        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 228
        [EPA-R02-OW-2014-0587, FRL-9917-51-Region-2]
        Modification of the Designations of the Caribbean Ocean Dredged Material Disposal Sites (San Juan Harbor, PR; Yabucoa Harbor, PR; Ponce Harbor, PR; Mayaguez Harbor, PR; Arecibo Harbor, PR)

          AGENCY:
          Environmental Protection Agency.

          ACTION:
          Proposed rule.

          SUMMARY:

          The Environmental Protection Agency (EPA) is proposing to modify the designations for the five Ocean Dredged Material Disposal Sites (ODMDS) around Puerto Rico (San Juan Harbor, PR ODMDS; Yabucoa Harbor, PR ODMDS; Ponce Harbor, PR ODMDS; Mayaguez Harbor, PR ODMDS; Arecibo Harbor, PR ODMDS). Currently, each of the ODMDS is restricted to only allow disposal of dredged material from the specific harbor for which it is named. The proposed modification would remove the restriction that limits eligibility for disposal at each of the disposal sites based solely on the geographic origin of the dredged material. The proposed modifications to the site designations do not actually authorize the disposal of any particular dredged material at any site. All proposals to dispose of dredged material at any of the designated sites will continue to be subject to project—specific reviews and must still be demonstrated to satisfy the criteria for ocean dumping before any material is authorized for disposal. This action is necessary to provide long-term flexibility for management of any dredged material that may potentially be derived from maintenance, development, or emergency activities in areas outside those harbors currently provided for in the designations. The proposed modifications to the site designations are for an indefinite period of time. Each ODMDS will continue to be monitored to ensure that significant unacceptable, adverse environmental impacts do not occur as a result of dredged material disposal at the site.

          DATES:
          Comments must be received on or before November 13, 2014.

          ADDRESSES:
          Submit your comments, identified by Docket No. EPA-R02-OW-2014-0587, by one of the following methods:

            Federal e-Rulemaking Portal: http://www.regulations.gov; follow the online instruction for submitting comments.
          • Email: Mr. Mark Reiss at reiss.mark@epa.gov.

          • Fax: Mr. Mark Reiss, Dredging Sediment and Oceans Section (CWD) at fax number 212-637-3887.
          • Mail: Mr. Mark Reiss, Dredging Sediment and Oceans Section (CWD), U.S. Environmental Protection Agency, Region 2, 290 Broadway, New York NY 10007.

            Instructions: Direct your comments to Docket No. EPA-R02-OW-2014-0587. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov or email. The www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through www.regulations.gov your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.

          Electronic comments must be submitted as an ASCII or Microsoft Word file avoiding the use of special characters and any form of encryption, and that are free of any defects or viruses. Comments will also be accepted on disks in Microsoft Word or ASCII file format sent or delivered to the address above. All comments and data in electronic form must be identified by the name, date and Federal Register citation of this notice. No confidential business information should be sent via email.

            Docket: All documents in the docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy at the Dredging, Sediment and Oceans Section (CWD), U.S. Environmental Protection Agency, Region 2, 290 Broadway, New York NY 10007 or at the Caribbean Environmental Protection Division, U.S. Environmental Protection Agency, Region 2 City View Plaza II—Suite 7000 #48 Rd. 165 km 1.2. Guaynabo, PR 00968-8069. The file will be made available by appointment for public inspection between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal holidays. Contact the person listed in the FOR FURTHER INFORMATION CONTACT paragraph below. If possible, please make the appointment at least two working days in advance of your visit.

          FOR FURTHER INFORMATION CONTACT:

          Mr. Mark Reiss, U.S. Environmental Protection Agency, Region, 290 Broadway, 24th Floor (CWD), New York, NY 10007-1866, telephone (212) 637-3799, electronic mail: reiss.mark@epa.gov.

        SUPPLEMENTARY INFORMATION:
        Table of Contents

          I. Potentially Affected Persons
          II. Background
          III. Proposed Action
          IV. Administrative Review
          1. Executive Order 12886
          2. Paperwork Reduction Act
          3. Regulatory Flexibility Act, as Amended by the Small Business Regulatory Enforcement Fairness Act of 1996
          4. Unfunded Mandates Reform Act
          5. Executive Order 13132: Federalism
          6. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments
          7. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks
          8. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use
          9. National Technology Transfer Advancement Act
          10. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low Income Populations
          11. National Environmental Policy Act of 1969
          12. The Endangered Species Act
          13. Magnuson-Stevens Fishery Conservation and Management Act
          14. Plain Language Directive
          15. Executive Order 13158: Marine Protected Areas

          I. Potentially Affected Persons

          Entities potentially regulated by this action are persons, organizations, or government bodies seeking to dispose of dredged material into Caribbean ocean waters, under the Marine Protection Research and Sanctuaries Act, 33 U.S.C. 1401 et seq. (hereinafter referred to as the MPRSA) and its implementing regulations. This proposed rule is expected to be primarily of relevance to (a) parties seeking permits from the U.S. Army Corps of Engineers to transport dredged material for the purpose of disposal into Caribbean ocean waters and (b) to the Corps itself for its own dredged material disposal projects. Potentially regulated categories and entities that may seek to use the Caribbean ODMDS may include:

              Category
              Examples of potentially regulated entities

              Federal Government
              U.S. Army Corps of Engineers Civil Works Projects, and Other Federal Agencies.

              Industry and General Public
              Port Authorities, Marinas and Harbors, Shipyards, and Marine Repair Facilities, Berth Owners.

              State, local and tribal governments
              Governments owning and/or responsible for ports, harbors, and/or berths, Government agencies requiring disposal of dredged material associated with public works projects.

          This table is not intended to be exhaustive, 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. To determine whether your organization is affected by this action, you should carefully consider whether your organization is subject to the requirement to obtain a MPRSA permit in accordance with the Purpose and Scope of 40 CFR 220.1, and you wish to use the sites subject to today's proposal. EPA notes that nothing in this proposed rule alters the jurisdiction or authority of EPA or the types of entities regulated under the MPRSA. 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.
          II. Background

          Section 102(c) of the Marine Protection, Research, and Sanctuaries Act (MPRSA) of 1972, as amended, 33 U.S.C. 1401 et seq., 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 disposal sites to the Regional Administrator of the Region in which the sites are located. These proposed modifications are being made pursuant to that authority.
          The ODMDS herein specified are located within Region 2; therefore, this action is being taken pursuant to the Regional Administrator's delegated authority. EPA's ocean dumping regulations (40 CFR 228.4(e)(1)) promulgated under the MPRSA require, among other things, that EPA designate ocean dumping sites (ODMDS) by promulgation of a site designation in 40 CFR Part 228. Designated ocean dumping sites are codified at 40 CFR 228.15. This rule proposes to modify the site designations for the five open water dredged material disposal sites around the Caribbean. These sites are located in ocean waters off Puerto Rico. Arecibo Harbor, PR ODMDS and San Juan Harbor, PR ODMDS are closest to shore, lying 1.5 nautical miles and 1.4 nautical miles north of the respective harbors for which they are named; all of the others are at least 4 nautical miles from the respective harbors for which they are named.
          The site modifications are being proposed in this action to provide the Corps, Commonwealth of Puerto Rico, municipal, and private entities with greater long term flexibility in managing dredged materials outside the specific harbors currently provided for in the designations. The modifications would also allow for management of dredged materials associated with any eventual development, re-development or emergency (i.e., post-hurricane) needs in those areas. Each ODMDS will be subject to continuing site management and monitoring to ensure that unacceptable, adverse environmental impacts do not occur. The management of each ODMDS is further described in the Site Monitoring and Management Plans (SMMPs) for the sites (to date, SMMPs have been prepared for the Arecibo Harbor, PR, Yabucoa Harbor, PR, Ponce Harbor, PR, and San Juan Harbor, PR ODMDS; a SMMP will be prepared for the Mayaguez Harbor, PR ODMDS before it is used for dredged material disposal). This proposed rule is the only document being made available for public comment by EPA at this time. The modification of the designations is being proposed in accordance with 40 CFR 228.3(b) of the Ocean Dumping Regulations, which allows EPA to modify the use and designation of ocean dredged material disposal sites.
          III. Proposed Action
          EPA is publishing this Proposed Rule to propose the removal of the geographic restrictions on the origin of the dredged material that can be disposed from the designations of the San Juan Harbor, PR Ponce Harbor, PR, Yabucoa Harbor, PR, Mayaguez Harbor, PR and Arecibo Harbor, PR ODMDSs. The monitoring and management of requirements that will apply to each site are to be described in the SMMP prepared for the site before its use. Management and monitoring will be carried out by EPA Region 2 in conjunction with the Corps' Jacksonville District.
          Modification of the designation of ocean disposal sites under 40 CFR part 228 is essentially a preliminary, planning measure. The practical effect of such a designation is only to require that if future ocean disposal activity is permitted and/or authorized (in the case of Corps projects) under 40 CFR Part 227, then such disposal should normally be consolidated at the designated sites (See 33 U.S.C. 1413(b).) Designation of an ocean disposal site does not authorize any actual disposal and does not preclude EPA or the Corps from finding available and environmentally preferable alternative means of managing dredged materials, or from finding that certain dredged material is not suitable for ocean disposal under the applicable regulatory criteria.
          This modification will provide flexibility for management of dredged material from areas outside the harbors currently provided for in the designations. However, it should be emphasized that modification of the designations of the ODMDS does not constitute or imply Corps' or EPA's approval of open water disposal of dredged material from any specific project. Before disposal of dredged material at any site may commence, Essential Fish Habitat and Endangered Species Act consultations must be completed, and EPA and the Corps must evaluate the proposal and authorize disposal according to the ocean dumping regulatory criteria (40 CFR Part 227). All projects proposed for disposal at the ODMDS will be subject to review and comment by the relevant resource agencies and the public to ensure that any concerns regarding potential impacts associated with transport of material from the project area to the ODMDS are addressed before they are authorized for disposal.
          EPA has the right to disapprove the actual disposal, if it determines that environmental requirements under the MPRSA (including required Essential Fish Habitat and Endangered Species Act consultations) have not been met.
          IV. Administrative Review
          1. Executive Order 12866: Regulatory Planning and Review
          Under Executive Order 12866 (58 FR 51735, October 4, 1993), the Agency must determine whether the regulatory action is “significant” and therefore subject to OMB review and the requirements of the Executive Order. The Order defines “significant regulatory action” as one that is likely to result in a rule that may:
          (A) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities;
          (B) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
          (C) Materially alter the budgetary impact of entitlement, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
          (D) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
          It has been determined that this proposed action is not a “significant regulatory action” under E.O. 12866 and is therefore not subject to OMB review.
          2. Paperwork Reduction Act

          This proposed rule would not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et seq.) because it would not require persons to obtain, maintain, retain, report, or publicly disclose information to or for a Federal agency.
          3. Regulatory Flexibility Act, as Amended by the Small Business Regulatory Enforcement Fairness Act of 1996
          The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. For the purposes of assessing the impacts of today's rule on small entities, a small entity is defined as: (1) A small business based on the Small Business Administration's (SBA) size standards; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. EPA has determined that this action will not have a significant adverse economic impact on small entities because the proposed ocean disposal site designation does not regulate small entities. The site designation will only have the effect of providing a long term environmentally acceptable disposal option for dredged materials in areas outside the harbors currently provided for in the designations. This action will help to facilitate the maintenance of safe navigation on a continuing basis. After considering the economic impacts of today's proposed rule on small entities, it has been determined that this action will not have a significant adverse economic impact on a substantial number of small entities.
          4. The Unfunded Mandates Reform Act

          This proposed rule contains no Federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) of 1995 (Pub. L. 104-4) for State, local, or tribal governments or the private sector that may result in estimated costs of $100 million or more in any year. It imposes no new enforceable duty on any State, local or tribal governments or the private sector nor does it contain any regulatory requirements that might significantly or uniquely affect small government entities. Thus, the requirements of section 203 of the UMRA do not apply to this Proposed Rule.
          5. Executive Order 13132: Federalism
          Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” are defined in the Executive Order to include regulations that 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.”
          This proposed rule 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, as specified in Executive Order 13132. This proposed rule addresses the modification of the existing site designations of ocean disposal sites in the Caribbean for the potential disposal of dredged materials. This proposed action neither creates new obligations nor alters existing authorizations of any state, local or governmental entities. Thus, Executive Order 13132 does not apply to this rule. Although Section 6 of the Executive Order 13132 does not apply to this proposed rule, EPA did consult with representatives of State and local governments in developing this rule.
          In addition, and consistent with Executive Order 13132 and EPA policy to promote communications between EPA and State and local governments, EPA specifically solicits comment on this proposed rule from State and local officials.
          6. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments
          Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by Tribal officials in the development of regulatory policies that have Tribal implications.” “Policies that have Tribal implications” are defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian Tribes, on the relationship between the Federal government and the Indian Tribes, or on the distribution of power and responsibilities between the Federal government and Indian Tribes.”
          The proposed action does not have Tribal implications. If finalized, the proposed action would not have substantial direct effects on Tribal governments, on the relationship between the Federal government and Indian Tribes, or on the distribution of power and responsibilities between the Federal government and Indian Tribes, as specified in Executive Order 13175. This proposed rule designates an ocean dredged material disposal site and does not establish any regulatory policy with tribal implications. Thus, Executive Order 13175 does not apply to this rule.
          7. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks
          Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any rule that (1) is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe might have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health and safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. This proposed rule is not an economically significant rule as defined under Executive Order 12866 and does not concern an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. Therefore, it is not subject to Executive Order 13045.
          8. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use
          This proposed rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not a significant regulatory action under Executive Order 12866.
          9. National Technology Transfer Advancement Act
          Section 12(d) of the National Technology Transfer Advancement Act of 1995 (“NTTAA”), Public Law 104-113, Section 12(d) (15 U.S.C. 272 note), directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus bodies. The NTTAA directs EPA to provide to Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This proposed rule does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.
          10. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low Income Populations
          Executive Order 12898 requires that, to the greatest extent practicable and permitted by law, each Federal agency must make achieving environmental justice part of its mission. E.O. 12898 provides that each Federal agency must conduct its programs, policies, and activities that substantially affect human health or the environment in a manner that ensures that such programs, policies, and activities do not have the effect of excluding persons (including populations) from participation in, denying persons (including populations) the benefits of, or subjecting persons (including populations) to discrimination under such programs, policies, and activities because of their race, color, or national origin.
          No action from this proposed rule would have a disproportionately high and adverse human health and environmental effect on any particular segment of the population. In addition, this rule does not impose substantial direct compliance costs on those communities. Accordingly, the requirements of Executive Order 12898 do not apply.
          11. National Environmental Policy Act of 1969

          Section 102(2)(c) of the National Environmental Policy Act (NEPA) of 1969, 42 U.S.C. 4332, requires that Federal agencies prepare an environmental impact statement (EIS) on proposals for major Federal actions significantly affecting the quality of the human environment. The objective of NEPA is to build into the agency decision-making process careful consideration of all environmental aspects of proposed actions, including evaluation of reasonable alternatives to the proposed action. Although EPA ocean dumping program activities have been determined to be “functionally equivalent” to NEPA, EPA has a voluntarily policy to follow NEPA procedures when designating ocean dumping sites. See, 63 FR 58045 (Oct. 29, 1998). The final EISs for the San Juan Harbor, PR ODMDS and the other Caribbean ODMDS were published before the above policy; the modification proposed in this rule is consistent with the NEPA evaluations performed at that time as it will not cause the volumes projected to be disposed to be exceeded at the sites.
          In addition, the Corps will submit Coastal Zone Consistency determinations to the Commonwealth of Puerto Rico for individual projects proposing to dispose at the ODMDS. Coordination efforts with NMFS and USFWS for ESA and EFH consultation were completed on April 22, 2005 and May 16, 2005.
          12. The Endangered Species Act

          Under Section 7(a)(2) of the Endangered Species Act, 16 U.S.C. 1536(a)(2), federal agencies are required to “insure that any action authorized, funded, or carried on by such agency . . . is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of habitat of such species. . . .” Under regulations implementing the Endangered Species Act, a federal agency is required to consult with the U.S. Fish and Wildlife Service or the National Marine Fisheries Service (depending on the species involved) if the agency's action “may affect” endangered or threatened species or their critical habitat. See, 50 CFR 402.14(a).
          On April 22, 2005 and May 9, 2005, EPA sent coordination letters to USFWS and NMFS in which the modification was described and which requested the concurrence of those two Services with EPA's determination that threatened and endangered species and their critical habitat would not be adversely affected by the proposed action. NMFS concurred by undated letter in June 2005 and USFWS concurred on May 16, 2005.
          13. Magnuson-Stevens Fishery Conservation and Management Act
          The 1996 Sustainable Fisheries Act amendments to the Magnuson-Stevens Fishery Conservation and Management Act (MSFCMA) require the designation of essential fish habitat (EFH) for federally managed species of fish and shellfish. Pursuant to section 305(b)(2) of the MSFCMA, federal agencies are required to consult with the National Marine Fisheries Service (NMFS) regarding any action they authorize, fund, or undertake that may adversely affect EFH. An adverse effect has been defined by the Act as follows: “Any impact which reduces the quality and/or quantity of EFH. Adverse effects 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.” On April 22, 2005, EPA requested NMFS concurrence with its determination that the proposed modification was not likely to result in the destruction or adverse modification of categories of essential fish habitat designated by the Caribbean Fishery Management Council. NMFS concurred with this determination in a letter dated May 13, 2005 and recommended mapping of potential shelf edge reef habitat to select transit routes for laden barges as part of the permitting process for individual projects located in areas outside the currently authorized harbors. EPA agreed to require these studies for specific projects, as necessary, as part of the permitting process.
          14. Plain Language Directive
          Executive Order 12866 requires each agency to write all rules in plain language. EPA has written this proposed rule in plain language in order to make it easier to understand.
          15. Executive Order 13158: Marine Protected Areas
          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.”
          Today's proposed rule implements Section 103 of the MPRSA, which requires that permits for dredged material be subject to EPA review and concurrence. The proposed rule would amend 40 CFR 228.15 by removing the geographic restrictions on use of the ODMDS. Enabling management of the additional dredged materials at monitored designated sites restricts impacts to those areas and minimizes the potential for using other near shore discharge strategies with potentially greater impacts to the marine environment. As such, this proposed rule would afford additional protection of aquatic organisms at individual, population, community, or ecosystem levels of ecological structures. Therefore, EPA expects today's proposed rule would advance the objective of the Executive Order to protect marine areas.

          List of Subjects in 40 CFR Part 228
          Environmental protection, Water pollution control.

          Authority:
          33 U.S.C. 1412 and 1418.

          Dated: September 3, 2014.
          Judith A. Enck,
          Regional Administrator, U.S. EPA, Region 2.

        In consideration of the foregoing, EPA is proposing to amend part 228, chapter I of title 40 of the Code of Federal Regulations as follows:

          PART 228—CRITERIA FOR THE MANAGEMENT OF DISPOSAL SITES FOR OCEAN DUMPING

        1. The authority citation for part 228 continues to read as follows:

          Authority:
          33 U.S.C. 1412 and 1418.

        2. Section 228.15 is amended by revising paragraphs (d)(10)(vi), (d)(11)(vi), (d)(12)(vi), (d)(13)(vi), and (d)(14)(vi) to read as follows:

          § 228.15
          Dumping sites designated on a final basis.

          (d) * * *
          (10) * * *
          (vi) Restriction: Disposal shall be limited to dredged material.
          (11) * * *
          (vi) Restriction: Disposal shall be limited to dredged material.
          (12) * * *
          (vi) Restriction: Disposal shall be limited to dredged material.
          (13) * * *
          (vi) Restriction: Disposal shall be limited to dredged material.
          (14) * * *
          (vi) Restriction: Disposal shall be limited to dredged material.

      [FR Doc. 2014-24348 Filed 10-10-14; 8:45 am]
      BILLING CODE 6560-50-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 622
        [Docket No. 010601143-1143-01; I.D. 050201B]
        RIN  0648-AO62
        Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef Fish Fishery of the Gulf of Mexico; Coastal Migratory Pelagic Resources of the Gulf of Mexico and South Atlantic States; Recreational-for-hire Fisheries in the Gulf; Control Date

          AGENCY:
          National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

          ACTION:
          Advance notice of proposed rulemaking; establishment of  a revised control date.

          SUMMARY:
          This document announces that the Gulf of Mexico Fishery Management Council (Council) has adopted an amendment to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (Reef Fish FMP) and to the Fishery Management Plan for Coastal Migratory Pelagic Resources of the Gulf of Mexico and South Atlantic (Coastal Migratory Pelagics FMP) that would, if approved and implemented by NMFS, establish a moratorium on the issuance of additional charter vessel and headboat (recreational-for-hire) permits for these fisheries in the exclusive economic zone (EEZ) of the Gulf of Mexico.  The Council has not yet submitted the final amendment or its proposed implementing regulations to NMFS for approval and implementation.   The Council has established March 29, 2001, as a revised control date for determining eligibility for charter vessel/headboat permits under the permit moratorium contained in the amendment.   Therefore, consistent with the Council's intent, this notice announces March 29, 2001, as the revised control date for these recreational-for-hire fisheries in the Gulf of Mexico EEZ, thereby superseding the Council’s prior control date of November 18, 1998.  This control date is intended to discourage new entry into these recreational-for-hire fisheries prior to review by NMFS of the amendment and its regulatory implementation.

          DATES:
          Comments on the revised control date must be submitted no later than 5 p.m., eastern daylight savings time, July 16, 2001.

          ADDRESSES:
          Comments on the revised control date should be directed to the Gulf of Mexico Fishery Management Council, 3018 U.S. Highway 301 North, Suite 1000, Tampa, FL  33619-2266; telephone:  813-228-2815; fax:  813-225-7015.

          FOR FURTHER INFORMATION CONTACT:
          Phil Steele, Southeast Region, NMFS, telephone:  727-570-5305; fax:  727-570-5583; e-mail:  Phil.Steele@noaa.gov.

        SUPPLEMENTARY INFORMATION:
        The recreational-for-hire fisheries for reef fish and coastal migratory pelagic fish in the EEZ of the Gulf of Mexico are managed under the Reef Fish FMP and the Coastal Migratory Pelagic Resources of the Gulf and South Atlantic (Coastal Migratory Pelagics FMP)), respectively.  The Reef Fish FMP was prepared by the Council; the Coastal Migratory Pelagics FMP was prepared jointly by the Council and the South Atlantic Fishery Management Council (South Atlantic Council).  Both FMPs were approved by NMFS and implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Steven Act) by regulations at 50 CFR part 622.  The FMPs regulate these two recreational-for-hire fisheries and require permits for charter and headboat vessels participating in them.  Landings of these vessels are regulated through fish bag, possession, and size limits.  There also is an annual recreational quota for red snapper under the Reef Fish FMP.

        The recreational sector of both the red snapper and king mackerel fisheries, including recreational-for-hire vessels, has frequently exceeded the annual allocation set for that sector when total allowable catch (TAC) for the whole fishery (recreational and commercial catch) is established annually.  To prevent the recreational sector of these fisheries from exceeding its annual allocation, the Council must either reduce the bag limit or take some other action to reduce the fishing effort and/or landings (e.g., seasonal closures and/or increased fish size limits).  Reduction of the bag limit is the most effective way to control annual landings, but such reductions could have  adverse economic impacts on the recreational-for-hire vessels.   Reductions in the bag limit could cause some of the clientele of these vessels to cease fishing and pay for fishing trips.  The Council is, therefore, addressing the need for effort limitation for recreational-for-hire vessels for these fisheries in the Gulf of Mexico EEZ through an alternative approach.
        On March 29, 2001, the Council adopted an amendment to the  Reef Fish FMP and the Coastal Migratory Pelagics FMP that would, if approved and implemented by NMFS, establish a moratorium on the issuance of charter vessel/headboat permits for the reef fish and coastal migratory pelagic fisheries in the Gulf EEZ.  Under the permit moratorium contained in the amendment, eligibility for participation in these for-hire fisheries would be based upon the following:  (1) Obtaining or applying for a charter vessel or headboat permit prior to March 29, 2001; (2) demonstrating that a charter/headboat vessel was under construction prior to March 29, 2001; or (3) demonstrating compliance with the criteria for “historical captain” that are based, in part, on the March 29, 2001, control date.
        Once the Council and the South Atlantic Council submit the amendment to NMFS for Secretarial review under procedures of the Magnuson-Stevens Act, NMFS will publish a notice of availability of the amendment and proposed implementing regulations for public review and comment.  After considering the public comment, if NMFS approves the amendment, it would implement the amendment through final regulations.  During this process, some fishermen who do not currently participate in the subject recreational-for-hire fisheries, and have never done so, may decide to enter these fisheries for the sole purpose of establishing a record of landings.  This kind of speculative entry often is responsible for a rapid increase in fishing effort in fisheries that are already fully developed or overdeveloped.  The existing fishery problems in the red snapper and king mackerel fisheries, such as overcapitalization or overfishing, would likely be exacerbated by the entry of new participants.
        In an effort to avoid this problem and to discourage capital investment in these fisheries by such new entrants who would not qualify for a permit under the proposed moratorium, the Council has established March 29, 2001, as the control date.  After that date, anyone entering these recreational-for-hire fisheries would not be eligible for a charter vessel or headboat permit under the proposed permit moratorium, assuming it is approved and implemented.
        The Council previously established a control date of October 16, 1995 (60 FR 53576, October 16, 1995), for the recreational-for-hire fishery for Gulf king mackerel.  That control date was subsequently superseded by a November 18, 1998, control date for the recreational-for-hire fisheries for reef fish and coastal migratory pelagic species, including Gulf king mackerel, in the Gulf EEZ (63 FR 64031, November 18, 1998).  It is the Council's intent that the November 18, 1998, control date be superseded by the March 29, 2001, control date announced by this notice.  The Council selected this revised control date because it established  eligibility criteria for participation under its proposed moratorium on issuance of charter vessel/headboat permits for the Gulf EEZ that are related, in one manner or another, to participation in these fisheries prior to March 29, 2001.  The Council took this action after deciding that use of the previous November 18, 1998, control date would not accurately cap fishing effort in the for-hire sectors of these fisheries at their  actual current level.
        A control date does not commit the Council or NMFS to any particular management regime or criteria for future entry into the recreational-for-hire fisheries.  Fishermen are not guaranteed future participation in these fisheries regardless of their entry date or intensity of participation in the fisheries before or after the control date.  The Council subsequently may choose a different control date or they may choose a management regime that does not make use of such a date.  The Council may choose to give variably weighted consideration to fishermen active in the fisheries before and after the control date.  Other qualifying criteria, such as documentation of landings and sales, may be applied for entry.  The Council also may choose to take no further action to control entry or access to the fisheries.
        This advanced notice of proposed rulemaking has been determined to be not significant for purposes of Executive Order 12866.

          Authority:
          16 U.S.C. 1801 et seq.

          Dated: June 11, 2001.
          William T. Hogarth,
          Acting Assistant Administrator for Fisheries, National Marine Fisheries Service.

      [FR Doc. 01-15066 Filed 6-13-01; 8:45 am]
      BILLING CODE  3510-22-S


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 648
        [Docket No. 170316276-7276-01]
        RIN 0648-XF300
        Fisheries of the Northeastern United States; Black Sea Bass Fishery; 2017 and Projected 2018 Specifications

          AGENCY:
          National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:
          NMFS proposes revised black sea bass specifications for the 2017 fishing year and projected specifications for 2018. In addition, this rule proposes to remove an accountability measure implemented at the start of the fishing year designed to account for commercial sector overages in 2015. Updated scientific information regarding the black sea bass stock indicates that higher catch limits should be implemented to obtain optimum yield, and that the accountability measure is no longer necessary or appropriate. This action is intended to inform the public of the proposed specifications for the 2017 fishing year and projected specifications for 2018.

          DATES:
          Comments must be received by 5 p.m. local time, on May 1, 2017.

          ADDRESSES:

          An environmental assessment (EA) was prepared for this action and describes the proposed measures and other considered alternatives, and provides an analysis of the impacts of the proposed measures and alternatives. Copies of the Specifications Document, including the EA and the Regulatory Flexibility Act Analysis, are available on request from Dr. Christopher M. Moore, Executive Director, Mid-Atlantic Fishery Management Council, Suite 201, 800 North State Street, Dover, DE 19901. These documents are also accessible via the Internet at http://www.mafmc.org.

          You may submit comments on this document, identified by NOAA-NMFS-2017-0023, by either of the following methods:

            Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal.
          1. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2017-0023,

          2. Click the “Comment Now!” icon, complete the required fields,
          3. Enter or attach your comments.

          —OR—

            Mail: Submit written comments to John Bullard, Regional Administrator, National Marine Fisheries Service, 55 Great Republic Drive, Gloucester, MA, 01930. Mark the outside of the envelope, “Comments on the Proposed Rule for Revised Black Sea Bass Specifications.”

            Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter“N/A” in the required fields if you wish to remain anonymous).

          FOR FURTHER INFORMATION CONTACT:
          Cynthia Hanson, Fishery Management Specialist, (978) 281-9180.

        SUPPLEMENTARY INFORMATION:
        General Background

        The Mid-Atlantic Fishery Management Council and the Atlantic States Marine Fisheries Commission cooperatively manage the summer flounder, scup, and black sea bass fisheries. The Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan (FMP) and its implementing regulations outline the Council's process for establishing specifications. Specifications in these fisheries include various catch and landing subdivisions, such as the commercial and recreational sector annual catch limits (ACLs), annual catch targets (ACTs), and sector-specific landing limits (i.e., the commercial fishery quota and recreational harvest limit). Annual specifications may be proposed for three-year periods, with the Council reviewing the specifications each year to ensure that previously established multi-year specifications remain appropriate. Following review, NMFS publishes the final annual specifications in the Federal Register. The FMP also contains formulas to divide the specification catch limits into commercial and recreational fishery allocations, state-by-state quotas, and quota periods, depending on the species in question. Rulemaking for measures used to manage the recreational fisheries (minimum fish sizes, open seasons, and bag limits) for these three species occurs separately, and typically takes place in the spring of each year.
        On December 28, 2015, NMFS published a final rule implementing the Council's recommended specifications for the black sea bass fishery (80 FR 80689). The Council intended to reconsider the specifications set for fishing year 2017 following completion of the next black sea bass benchmark assessment.

        The assessment was completed in late 2016 and was peer reviewed by the Stock Assessment Workshop/Stock Assessment Review Committee (SAW/SARC 62) in December 2016. The benchmark assessment was effective in determining stock status, biological reference points and proxies, and in projecting probable short-term trends. The assessment successfully cleared the SAW/SARC 62 peer review process, addressing many of the significant concerns raised during peer reviews of earlier assessments. The assessment indicates that the black sea bass stock north of Cape Hatteras is not overfished and overfishing is not occurring. The spawning stock biomass in 2015 was estimated to be 2.3 times higher than the target and the fishing mortality rate (F) was 25 percent below the FMSY proxy. Table 1 outlines the updated biological reference points and 2015 stock information.

          Table 1—Updated Black Sea Bass Biological Reference Points (BRPs) and 2015 Stock Information

            Proxy
            BRP(mil lb)

            BRP(mt)

            2015(mil lb)

            2015(mt)

            FMSY

            F40%

            0.36
            0.36
            0.27
            0.27

            Stock Biomass Target
            SSB40%

            21.3
            9,667
            48.9
            22,176

            Stock Biomass Threshold
            1/2SSB40%

            10.7
            4,834
            N/A
            N/A

        Proposed Specifications
        The Council's Scientific and Statistical Committee (SSC) met on January 25, 2017, to discuss the assessment results and identify an updated acceptable biological catch (ABC) level for 2017, and project ABCs for the 2018 and 2019 fishing years. Based on the new information provided by the assessment, the SSC accepted the overfishing limits (OFLs) estimated by the assessment and recommended using a coefficient of variation (CV) associated with the OFL of 60 percent. This marked a change from the default 100-percent values that had been used in the past, which had resulted in more precautionary specifications. Using the Council's risk policy with a CV of 60 percent around the OFL, the SSC recommended ABCs for the 2017 through 2019 fishing years (Table 2). The adjusted 2017 ABC is 57 percent higher than the currently established 2017 ABC; however, there is a pattern of declining ABCs over the next three years. This decline is in part due to the passage of the large 2011 year class out of the fishery. The SSC intends to review its ABC recommendation again next summer and determine if adjustments need to be made for 2018.
        Following the SSC meeting, the Monitoring Committee met on January 26, 2017, to discuss ACLs, ACTs, commercial quotas, and recreational harvest limits for the 2017 through 2019 fishing years. The Monitoring Committee determined that no additional reductions were necessary to account for management uncertainty. Commercial landings have been very close to the quota over the last five years and recreational overages occurred when the stock was rapidly growing and availability to anglers was high, but the recreational harvest limits were set at levels not reflective of stock size. As a result, the Monitoring Committee recommended that ACTs for the commercial and recreational sectors should equal their respective ACLs. After removing the sector-specific estimated discards, the black sea bass commercial quotas and recreational harvest limits would be those shown in Table 2. The Monitoring Committee believed the calculation for projecting discards for 2017 is appropriate, but will reconsider discard projections and apportionments for 2018. The Monitoring Committee did not recommend any changes to the current commercial measures, including the 11-inch minimum fish size, mesh size requirements and seasonal possession limit thresholds, or pot/trap gear requirements. As previously mentioned, we are separately proposing an action to address 2017 black sea bass recreational management measures.

        The Council and the Commission's Summer Flounder, Scup, and Black Sea Bass Management Board met jointly on February 15, 2017, to consider the SSC and Monitoring Committees' recommendations, receive public comments on those recommendations, and to formalize recommendations for catch limit specifications and commercial and recreational management measures. The Council and Board ultimately adopted the Monitoring Committee's recommendations for 2017 ACLs, ACTs, quotas, and harvest limits; as well as the projected specifications for 2018. Due to the Marine Recreational Information Program (MRIP) transition timeline that would incorporate re-estimated historical catch estimates into stock assessments, currently scheduled for completion in 2018, the Council did not want to project specifications past 2018. The Council's recommendations represent a 53-percent increase in the 2017 commercial quota established in 2015 and a 52-percent increase in the 2017 recreational harvest limit. The Council will revisit its decision on the projected 2018 specifications following the SSC's review next summer. By providing projected specifications for 2018, NMFS hopes to assist fishery participants in planning ahead. Final 2018 specifications will be published in the Federal Register before the start of the 2018 fishing year (January 1, 2018) based on the Council's review.

          Table 2—Council-Recommended Black Sea Bass Specifications for 2017 and Projected for 2018

            Black sea bass specifications
            2017 (current)
            mil lb
            mt
            2017 (revised)
            mil lb
            mt
            2018 (projected)
            mil lb
            mt

            OFL
            n/a
            n/a
            12.05
            5,467
            10.29
            4,669

            ABC
            6.67
            3,025
            10.47
            4,750
            8.94
            4,057

            Commercial ACL
            3.15
            1,428
            5.09
            2,311
            4.35
            1,974

            Commercial ACT
            * 3.15
            * 1,428
            5.09
            2,311
            4.35
            1,974

            Commercial Discards
            0.44
            198
            0.97
            442
            0.83
            377

            Commercial Quota
            * 2.71
            * 1,226
            4.12
            1,869
            3.52
            1,596

            Recreational ACL
            3.52
            1,597
            5.38
            2,439
            4.59
            2,083

            Recreational ACT
            3.52
            1,597
            5.38
            2,439
            4.59
            2,083

            Recreational Discards
            0.70
            317
            1.09
            494
            0.93
            422

            Recreational Harvest Limit
            2.82
            1,280
            4.29
            1,945
            3.66
            1,661

          * At the start of the fishing year, the 2017 commercial ACT and commercial quota were further reduced to 2.3 million lb (1,043 mt) and 1.86 million lb (845 mt), respectively, as accountability measures due to a perceived 2015 overage.

        Consistent with the black sea bass regulations, the sum of the recreational and commercial sector ACLs is equal to the ABC for each fishing year. To derive the ACLs, the sum of the sector-specific projected discards are removed from the ABCs to derive the landing allowances. For black sea bass, 49 percent of the landing allowance for each fishing year is allocated to the commercial fishery and 51 percent to the recreational fishery. Using this method ensures that each sector is accountable for its respective discards, rather than simply apportioning the ABCs by the allocation percentages to derive the sector ACLs. Although the derived ACLs are not split exactly according to the allocations specified in the FMP, the landing portions of the ACLs preserve the appropriate allocation split, consistent with the FMP. This process results in the commercial and recreational ACLs, commercial quotas, and recreational harvest limits shown in Table 2.
        Reconsideration of the 2017 Accountability Measure for the Commercial Fishery

        In our final rule announcing the revisions to the summer flounder specifications for 2017 and 2018, we also announced an accountability measure (AM) applicable to the black sea bass commercial fishery. This AM was an automatic pound-for-pound payback, as required by the regulations, which resulted from overages in 2015. During that fishing year, the commercial fishery caught slightly more (3.8 percent) than their commercial quota, which generally would have resulted in just a pound-for-pound payback from their 2017 commercial quota. However, 2015 discard estimates were much higher than originally projected, accounting for 44.4 percent of the total commercial catch in 2015. As a result, the regulations require that the total overage (i.e., 849,000 lb (385 mt)) be taken from a future year's commercial ACL and the 2017 commercial quota was reduced by approximately 30 percent (i.e., from 2.71 million lb (1,230 mt) to 1.86 million lb (845 mt)).
        The new 2016 benchmark assessment has provided updated information on the condition of the stock, particularly for 2015, the year when the overages occurred. If the current assessment had been available to set 2015 specifications, analysis indicates the 2015 ABC would have been more than double what was implemented and the 2015 ACL would not have been exceeded. Higher 2015 commercial discards, above those projected for the implemented 2015 ACL, were estimated and used in the assessment and did not impact the stock status. Even accounting for the unexpectedly high discards, fishing mortality in 2015 was the lowest in the time series, 25 percent below the overfishing threshold. The new 2016 stock assessment provides a much more comprehensive and robust picture of the stock in 2015, and represents the best available science to guide management decisions. As a result, the Council has recommended pursuant to 50 CFR 648.142(b) that the specific AM be removed. We agree that it is not necessary, and we intend to remove the AM from the 2017 commercial fishery.
        As for the 3.8-percent overage (i.e., about 81,500 lb (37 mt)) of the commercial fishery's quota, which generally would have resulted in a pound-for-pound payback against the 2017 quota, preliminary 2016 catch data indicate that the fishery had approximately 209,400 lb (95 mt) of unharvested quota. Had we known of the 2015 commercial quota overage and implemented a pound-for-pound reduction in 2016, we would not have exceeded the 2016 quota. As is consistent with how we handle summer flounder catch accounting, that payback could have been accounted for in 2016 (i.e., total 2016 landings plus the 2015 overage amount did not exceed the 2016 commercial quota). As a result, this overage does not need to be applied to the 2017 quota.

        As for AMs in the recreational fishery, with the new benchmark stock assessment information, analysis indicates that recreational harvest limits during the last few years would have been significantly higher (i.e., approximately double those implemented) if they had been set using the recent assessment model, and previous overages would likely not have occurred to the same degree, if at all. Based on this new information, the Monitoring Committee determined that no AMs are necessary for 2017 in the recreational fishery.
        Classification
        Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the Assistant Administrator has determined that this proposed rule is consistent with the Summer Flounder, Scup, and Black Sea Bass FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.
        This proposed rule is exempt from the procedures of E.O. 12866 because this action contains no implementing regulations.
        The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The Mid-Atlantic Fishery Management Council conducted an evaluation of the potential socioeconomic impacts of the proposed measures in conjunction with an EA. According to the commercial ownership database, 609 affiliate firms landed black sea bass during the 2013-2015 period, with 603 of those business affiliates categorized as small businesses and 6 categorized as large businesses. Black sea bass represented approximately 2.58 percent of the average receipts of the small entities considered and 0.51 percent of the average receipts of the large entities considered over this time period.
        The ownership data for the for-hire fleet indicate that there were 411 for-hire affiliate firms generating revenues from fishing recreationally for various species during the 2013-2015 period, all of which are categorized as small businesses. Although it is not possible to derive what proportion of the overall revenues came from specific fishing activities, given the popularity of black sea bass as a recreational species it is likely that revenues generated from black sea bass is important for some if not all of these firms.
        The proposed measure would increase both the commercial quota and the recreational harvest limit by over 50 percent, resulting in positive economic impacts on regulated entities. Because this rule will not have a significant economic impact on a substantial number of small entities, an initial regulatory flexibility analysis is not required and none has been prepared.
        There are no new reporting or recordkeeping requirements contained in any of the alternatives considered for this action.

          Authority:
          16 U.S.C. 1801 et seq.

          Dated: April 11, 2017.
          Alan D. Risenhoover,
          Acting Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

      [FR Doc. 2017-07567 Filed 4-13-17; 8:45 am]
       BILLING CODE 3510-22-P