the same as in 2010-2013 (58%), and if fishing effort is evenly distributed through the year, then the number of FAD sets expected in 2016 under the proposed rule would be about 2,130, somewhat less than the limit of 2,522. Under the assumptions described above, the limit of 2,522 FAD sets would start to become constraining at a total fishing effort level of 5,900 fishing days.

The effects of the proposed FAD restrictions in 2017 would likely be greater than in 2016 because of the additional prohibition on setting on FADs on the high seas. The magnitude of that additional impact cannot be predicted, but as an indication of the additional impact, in 2010-2013, about 10 percent of the fleet's fishing effort occurred on the high seas. As in 2016, the impact of the 2,522 FAD set limit in 2017 would be primarily a function of the fleet's total level of fishing effort. Given the uncertainty related to the future of the SPTT, fishing effort in 2017 is very difficult to predict. As described above for 2016, the limit would start to become constraining at a fishing effort level of about 5,900 fishing days, but in 2017 that threshold would be applicable only in the portion of the Convention Area that is not high seas (again, about 10 percent of fishing effort has occurred on the high seas in recent years).

In summary, the economic impacts of the FAD prohibition periods and FAD set limits in 2016 and 2017 and the prohibition on using FADs on the high seas throughout 2017 cannot be quantified, but they could be substantial. Their magnitude would depend in part on market conditions, oceanic conditions, and the fleet's fishing effort in 2016 and 2017, which will be determined in part by any limits on allowable levels of fishing effort in foreign EEZs and on the high seas in the Convention Area.

This element of the proposed rule would not establish any new reporting or recordkeeping requirements. The new compliance requirement would be for affected vessel owners and operators to cease retaining, landing, and transshipping bigeye tuna caught with longline gear in the Convention Area if and when the bigeye tuna catch limit is reached in 2016 (3,554 mt) or 2017 (3,345 mt), for the remainder of the calendar year, subject to the exceptions and provisos described in other sections of this SUPPLEMENTARY INFORMATION section of the preamble. Although the restrictions that would come into effect in the event the catch limit is reached would not prohibit longline fishing, per se, they are sometimes referred to in this analysis as constituting a fishery closure.

Fulfillment of this requirement is not expected to require any professional skills that the vessel owners and operators do not already possess. The costs of complying with this requirement are described below to the extent possible.

Complying with this element of the proposed rule could cause foregone fishing opportunities and result in associated economic losses in the event that the bigeye tuna catch limit is reached in 2016 or 2017 and the restrictions on retaining, landing, and transshipping bigeye tuna are imposed for portions of either or both of those years. These costs cannot be projected quantitatively with any certainty. The proposed limits of 3,554 mt for 2016 and 3,345 mt for 2017 can be compared to catches in 2005-2008, before limits were in place. The average annual catch in that period was 4,709 mt. Based on that history, as well as fishing patterns in 2009-2015, when limits were in place, there appears to be a relatively high likelihood of the proposed limits being reached in 2016 and 2017. 2015 saw exceptionally high catches of bigeye tuna. Although final estimates for 2015 are not available, the limit of 3,502 mt was estimated to have been reached by, and the fishery was closed on, August 5 (see temporary rule published July 28, 2015; 80 FR 44883). The fishery was subsequently re-opened for vessels included in agreements with the governments of the CNMI and Guam under regulations implementing Amendment 7 to the Fishery Ecosystem Plan for Pelagic Fisheries of the Western Pacific Region (Pelagics FEP) (50 CFR 665.819). If bigeye tuna catch patterns in 2016 or 2017 are like those in 2005-2008, the limits would likely be reached in the fourth quarter of the year. If catches are more accelerated, as in 2015, the limit could be reached in the third quarter of the year.

If the bigeye tuna limit is reached before the end of 2016 or 2017 and the Convention Area longline bigeye tuna fishery is consequently closed for the remainder of the calendar year, it can be expected that affected vessels would shift to the next most profitable fishing opportunity (which might be not fishing at all). Revenues from that next best alternative activity reflect the opportunity costs associated with longline fishing for bigeye tuna in the Convention Area. The economic cost of the proposed rule would not be the direct losses in revenues that would result from not being able to fish for bigeye tuna in the Convention Area, but rather the difference in benefits derived from that activity and those derived from the next best activity. The economic cost of the proposed rule on affected entities is examined here by first estimating the direct losses in revenues that would result from not being able to fish for bigeye tuna in the Convention Area as a result of the catch limit being reached. Those losses represent the upper bound of the economic cost of the proposed rule on affected entities. Potential next-best alternative activities that affected entities could undertake are then identified in order to provide a (mostly qualitative) description of the degree to which actual costs would be lower than that upper bound.

Upper bounds on potential economic costs can be estimated by examining the projected value of longline landings from the Convention Area that would not be made as a result of reaching the limit. For this purpose, it is assumed that, absent this proposed rule, bigeye tuna catches in the Convention Area in each of 2016 and 2017 would be 5,000 mt, slightly more than the average in 2005-2008. Under this scenario, imposition of limits of 3,554 mt for 2016 and 3,345 mt for 2017 would result in 29 percent and 33 percent less bigeye tuna being caught in those two years, respectively, than under no action. In the deep-set fishery, catches of marketable species other than bigeye tuna would likely be affected in a similar way if vessels do not shift to alternative activities. Assuming for the moment that ex-vessel prices would not be affected by a fishery closure, under the proposed rule, revenues in 2016 and 2017 to entities that participate exclusively in the deep-set fishery would be approximately 29 and 33 percent less than under no action in 2016 and 2017, respectively. Average annual ex-vessel revenues (from all species) per mt of bigeye tuna caught during 2005-2008 were about $14,190/mt (in 2014 dollars, derived from the latest available annual report on the pelagic fisheries of the western Pacific Region (Western Pacific Regional Fishery Management Council, 2014, Pelagic Fisheries of the Western Pacific Region: 2012 Annual Report. Honolulu, Western Pacific Fishery Management Council). If there are 128 active vessels in the fleet, as there were during 2005-2008, on average, then under the no-action scenario of fleet-wide anuual catches of 5,000 mt, each vessel would catch 39 mt/yr, on average. Reductions of 29 percent and 33 percent in 2016 and 2017, respectively, as a result of the proposed limits would be about 11 mt and 13 mt, respectively. Applying the average ex-vessel revenues (from all species) of $14,190 per mt of bigeye tuna caught, the reductions in ex-vessel revenue per vessel would be $160,000 and $183,000, on average, for 2016 and 2017, respectively.

In the shallow-set fishery, affected entities would bear limited costs in the event of the limit being reached (but most affected entities also participate in the deep-set fishery and might bear costs in that fishery, as described below). The cost would be about equal to the revenues lost from not being able to retain or land bigeye tuna captured while shallow-setting in the Convention Area, or the cost of shifting to shallow-setting in the eastern Pacific Ocean (EPO), which is to the east of 150 degrees W. longitude, whichever is less. In the fourth calendar quarters of 2005-2008, almost all shallow-setting effort took place in the EPO, and 97 percent of bigeye tuna catches were made there, so the cost of a bigeye tuna fishery closure to shallow-setting vessels would appear to be very limited. During 2005-2008, the shallow-set fishery caught an average of 54 mt of bigeye tuna per year from the Convention Area. If the proposed bigeye tuna catch limit is reached even as early as July 31 in 2016 or 2017, the Convention Area shallow-set fishery would have caught at that point, based on 2005-2008 data, on average, 99 percent of its average annual bigeye tuna catches. Imposition of the landings restriction at that point in 2016 or 2017 would result in the loss of revenues from approximately 0.5 mt (1 percent of 54 mt) of bigeye tuna, which, based on recent ex-vessel prices, would be worth no more than $5,000. Thus, expecting about 27 vessels to engage in the shallow-set fishery (the annual average in 2005-2012), the average of those potentially lost annual revenues would be no more than $200 per vessel. The remainder of this analysis focuses on the potential costs of compliance in the deep-set fishery.

It should be noted that the impacts on affected entities' profits would be less than impacts on revenues when considering the costs of operating vessels, because costs would be lower if a vessel ceases fishing after the catch limit is reached. Variable costs can be expected to be affected roughly in proportion to revenues, as both variable costs and revenues would stop accruing once a vessel stops fishing. But affected entities' costs also include fixed costs, which are borne regardless of whether a vessel is used to fish—e.g., if it is tied up at the dock during a fishery closure. Thus, profits would likely be adversely impacted proportionately more than revenues.

As stated previously, actual compliance costs for a given entity might be less than the upper bounds described above, because ceasing fishing would not necessarily be the most profitable alternative opportunity when the catch limit is reached. Two alternative opportunities that are expected to be attractive to affected entities include: (1) Deep-set longline fishing for bigeye tuna in the Convention Area in a manner such that the vessel is considered part of the longline fishery of American Samoa, Guam, or the CNMI; and (2) deep-set longline fishing for bigeye tuna and other species in the EPO. These two opportunities are discussed in detail below. Four additional opportunities are: (3) Shallow-set longline fishing for swordfish (for deep-setting vessels that would not otherwise do so), (4) deep-set longline fishing in the Convention Area for species other than bigeye tuna, (5) working in cooperation with vessels operating as part of the longline fisheries of the Participating Territories—specifically, receiving transshipments at sea from them and delivering the fish to the Hawaii market, and 6) vessel repair and maintenance. A study by NMFS of the effects of the WCPO bigeye tuna longline fishery closure in 2010 (Richmond, L., D. Kotowicz, J. Hospital and S. Allen, 2015, Monitoring socioeconomic impacts of Hawai`i's 2010 bigeye tuna closure: Complexities of local management in a global fishery, Ocean & Coastal Management 106:87-96) did not identify the occurrence of any alternative activities that vessels engaged in during the closure, other than deep-setting for bigeye tuna in the EPO, vessel maintenance and repairs, and granting lengthy vacations to employees. Based on those findings, NMFS expects that alternative opportunities (3), (4), (5) and (6) are probably unattractive relative to the first two alternatives, and are not discussed here in any further detail. NMFS recognizes that vessel maintenance and repairs and granting lengthy vacations to employees are two alternative activities that might be taken advantage of if the fishery is closed, but no further analysis of their mitigating effects is provided here.

Before examining in detail the two potential alternative fishing opportunities that would appear to be the most attractive to affected entities, it is important to note that under the proposed rule, once the limit is reached and the WCPO bigeye tuna fishery is closed, fishing with longline gear both inside and outside the Convention Area during the same trip would be prohibited (except in the case of a fishing trip that is in progress when the limit is reached and the restrictions go into effect). For example, after the restrictions go into effect, during a given fishing trip, a vessel could be used for longline fishing for bigeye tuna in the EPO or for longline fishing for species other than bigeye tuna in the Convention Area, but not for both. This reduced operational flexibility would bring costs, since it would constrain the potential profits from alternative opportunities. Those costs cannot be quantified.

A vessel could take advantage of the first alternative opportunity (deep-setting for bigeye tuna in a manner such that the vessel is considered part of the longline fishery of one of the three U.S. Participating Territories), by three possible methods: (a) Landing the bigeye tuna in one of the three Participating Territories, (b) holding an American Samoa Longline Limited Access Permit, or (c) being considered part of a Participating Territory's longline fishery, by agreement with one or more of the three Participating Territories under the regulations implementing Amendment 7 to the Pelagics FEP (50 CFR 665.819). In the first two circumstances, the vessel would be considered part of the longline fishery of the Participating Territory only if the bigeye tuna were not caught in the portion of the U.S. EEZ around the Hawaiian Islands and were landed by a U.S. vessel operating in compliance with a permit issued under the regulations implementing the Pelagics FEP or the Fishery Management Plan for U.S. West Coast Fisheries for Highly Migratory Species.

With respect to the first method of engaging in alternative opportunity 1 (1.a.) (landing the bigeye tuna in one of the Participating Territories), there are three potentially important constraints. First, whether the fish are landed by the vessel that caught the fish or by a vessel to which the fish were transshipped, the costs of a vessel transiting from the traditional fishing grounds in the vicinity of the Hawaiian Archipelago to one of the Participating Territories would be substantial. Second, none of these three locales has large local consumer markets to absorb substantial additional landings of fresh sashimi-grade bigeye tuna. Third, transporting the bigeye tuna from these locales to larger markets, such as markets in Hawaii, the U.S. west coast, or Japan, would bring substantial additional costs and risks. These cost constraints suggest that this alternative opportunity has limited potential to mitigate the economic impacts of the proposed rule on affected small entities.

The second method of engaging in the first alternative opportunity (1.b.) (having an American Samoa Longline Limited Access Permit), would be available only to the subset of the Hawaii longline fleet that has both Hawaii and American Samoa longline permits (dual permit vessels). Vessels that do not have both permits could obtain them if they meet the eligibility requirements and pay the required costs. For example, the number of dual permit vessels increased from 12 in 2009, when the first WCPO bigeye tuna catch limit was established, to 20 in both 2011 and 2012. The previously cited NMFS study of the 2010 fishery closure (Richmond et al. 2015) found that bigeye tuna landings of dual permit vessels increased substantially after the start of the closure on November 22, 2010, indicating that this was an attractive opportunity for dual permit vessels, and suggesting that those entities might have benefitted from the catch limit and the closure.

The third method of engaging in the first alternative opportunity (1.c.) (entering into an Amendment 7 agreement), was also available in 2011-2015 (in 2011-2013, under section 113(a) of Public Law 112-55, 125 Stat. 552 et seq., the Consolidated and Further Continuing Appropriations Act, 2012, continued by Public Law 113-6, 125 Stat. 603, section 110, the Department of Commerce Appropriations Act, 2013; hereafter, “section 113(a)”). As a result of agreements that were in place in 2011-2014, the WCPO bigeye tuna fishery was not closed in any of those four years because the annual limit for U.S. longline fisheries adopted by the WCPFC was not reached. In 2015 the fishery was closed in August but then reopened when agreements with the CNMI, and later with Guam, went into effect. Participation in an Amendment 7 agreement would likely not come without costs to fishing businesses. As an indication of the possible cost, the terms of the agreement between American Samoa and the members of the Hawaii Longline Association (HLA) in effect in 2011 and 2012 included payments totaling $250,000 from the HLA to the Western Pacific Sustainable Fisheries Fund, equal to $2,000 per vessel. It is not known how the total cost was allocated among the members of the HLA, so it is possible that the owners of particular vessels paid substantially more than or less than $2,000.

The second alternative opportunity (2) (deep-set fishing for bigeye tuna in the EPO), would be an option for affected entities only if it is allowed under regulations implementing the decisions of the Inter-American Tropical Tuna Commission (IATTC). Annual longline bigeye tuna catch limits have been in place for the EPO in most years since 2004. Since 2009, a bigeye tuna catch limit of 500 mt for 2016 has applied to U.S. longline vessels greater than 24 meters (m) in length (50 CFR 300.25), and the limits were reached in 2013 (November 11), 2014 (October 31), and 2015 (August 12). The highly seasonal nature of bigeye tuna catches in the EPO and the relatively high inter-annual variation in catches prevents NMFS from making a useful prediction of whether and when the limit in 2016 is likely to be reached. However, the trend in 2013-2015 suggests a relatively high likelihood of it being reached in 2016. If it is reached, this alternative opportunity would not be available for large longline vessels, which constitute about a quarter of the fleet. Currently there is no limit in place for 2017; the IATTC would have to take further action to adopt a limit for 2017, which NMFS would then need to implement.

Historical fishing patterns can provide an indication of the likelihood of affected entities making use of the opportunity of deep-setting in the EPO in the event of a closure in the WCPO. The proportion of the U.S. fishery's annual bigeye tuna catches that were captured in the EPO from 2005 through 2008 ranged from 2 percent to 22 percent, and averaged 11 percent. In 2005-2007, that proportion ranged from 2 percent to 11 percent, and may have been constrained by the IATTC-adoped bigeye tuna catch limits established by NMFS (no limit was in place for 2008). Prior to 2009, most of the U.S. annual bigeye tuna catch by longline vessels in the EPO typically was made in the second and third quarters of the year; in 2005-2008 the percentages caught in the first, second, third, and fourth quarters were 14, 33, 50, and 3 percent, respectively. These data demonstrate two historical patterns—that relatively little of the bigeye tuna catch in the longline fishery was typically taken in the EPO (11 percent in 2005-2008, on average), and that most EPO bigeye tuna catches were made in the second and third quarters, with relatively few catches in the fourth quarter when the proposed catch limit would most likely be reached. These two patterns suggest that there could be substantial costs for at least some affected entities that shift to deep-set fishing in the EPO in the event of a closure in the WCPO. On the other hand, fishing patterns since 2008 suggest that a substantial shift in deep-set fishing effort to the EPO could occur. In 2009, 2010, 2011, 2012, 2013, and 2014, the proportions of the fishery's annual bigeye tuna catches that were captured in the EPO were about 16, 27, 23, 19, 36, and 36 percent, respectively, and most bigeye tuna catches in the EPO were made in the latter half of the calendar years.

The NMFS study of the 2010 closure (Richmond et al. 2015) found that some businesses—particularly those with smaller vessels—were less inclined than others to fish in the EPO during the closure because of the relatively long distances that would need to be travelled in the relatively rough winter ocean conditions. The study identified a number of factors that likely made fishing in the EPO less lucrative than fishing in the WCPO during that part of the year, including fuel costs and the need to limit trip length in order to maintain fish quality and because of limited fuel storage capacity.

In addition to affecting the volume of landings of bigeye tuna and other species, the proposed catch limits could affect fish prices, particularly during a fishery closure. Both increases and decreases appear possible. After a limit is reached and landings from the WCPO are prohibited, ex-vessel prices of bigeye tuna (e.g., that are caught in the EPO or by vessels in the longline fisheries of the three U.S. Participating Territories), as well as of other species landed by the fleet, could increase as a result of the constricted supply. This would mitigate economic losses for vessels that are able to continue fishing and landing bigeye tuna during the closure. For example, the NMFS study of the 2010 closure (Richmond et al. 2015) found that ex-vessel prices during the closure in December were 50 percent greater than the average during the previous five Decembers. (It is emphasized that because it was an observational study, neither this nor other observations of what occurred during the closure can be affirmatively linked as effects of the fishery closure.)

Conversely, a WCPO bigeye tuna fishery closure could cause a decrease in ex-vessel prices of bigeye tuna and other products landed by affected entities if the interruption in the local supply prompts the Hawaii market to shift to alternative (e.g., imported) sources of bigeye tuna. Such a shift could be temporary—that is, limited to 2016 and/or 2017—or it could lead to a more permanent change in the market (e.g., as a result of wholesale and retail buyers wanting to mitigate the uncertainty in the continuity of supply from the Hawaii longline fisheries). In the latter case, if locally caught bigeye tuna fetches lower prices because of stiffer competition with imported bigeye tuna, then ex-vessel prices of local product could be depressed indefinitely. The NMFS study of the 2010 closure (Richmond et al. 2015) found that a common concern in the Hawaii fishing community prior to the closure in November 2010 was retailers having to rely more heavily on imported tuna, causing imports to gain a greater market share in local markets. The study found this not to have been borne out, at least not in 2010, when the evidence gathered in the study suggested that few buyers adapted to the closure by increasing their reliance on imports, and no reports or indications were found of a dramatic increase in the use of imported bigeye tuna during the closure. The study concluded, however, that the 2010 closure caused buyers to give increased consideration to imports as part of their business model, and it was predicted that tuna imports could increase during any future closure. To the extent that ex-vessel prices would be reduced by this action, revenues earned by affected entities would be affected accordingly, and these impacts could occur both before and after the limit is reached, and as described above, possibly after 2017.

The potential economic effects identified above would vary among individual business entities, but it is not possible to predict the range of variation. Furthermore, the impacts on a particular entity would depend on both that entity's response to the proposed rule and the behavior of other vessels in the fleet, both before and after the catch limit is reached. For example, the greater the number of vessels that take advantage—before the limit is reached—of the first alternative opportunity (1), fishing as part of one of the Participating Territory's fisheries, the lower the likelihood that the limit would be reached. The fleet's behavior in 2011 and 2012 is illustrative. In both those years, most vessels in the Hawaii fleet were included in a section 113(a) arrangement with the government of American Samoa, and as a consequence, the U.S. longline catch limit was not reached in either year. Thus, none of the vessels in the fleet, including those not included in the section 113(a) arrangements, were prohibited from fishing for bigeye tuna in the Convention Area at any time during those two years. The fleet's experience in 2010 (before opportunities under section 113(a) or Amendment 7 to the Pelagics FEP were available) provides another example of how economic impacts could be distributed among different entities. In 2010 the limit was reached and the WCPO bigeye tuna fishery was closed on November 22. As described above, dual permit vessels were able to continue fishing outside the U.S. EEZ around the Hawaiian Archipelago and benefit from the relatively high ex-vessel prices that bigeye tuna fetched during the closure.

In summary, based on potential reductions in ex-vessel revenues, NMFS has estimated that the upper bound of potential economic impacts of the proposed rule on affected longline fishing entities could be roughly $160,000 per vessel, on average, in 2016 and $183,000 per vessel, on average, in 2017. The actual impacts to most entities are likely to be substantially less than those upper bounds, and for some entities the impacts could be neutral or positive (e.g., if one or more Amendment 7 agreements are in place in 2016 and 2017 and the terms of the agreements are such that the U.S. longline fleet is effectively unconstrained by the catch limits).

As indicated above, all affected entities are believed to be small entities, so small entities would not be disproportionately affected relative to large entities. Nor would there be disproportionate economic impacts based on home port.

Purse seine vessels would be impacted differently than longline vessels, but whether the impacts would be disproportional between the two gear types cannot be determined.

For the longline sector, as described above, there could be disproportionate impacts according to vessel type and size and the type of fishing permits held. A vessel with both a Hawaii Longline Limited Access Permit and an American Samoa Longline Limited Access Permit would be considered part of the American Samoa longline fishery (except when fishing in the U.S. EEZ around the Hawaiian Archipelago), so it would not be subject to the proposed catch limits. Because the EPO bigeye tuna catch limit for 2016 applies only to vessels greater than 24 m in length, in the event that the WCPO bigeye tuna fishery is closed and the 500 mt limit is reached in the EPO, only vessels 24 m or less in length would be able to take advantage of the alternative opportunity of deep-setting for bigeye tuna in the EPO. On the other hand, smaller vessels can be expected to find it more difficult, risky, and/or costly to fish in the EPO during the relatively rough winter months than larger vessels. If there are any large entities among the affected entities, and if the vessels of the large entities are larger than those of small entities, then it is possible that small entities could be disproportionately affected relative to large entities.

NMFS has not identified any Federal regulations that duplicate, overlap with, or conflict with the proposed regulations.

NMFS has sought to identify alternatives that would minimize the proposed rule's economic impact on small entities (“significant alternatives”). Taking no action could result in lesser adverse economic impacts than the proposed action for affected entities in the purse seine and longline fisheries (but as described below, for some affected longline entities, the proposed rule could be more economically beneficial than no-action), but NMFS does not prefer the no-action alternative, because it would be inconsistent with the United States' obligations under the Convention. Alternatives identified for each of the three elements of the proposed rule are discussed below.

NMFS has not identified any significant alternatives to the proposed purse seine observer requirements that would comport with U.S. obligations to implement the Commission decisions regarding observer coverage.

NMFS considered in detail one set of alternatives to the proposed restrictions on the use of FADs. Under CMM 2015-01, the United States could use either of two options in either of 2016 and 2017 (in addition to the three-month FAD closure periods in both years and the prohibition on FAD sets on the high seas in 2017). One option is a fourth-month FAD prohibition period, in October. The second option, proposed in this rule, is an annual limit of 2,522 FAD sets. The relative effects of the two options would depend on the total amount of fishing effort exerted by the U.S. purse seine fleet in the Convention Area in a given year. If total fishing effort is relatively high, an October FAD prohibition period would likely allow for more FAD sets than a limit of 2,522 FAD sets, and thus likely cause lesser adverse impacts. The opposite would be the case for relatively low levels of total fishing effort. For example, given the fleet's recent historical average FAD set ratio of 58 percent when FAD-setting is allowed (2010-2013), and assuming an even distribution of sets throughout the year, the estimated “breakeven” point between the two options is 6,502 total sets for the year. The levels of fishing effort in 2016 and 2017 are very difficult to predict; they will be determined largely by the level of participation in the fishery (number of vessels) and any limits imposed on fishing effort. Fishing effort in foreign zones and on the high seas in the SPTT Area is likely to be limited by the terms of arrangements under the SPTT. Fishing effort elsewhere in the Convention Area (e.g., in the U.S. EEZ and on the high seas outside the Treaty Area) would be constrained by any limits established by NMFS to implement the provisions of CMM 2015-01. NMFS has not yet established or proposed any such limits for 2016 or 2017, and cannot speculate what limits it might propose, but a point of reference are the limits that were in place in 2009-2015. Those limits applied to the Effort Limit Area for Purse Seine, or ELAPS, which consists of all areas of high seas and U.S. exlusive economic zone in the Convention Area between the latitudes of 20° N. and 20° S. The limits in 2009-2013 were 2,588 fishing days per year. The limits in 2014-2015 were 1,828 fishing days per year. With respect to numbers of vessels and allowable fishing effort limits under the SPTT, 2016 is an unusual year in that SPTT licenses for 2016 were not issued until March, and the number of licensed vessels (34 as of March 2016) is fewer than in recent years. Thus, there has been relatively little purse seine fishing effort to date in the Convention Area in 2016, and NMFS expects that total fishing effort in 2016 is likely to be less than 6,502 sets (the estimated breakeven point between the two options). For reference, the average number of sets made annually in 2010-2013, when an average of 38 vessels were active in the fishery, was 7,835. The average number of fishing days made annually in 2010-2013 was 8,030, so the average number of sets made per fishing day was 0.97. Predicting the situation for 2017 is even more difficult than for 2016, but current circumstances suggest that participation in 2017 could be less than in recent years. Also, because setting on FADs on the high seas would be prohibited in 2017 under this proposed rule, the estimated breakeven point of 6,502 total sets applies not everywhere in the Convention Area, but only those portions that are not high seas. Assuming that about 10 percent of fishing effort takes place on the high seas, as in 2010-2013, the breakeven point for the Convention Area as a whole is about 7,224 total sets. Assuming 0.97 sets per fishing day, on average, as occurred in 2010-2013, this equates roughly to 7,371 fishing days. This is slightly less than the average annual fishing effort in 2010-2013 (7,835 sets; 8,030 fishing days), but again, given current circumstances and uncertainty surrounding the future of the SPTT, NMFS expects that total fishing effort in 2017 is likely to be less than that breakeven level. Based on the above expectations and assumptions for conditions in 2016 and 2017, an annual limit of 2,522 FAD sets is likely to have lesser adverse impacts on fishing businesses than a FAD prohibition period in October, in both 2016 and 2017, and NMFS prefers the proposed action for that reason.

NMFS has not identified any significant alternatives to this element of the proposed rule, other than the no-action alternative.

For the reasons set out in the preamble, 50 CFR part 300 is proposed to be amended as follows: