This rule is issued under Marketing Agreement No. 130 and Marketing Order No. 958, both as amended (7 CFR part 958), regulating the handling of onions grown in designated counties in Idaho, and Malheur County, Oregon, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, Idaho-Eastern Oregon onion handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as issued herein will be applicable to all assessable onions beginning July 1, 2005, and continue until amended, suspended, or terminated. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

This rule decreases the assessment rate established for the Committee for the 2005-2006 and subsequent fiscal periods from $0.105 per hundredweight to $0.10 per hundredweight of onions.

The Idaho-Eastern Oregon onion marketing order provides authority for the Committee, with the approval of USDA, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the Committee are producers and handlers of Idaho-Eastern Oregon onions. They are familiar with the Committee's needs and with the costs for goods and services in their local area and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input.

For the 2004-2005 and subsequent fiscal periods, the Committee recommended, and USDA approved, an assessment rate that would continue in effect from fiscal period to fiscal period unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other information available to USDA.

The Committee met on April 14, 2005, and unanimously recommended 2005-2006 expenditures of $956,001 and an assessment rate of $0.10 per hundredweight of onions. In comparison, last year's budgeted expenditures were $997,442. The recommended assessment rate of $0.10 is $0.005 lower than the rate currently in effect. The decreased assessment rate recommended by the Committee reflects the reduction in anticipated expenditures.

Both producers and handlers in the regulated production area expressed a need to decrease the assessment rate to help offset the lower prices received by the handlers. The National Agricultural Statistics Service (NASS) reported in the Vegetables 2004 Summary , published in January 2005, that the 2004 average F.O.B. price for the Idaho-Eastern Oregon onions was $8.14 per hundredweight. That price is $1.42 below the three year average F.O.B. price of $9.56 per hundredweight for this production area. The Committee considered assessment rates lower than $0.10 per hundredweight; however, it determined the lower rates would not generate the income necessary to sustain the current level of programs desired by the industry.

The major expenditures recommended by the Committee for the 2005-2006 year include $10,000 for committee expenses, $104,371 for salary expenses, $81,160 for travel/office expenses, $62,470 for production research expenses, $32,000 for export market development expenses, $616,000 for promotion expenses, and $50,000 for unforeseen marketing order contingencies. Budgeted expenses for these items in 2004-2005 were $10,000, $163,482, $81,960, $60,000, $32,000, $600,000, and $50,000, respectively.

The Committee based its recommended assessment rate decrease on the 2005-2006 crop estimate, the 2005-2006 program expenditure needs, and the current and projected size of its monetary reserve. The Committee estimated onion shipments for 2005-2006 at 8,464,000 hundredweight which should provide $846,400 in assessment income. Income derived from handler assessments, along with contributions ($73,600), interest income ($7,400), other income ($2,000), and funds from the Committee's authorized reserve ($26,601), should be adequate to cover budgeted expenses. The Committee estimates that its operating reserve will be approximately $596,074 at the end of the 2005-2006 fiscal period. Funds in the reserve will be kept within the maximum permitted by the order of approximately one fiscal year's operational expenses (§ 958.44).

The assessment rate established in this rule will continue in effect indefinitely unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other available information.

Although this assessment rate is effective for an indefinite period, the Committee will continue to meet prior to or during each fiscal period to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Committee meetings are available from the Committee or USDA. Committee meetings are open to the public and interested persons may express their views at these meetings. USDA will evaluate Committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking will be undertaken as necessary. The Committee's 2005-2006 budget and those for subsequent fiscal periods will be reviewed and, as appropriate, approved by USDA.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility.

There are approximately 233 producers of onions in the production area and approximately 37 handlers subject to regulation under the marketing order. Small agricultural producers are defined by the Small Business Administration (SBA) (13 CFR 121.201) as those having annual receipts of less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $6,000,000.

According to the NASS Vegetables 2004 Summary , the total F.O.B. value of onions in the regulated production area for 2004 was $110,355,000. Therefore, based on an industry of 233 producers and 37 handlers, it can be concluded that the majority of handlers and producers of Idaho-Eastern Oregon onions may be classified as small entities.

This rule decreases the assessment rate established for the Committee and collected from handlers for the 2005-2006 and subsequent fiscal periods from $0.105 to $0.10 per hundredweight of onions. The Committee unanimously recommended 2005-2006 expenditures of $956,001 and an assessment rate of $0.10 per hundredweight. The recommended assessment rate of $0.10 is $0.005 lower than the current rate. The quantity of assessable onions for the 2005-2006 year is estimated at 8,464,000 hundredweight which should provide $846,400 in assessment income. Income derived from handler assessments, along with contributions ($73,600), interest income ($7,400), other income ($2,000), and funds from the Committee's authorized reserve ($26,601), should be adequate to cover budgeted expenses. The decreased assessment rate recommended by the Committee reflects the reduction in anticipated expenditures from $997,442 to $956,001.

Both producers and handlers in the regulated production area expressed a need to decrease the assessment rate to help offset the lower prices received by the handlers. The NASS reported in the Vegetables 2004 Summary , which was published in January 2005, that the 2004 average F.O.B. price for the Idaho-Eastern Oregon onions was $8.14 per hundredweight. That price is $1.42 below the three year average F.O.B. price of $9.56 per hundredweight for this production area. The Committee considered lower assessment rates; however, it determined that lower rates would not generate the income necessary to sustain the current level of programs desired by the industry.

The major expenditures recommended by the Committee for the 2005-2006 year include $10,000 for committee expenses, $104,371 for salary expenses, $81,160 for travel/office expenses, $62,470 for production research expenses, $32,000 for export market development expenses, $616,000 for promotion expenses, and $50,000 for unforeseen marketing order contingencies. Budgeted expenses for these items in 2004-2005 were $10,000, $163,482, $81,960, $60,000, $32,000, $600,000, and $50,000, respectively.

The Committee reviewed and unanimously recommended 2005-2006 expenditures of $956,001 which includes decreases in salary expenses and travel/office expenses, as well as increases in production research expenses and promotion expenses. Prior to arriving at this budget, the Committee considered information from various sources, such as the Committee's Executive, Promotion, Research, and Export subcommittees. These subcommittees discussed alternative expenditure levels, based upon the relative value of various research and promotion projects to the onion industry. The assessment rate of $0.10 per hundredweight of assessable onions was then determined by taking into consideration the estimated level of assessable shipments, the current market situation, program expenditure needs, and the desire to sustain a monetary reserve at a viable level.

A review of historical information and preliminary information pertaining to the upcoming year indicates that the producer price for the 2005-2006 season could range between $5.50 and $8.00 per hundredweight of onions. Therefore, the estimated assessment revenue for the 2005-2006 year as a percentage of total producer revenue could range between 1.82 and 1.25 percent.

This action decreases the assessment obligation imposed on handlers. Assessments are applied uniformly on all handlers, and some of the costs may be passed on to producers. However, decreasing the assessment rate reduces the burden on handlers, and may reduce the burden on producers. In addition, the Committee's meeting was widely publicized throughout the Idaho-Eastern Oregon onion industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the April 14, 2005, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. Finally, interested persons are invited to submit information on the regulatory and informational impacts of this action on small businesses.

This action imposes no additional reporting or recordkeeping requirements on either small or large Idaho-Eastern Oregon onion handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/fv/moab.html. Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

After consideration of all relevant material presented, including the information and recommendation submitted by the Committee and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.

Pursuant to 5 U.S.C. 553, it is also found and determined upon good cause that it is impracticable, unnecessary, and contrary to the public interest to give preliminary notice prior to putting this rule into effect, and that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because: (1) The 2005-2006 fiscal period begins on July 1, 2005, and the marketing order requires that the rate of assessment for each fiscal period apply to all assessable onions handled during such fiscal period; (2) the Committee needs to have sufficient funds to pay its expenses which are incurred on a continuous basis; (3) this action decreases the assessment rate for assessable onions beginning with the 2005-2006 fiscal period; (4) handlers are aware of this action which was unanimously recommended by the Committee at a public meeting and is similar to other assessment rate actions issued in past years; and (5) this interim final rule provides a 60-day comment period, and all comments timely received will be considered prior to finalization of this rule.

Airworthiness Directive (AD) 2005-03-14, amendment 39-13970, applicable to certain Airbus Model A300 B2 and B4 series airplanes, was published in the Federal Register on February 14, 2005 (70 FR 7384). That AD supersedes an existing AD that currently requires determining the part and amendment number of the variable lever arm (VLA) of the rudder control system to verify the parts were installed using the correct standard, and corrective actions if necessary. For certain VLAs, this new AD requires repetitive inspections of the VLA and corrective action if necessary. This new AD also provides a terminating action for the repetitive inspections. Furthermore, this new AD reduces the applicability of affected airplanes.

As published, that final rule incorrectly specified the AD number for the superseded AD in a single location in the AD as “2002-08-13” instead of “2001-22-02.”

Since no other part of the regulatory information has been changed, the final rule is not being republished in the Federal Register .

The effective date of this AD remains March 21, 2005.

On February 7, 2005, the FAA published in the Federal Register a final rule establishing V-623 (70 FR 6336) with an effective date of May 12, 2005. However, navigation aid signal coverage problems have been identified which remain unresolved. As a result, the FAA has decided to revoke V-623.

The FAA is amending title 14 Code of Federal Regulations (14 CFR) part 71 by revoking VOR Federal airway V-623. The FAA is taking this action due to unresolved navigation aid signal coverage problems along segments of the route.

VOR Federal Airways are published in paragraph 6010 of FAA Order 7400.9M dated August 30, 2004 and effective September 16, 2004, which is incorporated by reference in 14 CFR 71.1.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

On November 19, 1979, the Commission issued a final rule in response to a directive in section 324 of the Energy Policy and Conservation Act (“EPCA”), 42 U.S.C. 6201. The Rule requires manufacturers of all covered appliances ( e.g. , water heaters and room air conditioners) to disclose specific energy consumption or efficiency information derived from standard DOE test procedures at the point of sale in the form of an “EnergyGuide” label and in catalogs. It also requires manufacturers of furnaces and central air conditioners either to provide fact sheets showing additional cost information, or to provide that information in an industry directory. Manufacturers must include, on labels and fact sheets, a “range of comparability” which shows the highest and lowest energy consumption or efficiencies for all comparable appliance models. The Rule further requires that labels for some products display the estimated annual operating cost of the product based on a specified DOE national average cost for the fuel the appliance uses.

Section 305.8(b) of the Rule requires manufacturers, after filing an initial notification, to report certain information annually to the Commission by specified dates for each product type. 1 Each year the Commission reviews the submitted data and publishes new ranges of comparability if an analysis of the new information indicates that the upper or lower limits of the ranges have changed by more than 15%. Additional information about the Commission's Appliance Labeling Rule can be found at www.ftc.gov/appliances.

Manufacturers have submitted data for water heaters (including storage-type, gas-fired instantaneous, and heat pump water heaters), room air conditioners, furnaces (including boilers), and pool heaters. The ranges of comparability for these products have not changed significantly. Therefore, the current ranges for these products will remain in effect until further notice.

Water heater manufacturers should continue to base the disclosures of estimated annual operating costs required at the bottom of the EnergyGuides for these products on the 2004 Representative Average Unit Costs of Energy for electricity (8.60¢ per kiloWatt-hour), natural gas (91.0¢ per therm), propane ($1.23 per gallon), and/or heating oil ($1.28 per gallon) ( see 69 FR 42107 (July 14, 2004)).

Manufacturers of room air conditioners must continue to use the ranges for room air conditioners that were published on November 13, 1995 (60 FR 56945, at 56949). Manufacturers of room air conditioners must continue to base the disclosures of estimated annual operating cost required at the bottom of EnergyGuides for these products on the 1995 Representative Average Unit Costs of Energy for electricity (8.67¢ per kiloWatt-hour) that was published by the Commission on February 17, 1995 (60 FR 9295). The Commission is amending Appendix E (range information for room air conditioners) to clarify that this cost figure is applicable to room air conditioner labels.

Table 1 in § 305.9(a) of the Rule sets forth the representative average unit energy costs for the current year. As stated in § 305.9(b), the Table is to be revised periodically on the basis of updated information provided by DOE. On March 11, 2005, DOE published the most recent figures for representative average unit energy costs (70 FR 12210). The Commission is revising Table 1 in § 305.9 to reflect these latest cost figures.

In addition to revising the cost information in Table 1, the Commission is amending § 305.9(a) to clarify the applicability of that information to the Rule's requirements. Section 305.9(a) states that the representative unit energy costs in Table 1 should “be utilized for all requirements of this part.” The Commission is changing this language because the cost data in Table 1 do not necessarily apply to all the Rule's requirements. Although the cost data apply to fact sheets and directories for furnaces and central air conditioners under § 305.11(b) and (c), manufacturers should not necessarily use the Table for calculating operating costs on EnergyGuide labels. Instead, as the Commission has routinely stated in the past when annually updating the cost figures, 2 manufacturers preparing EnergyGuide labels should use the cost figure that was applicable when the most recent ranges of comparability were published. For example, if the Commission published ranges of comparability for a given product in 2001, manufacturers should continue to use the 2001 DOE energy cost figures until the Commission announces otherwise. Paragraphs accompanying the range tables in the Rule's appendices contain the applicable operating costs that should be used on EnergyGuide labels for refrigerators, refrigerator-freezers, freezers, dishwashers, clothes washers, water heaters, and room air conditioners. The Commission is changing the language in § 305.9(a) to clarify that, for purposes of Appliance Labeling Rule compliance, the costs in Table 1 apply to disclosures on fact sheets and in directories for furnaces and central air conditioners as required by § 305.11(b) and (c). This amendment should eliminate any confusion caused by the current language.

The Commission is amending the cost calculation formulas in Appendices H and I that manufacturers of central air conditioners must include on fact sheets and in directories to reflect this year's energy costs figures published by DOE. 3

Manufacturers of products covered by section 323(c) of EPCA, 42 U.S.C. 6293(c), but not by the Appliance Labeling Rule ( e.g. , clothes dryers, television sets, kitchen ranges and ovens, and space heaters) should use the 2005 DOE energy cost figures for their operating cost representations until the DOE publishes new figures in 2006.

Manufacturers of these products must continue to use the DOE cost figures that were published and in effect the year the ranges of comparability last changed for the applicable covered product. 4 The cost figures currently applicable to these products are provided in the appendices to the Rule. Manufacturers must continue to use these figures until new ranges of comparability and cost information for an applicable product are published by the Commission. In addition, the text below the operating cost disclosure on the EnergyGuide label should identify the applicable energy cost figure used.

The amendments published in this notice involve routine, technical and minor, or conforming changes to the Rule's labeling requirements. These technical amendments merely provide a routine change to the cost information in the Rule and clarify the requirements in the Rule, without changing or imposing any new legal obligations on parties subject to the Rule. Accordingly, the Commission finds for good cause that public comment and a 30-day effective date for these technical, procedural amendments are impractical and unnecessary (5 U.S.C. 553(b)(A)(B) and (d)).

Regulatory Flexibility Act analysis provisions (5 U.S.C. 603-604) are not applicable to this proceeding to the extent that the amendments do not impose any new obligations on entities regulated by the Appliance Labeling Rule and are exempt from the Administrative Procedure Act's notice-and-comment requirements, as explained above. In any event, these technical amendments merely provide a routine change to the cost information in the Rule and clarify existing requirements. Thus, the amendments will not have a “significant economic impact on a substantial number of small entities.” 5 U.S.C. 605. The Commission has concluded, therefore, that a regulatory flexibility analysis is not necessary, and, in any event, certifies, under section 605 of the Regulatory Flexibility Act (5 U.S.C. 605(b)), that the amendments announced today will not have a significant economic impact on a substantial number of small entities, to the extent, if any, that the Act applies.

In a 1988 notice (53 FR 22113), the Commission stated that the Rule contains disclosure and reporting requirements that constitute “information collection requirements” as defined by 5 CFR 1320.7(c), the regulation that implements the Paperwork Reduction Act. 5 The Commission noted that the Rule had been reviewed and approved in 1984 by the Office of Management and Budget (“OMB”) and assigned OMB Control No. 3084-0068. OMB has extended its approval for its recordkeeping and reporting requirements until December 31, 2007. The amendments now being adopted do not change the substance or frequency of the recordkeeping, disclosure, or reporting requirements and, therefore, do not require further OMB clearance.

Steris Laboratories, Inc., 620 North 51st Ave., Phoenix, AZ 85043-4705, has informed FDA of a change of sponsor's name to Watson Laboratories, Inc. Accordingly, the agency is amending the regulations in 21 CFR 510.600(c) to reflect the change.

This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.

Purina Mills, Inc., P.O. Box 66812, St. Louis, MO 63166-6812, has informed FDA that it has transferred ownership of, and all rights and interest in, the following 16 approved NADAs to Virbac AH, Inc., 3200 Meacham Blvd., Ft. Worth, TX 76137:

Accordingly, the agency is amending the regulations in parts 520, 522, and 558 (21 CFR parts 520, 522, and 558). Sections 520.100a, 520.905d, 520.1182, 520.1840, 520.2261a, 520.2380a, 522.940, 558.185, 558.274, 558.325, 558.365, 558.485, 558.625, and 558.630 will reflect the transfer of ownership and a current format. Sections 520.1182 and 522.940 are being revised to reflect a current format.

In addition, § 520.2380a is being revised to correct the citation for the approved indications for Virbac AH's thiabendazole dewormer approved under NADA 040-205. The citation was corrected in the Federal Register of March 3, 1976 (41 FR 9149), but an error was reintroduced in the 1978 printing of the Code of Federal Regulations. This action is being taken to improve the accuracy of the regulations.

This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.

The temporary regulations (TD 9194) that is the subject of this correction are under section 937 of the Internal Revenue Code.

As published, the temporary regulations (TD 9194) contains errors that may prove to be misleading and are in need of clarification.

ABMC published the proposed regulation in the Federal Register on April 19, 2005 (see 70 FR 20324-20326) for a public comment period. Pursuant to Chapter 21, Title 36 United States Code, the ABMC is generally responsible for overseas memorials and monuments honoring the sacrifices of the American Armed Forces. ABMC's regulations on the performance of this function have not been updated since 1970. Since that time Congress has established within ABMC a Memorial Trust Fund Program the terms of which are codified at 36 U.S.C. 2106(b-e). The purpose of this final regulation is to set forth agency policy implementing 36 U.S.C. 2106(b-e) and to place all agency guidance on overseas memorial responsibilities in one comprehensive document. This part 401 supersedes existing part 401 and rescinds existing parts 402 and 403.

ABMC received one comment on the proposed regulation. That comment asserted that aspects of the evaluation criteria identified in section 401.9 for consideration in approving requests to construct a memorial deserved reconsideration. The commenter suggested that a process for exceptions in light of the unique circumstances that can arise in today's environment would be helpful.

Other than the criteria calling for a ten year waiting period, adequate funding, and host nation approval set forth in sections 401.9(a)-(c), the remaining criteria are not stated as absolute requirements. These other criteria are evaluated on a case by case basis with particular regard to the unique circumstances of each request. ABMC identified the ten year minimum waiting period requirement because this time period was established by Congress for approval of such memorials in the District of Columbia and its environs through the Commemorative Works Act as an appropriate period of time and there was no apparent reason to establish a different time frame for overseas memorials (see 40 U.S.C. section 8903(b)).

This Order concludes the rulemaking docket addressing rules applicable to: (1) Postal Service requests to extend the duration of previously recommended and currently in effect negotiated service agreements, and (2) Postal Service requests to make modifications to previously recommended and currently in effect negotiated service agreements. The final rules appear after the Secretary's signature in this Order.

A notice and order establishing this rulemaking docket was issued on February 10, 2005. 1 The notice and order proposed a set of applicable rules, and established a March 14, 2005, date for interested persons to submit comments. It also established an April 11, 2005, date for interested persons to submit reply comments. Initial comments were received from Bank One Corporation (Bank One), Discover Financial Services, Inc. (DFS), HSBC North America Holdings Inc. (HSBC), Office of the Consumer Advocate (OCA), the United States Postal Service (Postal Service), and Valpak Direct Marketing Systems Inc. and Valpak Dealers' Association, Inc. (Valpak). 2 Reply comments were received from Bank One Corporation, Discover Financial Services, Inc., Office of the Consumer Advocate, and the United States Postal Service. 3

The Commission appreciates the efforts of the commenters that participated in the process of developing new rules applicable to requests to renew or modify negotiated service agreements. This process is ongoing, and the rules are subject to change as more experience is gained in reviewing requests predicated on negotiated service agreements. A number of comments that improve clarity or specify requirements that the Commission originally did not consider were incorporated into the rules. All comments were appreciated, whether or not they led to an actual modification of a proposed rule, because the comments provide different points of view that the Commission otherwise might not have considered. A discussion of notable comments follows.

Role of the Commission. Bank One argues that “the Commission should adopt light-handed regulation of proposals to renew or modify existing NSAs as the presumptive starting point.” This argument is prefaced by the statement: “A request to renew or modify an existing NSA involves, by definition, an agreement whose basic terms have already been found by the Commission to be profitable for the Postal Service, free of undue discrimination against competitors of the NSA partner, and unobjectionable on any other identifiable ground.” Bank One Comments at 8.

A Commission recommendation of a negotiated service agreement is not as conclusive as characterized by Bank One. A Commission recommendation is based on a reasonable probability that the agreement will be profitable, and an appearance that the agreement will be free of undue discrimination against competitors of the negotiated service agreement's partner. These conclusions are reached after independently analyzing the agreement and weighing the arguments of all participants in the proceeding. A finding of actual profitability can only be estimated after the fact. 4 Similarly, an agreement that appears free of undue discrimination upon recommendation, could later exhibit undue discrimination in actual operation.

In regard to a request to renew an ongoing agreement, a review of the profitability of the initial agreement and consideration of any adverse effects that the agreement may have had on competitors and other mailers is required. It would be imprudent to renew an agreement without examining experience under the existing agreement. The burden initially falls on the proponents of the renewal request to demonstrate likely profitability during the extension, and past experience is an important consideration. Cost and revenue changes, along with the effect of any exogenous events that may have occurred since the original recommendation also must be considered. To support updated costs and volume projections, the proponents of the renewal request may rely on the accuracy of estimates in the existing agreement's docket.

The conclusiveness of Bank One's statement also implies that the Commission has, a priori, conclusively determined there is no risk from a negotiated service agreement. In most instances, this is impractical if not impossible.

The Commission strives to provide a forum for reviewing negotiated service agreements that is as expeditious and cost effective as achievable, while assuring that every agreement is in compliance with the requirements of the Act. With this in mind, the rules are designed to permit “light-handed” treatment consistent with the Commission's statutory obligations. The rules allow inquiry as necessary to meet the complexities presented by the actual request.

Bank One also suggests that “[i]n the absence of a showing of probable cause to believe that the modified or extended NSA terms would violate the Act, the Commission should terminate the proceeding and recommend implementation of the renewed or modified NSA forthwith.” Id. at 14.

The implication of this statement is that if no participant raises an issue in regard to complying with a requirement of the Act, the Commission's inquiry is at an end. The only Commission function which remains would be to issue a recommendation to implement the agreement. This implication ignores the Commission's responsibility under the Act to issue recommended decisions that are in accordance with the requirements of the Act. To fulfill this responsibility, the Commission independently analyzes every Postal Service request. The Commission relies substantially on the efforts of participants, especially proponents, in informing its recommendations; however, the Commission will act sua sponte to fill in gaps in information required to reach its recommendations.

Role of OCA. In PRC Order No. 1430 at 3, the Commission stated: “The intent [of § 3001.197] is to limit use of the rule to instances where the proposed agreement and the existing agreement share substantially identical obligations. * * * In instances where there are no contested issues it should be possible for the Commission to issue its recommendation shortly after the prehearing conference.”  5

Valpak expresses a concern that almost no mailer would be motivated to spend the funds necessary to challenge the assertion that the NSA renewal was substantially identical to the original agreement. Valpak urges the Commission to charge the Office of the Consumer Advocate (OCA) with the responsibility for investigating these factual matters. Valpak Comments at 1-2. In a similar light, Valpak suggests that OCA also be tasked with investigating “intervening events” when those issues arise in a request. Id. at 3.

The Postal Service's expectation is that the Commission will appoint OCA to represent the general public in 39 CFR 3001.197 and 3001.198 proceedings, but argues that OCA can decide for itself how to allocate its resources. Postal Service Reply Comments at 6.

In a somewhat broader context, Bank One asserts “[u]nder the circumstances, a general requirement that the OCA launch a full blown investigation in every proceeding under Rule 197 or Rule 198 is likely to make society worse off by wasting the Commission's resources and deterring the establishment or renewal of arrangements that otherwise would have made both the Postal Service and third-party mailers better off.” Bank One further asserts “[r]ather, the extent (if any) of any activity by the OCA in an NSA proceeding should be left to the professional judgment of the OCA itself.” Bank One Reply Comments at 2-3.

OCA is in the unique position of being appointed, as opposed to intervening, to represent the interests of the general public in virtually every proceeding before the Commission. Not only does OCA frequently provide an important counterpoint to the proponents' arguments, as referred to by Valpak, it performs its own independent analysis which is useful in better informing the Commission. The Commission, in this instance, will not promulgate a rule specifically assigning or excluding a particular issue for OCA to examine. This preserves the OCA's ability to inform the Commission with an independent point of view, and allows OCA to allocate its resources as it believes necessary.

Burden of Proof. Bank One argues when a request for a renewal or a modification does not materially alter the terms of an existing negotiated service agreement, it not only warrants accelerated review, but a presumption that the modified agreement is just, reasonable, and otherwise lawful. It suggests that opponents of an agreement “should bear the burden of making a showing of probable cause that the modified terms would violate one or more provisions of the Postal Reorganization Act.” Bank One Comments at 11-12. HSBC's comments parallel those of Bank One. HSBC Comments at 3.

OCA contends that in regard to requests for renewals, proponents should not have to support retention of existing provisions, absent changed circumstances, but should be required to demonstrate the immateriality of changes they do wish to make. OCA notes that it is the lack of significant change that permits expedition in the first place. In regard to requests for modifications, OCA argues that expedition is more difficult. It contends that the proponent should be required to explain why the needed modification was overlooked in the initial proceeding and why the Commission should believe that no other difficulties still exist. OCA Reply Comments at 2.

The Postal Service argues that where particular issues surrounding a negotiated service agreement have been litigated, or could have been litigated before the Commission when the agreement was first recommended, there should be a rebuttable presumption that the agreement would not violate the Act. However, if the renewal or modification involves a change in rates or classifications, the Postal Service would expect to bear the burden of justifying such changes. Postal Service Reply Comments at 4-5.

The Commission's starting point is that the Postal Service has the initial burden of demonstrating that all aspects of its requests are in compliance with all aspects of the Act. 6 In regard to requests for functionally equivalent agreements or requests to modify or extend existing agreements, the Postal Service is allowed to rely on (within limits) record testimony from previous dockets, and implicitly on the findings and conclusions of the Commission from those previous dockets. This reliance effectively creates a rebuttable presumption on the status of many issues that have been, or to some extent that could have been, previously litigated. Thus, the Postal Service fulfills much of its initial burden merely by referencing the applicable record testimony and Commission findings and conclusions.

The burden that remains is for the Postal Service to demonstrate that any change, internal or external, affecting an agreement does not cause the agreement to violate the Act. This obligation is broader than only justifying changes in rates or classifications. For example, if applicable new cost data or actual volumes become available during the span of the existing agreement, the Commission expects the Postal Service to incorporate such data into a request for renewal. Incorporation of these data may or may not lead to a rate or classification change. However, the proponents, including the Postal Service, still have the initial burden to demonstrate that the renewal agreement, with the new cost and volume data, continues to meet the requirements of the Act.

Normally, a prehearing conference is scheduled for the purpose of discussing issues in regard to Postal Service requests. At this conference, participants are required to address whether or not any material issues of fact exist that might require discovery or evidentiary hearings. Ideally, the information obtained at the conference allows the Commission to frame the issues open for discussion, and to limit discussion on issues that have been previously resolved or that are not relevant to the instant request. This limits the burden imposed on the proponents.

There is a distinct disadvantage in moving the initial burden to those that oppose a Postal Service request. Early in the process, interested persons may not be privy to sufficient information to make an informed decision on whether or not to challenge a request. This could lead to prolonged discovery because participants would have to probe every aspect of an agreement to determine the existence of issues. Because of the asymmetrical information advantage held by the proponents of the request, it is more expedient for the proponents to carry the initial burden, and to provide sufficient information with the request, so that other participants can make more informed decisions.

The Commission is not persuaded that the initial burden is onerous, or that it is improper to place this burden upon the Postal Service (and its co-proponents).

Scope of Proceeding. Bank One notes that the proposed rules are limited to proposals that do not materially alter the terms of an existing negotiated service agreement. It expresses concern that the three enumerated circumstances that could justify modifications to a negotiated service agreement may be too limiting. Bank One requests clarification that the list of allowable justifications is illustrative, and not exclusive. As an example of a desired modification that would not be allowed under the new rules, Bank One describes a change where “the nature and circumstances of the likely modification may be foreseeable from the outset, but the parties may want to defer considering the changes until after gaining experience from actual operation of the NSA.” Bank One Comments at 10-11.

HSBC's comments parallel those of Bank One. HSBC Comments at 2-3. DFS also supports Bank One's position. DFS Reply Comments at 1-2. The Postal Service concurs that the list should be illustrative and not exhaustive. It asserts that participants will have adequate opportunities to oppose a request to modify an agreement should such a case arise. Postal Service Reply Comments at 4.

The breadth of the proposed rules is an area of concern for the Commission. The goal is to draft rules for cases involving minimal controversies so that expedition can be realized, and bureaucratic requirements minimized. The key to meeting this goal is to limit the allowable differences open for consideration between the renewal or modification agreement, and the ongoing agreement.

For 39 CFR 3001.197 renewal requests, the focus of the Commission is on the Postal Service's justification for requesting the extension of a presumably beneficial negotiated service agreement. Maximum expedition can be afforded if the only request is to extend the termination date of the existing agreement. However, the Commission realizes that a renewal provides an opportune time to allow for additional modifications for the purpose of bringing an agreement up to date. The rule explicitly requires that any additional modifications “do not alter the nature of the existing agreement.” This is key to preserving the ability to expedite the procedure. The proposed rationale for updating an agreement could be to incorporate the effects of an intervening event into the agreement, or to incorporate new cost and volume information that might be used to update the schedule of rates and fees. These secondary modifications are in addition to extending the termination date. A third possibility, correction of a technical defect, is included because it would not be prudent to continue an agreement with a known technical error. 7

For 39 CFR 3001.198 modification requests, the focus of the Commission is on the Postal Service's justification for requesting the modification. The requirement that the proposed modification does not materially alter the nature of the existing agreement is implicit, if the proceeding is to be expedited. The rule provides three rationales for modifying an existing agreement: To correct a technical defect, to account for unforeseen circumstances not apparent when the existing agreement was first recommended, or to account for an intervening event since the recommendation of the existing agreement. The stated reasons are sufficiently broad to allow for many types of modifications.

The Postal Service has several other options that it may choose to pursue if its request is broader than the scope of the proposed rules. For more extensive proposals, the Postal Service might find it appropriate to file under 39 CFR 3001.195 (new baseline proposal) or 39 CFR 3001.196 (functionally equivalent proposal).

Describing the allowable modifications as material versus immaterial, as suggested by Bank One, could be misleading. The Commission does not require that any of the allowable modifications be “immaterial.” However, requests for modifications that do not change the nature of the original agreement will be afforded expedition because most issues will have been resolved in the original agreement's docket.

For example, assume that a negotiated service agreement partner merges with another entity, and would like to incorporate that entity's mail volumes under the existing agreement. Further assume that the combined entity's mail characteristics are different from those considered in reviewing the existing negotiated service agreement, and as a result, additional Postal Service cost savings can be demonstrated. The Postal Service and its partner could properly seek to modify the existing agreement. In this instance the modification would accommodate a material change, but it would not alter the overall nature of the original agreement.

The Bank One example of where a modification is foreseeable from the outset, but the parties desire to gain experience before making a change does not fall into the acceptable category of modifications. What Bank One describes is experimental in nature. A negotiated service agreement may contain an experiment, but the primary purpose of a negotiated service agreement should not be to “experiment.” Negotiated service agreements should be based on sound financial analysis that indicates a likely win-win outcome from inception. If however, an intervening event might have been foreseeable, that fact does not prevent a modification to reflect the new situation that exists as a result of the intervening event.

The descriptions of allowable modifications in both rules fulfill the Commission's intent of narrowing the applicability of the rules such that expedition can be provided.

Establishing a Schedule. The Postal Service suggests that the Commission add language to proposed 39 CFR 3001.197(c) and 39 CFR 3001.198(c) requiring that: “a schedule will be established which allows a recommended decision to be issued not more than 60 days after the determination is made to proceed under § 3001.197 [or § 3001.198].” It argues that this language is in furtherance of the important objective for expedition, and is similar to the 39 CFR 3001.196(d)(1) language, which was helpful in expediting the proceedings in Docket Nos. MC2004-3 and MC2004-4. 8 Postal Service Comments at 2-3. Upon consideration of the initial comments from other commenters, the Postal Service modifies its position and suggests a 30- or 45-day schedule if there is no hearing, and a 90-day schedule if there is a hearing. Postal Service Reply Comments at 2-3.

Bank One contends that “litigation costs are a major deterrent to pursuing an NSA, and the absence of clear procedural deadlines is an invitation to open-ended delay during the heat of litigation.” Because of the more limited scope of proceedings under 39 CFR 3001.197 or 3001.198, than anticipated under 39 CFR 3001.196, Bank One proposes a 45-day schedule if there is not a hearing, and a 90-day schedule if there is a hearing. Bank One Comments at 12-13. HSBC's comments are in agreement with Bank One, and suggest identical time periods. HSBC Comments at 3-4.

DFS expresses similar concerns by arguing that “[s]pecific time frames yield certainty.” It submits that time frames of 30 days without a hearing, and 90 days with a hearing would be appropriate. DFS Comments at 3-5.

OCA argues that “[s]uch deadlines would actually create incentives for delay.” It contends that if the proponents knew that the Commission is committed to issuing a decision in a certain, short time, they would have no incentive to submit detailed information up front and leave the Commission to reach a rapid decision on the basis of incomplete information. OCA Reply Comments at 3.

The Commission included a scheduling requirement in the rules for functionally equivalent negotiated service agreements partly because of the belief that requests for functionally equivalent agreements should be less complex to review than requests for new baseline agreements. The complexity should be less because most issues would have been litigated and resolved in the baseline docket, and the proponents of the functionally equivalent request would be allowed to rely on record testimony from the baseline docket. The perception that functionally equivalent requests are less complex to review allowed the Commission to be comfortable with including scheduling requirements. In practice, this expectation has been validated. Participants have identified and resolved issues within the applicable time periods.

The proposed rules for modifications and renewals are purposely designed to be applicable only in specific, limited circumstances, which appear more restrictive than a request for a functionally equivalent request. Most, if not all, policy and methodology issues should have been litigated and resolved in the original docket, and will be off the table with a modification or renewal request. Thus, the Commission finds it reasonable to include a scheduling requirement in the rules for modifications and renewals. The Commission will initially adopt a 45-day, 90-day scheduling requirement. The time frames can be revisited after actual experience is gained.

The Commission will strive to issue its decisions as expeditiously as possible consistent with due process and the statutory requirements; however, shorter time frames might not allow sufficient opportunity for analysis if issues do arise. In addressing the OCA's concern, if there is an absence of detail with the material submitted with the request, or complex issues do arise, the Commission will be able to adjust its schedule to allow participants adequate time to address relevant and material concerns, even if this means not meeting the self-imposed scheduling requirements.

DFS contends that it is not clear whether a participant can request a hearing in 39 CFR 3001.197 or 3001.198 when there are material questions of fact that need to be resolved. DFS Comments at 4.

Including a separate scheduling requirement for instances when a hearing is requested is a clear indication that participants may request a hearing on requests for either modification or renewal. As in all proceedings, discovery is available after notice of the request, and the filing of a notice of intervention. The Commission will add subsection (d) to rule 39 CFR 3001.197 as follows:

(d) The Commission will treat requests to renew negotiated service agreements as subject to accelerated review consistent with procedural fairness. If the Commission determines that it is appropriate to proceed under 39 CFR 3001.197, a schedule will be established which allows a recommended decision to be issued not more than: (1) 45 days after the determination is made to proceed under 39 CFR 3001.197, if no hearing is held; or (2) 90 days after the determination is made to proceed under 39 CFR 3001.197, if a hearing is scheduled.

The Commission will add subsection (d) to rule 39 CFR 3001.198 as follows:

(d) The Commission will treat requests to modify negotiated service agreements as subject to accelerated review consistent with procedural fairness. If the Commission determines that it is appropriate to proceed under § 3001.198, a schedule will be established which allows a recommended decision to be issued not more than: (1) 45 days after the determination is made to proceed under § 3001.198, if no hearing is held; or (2) 90 days after the determination is made to proceed under § 3001.198, if a hearing is scheduled.

Additional Option to Proceed Under 39 CFR 3001.196. Following the prehearing conference, the Commission must decide which procedural path the request will follow. Several commenters argue that if the Commission determines it is not appropriate to proceed under 39 CFR 3001.197 (renewal request), it might be appropriate to proceed under 39 CFR 3001.196 (functionally equivalent request). The proposed rule only allows for proceeding under 39 CFR 3001.195 (new baseline request) in this instance. The commenters also argue for a similar change to the parallel terminology proposed for 39 CFR 3001.198 (modification request). Bank One Comments at 14-15; DFS Comments at 5-6; HSBC Comments at 5; Postal Service Comments at 3; and Valpak Comments at 3.

The Commission concurs that proceeding under 39 CFR 3001.196 (functionally equivalent request) is a viable option to proceeding under 39 CFR 3001.195 (new baseline request) when the Commission decides it is not appropriate to proceed either under 39 CFR 3001.197 (renewal request) or 39 CFR 3001.198 (modification request). The last sentence of 39 CFR 3001.197(c) will be changed to read: “If the Commission's decision is to not proceed under § 3001.197, the docket will proceed under § 3001.195 or § 3001.196, as appears appropriate.” The last sentence of § 3001.198(c) will be changed to read: “If the Commission's decision is to not proceed under § 3001.198, the docket will proceed under § 3001.195 or § 3001.196, as appears appropriate.”

Rule Specific Changes. The Postal Service proposes three rule specific changes. First, it notes that § 3001.197(a)(4) and § 3001.198(a)(4) request “[a]ll studies developing information pertinent to the request, whereas § 3001.196(a)(4), a parallel rule, references “special studies.” The Postal Service proposes that the references to “studies” be changed to “special studies.” Postal Service Comments at 3. Second, the Postal Service proposes to add the phrase “since the recommendation of the existing agreement” after the words “intervening event” in § 3001.198(a)(3) to clarify when an intervening event must occur, and to make this language consistent with § 3001.197(a)(3). Id. at 4.

Both proposals improve the consistency and clarity of the rules. Section 3001.197(a)(4) will be changed to: “All special studies developing information pertinent to the request completed since the recommendation of the existing agreement.” Section 3001.198(a)(3) will be changed to: “A detailed description of the technical defect, unforeseen circumstance, or intervening event since the recommendation of the existing agreement, to substantiate the modifications proposed in (a)(2).” Section 3001.198(a)(4) will be changed to: “All special studies developing information pertinent to the request completed since the recommendation of the existing agreement.”

The third Postal Service suggestion proposes to add the phrase “rationale for revising the schedule of rates or fees” to § 3001.198(a)(3) (modification request). It argues that there will be instances where a modification will involve this type of revision, for example, a request to modify a cap. Id. at 4.

The Commission assumes that if the Postal Service and its co-proponent request a modification, for example a modification of a stop-loss cap value, they will do so because they need to correct for a technical defect, account for an unforeseen circumstance not apparent when the existing agreement was first recommended, or account for an intervening event since the recommendation of the existing agreement as specified in § 3001.198(a). The technical defect, unforeseen circumstance, or intervening event provides the rationale for proposing the modification to the agreement. The above rationale might support a revision to the schedule of rates or fees; however, the desire to modify the schedule of rates or fees in itself is not a sufficient rationale to initiate a modification. Section 3001.198(a)(3) as proposed requires the Postal Service to describe the technical defect, unforeseen circumstance, or intervening event, which will focus the Commission's review on the rationale for proposing the modification. Including the Postal Service's proposed phrase “rationale for revising the schedule of rates or fees” in § 3001.198(a)(3) could be misinterpreted to imply that revising the schedule of rates or fees in itself is somehow a rationale for a modification. The Commission will not adopt this proposal.

Presentation of Spreadsheet Information. OCA comments that “the use of identical spreadsheets in a renewal or modification case as were used in the original request greatly enhances the ability of participants to evaluate the financial effect of new proposals.” OCA Comments at 1.

DFS concurs that the use of similar spreadsheets makes sense, but does not concur that a specific requirement should be placed in the rules. DFS Reply Comments at 2. While the Postal Service acknowledges that it will often be helpful and expeditious to use parallel spreadsheets, it also believes there may be reasons not to do so. The Postal Service does not believe that this should be required by the rules. Postal Service Reply Comments at 5-6.

Presenting information in a similar format to what was provided in the original request could benefit an expedited review of the new request. However, the Commission will not require the use of “identical” spreadsheets. This is too restrictive and would not allow for change due to modifications in the agreement, or improvements in developing and presenting analyses. Also, the rules require that analyses be presented using the Commission's methodology, which may differ from what was presented in the original request. Use of the Commission's methodology is meant as a means for expediting the review process.

Miscellaneous Issues. DFS stresses the importance of coming to the prehearing conference prepared to discuss the appropriate rule under which to proceed, whether or not a hearing is necessary, and the basis of any disputed fact that requires further consideration. DFS asserts that this can be possible if parties start discovery immediately after the filing and notice of a request for a proposed negotiated service agreement. DFS Comments at 6-7.

The Commission concurs that it is critical for participants to come prepared to the prehearing conference. The information provided to the Commission either prior to or during the prehearing conference allows the Commission to decide the most appropriate, expeditious procedural path under the specific circumstances of the request. As soon as the Commission issues notice of a request and a participant files a notice of intervention, that participant may proceed with discovery to begin examining the issues. Nonetheless, potential participants may not be instantly aware of Postal Service requests, and time must be allowed to assure due process.

DFS questions whether parallel rules are required for extensions and modifications, or whether one combined rule would be simpler. Id. at 7. The Commission considered combining the separate rules for extensions and modifications into one rule, but opted for two parallel rules because of the clear signal that will be sent to potential participants as to the context of each proceeding. Separate rules also add flexibility to modifying one rule, but not the other.

It is ordered:

1. Any suggestion for modification of the proposed rule not specifically addressed by this order is not accepted for incorporation into the final rule.

2. The Commission hereby adopts the final amendments to rules 197 and 198 that follow the Secretary's signature into the Commission's Rules of Practice and Procedure appearing in 39 CFR Part 3001.

3. The Secretary shall arrange for publication of this Order Establishing Rules Applicable to Requests to Renew or Modify Previously Recommended Negotiated Service Agreements in the Federal Register . These changes will take effect 30 days after publication in the Federal Register .

The two dredged material disposal sites in Long Island Sound designated by this action are necessary to provide long-term, environmentally acceptable disposal options for potential use by the U.S. Army Corps of Engineers (USACE, or Corps) and other federal, state, municipal and private entities who must dredge channels, harbors, marinas and other aquatic areas in the Long Island Sound vicinity in order to maintain conditions for safe navigation for the purposes of marine commerce and recreation.

Entities potentially affected by this action are persons, organizations, or government bodies seeking to dispose of dredged material in waters of Long Island Sound, subject to the requirements of the MPRSA and/or the CWA and their implementing regulations. This final rule is expected to be primarily of relevance to: (a) 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 the central and western regions of Long Island Sound; (b) to the Corps itself for its own dredged material disposal projects; and (c) to other federal agencies seeking to dispose of dredged material in the central and western regions of Long Island Sound. Potentially affected categories and entities that may seek to use the dredged material disposal sites and would be subject to this final rule may include:

This table lists the types of entities that could potentially be affected by this final rule. EPA notes that nothing in this final rule alters the jurisdiction or authority of EPA or the types of entities regulated under the MPRSA and/or CWA. Questions regarding the applicability of this final rule to a particular entity should be directed to the contact person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

The following site descriptions are based on information in section 3.4.3 of the FEIS and supporting documents.

The CLIS site has been used for the disposal of dredged material from central and western Long Island Sound since the early 1940s and possibly earlier. An actively used site, CLIS has received close to 14 million cubic yards since 1941. Predecessors to the CLIS site in the same general vicinity received dredged material since the late 1800s. Between 1982 and 2001, CLIS received approximately seven million cubic yards, with an average annual volume of 350,000 cubic yards.

In recent years, dredged material disposal at CLIS has been conducted pursuant to either the Corps' short-term site selection authority under section 103(b) of the MPRSA or, for small (25,000 cubic yards or less), non-federal dredging projects, the Corps' CWA section 404 permitting authority. Prior disposal activity dating back to 1941 and possibly earlier was conducted under other applicable federal and state legal requirements. The availability of CLIS for use by the USACE under its most recent short-term site selection expired on February 18, 2004. Under MPRSA section 103(b), the term of the Corps site selection may not be extended. Therefore, the CLIS site is currently available only for disposal from non-federal projects generating 25,000 cubic yards or less of dredged material that satisfy CWA section 404 requirements.

The CLIS disposal site is a 1.1 by 2.2 nautical mile (nmi) rectangular area, about 2.4 square nautical miles (nmi 2 ) in size. It is located 5.6 nmi south of South End Point near East Haven, Connecticut, and over 10 nmi north of Shoreham Beach, New York, in water depths ranging from 56 to 77 feet (17 to 23.5 meters). The site is entirely within Connecticut state waters, approximately 2.5 nmi north of the New York state border.

This final rule designates the CLIS site with boundaries slightly reconfigured from those of the current site. The northern boundary was extended 700 feet (213 meters) to the north, and the eastern boundary was extended 1,230 feet (375 meters) to the east, to encompass two historic disposal mounds, the FVP and CS2 mounds, that lie outside the current site boundaries. This reconfiguration will allow for management and monitoring of these two mounds. The coordinates (North American Datum 1983: NAD 83) for the CLIS site are as follows:

The sediments at the site are predominantly clayey silt, with areas of mixed sand, clay, and silt. These sediments are typical of those found in central Long Island Sound, which is generally a fine-grained depositional environment. In addition to the ambient silts from this region, the site also contains deposits of material of mixed grain sizes dredged from harbors and navigation channels throughout the central and western Long Island Sound region.

The WLIS site has been used for dredged material disposal since 1982 when it was identified by the Corps in an EIS as the preferred alternative for a regional dredged material disposal site to serve the dredging needs of western Long Island Sound. Between 1982 and 2001, WLIS received 1.7 million cubic yards, with an average annual volume of 85,000 cubic yards. Prior to 1982, sites in the immediate vicinity of WLIS, including the Eaton's Neck, Stamford, and Norwalk historical disposal sites, served the dredging needs of the western Sound. In recent years, the WLIS site has been used pursuant to the Corps' short-term site selection authority under MPRSA section 103(b). Under that authority, the site could potentially be used for an additional five years starting with its next use for a project regulated under the MPRSA.

The WLIS disposal site is a 1.2 by 1.3 nmi rectangular area, about 1.56 nmi 2 in size. It is located 2.5 nmi south of Long Neck Point near Noroton, Connecticut, and two nmi north of Lloyd Point, New York, in water depths of 79 to 118 feet (24 to 36 meters). The site is entirely within Connecticut state waters, approximately 200 yards north of the New York state border.

This final rule designates the WLIS site with boundaries that have been slightly reconfigured from its existing location. The entire site has been shifted to the west by approximately 1,106 feet (337 meters) and to the north by 607 feet (185 meters). This shift will move the WLIS site out of a rapidly shoaling area in the southeast portion of the existing site. The coordinates (North American Datum 1983: NAD 83) for the reconfigured WLIS site are as follows:

The sediments at the site are heterogeneous, with clayey silt in the northeast corner and a mixture of sand-silt-clay in the center and southeast corner. These sediments are typical of those found in the western basin of Long Island Sound, which is generally a fine-grained depositional environment. In addition to the ambient silts from this region, the site also contains deposits of material of mixed grain sizes dredged from harbors and navigation channels throughout the western Long Island Sound region.

The dredged material disposal site designation process has been conducted consistent with the requirements of the Marine Protection, Research, and Sanctuaries Act (MPRSA), the Clean Water Act (CWA), the National Environmental Policy Act (NEPA), the Coastal Zone Management Act (CZMA), the Endangered Species Act (ESA), the Magnuson-Stevens Fishery Conservation and Management Act (MSFCMA), and any other applicable legal requirements.

The primary statutes governing the aquatic disposal of dredged material in the United States are the MPRSA, 33 U.S.C. 1401, et seq. , and the CWA, 33 U.S.C. 1251, et seq. The waters of Long Island Sound are landward of the baseline from which the territorial sea of the United States is measured. As with other waters lying landward of the baseline, all dredged material disposal activities in Long Island Sound, whether from federal or non-federal projects of any size, are subject to the requirements of section 404 of the CWA, 33 U.S.C. 1344. The MPRSA generally only applies to dredged material disposal in waters seaward of the baseline and would not apply to Long Island Sound but for the 1980 amendment that added section 106(f) to the statute, 33 U.S.C. 1416(f). This provision—commonly referred to as the “Ambro Amendment” after former New York Congressman Jerome Ambro—requires that the disposal of dredged material in Long Island Sound from federal projects (projects carried out under the USACE civil works program or by other federal agencies) and non-federal projects involving more than 25,000 cubic yards of material, must be carried out to comply with the requirements of both CWA section 404 and the MPRSA. This applies to both the authorization of specific disposal sites and the assessment of the suitability of specific dredged material for disposal. Disposal from non-federal projects involving 25,000 cubic yards or less of dredged material, however, is subject only to CWA section 404.

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, among other things, 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, an EPA site designation can be for an indefinite term, and are generally thought of as long-term designations, but EPA may place restrictions or limits on the use of the site based on the site's capacity to receive dredged material or other environmental concerns. See 33 U.S.C. 1412(c). On October 1, 1986, the Administrator delegated authority to designate dredged material disposal sites to the Regional Administrator of the EPA Region in which the sites are located. The CLIS and WLIS sites are located in Connecticut waters in Long Island Sound and, therefore, are subject to the site designation authority of the Regional Administrator of the EPA New England Regional Office.

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 when feasible. In the absence of an available EPA-designated site, however, the Corps is authorized to “select” appropriate disposal sites. In 1992, Congress amended MPRSA section 103(b) to place maximum time limits on the use of Corps-selected disposal sites. Specifically, the statute restricted the use of such sites to two separate five-year terms. Thus, open-water disposal in Long Island Sound of dredged material from projects subject to MPRSA requirements under section 106(f) of the statute ( i.e. , federal projects or private projects involving more than 25,000 cubic yards of material) has been conducted at sites used pursuant to the Corps' site selection authority. The CLIS disposal site can no longer be used under this authority, however, because the second five-year term for the site under the Corps' most recent site selection expired on February 18, 2004. (The site can still be used if approved under CWA section 404 for non-federal projects involving less than 25,000 cubic yards of dredged material.) Meanwhile, the first five-year Corps site selection for the WLIS site has expired and use of the site under a Corps site selection will be limited to five years from the date of the next such selection.

The Ocean Dumping Regulations prescribe general and specific criteria at 40 CFR 228.5 and 228.6, respectively, to guide the selection 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 and 40 CFR 228.3 also establish requirements for EPA's ongoing management and monitoring, in conjunction with the USACE, of the 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 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 use of that site available as a possible management option if various other conditions are met first. Authorization to use the site for dredged material disposal must be provided 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. Furthermore, the authorization for disposal is also subject to review for compliance with other applicable legal requirements, including the ESA, the MSFCMA, the CWA (including any applicable state water quality standards), NEPA, and the CZMA.

EPA's evaluation of CLIS and WLIS pursuant to the applicable site evaluation criteria, and its compliance with site management and monitoring requirements, are described below in the Compliance with Statutory and Regulatory Requirements section.

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 in order to ensure high quality, informed decision-making and 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 substantial public involvement throughout the decision-making process. See 40 CFR 6.400(a) and 40 CFR part 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 man's 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 part 1502.

EPA disposal site designation evaluations conducted by EPA 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 prepared an EIS to evaluate the possibility of designating open-water disposal sites in the central and western regions of Long Island Sound. As part of the NEPA EIS process, federal agencies prepare a public record of decision (ROD) at the time of their decision on any action for which an FEIS has been prepared. In this case, this final rule will serve as EPA's ROD for the site designations. See 40 CFR 1505.2 and 1506.4 (the ROD may be integrated into any other agency document prepared in carrying out its action). EPA's use of NEPA procedures to evaluate this action is further described in the following section, Compliance with Statutory and Regulatory Requirements.

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. 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 in the following section, Compliance with Statutory and Regulatory Requirements.

Under section 7(a)(2) of the Endangered Species Act, 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 either the U.S. Fish and Wildlife Service (USFWS) or the National Marine Fisheries Service (NMFS) if the agency's action “may affect” an endangered or threatened species or its critical habitat (50 CFR 402.14(a)). EPA's compliance with the ESA is described in the following section, Compliance with Statutory and Regulatory Requirements.

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. Pursuant to section 305(b)(2) of the MSFCMA, federal agencies are required to consult with the 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's compliance with the MSFCMA is described in the following section, Compliance with Statutory and Regulatory Requirements.

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

• The prohibition on further use of the CLIS disposal site pursuant to the Corps' site selection authority under MPRSA section 103(b);

• The five-year cap on any future use of the WLIS disposal site pursuant to the Corps' site selection authority under MPRSA section 103(b);

• The understanding that in the absence of an EPA-designated disposal site or sites, any necessary open-water disposal would either be stymied 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; 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, see 40 CFR 228.5(e).

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 Site Management and Monitoring Plan (SMMP) must be developed for all designated sites. As discussed below, EPA complied with each of these requirements in designating the CLIS and WLIS disposal sites.

MPRSA sections 102(c) and 103(b) indicate that EPA may designate ocean disposal sites, including 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 when an EIS is prepared under EPA policy in order to assess the proposed designation of one or more disposal sites, that EIS should include the results of an environmental evaluation of the proposed disposal site(s) and the Draft EIS (DEIS) should be presented to the public along with a proposed rule concerning the disposal site designations. According to 40 CFR 228.6(b), a Final EIS (FEIS) should be provided at the time of final rulemaking for the site designation.

EPA complied with all of these procedural requirements. The Agency prepared a thorough environmental evaluation of both the sites proposed for designation and other alternative sites and courses of action (other than designating open-water disposal sites). This evaluation was presented in a DEIS (and related documents) and a proposed rule for promulgation of the disposal sites. EPA published the proposed rule (68 FR 53687) and a notice of availability of the DEIS (68 FR 53730) for public review and comment in September 2003. In addition, EPA went beyond the requirements of 40 CFR 228.6(b) by publishing a FEIS for public review in April 2004, more than a year before issuance of this final rule, thus giving the public an additional opportunity to comment on the proposed site designations, and giving EPA further opportunity to consider public input, before the final rulemaking for the site designations. By this final rule, EPA is now completing the designation of these disposal sites by promulgation in 40 CFR part 228.

Finally, MPRSA sections 102(c)(3) and (4) dictate that EPA must, in conjunction with the USACE, develop a site management plan for each dredged material disposal site it proposes to designate. MPRSA section 102(c)(3) also states that in the course of developing such management plans, EPA and the Corps must provide an opportunity for public comment. EPA and the Corps also met this obligation by publishing for public review and comment Draft SMMPs for both the CLIS and WLIS sites. The Draft SMMPs were published together with the Draft EIS (as Appendices J-1 and J-2, respectively) and the proposed rule in September 2003. After considering public comments regarding the SMMPs, EPA and the Corps published the Final SMMPs for the two disposal sites in April 2004 as Appendices J-1 and J-2 of the FEIS.

EPA regulations under the MPRSA identify five general criteria and 11 specific criteria for use in 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 CLIS and WLIS disposal sites with respect to the five general and 11 specific criteria is discussed in detail in the FEIS and supporting documents and is summarized below.

As described in the FEIS, and summarized below, EPA has determined that the CLIS and WLIS disposal sites satisfy the five general criteria specified in 40 CFR 228.5. This is discussed in Chapter 5 and summarized in Table 5-13, “Summary of Impacts at the Alternative Sites,” of the FEIS.

1. 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 demonstrated that both the CLIS and WLIS disposal sites would cause minimal interference with the aquatic activities identified in the criterion. The sites were selected because they are not located in shipping lanes or other major navigation areas and are expected to cause minimal interference with fisheries, shellfisheries, and regions of commercial or recreational navigation. 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 locations and surrounding areas (including their bathymetry). Analysis of this data indicated that use of each site would have minimal potential for interfering with other existing or ongoing uses of the marine environment in and around the site locations, including lobstering or fishing activities. Furthermore, the locations of the two sites should minimize any interference with navigation since they lie outside areas of heavy commercial or recreational navigation. In addition, both the CLIS and WLIS sites have been used for dredged material disposal for many years and their use has not significantly interfered with the uses identified in the criterion, and mariners in the area are accustomed to use of the sites. Finally, time-of-year restrictions (also known as “environmental windows”) imposed in order 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.

2. 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 concluded that both the CLIS and WLIS sites satisfy this criterion. First, both sites are significant distances from any beach, shoreline, marine sanctuary (in fact, there are no federally-designated marine sanctuaries designated in Long Island Sound), or known geographically limited fishery or shellfishery. Second, the sites will be used only for the disposal of dredged material determined to be suitable for open-water disposal by application of the MPRSA ocean dumping criteria. See 40 CFR part 227. These criteria include provisions related to water quality and accounting 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 EIS, 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 nor reach any beach, shoreline, marine sanctuary, or other important natural resource area.

3. If site designation studies show that any interim disposal sites do not meet the site selection criteria, use of such sites shall be terminated as soon as an alternate site can be designated (40 CFR 228.5(c)).

There are no interim sites in central and western Long Island Sound as defined under the Ocean Dumping Regulations (40 CFR 228.14). Neither the CLIS nor WLIS sites have ever been subject to an interim site designation by EPA. Therefore, this criterion is not applicable to the present disposal site designations. While the CLIS site has been used for dredged material disposal for many decades, it has never been an interim designated site. Prior to the 1980 Ambro Amendment, the MPRSA did not apply to Long Island Sound, and disposal was regulated under the Clean Water Act and/or other applicable authorities. Since the Ambro Amendment, both the CLIS and WLIS disposal sites have been used pursuant to the Corps' site selection authority under MPRSA section 103(b) for federal projects and large private projects ( i.e. , those involving more than 25,000 cubic yards of material). Both sites also have been used for smaller private projects under CWA section 404 authority. Furthermore, EPA's evaluation concludes that both the CLIS and WLIS sites satisfy the applicable site selection criteria. Therefore, even if this criterion applied, the CLIS and WLIS sites would satisfy it.

4. 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 FEIS, that the CLIS and WLIS sites are limited in size 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. The combined size of the two sites is approximately 3.96 nmi 2 , which is just half of one-percent of the 675 square miles that comprise the entire central and western Long Island Sound regions that comprised the study area for the EIS. As discussed in the FEIS, both sites are located in depositional areas, meaning the material placed in them will tend to stay there. As a result, any short-term impacts will be localized and this, together with other regulatory requirements ( e.g. , application of sediment testing and MPRSA criteria), will facilitate control of any such impacts. The information presented in the FEIS indicates that historical disposal at these sites over many years has neither resulted in significant long-term adverse environmental effects nor had any significant effect outside the sites themselves.

Furthermore, due to their past use for dredged material disposal, these sites have been monitored for many years under the Corps' Disposal Area Monitoring System (DAMOS). Thus, experience indicates that the site configurations will enable effective short-term and long-term monitoring. In addition, as described above in the Disposal Site Descriptions section, the existing site boundaries of the CLIS site have been reconfigured to include two historical disposal mounds outside of the existing boundary so that they could be managed and monitored along with the rest of the site. As previously described, the WLIS site also has been reconfigured from its historical boundaries by shifting the entire site to the northwest to exclude a rapidly shoaling area within those prior site boundaries. Thus, EPA developed the site configurations in conjunction with, and in response to, the substance of the site evaluations. The sites are identified by specific coordinates spelled out in the regulations promulgated by this rulemaking, 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 two sites are described in the SMMPs (Appendix J of the FEIS).

5. EPA will, wherever feasible, designate ocean dumping sites beyond the edge of the continental shelf and other such sites where historical disposal has occurred (40 CFR 228.5(e)).

EPA evaluated sites beyond the edge of the continental shelf as well as historical disposal sites in Long Island Sound as part of the alternatives analysis conducted for the EIS. This evaluation determined that the long distances and travel times between the dredging locations in central and western Long Island Sound and the continental shelf ( e.g. , 140 miles from Mamaroneck Harbor in Westchester County, NY) 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 spilled in unintended areas. As described in the Disposal Site Descriptions section, the CLIS and WLIS disposal sites both encompass the footprint of historically used sites. Long-term monitoring of these sites 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 the Sound, the analysis in the FEIS concluded that the CLIS and WLIS sites were the preferable locations. Thus, the designation of the CLIS and WLIS disposal sites is consistent with this criterion.

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

Based on analyses described in the FEIS, EPA has concluded that the geographical position ( i.e. , location), water depth, bottom topography ( i.e. , bathymetry), and distance from coastlines of the two sites will facilitate containment of dredged material within site boundaries, and reduce the likelihood of material being transported to the adjacent sea floor or any areas of special environmental concern. As described in the preceding Disposal Sites Description section and above regarding compliance with general criteria 3 and 4 (40 CFR 2285(c) and (d)), both sites are located far enough from shore, are deep enough, and have appropriate bathymetry to prevent adverse effects to the marine environment and coastlines. The CLIS site is located 5.6 nmi south of South End Point near East Haven, Connecticut, and more than ten nmi north of Shoreham Beach, New York, in water depths ranging from 56 to 77 feet (17 to 23.5 meters). The WLIS site is located 2.5 nmi south of Long Neck Point near Noroton, Connecticut, and two nmi north of Lloyd Point, New York, in water depths of 79 to 118 feet (24 to 36 meters). As discussed in the FEIS, long-term monitoring of disposal sites in Long Island Sound found that creating mounds above a depth of 46 feet (14 meters) can result in material being removed from the mounds by currents (FEIS, p. 3-17). Both sites are of a sufficient depth to allow the disposal of the amount of material that is projected over the 20-year planning horizon without exceeding this depth threshold. As was also discussed in the FEIS, both sites are located in depositional areas, meaning the material placed in them will tend to stay there. As a result, any short-term impacts will be localized and this, together with other regulatory requirements described elsewhere in this document, will facilitate control of any such impacts.

EPA considered the proposed CLIS and WLIS disposal sites in relation to breeding, spawning, nursery, feeding, or 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 CLIS and WLIS sites would cause some short-term, localized adverse effects, overall it would not cause unacceptable or unreasonable adverse effects to the habitat functions and living resources specified in the above criterion. The combined size of the two sites is approximately 3.96 nmi2, which is just half of one-percent of the 675 square miles that comprise the entire central and western Long Island Sound regions that comprised the study area for the EIS.

Generally, there are three primary ways that dredged material disposal can 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 may collide or otherwise interfere with marine mammals and reptiles. Third, contaminants in the dredged material may bioaccumulate through the food chain. However, EPA and the other federal and state agencies involved with regulating dredging and dredged material disposal have adopted management techniques that greatly reduce the potential for these impacts to occur.

One such technique is the use of 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 Corps permits or 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, but dredging windows are often shorter 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-April 1, dredging that may interfere with anadromous fish runs is generally prohibited between April 1-May 15, and dredging that may adversely affect shellfish is prohibited between June 1-September 30. These dredging windows, in effect, serve to further restrict periods during which dredged material would be disposed.

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, 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 other mobile 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 now considered an effective management tool to minimize impacts to marine resources.

There will be 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. There usually is 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.

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 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.

EPA complied with the ESA by consulting with and receiving concurrence from the NMFS and USFWS that the designation of WLIS and CLIS was not likely to adversely affect federally listed species under its jurisdiction. 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 impacts to EFH and did not offer any additional conservation recommendations. Further details on these consultations are provided in the FEIS 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 disposal is restricted to two small sites (see above regarding compliance with general criteria 5 (40 CFR 2285(e)) and to only several months of the year, EPA concludes that designating WLIS and CLIS will not cause unacceptable or unreasonable adverse impacts to breeding, spawning, nursery, feeding, or passage areas of living resources in adult or juvenile phases.

EPA's analysis concluded that both the CLIS and WLIS sites satisfy this criterion. Both 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 CLIS and WLIS disposal sites are 5.6 nmi and two nmi from the nearest shore, respectively. Therefore, the closest beaches, parks, wildlife refuges, or other areas of special concern are at least two nmi from either of the two disposal sites. Based on modeling results that are presented in section 5.5.3 of the FEIS, 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 site during initial mixing from disposal operations will be limited to the immediate area of the site and will not reach any beach, parks, wildlife refuges, or other areas of special concern.

Thus, EPA does not anticipate that the continued use of the CLIS and WLIS disposal sites will cause any adverse impacts to beaches or other amenity areas.

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 central and western regions 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 suitability determinations following applicable criteria for testing and evaluating dredged material under 40 CFR part 227 and further guidance in the “Regional Implementation Manual for the Evaluation of Dredged Material Proposed for Disposal in New England Waters' (EPA, 2004), before authorizing 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 EIS. The CLIS and WLIS sites would receive dredged material that is transported by either government or private contractor hopper dredges or oceangoing bottom-dump barges 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 CLIS and WLIS sites are only being designated 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, inadequately characterized materials) (33 U.S.C. 1414b; 40 CFR 227.5). 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.

Monitoring and surveillance are expected to be feasible at both sites. Both sites are readily accessible for bathymetric and side-scan sonar surveys and have been successfully monitored by the Corps over the past 20 years under the DAMOS program. Upon designation of the sites, monitoring will continue under the DAMOS program in accordance with the most current approved Site Management and Monitoring Plan (SMMP) for each site. A Draft SMMP for each site was issued for public comment in conjunction with the DEIS and was incorporated as Appendix J to the DEIS, while Final SMMPs were then completed and incorporated as Appendix J to the FEIS. The SMMPs may be subject to periodic 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 other 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).

Although the interactions of bathymetry, wind-generated waves, and river and ocean currents in Long Island Sound are complex, the CLIS and WLIS sites are located in areas that are generally calm except during storms, when dredging and dredged material disposal would not be occurring anyway. Past monitoring of disposal activity at these two sites has revealed minimal drift of sediment out of the disposal site as it passed through the water column, and 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 of the two sites. Monitoring has indicated that the CLIS and WLIS sites 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 CLIS and WLIS sites are appropriate to support their designation as dredged material disposal sites.

As previously described in the Disposal Sites Descriptions section, the CLIS site has received close to 14 million cubic yards of dredged material since 1941, and predecessors to the CLIS site in the same general vicinity received dredged material since the late 1800s (with no reliable records of volumes disposed). The WLIS site has been used for dredged material disposal since 1982, receiving 1.7 million cubic yards since then. Prior to 1982, sites in the immediate vicinity of WLIS, including the Eaton's Neck, Stamford, and Norwalk historical disposal sites, served the dredging needs of the western Sound.

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 first Ambro Amendment in 1980, 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 is that there has been a steady, measurable improvement in the quality of material that has been placed at the CLIS and WLIS disposal site over the past 33 years.

The CLIS and WLIS disposal sites have both been used on a consistent basis since the early 1980s pursuant to the Corps' 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. 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). Beyond this, however, EPA's evaluation of data and modeling results indicates that these 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 the CLIS and WLIS disposal sites. As part of this conclusion, discussed in detail in the FEIS, EPA found that there should be no significant adverse cumulative environmental effects from continuing to use these sites on a long-term basis for dredged material disposal in compliance with all applicable regulatory requirements regarding sediment quality and site usage.

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 CLIS and WLIS sites 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 its overlap with aspects of certain other criteria. Nevertheless, EPA will address each point below.

The disposal sites are not located in shipping lanes, and the vessel traffic generated by disposal activity is expected to be similar to that which has occurred over the past 20 years without interfering with other shipping activity. Moreover, research by EPA and the USACE concluded that after disposal at the sites, resulting water depths will be sufficient to permit navigation in the area without interference. (And by providing an open-water disposal alternative for use in the absence of environmentally preferable practicable alternatives, the sites are likely to facilitate navigation in many of the harbors, bays, rivers and channels around the Sound.) A U.S. Coast Guard (USCG) lightering area currently overlaps the northeast corner of the CLIS site, which could have resulted in anchors disturbing disposal mounds and causing sediment resuspension, but the USCG has agreed to shift the designated lightering area boundary to ensure that existing mounds and future disposed dredged material will not be disturbed. This shift is also not expected to have any adverse effect on local navigation. Moreover, as discussed above, dredged material disposal at the site will only occur in a limited number of months during each year to due to environmental windows that restrict when dredging and related disposal may occur.

EPA carefully evaluated the potential effects on commercial and recreational fishing for both finfish and shellfish (including lobster) of designating the CLIS and WLIS sites 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 incidental, 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. The following are the four main reasons why EPA came to the conclusion of no unacceptable adverse effects.

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. Furthermore, because both the CLIS and WLIS sites are depositional, dredged material disposed at the sites is expected to remain there. 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. Furthermore, while some commenters in the EIS process expressed the concern that dredged material disposal has caused or contributed to the recent “die-off” of lobster in the western region of the Sound, or recent increases in the incidence of shell disease in the eastern portion of the Sound, EPA explained in detail in the EIS and Responses to Comments why dredged material disposal is not regarded to have caused or contributed significantly to either problem.

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 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 the central and western regions of the Sound, and the Corps' disposal site monitoring showing the rapid recovery of the benthic community in an area covered with dredged material. In addition, any physical effects will be limited by the relatively few months in which disposal is permitted by the “environmental window” 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 fewer months depending on species-specific dredging windows 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 and commercial boating.

There currently are no mineral extraction activities or desalinization facilities in the central and western 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. While at the time of this evaluation only three pipelines were in place, development of several new pipelines is anticipated in the future and will be prohibited from traversing the sites.

No fish farming 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 two designated disposal sites that it should not be impacted in any manner by this action. Finally, neither site is 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 the sites will not interfere with any of the activities described in this criterion or other legitimate uses of Long Island Sound.

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 FEIS 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 Corps' DAMOS site monitoring program. Furthermore, EPA and the Corps have, following solicitation of public comments, prepared Final SMMPs for both the CLIS and WLIS sites to guide future monitoring of site conditions.

Monitoring at disposal sites in Long Island Sound over the past 20 years has shown no recruitment of nuisance species capable of harming human health or the marine ecosystem and no such adverse effects are expected to occur at the CLIS and WLIS sites in the future. EPA and the USACE will continue to monitor the sites under the SMMPs, which include a “management focus” on “changes in composition in numbers of pelagic, demersal, or benthic biota at or near the disposal sites” (see section 6.1.5 of the SMMPs, Appendix J of the FEIS).

Due to the location of the two sites in the waters of central and western Long Island Sound, the cultural resources that have the greatest potential for being impacted are shipwrecks. A review of the current NOAA and Warren C. Reiss Marine Shipwrecks databases revealed a total of 39 shipwrecks throughout the Sound, but none are located within the disposal site boundaries, a fact confirmed by the Connecticut State Historic Preservation Office. While none of the known shipwrecks of historic significance are located within the sites, the central and western regions of Long Island Sound are known to have at least 12 and four shipwrecks, respectively. It is possible that there are other as yet undiscovered shipwrecks in the area. 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 Connecticut State Historic Preservation Office also determined that there are no known aboriginal artifacts at the CLIS and WLIS disposal sites. Two of the region's Indian tribes (the Eastern Pequot Indians of Connecticut and Narragansett Indian Tribe) participated as cooperating agencies during the development of the EIS, and neither of them identified any natural nor cultural features of historical significance at either site.

The CLIS and WLIS disposal sites will be subject to specific management requirements to ensure that unacceptable adverse environmental impacts do not occur. Examples of these requirements include: 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); 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 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. 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 dredging windows to protect certain species, as described above. EPA and the Corps have managed and monitored dredged material disposal activities at the CLIS and WLIS sites since the early 1980s. Site monitoring has been conducted under the Corps' DAMOS disposal site monitoring program.

In accordance with the requirements of MPRSA section 102(c) and 40 CFR 228.3, EPA and the Corps developed Site Management and Monitoring Plans (SMMPs) for both the CLIS and WLIS sites. Draft SMMPs for both sites were issued for public review and comment in conjunction with the DEIS and incorporated in the DEIS as Appendix J. After considering public comment, the agencies issued the Final SMMPs in conjunction with the FEIS and incorporated them in the FEIS as Appendix J. The SMMPs describe in detail the specific management and monitoring requirements for both sites. With respect to site monitoring, the SMMPs build on the Corps' existing DAMOS monitoring program, which will continue to provide the backbone of the site monitoring effort.

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 EIS, published a Draft EIS for public review and comment in September 2003, and published a Final EIS in March 2004, including responses to public comments on the Draft EIS. The FEIS, entitled, “Final Environmental Impact Statement for the Designation of Dredged Material Disposal Sites in Central and Western Long Island Sound, Connecticut and New York,” assesses and compares the effects, including the environmental effects, of designating dredged material disposal sites in central and western 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 was responsible for the EIS. The U.S. Army Corps of Engineers (USACE, or Corps) was a cooperating agency in the development of the EIS, see 40 CFR. 1508.5, because of its knowledge concerning the region's dredging needs, its technical expertise in monitoring 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 legal role in regulating dredged material disposal and managing and monitoring disposal sites. See MPRSA sections 102(c) and 103 and 40 CFR part 225 and 40 CFR 228.4(e). The Corps also brought significant financial and human resources to bear on this large and complex project. To take advantage of expertise held by other entities, and to ensure compliance with all applicable legal requirements, EPA also worked in close coordination with other federal agencies, including NMFS and USFWS, state environmental and coastal zone management agencies, local governments, and Indian Tribal governments. The NMFS, Connecticut Department of Environmental Protection (CT DEP), New York Department of Environmental Conservation (NY DEC), Eastern Pequot Indians of Connecticut, and Narragansett Indian Tribe participated as “cooperating agencies” in preparation of the EIS.

Consistent with the public participation provisions of the NEPA regulations, EPA and the Corps conducted an extensive public involvement program throughout the development of the FEIS. The agencies formed a “working group” comprising stakeholders from the Long Island Sound region and held numerous public meetings and workshops to provide the public with information on the EIS process and the results of studies conducted in support of the EIS, and to give the public ample opportunity to provide input to the NEPA review effort. The following discussion summarizes the extensive public participation program conducted by EPA and the Corps; detailed descriptions are provided in Chapter 7 and Appendix A of the FEIS.

On June 3, 1999, EPA published a Notice of Intent in the Federal Register (64 FR 29865) and mailed the notice to approximately 7000 interested individuals and organizations registered in the Long Island Sound EIS mailing list. The notice stated EPA's intent to prepare an EIS to, “consider the potential designation of one or more dredged material disposal sites in Long Island Sound,” pursuant to MPRSA and CWA requirements. It further stated that the EIS would evaluate the four existing dredged material disposal sites that were active at the time (CLIS, WLIS, Cornfield Shoals, and New London), “as well as additional alternatives including other open-water disposal sites, other types of dredged material disposal and management, and the no-action alternative.” It also announced three public scoping meetings to be held later that month to explain the EIS process and solicit public input.

Accordingly, in June 1999, EPA and the USACE held three public scoping meetings in Connecticut and New York to: (1) To inform the public about the project; (2) explain the respective roles of EPA and the Corps and the other cooperating or coordinating federal, state and tribal agencies, and the public, and (3) request comments on the draft scope of work for the EIS and related studies (detailed in Appendix A of the FEIS). The scoping meetings also served to identify and record public views regarding issues and environmental considerations for potential examination and analysis in the EIS. A total of approximately 130 people attended the three public scoping meetings.

EPA and the Corps also conducted two series of public workshops in October 1999 and April 2000 in Connecticut and New York to discuss, and seek public input concerning, the development of the EIS. Topics covered at the workshops included: Identification of dredged material management alternatives; the process for screening and evaluating all the alternatives; and a review of existing data and data collection needs. A total of approximately 200 people attended the four public workshops.

In 2000, EPA and the Corps established a volunteer public “working group” comprising individuals representing marine industries, boaters, environmental groups, fishing interests, and local governments to provide guidance in the development of the EIS. Five working group meetings were held between July 2000 and November 2002; attendance at these meetings ranged from 27 to 44 individuals, including agency staff and contractors. Topics addressed by the working group sessions included: Potential environmental impacts to be assessed in the EIS; the results of field studies for lobster, fish, and benthic resources; fishing activities; upland disposal alternatives; dredging needs; economic analyses; and Geographic Information System (GIS) meta-databases.

Throughout the EIS development process, EPA and the Corps also met with other federal and state agencies to keep them apprized of progress on the project and to solicit input. Other agencies that participated regularly throughout the process include the NMFS, USFWS, CT DEP, NY DEC, and the New York Department of State (NY DOS). Ten interagency meetings and teleconferences were held between March 1999 and January 2003 to review progress and get feedback, and EPA and the Corps were in regular contact with representatives of these agencies throughout the EIS process.

As one of the first steps in the EIS process, EPA and the Corps, 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, distance to the edge of the continental shelf, the feasibility of surveillance and monitoring, and operation and transportation costs. Consistent with the guidance, in 1999, EPA, in cooperation with the other agencies, established the ZSF to include the entire Long Island Sound, from Throgs Neck at the western end to a line from Montauk Point to Block Island and a line from Block Island due north to the Rhode Island shoreline on the eastern end.

In March 2002, however, EPA published an Environmental News Notice announcing its intent to modify the ZSF and the scope of the EIS in order to assess the need for open-water disposal sites in Long Island Sound in two phases, with the first EIS to address the central and western regions of the Sound and a later Supplemental EIS to address the eastern region of the Sound. The ZSF boundaries were then modified to address only the central and western regions of Long Island Sound, with boundaries on the western end that extend from the confluence of the East and Harlem rivers at Hell's Gate and boundaries on the eastern end that extend from Mulberry Point in Guilford, CT, to Mattituck Point in Mattituck, NY.

The primary reasons for this modification in the scope of the EIS were: (1) The need to assess in a timely manner the appropriateness of maintaining continued use of a site in the central Long Island Sound region, given the February 2004 termination date for use of the CLIS disposal site pursuant to the Corps' site selection authority; (2) the geographical and environmental independence of the dredging and disposal needs, and alternatives for meeting those needs, of the central and western regions of Long Island Sound from those of eastern Long Island Sound; and (3) the fact that the change in scope would not preclude consideration of a comprehensive range of disposal alternatives, or otherwise predetermine the conclusions, for either the current EIS or for a future supplemental EIS to address eastern Long Island Sound.

EPA completed the “Draft Environmental Impact Statement for the Designation of Dredged Material Disposal Sites in Central and Western Long Island Sound, Connecticut and New York” (DEIS) in early September 2003. The DEIS identified the designation of CLIS and WLIS as long-term dredged material disposal sites under the MPRSA as EPA's preferred alternative. On September 12, 2003, EPA published in the Federal Register the proposed rule to designate the CLIS and WLIS disposal sites (68 FR 53687), together with a notice of availability of the DEIS and Draft SMMPs (68 FR 53730).

EPA provided for a 45-day public review and comment period, until October 27, 2003. EPA also posted these documents on the EPA New England web site, and mailed notices and copies of the DEIS and supporting material to a large mailing list of agencies, tribes, organizations, members of Congress, and individual members of the public. The Federal Register notice also announced that EPA would hold four public hearings—afternoon and evening sessions on September 30, 2003 in Stony Brook, NY, and on October 1, 2003 in Stamford, CT—to present information on the DEIS and solicit oral and written comments.

On October 9, 2003, in response to several requests from the public to extend the comment period and hold another public hearing, EPA published a notice extending the public comment period by 21 days, to November 17, 2003 (68 FR 58296), and held another public hearing on November 13, 2003 in Stamford, CT. On November 28, 2003 in response to requests from two members of Congress to extend the comment period and hold additional public hearings, EPA published a notice extending the public comment period by another 28 days, to December 15, 2003 (68 FR 66825). EPA also held another public hearing on December 10, 2003 in Stony Brook, NY.

The comment period closed on December 15, 2003. In addition to the oral testimony transcribed at the public hearings, EPA received written comments concerning the DEIS from approximately 350 individuals and organizations. EPA carefully considered the comments concerning the DEIS and responded to them in Appendix L of the FEIS. EPA also made certain revisions to its NEPA analysis, including improvements to the explanations of the purpose and need for the site designations and the alternatives analysis, based on the comments and information provided during the public comment period.

On April 9, 2004, EPA published a notice of availability of the FEIS in the Federal Register for a 30-day public review and comment period, ending on May 10, 2004 (69 FR 18898). EPA then published an amended notice extending the comment period to May 17, 2004 (69 FR 26818). EPA also issued a press release announcing the availability of the FEIS for public comment, posted the FEIS on the EPA New England web site, and mailed notices and/or copies of the FEIS and supporting material to a large mailing list of agencies, tribes, organizations, elected officials, and individual members of the public. EPA and the Corps also held two public information meetings, on May 4, 2004, in Islandia, NY, and May 5, 2004, in Stamford, CT, to explain how comments on the DEIS were addressed in the FEIS, and to answer questions about the decision. Although federal agencies are not required to solicit comment on a FEIS, EPA nonetheless did so to provide the public with further opportunity to comment on the decision and to ensure that the agency had every opportunity to consider the views of the public.

In response to requests from the public, EPA announced at the two public information meetings, and through a press release issued on May 4, 2004, that it was extending the comment period by 15 days, to June 1, 2004. EPA also sent letters to members of the New York and Connecticut congressional delegations informing them of the extension because of the interest in the timing of the comment period expressed by certain members of those delegations.

The comment period for the FEIS closed on June 1, 2004. EPA received written comments from approximately 2900 individuals and organizations. EPA has given careful consideration to these comments, as well as to concerns raised by the NY DOS and other agencies, in reaching a final decision to designate the proposed CLIS and WLIS dredged material disposal sites. EPA responded to comments it received concerning the FEIS in a publicly available “Response to Comments” document, as described below in the Public Comments section.

The FEIS evaluates whether—and, if so, which—open-water dredged material disposal sites should be designated in the central and western regions of Long Island Sound. The FEIS 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), and concludes that EPA designation of the CLIS and WLIS disposal sites under the MPRSA is the preferred alternative. The purpose of these designations is to provide long-term, open-water dredged material disposal sites as potential options 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 the central and western regions of Long Island Sound is projected to generate approximately 20 million cubic yards of dredged material over the next 20 years. EPA evaluated potential alternatives to open-water disposal in Long Island Sound but determined that they were insufficient to meet the regional dredging needs. In accordance with EPA regulations, see 40 CFR 227.16, use of alternatives to open-water disposal will be required when they provide a practicable, environmentally preferable option for the dredged material from any particular disposal project. EPA's designation of the CLIS and WLIS disposal sites, however, will provide open-water disposal sites as potential options 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 be required to seek alternatives other than the CLIS and WLIS disposal sites.

EPA's initial screening of alternatives, which involved input from other federal and state agencies, local governments, 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 large amount of dredged material expected to be found suitable for open-water disposal over the 20-year planning horizon. EPA's analysis of alternatives for disposing of dredged material from navigation channels and harbors in central and western Long Island Sound 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 open-water disposal sites, such as CLIS and WLIS, were the only alternatives that would provide sufficient practicable disposal capacity to meet long-term regional dredged material disposal needs. Again, this 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 CLIS and WLIS sites. 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 indicating 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. The final tier involved a detailed analysis of the no-action alternative and the following four open-water alternative sites: CLIS, Milford, Bridgeport, and WLIS. Based on this analysis, the CLIS and WLIS sites were identified as the preferred alternatives for designation as open-water dredged material disposal sites. Management and monitoring strategies were developed for each site and are described in the SMMPs.

As stated above, for this action, this final rule and preamble also serve as EPA's record of decision under NEPA.

Based on the evaluations presented in the FEIS 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 CLIS and WLIS sites for open-water dredged material disposal under the MPRSA is consistent with the enforceable policies of the coastal zone management programs of Connecticut and New York. EPA provided a written determination to this effect to each state. Thus, EPA has satisfied the CZMA's requirement that federal agencies provide relevant state(s) with a determination that each federal agency activity affecting the uses or natural resources of a state's coastal zone is consistent to the maximum extent practicable with the enforceable policies of the state's coastal zone management program.

In the EPA's view, there are several broad reasons why the disposal site designations are consistent with the applicable, enforceable policies of both states' coastal zone programs. First, the designations are not expected to cause any significant adverse impacts to the marine environment, coastal resources, or uses of the coastal zone. Indeed, EPA expects the designations 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 SMMPs. 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 only be allowed 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 set forth in today's final rule. Third, the designated disposal sites will be managed and monitored pursuant to an 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 January 22, 2004, EPA submitted its coastal zone consistency determination to the CT DEP Office of Long Island Sound Programs, which administers the state's coastal zone management program. CT DEP concurred with EPA's determination in a letter dated April 5, 2004.

On March 8, 2004, EPA submitted a coastal zone consistency determination to the Division of Coastal Resources in the New York Department of State (NY DOS). On June 3, 2004, EPA received a letter from the NY DOS objecting to EPA's designation of the CLIS and WLIS disposal sites on the basis of its view that either EPA had provided insufficient information to support a CZMA consistency determination or, based on the information provided, the action was inconsistent with the enforceable policies of New York's Coastal Management Program (CMP).

EPA gave careful consideration to the issues raised by NY DOS and, after consultation with NY DOS and CT DEP, agreed to include certain additional Restrictions on the use of the sites that respond to the NY DOS's objections under the CZMA. These additional restrictions have enabled NY DOS to withdraw its CZMA objection to the disposal site designations, by letter dated May 13, 2005. EPA continues to hold the view that the site designations without the additional restrictions would still be consistent with the enforceable policies of New York's CMP. Nevertheless, EPA agrees that the additional site Restrictions place reasonable conditions on when the disposal sites may be used that provide enhanced assurance that the requirements of the CZMA, the MPRSA, and NEPA are met.

Moreover, adding these site use Restrictions represents a reasonable course of action lying between the alternatives of not designating any disposal sites at all, and designating sites for an indefinite term without the Restrictions. Both these alternatives, and others, were evaluated in the EIS supporting this action. Furthermore, the added site use Restrictions arise out of comments submitted by NY DOS and other parties and are consistent with EPA's environmental analysis and proposed action.

There is a total of fourteen paragraphs of Restrictions in the final rule. These Restrictions apply to all disposal subject to the MPRSA at the designated sites pursuant to this final rule. Thus, the Restrictions apply to all federal projects, and non-federal projects generating more than 25,000 cubic yards of dredged material. They do not apply to smaller non-federal projects since, as a matter of law, such projects are not subject to MPRSA requirements. Rather, any such disposal will be subject to whatever restrictions are imposed on a case by case basis through permits issued under Clean Water Act section 404.

The Restrictions apply both to all MPRSA permittees ( i.e. , private parties and governmental agencies other than the USACE), and to the USACE itself which disposes of dredged material pursuant to authorizations rather than permits. The USACE is “deemed” to be a permittee by today's rule so as to make it subject to the site Restrictions. The intention of the final rule is to apply the Restrictions to all persons who may seek to dispose of dredged material at the sites under MPRSA.

The Restrictions in paragraph 1 are the same as in the proposed rule. They limit disposal to dredged material from Long Island Sound and vicinity. Dredged material will be considered to have come from Long Island Sound and vicinity so long as it come from harbors and navigation channels either on or near Long Island Sound.

The Restrictions in paragraph 2 require compliance with the Site Management and Monitoring Plans (SMMPs) that have been developed for the two sites. These SMMPs are set out as Appendix J to the FEIS—they have not changed since the time that the FEIS was published. These SMMPs may be changed in the future, as provided in MPRSA section 102(c)(3). Proposed changes will be subject to public comment consistent with MPRSA section 102(c)(3). The EPA will utilize the section 102(c)(3) procedures, rather than proposing changes to this designation rule every time there is a change to an SMMP.

The Restrictions in paragraphs 3-14 were added by the EPA (in response to comments) in order to enhance compliance with the MPRSA, and to address the issues raised by New York under the CZMA. The EPA consulted with both affected states, and the conditions have been agreed to by both the NY DOS and the CT DEP. They are designed to support the common goal of New York and Connecticut to reduce or eliminate the disposal of dredged material in Long Island Sound. To support this goal, the Restrictions contemplate that there will be a regional dredged material management plan (DMMP) for Long Island Sound that will guide the use of dredged material for projects which occur after the DMMP is completed. DMMPs are comprehensive studies carried out by the USACE, in consultation with the EPA and the affected states, to help manage dredged material in a cost-effective and environmentally acceptable manner. The Governors of New York and Connecticut have jointly requested the USACE to develop a DMMP for Long Island Sound. Consistent with the two states' requests, today's rule contemplates that the DMMP for Long Island Sound will include the identification of alternatives to open-water disposal and the development of procedures and standards for the use of practicable alternatives to open-water disposal, so as to reduce wherever practicable the open-water disposal of dredged material. The DMMP also may contain recommendations regarding the use of the sites themselves. In addition, the final rule contemplates that a Regional Dredging Team will be established to identify practicable alternatives to open-water disposal and recommend their use to the extent practicable, for projects proposed while the DMMP is being prepared (other than three already permitted and authorized projects).

In order to ensure that long-term disposal does not occur at the sites pursuant to today's designation absent restrictions to be developed by the DMMP, the final rule specifies that the use of the sites must be suspended or terminated under certain circumstances. First, paragraph 3 provides that, except as provided in paragraphs 4 and 5, the disposal of dredged material may not occur at the sites beginning eight years after the effective date of today's designations, unless a DMMP has been completed by the USACE. This eight-year deadline is subject to extension under paragraph 4 by agreement of various parties expected to participate in the development of the DMMP, namely the USACE, the EPA, the state of Connecticut and the state of New York. This deadline also is subject to extension by the EPA under paragraph 5, without agreement from other parties, if the EPA determines that the parties participating in the development of the DMMP have attempted in good faith to meet the deadline, but that the deadline has not been met due to factors beyond the parties' control (including funding). Such an extension may occur in addition to any extensions granted under paragraph 4, but may be only for one additional year. For example, if all parties agree to a one year extension, and the EPA later grants a one year extension, then the DMMP process could take a total of ten years (without the use of the sites being suspended or terminated).

If the final deadline set pursuant to paragraphs 3, 4 and 5 is missed, use of the sites will be prohibited for a year. If at the end of that year, a DMMP still has not been completed, use of the sites pursuant to today's designation will terminate.

Paragraph 3 of the final rule also specifies that use of the sites will be suspended or terminated if following the completion of the DMMP within the eight-year (plus extensions) time frame, the EPA does not thereafter amend today's rule to incorporate procedures and standards that are consistent with those recommended in the DMMP. Paragraph 7 gives the EPA 120 days from the completion of the DMMP to adopt such procedures and standards. If the EPA misses the deadline specified in paragraph 7, use of the sites will be suspended until the EPA issues a final amended rule. If the EPA makes a final determination and adopts procedures and standards consistent with the DMMP's recommendations, then use of the sites will continue (but will be restricted in accordance with the adopted DMMP recommendations). If the EPA makes a final determination not to adopt procedures and standards consistent with the DMMP recommendations, then use of the sites pursuant to today's rule will be terminated. The EPA notes that it hopes to be able to support the DMMP recommendations. However, the EPA cannot commit in advance to do so, but rather must preserve its discretion, in response to public comments, not to adopt the DMMP recommendations.

The amended EPA rule need not be identical to the DMMP recommendations. If the amended EPA rule is not identical to the DMMP recommendations, but the EPA has adopted substantially all of the procedures and standards for the use of the sites and the use of practicable alternatives to open-water disposal recommended in the DMMP, the use of the sites will not terminate. In addition, the amended EPA rule will be considered “consistent” even if the EPA has not adopted a recommendation (or recommendations) of the DMMP that are not consistent with applicable law. Of course, the amended EPA rule will be considered “consistent” even if the EPA goes beyond the recommendations of the DMMP and adopts stricter standards.

In addition, it is not the intention of today's final rule to have use of the sites terminate simply because of a good faith error by the EPA. Thus, if a party believes that EPA's final amended rule does not contain substantially all procedures and standards recommended in the DMMP, that party will have the obligation to first petition the EPA prior to filing any court action, so as to give the EPA the opportunity to correct any inadvertent omission or to reaffirm its determination that it has adopted substantially all procedures and standards in the DMMP. A party will be able to go directly to court to seek termination of the use of the sites only if it can show that the EPA, in amending the rule, did not make a good faith attempt to adopt procedures and standards that were consistent with those recommended in the DMMP.

The final rule contemplates that the USACE will develop through the DMMP process procedures and standards to reduce or eliminate disposal of dredged material in Long Island Sound to the greatest extent practicable. If any party is not satisfied that the final DMMP recommends such procedures and standards, then paragraph 7 of the Restrictions in today's rule specifies that any person may petition the EPA to do a rulemaking to amend these designations to establish different or additional standards. 1 The EPA also may initiate such a rulemaking on its own initiative. While the use of the sites will not automatically terminate if it is the view of NY DOS or others that the DMMP does not recommend sufficient measures, the EPA recognizes that such a conclusion by the NY DOS or others could lead to a revival of the past objections by the NY DOS and others to the continued use of these sites. At minimum, any failure to recommend sufficient measures could have the unfortunate effect of creating the need to revisit issues in a petition process. Thus, the EPA will work with the USACE, and the states of New York and Connecticut, to try to ensure that this does not occur.

While any DMMP will be carried out by the USACE, active support and cooperation will be needed from other parties, including the states of Connecticut and New York. EPA believes that there has been such support and cooperation and fully expects that this will continue. However, to help ensure that any DMMP process moves forward expeditiously, paragraph 6 of the Restrictions specifies that the EPA will conduct an annual review of progress in developing the DMMP. If the EPA finds that the DMMP is being unreasonably delayed by one or more parties, paragraph 6 specifies that the EPA may as appropriate: (i) Suspend use of the sites (through a rulemaking amending today's site designations) even prior to the deadlines established in paragraphs 3-5 of the Restrictions, or (ii) exercise (again through rulemaking) its statutory and regulatory authorities regarding designation of ocean disposal sites (which could include new site designations without including the requirement that there be a DMMP). Of course, EPA expects all parties to continue to cooperate in fostering a DMMP, so that use of the above measures by the EPA may never be necessary.

The final rule contemplates that there will be a three staged process for supporting the goal of reducing or eliminating the disposal of dredged material in Long Island Sound. At all times, site use will be limited by the need to comply with all applicable statutory and regulatory requirements, including the prohibition on open-water disposal if there is a “practicable alternative” under 40 CFR 227.16. However, over time, compliance with 40 CFR 227.16 and today's final rule will be achieved in three different ways. First, pursuant to paragraph 8 of the Restrictions, disposal from three enumerated projects that already have been authorized or permitted will be allowed without having to follow any additional particular procedures or standards. Such disposal must meet all applicable statutory and regulatory requirements. 2 Second, for projects initiated other than those projects but before completion of the DMMP, the requirements of paragraph 9 will apply. In particular, each project will be subject to review by a Regional Dredging Team, which will work to identify practicable land-based alternatives and to ensure their use to the maximum extent practicable. Third, for projects initiated after completion of the DMMP, the requirements of paragraph 7 will apply. As discussed above, the final rule contemplates that the DMMP will develop and the EPA will adopt (subject to consideration of public comments) procedures and standards for the use of practicable alternatives to open-water disposal. The EPA hopes that the combined efforts of the Regional Dredging Team and the parties participating in the DMMP will lead to a continual reduction in the use of the sites over time.

It should be noted that even after the EPA adopts procedures and standards consistent with the DMMP recommendations, 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. However, any case-by-case determinations will at a minimum need to comply with any procedures and standards included in the site designations restrictions.

Paragraph 9 also emphasizes two points, consistently with the way in which the EPA interprets 40 CFR 227.16. First, “practicable alternatives” (as defined in 40 CFR 227.16) must be used for the maximum volume of dredged material practicable. That is, even if a practicable alternative is not available for all of the dredged material from a project, if a practicable alternative is available for a portion of the dredged material, it must be used for disposal of that portion of the material in order to at least reduce the use of the sites being designated today.

Second, the final rule recognizes that use of practicable alternatives may mean that there will be additional costs (in comparison to open-water disposal). Paragraph 9 incorporates by reference 40 CFR 227.16(b) of the EPA's ocean disposal regulations, which defines “practicable alternative” as an alternative which is, “available at reasonable incremental cost and energy expenditures, 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.” Thus the final rule emphasizes that the designated sites may not be used whenever a “practicable alternative” is available even when this means added reasonable incremental costs. Under paragraph 9 and the general ocean dumping regulations, the USACE (the permitting agency) must make the initial determination of whether this test has been met, but the USACE decision is subject to review and possible objection by the EPA. Also, paragraph 9 is a restriction in an EPA site designation. Therefore, if the EPA objects to any USACE determination, use of the designated sites will be prohibited unless and until the EPA objection is resolved. This EPA oversight established by today's rule is in addition to the EPA's statutory and regulatory authority to review and object to USACE permits.

By definition, the requirement that projects use “practicable alternatives” will not impose unreasonably higher costs. Also, if an alternative does not have less adverse environmental impact or potential risk to other parts of the environment than use of the Sound, today's rule will not require that it be used. However, the EPA recognizes that even where use of Long Island Sound has been determined to be environmentally acceptable, there may be alternatives ( e.g. , those involving beneficial use) that are environmentally preferable to use of the Sound. When such preferable alternatives are identified, they will need to be used if they are available at “reasonable incremental cost.”

Today's final rule does not attempt to specify in advance how the “reasonable incremental cost” standard will be applied in any particular case. The regulation contemplates a balancing test, and the EPA believes that the determination is best made on a case-by-case basis. The final rule also does not attempt to specify who will need to pay for any reasonable incremental costs. Rather, the share of such costs (if any) to be borne by private parties, state government, local government, or the federal government also will need to be worked out in response to actual situations. It should be understood, however, that if the use of a practicable alternative is required in the future pursuant to today's rule (and 40 CFR 227.16), and no entity is willing to pay the reasonable incremental costs, then use of the sites will be prohibited for such projects even when this means that planned projects must be stopped.

Paragraph 10 of the Restrictions simply repeats the statutory and regulatory requirement that disposal at these sites will be limited to dredged sediments that comply with the Ocean Dumping Regulations. Under 33 U.S.C. 1413(d), the USACE may request and the EPA may grant a waiver allowing otherwise unsuitable materials to be disposed at open-water disposal sites. The EPA notes that no dredged material has ever been disposed under such a waiver at any open-water disposal site. However, paragraph 11 of the Restrictions provides for advance notice to the Governors of Connecticut and New York, in the unlikely event that there is a future request for such a waiver at these sites.

Paragraph 12 restricts use of the sites during severe weather conditions, in order to reduce the risk of spillage.

Paragraphs 13 and 14 of the Restrictions list various legal restrictions on what the EPA may agree to in a rule. These legal restrictions would apply even if they were not stated in today's final rule. First, as noted in paragraph 13, the parties participating in the DMMP will need to seek additional federal and state funding in order to develop the DMMP. The EPA cannot guarantee that federal funds will be made available to the USACE. Paragraph 13 also specifies that the sole remedy for any failure to meet the conditions specified in today's final rule shall be restriction of the authority to dispose of dredged material at these sites pursuant to today's designations. Thus, for example, if funding is not provided, neither the EPA nor the USACE nor any other party may be sued for failing to carry out the DMMP. Rather, the remedy if a DMMP is not developed is that the use of the sites pursuant to today's final rule will be terminated.

Paragraph 14 specifies that nothing in today's final rule precludes the EPA from designating other ocean disposal sites, not subject to the restrictions in this final rule, or taking any subsequent action to modify today's site designations, provided that the EPA makes any such designations or takes such subsequent action through a separate rulemaking in accordance with all applicable legal requirements. Under the MPRSA, the EPA cannot agree in advance that it will never (under any circumstances) designate other ocean disposal sites or that it will never change today's final rule. Notwithstanding this statement of legal rights, the EPA emphasizes that it is fully committed to development of a DMMP for Long Island Sound, and believes that the best environmental result will be to have the DMMP develop recommendations for the management of dredged material subject to the MPRSA throughout Long Island Sound. The EPA also recognizes that if it takes a subsequent action to designate an ocean disposal site in Long Island Sound not subject to the Restrictions set forth in today's final rule, the NY DOS (or others) could renew their past objections and challenge such an action.

Paragraph 14 also provides that this final rule shall not be interpreted to restrict the EPA's authorities under the MPRSA or the implementing regulations, or to amend the implementing regulations. The statute and regulations establish minimum requirements with which the EPA and others must comply. While this final rule contains additional provisions designed to address issues raised under the CZMA, and enhance compliance with the MPRSA, these provisions do not excuse any non-compliance with the general ongoing requirements of the MPRSA. In addition, while the final rule contains provisions designed to better implement regulatory requirements (such as the “practicable alternatives” requirement), it does not amend any existing regulatory requirement.

During the EIS development process, EPA consulted under the federal Endangered Species Act (ESA) with the NMFS and the USFWS regarding the potential for the designation and use of any of the alternative open-water disposal sites to jeopardize the continued existence of any federally listed threatened or endangered species, or result in the adverse modification of any critical habitat of such species. EPA initiated consultations regarding the proposed CLIS and WLIS disposal sites with both the NMFS and the USFWS on February 13, 2003. This consultation process is fully documented in the FEIS. EPA provided the NMFS and the USFWS with EPA's conclusion that the proposed disposal site designations for the CLIS and WLIS sites were not likely to adversely affect any federally listed endangered or threatened species or designated critical habitat of any such species.

On February 5, 2004, NMFS sent a letter concurring with EPA's proposed action, stating that the designation of CLIS and WLIS, “is not likely to adversely affect listed species under the jurisdiction of NOAA Fisheries.” NMFS also noted that, “no further consultation pursuant to section 7 of the ESA is required.”

On February 12, 2004, USFWS also concurred with the findings of the EIS that designation of the disposal sites was not likely to adversely affect any federally listed species under its jurisdiction. The letter further stated that “no habitat in the project impact areas is currently designated or proposed critical habitat under provisions of the [ESA]” (87 Stat. 884 as amended; 16 U.S.C. 1531 et seq. ). Copies of these letters are provided in Appendices K and L of the FEIS.

On February 13, 2003, EPA initiated consultation with the NMFS under the Essential Fish Habitat (EFH) provisions of the Magnuson-Stevens Fishery Conservation and Management Act. This consultation addressed the potential for the designation of any of the alternative ocean disposal sites being evaluated to adversely affect EFH. In a letter dated January 28, 2004, NMFS concurred with EPA's determination that the designation of the CLIS and WLIS disposal sites would not adversely affect EFH. This consultation process is fully documented in the FEIS.

Dredging and dredged material disposal in Long Island Sound has long presented controversial and complex issues. Considering that fact, it is not surprising that EPA received many comments both supporting and opposing the designation of long-term, open-water dredged material disposal sites in the Sound.

As discussed above, EPA issued a Draft EIS and a Proposed Rule for the disposal site designations in September 2003. See 68 FR 53687 (Sept. 12, 2003) (Proposed Rule); 68 FR 53730 (Sept. 12, 2003) (Notice of Availability of the Draft EIS and Draft SMMPs for Public Review). EPA received numerous comments addressing the DEIS, but none specifically directed at the proposed rule. These public comments were submitted both in writing and in oral testimony at the six public hearings held by EPA and the Corps concerning the DEIS and the proposed disposal site designations. EPA considered all these comments, as required by NEPA, responded to them in Appendix L to the Final EIS issued by the Agency in April 2004. See 69 FR 18898 (April 9, 2004) (Notice of Availability of the FEIS for public review). EPA will not repeat those comments and responses here and, instead, urge interested readers to review Appendix L of the FEIS.

Although not required to do so by NEPA, see 40 CFR 1503.1(b), EPA opened a comment period on the FEIS and requested any comments from the public. Numerous public comments were submitted regarding the FEIS. In reaching its final decisions regarding the present action, as presented in this final rule, which also constitutes the record of decision (ROD) for NEPA purposes, EPA reviewed and considered all the written comments as well as the oral comments received at various public meetings held concerning the FEIS. Although NEPA does not require that federal agencies provide responses to public comments concerning a Final EIS, EPA has in this instance produced a separate Response to Comments document addressing the public comments on the FEIS. These responses to comments will not be repeated here, but the Response to Comments document is available on EPA's Web site at http://www.epa.gov/region1/eco/lisdreg/ and EPA mailed copies of the document to elected officials, federal and state agencies, libraries, and other repositories in Connecticut and New York. EPA also mailed a “letter of availability” with instructions on how to access the Response to Comments document to a mailing list of approximately 2800 addresses. As explained in the Responses to Comments, EPA believes that its final action, as presented in this final rule, properly addresses the issues raised in the public comments.

EPA is publishing this final rule designating the Central Long Island Sound (CLIS) and Western Long Island Sound (WLIS) open-water dredged material disposal sites for the purpose of providing environmentally sound open-water disposal options for possible use in managing dredged material from harbors and navigation channels in Long Island Sound and its vicinity in the states of Connecticut and New York. Without these dredged material disposal site designations, there is presently no open-water disposal site available in the central region of Long Island Sound, while the existing disposal site in the western region of the Sound would only be available for five more years of use pursuant to the Corps' site selection authority under MPRSA section 103(b).

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 an FEIS published by EPA in April 2004 that identifies EPA designation of the CLIS and WLIS disposal sites as the preferred alternatives. This rule also serves as EPA's ROD in the NEPA review supporting the designation of these sites. The sites are subject to management and monitoring protocols to prevent the occurrence of unacceptable adverse environmental impacts. These protocols are spelled out in Site Management and Monitoring Plans (SMMPs) for each site. The two SMMPs are included as Appendix J to the FEIS. Under 40 CFR 228.3(b), the Regional Administrator of EPA Region 1 is responsible for the overall management of these sites.

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. Any proposal to dispose of dredged material at one of the sites must first receive 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 either the CLIS or WLIS disposal sites 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 no practicable 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 sites will need to satisfy all the site Restrictions included in this final rule as part of the site designations. See 40 CFR 228.8 and 228.15(b)(3) and (4).

1. CT DEP. 1998. Long Island Sound Dredged Material Management Approach. A study report prepared by SAIC for the State of Connecticut, Department of Environmental Protection, Office of Long Island Sound Programs, Hartford, CT. August 1998.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. EPA Region 1/USACE NAE. 1991. Guidance for Performing Tests on Dredged Material Proposed for Ocean Disposal. U.S. Army Corps of Engineers, New England District and U.S. Environmental Protection Agency, Region 1, Boston, MA. Draft Release. December 1991.

9. Long Island Sound Study. 1994. Comprehensive Conservation and Management Plan for Long Island Sound. Long Island Sound Management Conference. September 1994.

10. 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.

Under Executive Order 12866, 58 FR 51735 (October 4, 1993), the Agency must determine whether its 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 the terms of Executive Order 12866 and is therefore not subject to OMB review.

Revised in 1995, the PRA is managed by the Office of Management and Budget through its approval of Information Collection Requests (ICRs) submitted by federal agencies. The statute was written and revised to reduce the information collection burden on the public.

Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a request for the collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

An agency may not conduct or sponsor, and a person is not required to respond to a request for the collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9.

This action does 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.

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 the 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. Examples of the types of small entities that could be subject to today's rule include small marinas and small municipal governments that might be responsible for conducting dredging and dredged material disposal ( see section B, Potentially Affected Entities, above).

EPA has determined that this action will not have a significant impact on a substantial number of small entities. These dredged material disposal site designations under the MPRSA 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, other than perhaps to reduce expenses for such entities by providing a wealth of environmental data for use in determining whether disposing of dredged material from particular small, non-federal projects would be appropriate at the CLIS or WLIS disposal sites. “Small entities” under the RFA, as amended by SBREFA, 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.

EPA also does not expect this action to have a significant effect on any small entities that are affected by the rule ( i.e. , small, non-federal entities that propose to dispose of more than 25,000 cubic yards of material). These disposal site designations have the effect of providing long-term, environmentally acceptable open-water disposal options for dredged material subject to the MPRSA. These disposal options can only be utilized, however, by projects whose material meets the MPRSA sediment testing criteria and for which there is no practicable alternative means of management with less adverse environmental effects. See 40 CFR part 227, subparts A, B and C.

While dredged material disposal has been carried out under these requirements in the past in Long Island Sound, it has occurred at sites selected for short-term use by the Corps under its MPRSA section 103(b) site selection authority, rather than at sites designated for long-term use by EPA. Use of the Corps-selected site in the central region of the Sound has presently expired, and use of the site in western region of the Sound may only continue for five more years. In other words, without these designations, there would be no presently authorized open-water disposal site in the central region of the Sound and the sole site in the western region would only be available for five more years of use. Thus, if anything, designating these sites is likely to reduce expenses for small entities by providing cost-effective dredged material disposal options for appropriate projects, as well as by reducing expenses by providing current environmental information that can contribute to the environmental evaluation of future projects.

EPA recognizes that the Corps, the states, and EPA have agreed to try to develop a dredged material management plan (DMMP) for Long Island Sound and that EPA has placed restrictions on the use of the disposal sites for MPRSA projects, including termination of site use, if the DMMP is not completed in a timely way. EPA also recognizes that a goal of the DMMP will be to try to identify practicable alternatives to open-water disposal that may have less adverse environmental impacts, provided that they do not add an unreasonable amount of cost. EPA also recognizes that there will be interim procedures for identifying and utilizing practicable alternatives to ocean disposal, which will apply while the DMMP is being developed. Taking the site restrictions into account, EPA still does not believe this action will have a significant effect on a substantial number of small entities for four reasons. First, as explained above, EPA has concluded that this rule will not have a significant impact on a substantial number of small entities. Second, without these site designations there are no open-water sites at all authorized for long-term use under the MPRSA. Therefore, the designations do not impose adverse impact to the situation without the designation, but rather provide additional dredged material management options. Third, EPA expects that the DMMP will take into account reasonable incremental costs for small entities in developing any procedures and standards related to the assessment and use of alternative management methods and will not, therefore, result in significant economic effects to them. In this regard, it must also be remembered that the existing MPRSA regulations already require that alternatives to open-water disposal be utilized if there are practicable alternatives with less adverse environmental effects. Alternatives are defined to be practicable when they involve “reasonable incremental cost and energy expenditures, which need not be competitive with the costs of ocean dumping, taking into account the environmental benefits derived from such activity * * * (40 CFR 227.16(b)). Fourth, before amending the site restrictions to reflect the DMMP, EPA will consider any public comments, including on whether there is continuing compliance with the RFA at that time.

Therefore, EPA certifies that this action will not have a significant economic impact on a substantial number of small entities.

Title II of the Unfunded Mandates Reform Act (UMRA), Public Law 104-4, establishes requirements for federal agencies to assess the financial burden of complying with their regulatory actions on state, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal Mandates” that may result in expenditures to state, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation of why that alternative was not adopted.

Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

EPA has determined that this action contains no federal mandates (under the regulatory provisions of Title II of the UMRA) for state, local and tribal governments or the private sector. It imposes no new enforceable duty on any state, local or tribal governments or the private sector. Moreover, it will not result in expenditures by state, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Rather, this action makes presently unavailable long-term disposal sites available as potential options for future use if certain conditions are met. Similarly, EPA also has determined that this action contains no regulatory requirements that might significantly or uniquely affect small government entities. Thus, the requirements of sections 203 and 205 of the UMRA do not apply to this rule.

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.”

The final rule does not have federalism implications within the meaning of the Executive Order. 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 final rule designates open-water sites in Long Island Sound for the potential disposal of dredged material and sets certain conditions on such use. This proposed action neither creates new obligations for, nor alters existing authorizations of, any state, local, or other 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 final rule, EPA did extensively 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 solicited comments on the proposed rule from state and local officials and met with such officials on many occasions. The nature of these communications is discussed elsewhere in this preamble and in EPA's FEIS and supporting administrative record.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 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 final rule does not have Tribal implications, as specified in Executive Order 13175. The designation of these disposal sites will not have substantial direct effects on Indian Tribes, 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 final rule designates open-water dredged material disposal sites and does not establish any regulatory policy with tribal implications. Thus, Executive Order 13175 does not apply to this rule.

Although Executive Order 13175 does not apply to this rule, EPA consulted with tribal officials in developing this rule, particularly as it relates to potential impacts to historic or cultural resources. EPA specifically solicited additional comment on the proposed rule from tribal officials and invited tribes in the area around Long Island Sound to consider participating as “cooperating agencies” in development of the EIS. The Eastern Pequots and Narragansetts decided to participate in that role.

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 final rule is not subject to this Executive Order because it is not economically significant as defined in Executive Order 12866, and because EPA does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate effect on children. The designation of open-water, dredged material disposal sites in Long Island Sound does not authorize the disposal of any such material. Such authorizations are granted on a project-specific basis, and material that is determined to be unsuitable for ocean disposal—that is, it may cause unacceptable, adverse environmental impacts—would not be allowed to be disposed at these sites. Long-term monitoring of these sites, which have been used under short-term site selections since the early 1980s, has documented minimal adverse impacts to the marine environment, and by extension, public health. Therefore, it is not subject to Executive Order 13045.

This final 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. Although Executive Order 13211 does not apply to this rule, the designation of dredged material disposal sites will facilitate shipping of energy-related products by providing an environmentally acceptable, cost-effective option for the disposal of material dredged from navigation channels and harbors in the central and western regions of Long Island Sound. Furthermore, by providing a potential dredged material management option in the central and western regions of the Sound, energy expenditures for hauling dredged material for disposal or reuse over water or land will be minimized.

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 Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This final rule does not involve the development of technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards and the Executive Order does not apply to this action.

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. Executive Order 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 final rule will 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.

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A “major rule” cannot take effect until 60 days after it is published in the Federal Register . This action is not a major rule as defined by 5 U.S.C. 804(2). This rule will be effective July 5, 2005.

Executive Order 12866 requires each agency to write all rules in plain language. EPA has written this final rule in plain language to make this final rule easier to understand.

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.”

EPA expects that this final rule will afford additional protection of aquatic organisms at individual, population, community, or ecosystem levels of ecological structures. Only suitable material under MPRSA requirements, and for which there is no other practicable alternative with less adverse environmental effects, will be allowed to be disposed at the designated sites. Also, these sites will be monitored and managed according to the SMMPs (Appendix J of the FEIS) and, as discussed in the FEIS, use of the sites should not impact any marine protected areas. In addition, EPA, the Corps, and other relevant federal and state resource management agencies will meet annually to discuss the management of these sites. Therefore, EPA expects today's final rule will advance the objective of the Executive Order to protect marine areas.

The NFIP enables property owners to purchase flood insurance which is generally not otherwise available. In return, communities agree to adopt and administer local floodplain management aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits flood insurance coverage as authorized under the National Flood Insurance Program, 42 U.S.C. 4001 et seq. ; unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with program regulations, 44 CFR part 59 et seq. Accordingly, the communities will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. However, some of these communities may adopt and submit the required documentation of legally enforceable floodplain management measures after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue their eligibility for the sale of insurance. A notice withdrawing the suspension of the communities will be published in the Federal Register .

In addition, the Federal Emergency Management Agency has identified the special flood hazard areas in these communities by publishing a Flood Insurance Rate Map (FIRM). The date of the FIRM if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may legally be provided for construction or acquisition of buildings in the identified special flood hazard area of communities not participating in the NFIP and identified for more than a year, on the Federal Emergency Management Agency's initial flood insurance map of the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment under 5 U.S.C. 553(b) are impracticable and unnecessary because communities listed in this final rule have been adequately notified.

Each community receives a 6-month, 90-day, and 30-day notification letter addressed to the Chief Executive Officer that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications have been made, this final rule may take effect within less than 30 days.

National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Considerations. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. The Administrator has determined that this rule is exempt from the requirements of the Regulatory Flexibility Act because the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits flood insurance coverage unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed no longer comply with the statutory requirements, and after the effective date, flood insurance will no longer be available in the communities unless they take remedial action.

Regulatory Classification. This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Paperwork Reduction Act. This rule does not involve any collection of information for purposes of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

Executive Order 12612, Federalism. This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, October 26, 1987, 3 CFR, 1987 Comp.; p. 252.

Executive Order 12778, Civil Justice Reform. This rule meets the applicable standards of section 2(b)(2) of Executive Order 12778, October 25, 1991, 56 FR 55195, 3 CFR, 1991 Comp.; p. 309.

The General Services Administration (GSA) is issuing a final rule to amend the General Services Administration Acquisition Regulation (GSAR) in order to be consistent with changes to the FAR made by FAR case 2000-302, in Federal Acquisition Circulars 97-20, 2001-01 and 2001-01 Correction. These changes implemented the Veterans Entrepreneurship and Small Business Development Act of 1999 (PL 106-50) and the Small Business Reauthorization Act of 2000 (part of the Consolidated Appropriations Act, 2001). FAR case 2000-302 added additional subcontracting plan goal requirements for veteran-owned and service-disabled veteran-owned small business concerns. This GSAR rule amends GSAR 552 to incorporate these subcontracting plan categories into subcontracting plans.

This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

The Regulatory Flexibility Act does not apply to this rule. This final rule does not constitute a significant GSAR revision within the meaning of FAR 1.501 and Public Law 98-577, and publication for public comments is not required because the Federal Acquisition Regulation already covers the requirement for subcontracting goals for veteran-owned small businesses and service-disabled veteran-owned small businesses.

The Paperwork Reduction Act does not apply because the changes to the GSAR do not impose recordkeeping or information collection requirements, or otherwise collect information from offerors, contractors, or members of the public that require approval of the Office of Management and Budget under 44 U.S.C.3501, et seq.

This information is an extension of a requirement already included in the FAR. The only difference in the FAR requirement and the GSAR requirement in 519.705-2 is that for all negotiated solicitations having an anticipated award value over $500,000 ($1,000,000 for construction), submission of a subcontracting plan by other than small business concerns is required when a negotiated acquisition meets four conditions: (1) when the contracting officer anticipates receiving individual contract plans (not commercial plans); (2) when the award is based on trade-offs among cost or price and technical and/or management factors under FAR 15.101-1; (3) the acquisition is not a commercial item acquisition; and (4) the acquisition offers more than minimal subcontracting opportunities.