On July 25, 2014 (79 FR 43326), we published a petition for rulemaking, pursuant to the Surface Mining Control and Reclamation Act, 30 U.S.C. 1201 et seq. (SMCRA or the Act), requesting that we amend our regulations governing the use of explosives to prohibit visible nitrogen oxide clouds.

The original comment period was scheduled to close August 25, 2014. However, we received several requests to extend the comment period. After reviewing the requests, we are extending the deadline for submission of comments by 30 days. The comment period will now close September 25, 2014.

You may view and download the complete text of the petition and accompanying exhibits on our home page at http://www.osmre.gov/programs/rcm/petitions/WEGPetition041414.pdf and http://www.osmre.gov/programs/rcm/petitions/WEGPetitionExhibits.pdf respectively. The petition and exhibits also are available for inspection at the location listed under ADDRESSES.

Please include the Docket ID “OSM-2014-0003” at the beginning of all written comments. We cannot ensure that comments received after the close of the comment period (see DATES ) or at locations other than those listed above (see ADDRESSES ) will be included in the docket or considered in the development of a proposed rule.

Before including your address, phone number, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

Table of Acronyms DHS Department of Homeland Security FR Federal Register MEDOT Maine Department of Transportation NHDOT New Hampshire Department of Transportation NPRM Notice of Proposed Rulemaking A. Public Participation and Request for Comments

We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided.

If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online at http://www.regulations.gov, or by fax, mail, or hand delivery, but please use only one of these means. If you submit a comment online, it will be considered received by the Coast Guard when you successfully transmit the comment. If you fax, hand deliver, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go to http://www.regulations.gov, type the docket number [USCG-2014-0554] in the “SEARCH” box and click “SEARCH.” Click on “Submit a Comment” on the line associated with this rulemaking.

If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change the rule based on your comments.

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type the docket number (USCG-2014-0554) in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rulemaking. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the Federal Register (73 FR 3316).

We do not now plan to hold a public meeting. But you may submit a request for one, using one of the methods specified under ADDRESSES . Requests must be received by the Coast Guard prior to the end of the comment period. Please explain why you believe a public meeting would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register .

The Maine Department of Transportation (MEDOT) applied for a bridge construction permit with the Coast Guard on August 15, 2013. The Coast Guard issued Public Notice 1-137 on February, 2014, which was published on the USCG Navigation Center Web site and the First Coast Guard District—Bridge Branch Web site, and solicited comments through March 12, 2014. Three comments were received in response to the public notice: One comment was a statement of no objection and two comments were in favor of the project.

Under the Ports and Waterways Safety Act, the Coast Guard has the authority to establish RNAs in defined water areas that are determined to have hazardous conditions and in which vessel traffic can be regulated in the interest of safety. See 33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Public Law 107-295, 116 Stat. 2064; and Department of Homeland Security Delegation No. 0170.1.

The purpose of this proposed rule is to ensure the safe transit of vessels in the area, and to protect all persons, vessels, construction crews, and the marine environment during bridge construction operations on the Piscataqua River between Portsmouth, NH and Kittery, ME.

MEDOT intends to replace the existing vertical lift bridge over the Piscataqua River, which carries the U.S. Route 1 Bypass from Portsmouth, NH and Kittery, ME, with a hybrid vertical lift bridge on an upstream alignment. The project is necessary to replace a structurally and operationally deficient bridge that has exceeded its useful life. In the normal vehicle use mode, the new vertical lift bridge will provide a vertical clearance through the main channel of 56 feet above mean high water (MHW) in the closed position and 135 feet above MHW in the open position, and a horizontal clearance of 250 feet measured normal to the axis of the channel. When closed to normal vehicle use (i.e., in rail use mode), the new bridge will provide a vertical clearance through the main channel of 16 feet MHW.

The construction of the new Sarah Mildred Long Bridge will involve large machinery and construction vessel operations above and in the navigable waters of the Piscataqua River. These operations, by their nature, are hazardous and pose risks both to recreational and commercial traffic as well as the construction crew. In order to mitigate the inherent risks involved in the construction, it is necessary to control vessel movement through the area.

Heavy-lift operations are sensitive to water movement, and wake from passing vessels could pose significant risk of injury or death to construction workers. In order to minimize such unexpected or uncontrolled movement of water, the RNA would limit vessel speed and wake of all vessels operating in the vicinity of the bridge construction zone. All vessels may not produce a wake and may not attain speeds greater than five (5) knots unless a higher minimum speed is necessary to maintain steerageway. This would be achieved by enforcing a five (5) knots speed limit and “NO WAKE” zone in the vicinity of the construction as well as providing a means to suspend all vessel traffic for emergent situations that pose imminent threat to waterway users in the area. The RNA would also protect vessels desiring to transit the area by ensuring that vessels are only permitted to transit when it is safe to do so.

The Coast Guard has discussed this project at length with the New Hampshire Department of Transportation (NHDOT) and Maine Department of Transportation (MEDOT) to identify if the project can be completed without channel closures and, if possible, what impact that would have on the project timeline. Through these discussions, it became clear that while the majority of construction activities during the span of this project would not require waterway closures, there are certain tasks that can only be completed in the channel and will require closing the waterway.

All closures would be limited to specific hours of the day. Mariners would be advised of all closure dates and times via Local Notice to Mariners and Broadcast Notice to Mariners in advance of closure times.

We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes or executive orders.

This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.

We expect the economic impact of this rule to be minimal because this regulated navigation area requires vessels to reduce speed through 600 yards of the Piscataqua River, therefore causing only a minimal delay to a vessel's transit. In addition, periods when the regulated navigation area is closed to all traffic are expected to be short in duration, and we expect to give advance notice of such closures. Advanced public notifications would be made to local mariners through appropriate means, which could include, but would not be limited to, Local Notice to Mariners and Broadcast Notice to Mariners.

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule will not have a significant economic impact on a substantial number of small entities.

This proposed rule will not have a significant impact on small entities, because the RNA would be of limited size and any waterway closure of short duration. Additionally before any effective period of waterway closure, advanced public notifications would be made to local mariners through appropriate means, which could include, but would not be limited to, Local Notice to Mariners and Broadcast Notice to Mariners.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT , above. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

This proposed rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and determined that this rule does not have implications for federalism.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This proposed rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This proposed rule meets applicable standards in sections 3(a) and 3(b) (2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.

This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more 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.

This proposed rule is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.

This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves the establishment of an RNA. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. A preliminary environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES . We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

Table of Acronyms DHS Department of Homeland Security FR Federal Register NPRM Notice of Proposed Rulemaking A. Public Participation and Request for Comments

We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided.

If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online at http://www.regulations.gov, or by fax, mail, or hand delivery, but please use only one of these means. If you submit a comment online, it will be considered received by the Coast Guard when you successfully transmit the comment. If you fax, hand deliver, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go to http://www.regulations.gov, type the docket number USCG-2014-0679 in the “SEARCH” box and click “SEARCH.” Click on “Submit a Comment” on the line associated with this rulemaking.

If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change the rule based on your comments.

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type the docket number (USCG-2014-0679) in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rulemaking. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the Federal Register (73 FR 3316).

We do not now plan to hold a public meeting. But you may submit a request for one, using one of the methods specified under ADDRESSES . Please explain why you believe a public meeting would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register .

Previously, a rule regarding this maritime event was proposed in the Federal Register (see “Safety Zone; 2013 Ironman 70.3 Miami, Biscayne Bay; Miami, FL,” (78 FR 54599)) regarding this same maritime event.

The legal basis for the rule is the Coast Guard's authority to establish regulated navigation areas and other limited access areas:

33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6 160.5; Public Law 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.

The purpose of the proposed rule is to provide for the safety of life on navigable waters of Biscayne Bay in Miami, Florida during the Ironman 70.3 Miami.

On October 26, 2014, Miami Tri Events is sponsoring the Ironman 70.3, a triathlon. The swim portion of the event will be held on the waters of Biscayne Bay, Miami, Florida. Approximately 2,500 participants are anticipated to participate in the event. No spectator vessels are expected during the event.

The proposed rule will establish a safety zone that will encompass certain waters of Biscayne Bay located east of Bay Front Park, Miami, Florida. The safety zone will be enforced from 6 a.m. until 10 a.m. on October 26, 2014. The safety zone will establish an area around the event where non-participant persons and vessels are prohibited from entering, transiting through, anchoring in, or remaining within. Non-participant persons and vessels may request authorization to enter, transit through, anchor in, or remain within the safety zone by contacting the Captain of the Port Miami by telephone at 305-535-4472, or a designated representative via VHF radio on channel 16. If authorization to enter, transit through, anchor in, or remain within the event area is granted by the Captain of the Port Miami or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port Miami or a designated representative. The Coast Guard will provide notice of the safety zone by Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.

We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes or executive orders.

This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. The economic impact of this proposed rule is not significant for the following reasons: (1) The safety zone will be enforced for only four hours; (2) although non-participant persons and vessels will not be able to enter, transit through, anchor in, or remain within the event area without authorization from the Captain of the Port Miami or a designated representative, they may operate in the surrounding area during the enforcement period; (3) non-participant persons and vessels may still enter, transit through, anchor in, or remain within the event area during the enforcement period if authorized by the Captain of the Port Miami or a designated representative; and (4) the Coast Guard will provide advance notification of the safety zone to the local maritime community by Local Notice to Mariners and Broadcast Notice to Mariners.

The Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered the impact of this proposed rule on small entities. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule will not have a significant economic impact on a substantial number of small entities.

This rule may affect the following entities, some of which may be small entities: The owners or operators of vessels intending to enter, transit through, anchor in, or remain within that portion of Biscayne Bay encompassed within the safety zone from 6 a.m. until 10 a.m. on October 26, 2014. For the reasons discussed in the Regulatory Planning and Review section above, this rule will not have a significant economic impact on a substantial number of small entities.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT , above. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

This proposed rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and determined that this rule does not have implications for federalism.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This proposed rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.

This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more 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.

This proposed rule is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.

This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f). A prior environmental analysis checklist and a Categorical Exclusion Determination were completed for a regulation (USCG-2013-0548) issued for this same event in 2013. The previously completed environmental analysis checklist and Categorical Exclusion Determination can be found in the docket folder for USCG-2013-0548 at www.regulations.gov. Because this proposed rule is substantially unchanged from when the prior determination was issued for the 2013 event and there have been no new developments relevant to that determination, we have not completed a new environmental analysis checklist and Categorical Exclusion Determination for this proposed rule. We have made a preliminary determination this proposed rule will not have any of the following: Significant cumulative impacts on the human environment; substantial controversy or substantial change to existing environmental conditions; or inconsistencies with any federal, state, or local laws or administrative determinations relating to the environment. This proposed rule involves establishing a safety zone that will be enforced from 6 a.m. until 10 a.m. on October 26, 2014. This proposed rule is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:

Table of Acronyms DHS Department of Homeland Security FR Federal Register NPRM Notice of Proposed Rulemaking A. Public Participation and Request for Comments

We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided.

If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online at http://www.regulations.gov, or by fax, mail, or hand delivery, but please use only one of these means. If you submit a comment online, it will be considered received by the Coast Guard when you successfully transmit the comment. If you fax, hand deliver, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go to www.regulations.gov, type the docket number [USCG-2014-0693] in the “SEARCH” box and click “SEARCH.” Click on “Submit a Comment” on the line associated with this rulemaking.

If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change the rule based on your comments.

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type the docket number [USCG-2014-0693] in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rulemaking. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the Federal Register (73 FR 3316).

We do not now plan to hold a public meeting. However, you may submit a request for one at least 15 days prior to the end of the comment period specified in DATES , using one of the methods specified under ADDRESSES . Please explain why you believe a public meeting would be beneficial. If we determine that a public meeting would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register .

SKW Constructors is constructing a new Midtown Tunnel in the Elizabeth River connecting Norfolk, VA to Portsmouth, VA. The project has been ongoing since 2011. This is the first stage of construction that requires a closure of the waterway.

The legal basis for the rule is the Coast Guard's authority to establish regulated navigation areas and other limited access areas: 33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Public Law 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.

Due to increased vehicle traffic in the Hampton Roads area, SKW Constructors, in concert with Elizabeth River Crossings and the Virginia Department of Transportation, is constructing a second tunnel parallel to the existing Midtown Tunnel between Norfolk, VA and Portsmouth, VA. The construction will consist of submerging segments of the new Midtown Tunnel in the Elizabeth River. Due to the high volume of working vessels and submerged equipment, the Coast Guard proposes to close the Elizabeth River for twelve 48-hour periods to allow SKW Constructors to install the segments of the tunnel that overlap the federal channel. The Coast Guard proposes to establish a safety zone in a portion of the Elizabeth River between Elizabeth River Channel Buoy 31 (LLNR 9835) and Elizabeth River Channel Buoy 34 (LLNR 9835). The proposed closures will last 48 hours in length, with each respective period beginning on January 1, January 12, January 19, January 22, January 27, February 9, March 2, March 5, March 10, March 23, March 30 and April 6, 2015. The dates and hours are subject to change due to weather, scheduling conflicts, equipment failure and other unforeseen factors. Any changes to these dates will be listed in the Final Rule and communicated via marine information broadcasts.

The Captain of the Port of Hampton Roads proposes to establish a safety zone within the waters of the Elizabeth River, from Elizabeth River Channel Buoy 31 (LLNR 9835) to Elizabeth River Channel Buoy 34 (LLNR 9855) across the entire width of the channel, in the vicinity of Portsmouth, VA. This proposed safety zone will be enforced for twelve 48 hour periods beginning at midnight on January 1, January 12, January 19, January 22, January 27, February 9, March 2, March 5, March 10, March 23, March 30 and April 6, 2015. In the event of inclement weather that prevents the necessary work from taking place safely, each time period may be pushed back by up to 24 hours. Appropriate notifications will be made via marine information broadcasts in the event of a change in the schedule as soon as possible. Access to the safety zone will be restricted during the specified dates and times.

Except for vessels authorized by the Captain of the Port or his designated Representative, no person or vessel may enter or remain in the safety zone during the time frame listed. The Captain of the Port will give notice of the enforcement of the safety zone by all appropriate means to provide the widest dissemination of notice among the affected segments of the public. This will include publication in the Local Notice to Mariners and Marine Information Broadcasts.

We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes and executive orders.

This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. The primary impact of these regulations will be on vessels wishing to transit the affected waterways during the safety zone on the Elizabeth River in the vicinity of Portsmouth, VA. Although these regulations prevent traffic from transiting a portion of the Elizabeth River during the construction, that restriction is limited in duration, affects only a limited area, and will be well publicized to allow mariners to make alternative plans for transiting the affected area.

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule will not have a significant economic impact on a substantial number of small entities.

This proposed rule will affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in specified waters of the Elizabeth River during the outlined timeframe.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: (i) The safety zone will only be in place for a limited duration, (ii) before the enforcement period, maritime advisories will be issued allowing mariners to adjust their plans accordingly, and (iii) the Captain of the Port may grant permission to transit through the zone on a limited basis.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT , above. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

This proposed rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and determined that this rule does not have implications for federalism.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This proposed rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more 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.

This proposed rule is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.

This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves the establishment of a safety zone. This proposed rule is categorically excluded from further review under paragraph 34-g of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES . We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:

Throughout this document, the terms “we,” “us,” and “our” refer to EPA.

The Clean Air Act (CAA or “Act”) requires us to establish National Ambient Air Quality Standards (NAAQS or “standards”) for certain widespread pollutants, such as ozone, that cause or contribute to air pollution that is reasonably anticipated to endanger public health or welfare (see sections 108 and 109 of the Act). In 1979, we promulgated an ozone NAAQS of 0.12 parts per million (ppm), one-hour average (“1-hour ozone standard”). See 44 FR 8202, February 8, 1979.

An area is considered to have attained the 1-hour ozone standard if there are no violations of the standard, as determined in accordance with the regulation codified at 40 CFR section 50.9, based on three consecutive calendar years of complete, quality-assured and certified monitoring data. A violation occurs when the “expected number” of days per calendar year with maximum hourly average concentrations above 0.12 ppm is greater than one (1.0) at any site in the area, when averaged over three consecutive calendar years. 1 An exceedance occurs when the maximum hourly ozone concentration during any day exceeds 0.124 ppm. For more information, please see “National 1-hour primary and secondary ambient air quality standards for ozone” (40 CFR 50.9) and “Interpretation of the 1-Hour Primary and Secondary National Ambient Air Quality Standards for Ozone” (40 CFR part 50, appendix H).

The Act, as amended in 1990, required EPA to designate as nonattainment any ozone area that was still designated nonattainment under the 1977 Act Amendments, and any other area violating the 1-hour ozone standard, generally based on air quality monitoring data from the 1987 through 1989 period (section 107(d)(4) of the Act; 56 FR 56694, November 6, 1991). The 1990 Amended Act further classified these areas, based on the severity of their nonattainment problem, as Marginal, Moderate, Serious, Severe, or Extreme. In response, EPA designated the Southeast Desert Modified Air Quality Maintenance Area (AQMA) (“Southeast Desert”) as “Severe-17” nonattainment for the 1-hour ozone standard, with an attainment date no later than November 15, 2007. 2 See 56 FR 56694, November 6, 1991. Outside of Indian country, the Los Angeles portion of the Southeast Desert lies within the Antelope Valley Air Quality Management District (AVAQMD), the San Bernardino County portion of the Southeast Desert lies within the Mojave Desert Air Quality Management District (MDAQMD), and the Riverside County portion of the Southeast Desert lies within the South Coast Air Quality Management District (SCAQMD). 3

The control requirements and date by which attainment of the 1-hour ozone standard was to be achieved varied with an area's classification. Marginal areas were subject to the fewest mandated control requirements and had the earliest attainment date, November 15, 1993, while Severe and Extreme areas were subject to more stringent planning requirements and were provided more time to attain the standard. Two measures that are triggered if a Severe or Extreme area failed to attain the standard by the applicable attainment date are contingency measures [section 172(c)(9)] and a major stationary source fee provision [sections 182(d)(3) and 185] (“major source fee program” or “section 185 fee program”).

In 1997, EPA promulgated an 8-hour ozone standard (0.08 ppm) (“1997 8-hour ozone standard”), 62 FR 38856 (July 18, 1997), to replace the 1-hour ozone standard. While the 1-hour ozone standard was revoked in 2005, we continue to determine whether areas attain, or fail to attain, the 1-hour ozone standard because of the continued applicability of certain 1-hour ozone control requirements in areas, such as the Southeast Desert, that are designated as nonattainment for the 1997 8-hour ozone standard and the connection between some of those requirements and attainment of the 1-hour ozone standard.

In the decades since the 1990 CAA Amendments, in large part due to decreases in upwind emissions of ozone precursors, 1-hour ozone concentrations in the Southeast Desert have decreased substantially. For instance, from 1990 to 2005, the number of exceedances of the standard in the Southeast Desert decreased from 27 to 4 at the Palm Springs monitor in Coachella Valley and from 59 to 3 at the Hesperia monitor in Victor Valley. However, despite the improvements, upon review of the ambient data for the three years preceding the applicable attainment date (i.e., 2005-2007), we determined that the Southeast Desert failed to attain the 1-hour ozone standard by the 2007 statutory deadline. See 76 FR 82133 (December 30, 2011).

In our proposal to determine that the Southeast Desert had failed to attain the standard, we noted that preliminary review of data from 2008 through 2010 suggested that the trend toward cleaner air in the Southeast Desert was continuing. 76 FR 56694, at 56700 (September 14, 2011). Indeed, the trend has continued with 2010-2012 being the first three-year period in which preliminary review of the data suggests that the Southeast Desert attained the standard. Given the further improvement in ozone conditions in the Southeast Desert, the California Air Resources Board (CARB) has requested that EPA make a determination that the Southeast Desert has attained the 1-hour ozone standard. 4 Year 2013 data is now available, and thus EPA's action herein is based on the most recent three-year period (2011-2013).

A determination of whether an area's air quality meets the 1-hour ozone standard is generally based upon three years of complete, 5 quality-assured and certified air quality monitoring data gathered at established State and Local Air Monitoring Stations (“SLAMS”) in the nonattainment area and entered into EPA's Air Quality System (AQS) database. Data from air monitors operated by state/local agencies in compliance with EPA monitoring requirements must be submitted to the AQS database. Monitoring agencies annually certify that these data are accurate to the best of their knowledge. Accordingly, EPA relies primarily on data in its AQS database when determining the attainment status of an area. See 40 CFR 50.9; 40 CFR part 50, appendix H; 40 CFR part 53; 40 CFR part 58, appendices A, C, D and E. All data are reviewed to determine the area's air quality status in accordance with 40 CFR part 50, appendix H.

Under EPA regulations at 40 CFR 50.9, the 1-hour ozone standard is attained at a monitoring site when the expected number of days per calendar year with maximum hourly average concentrations above 0.12 ppm is equal to or less than 1.0, as determined by 40 CFR part 50, appendix H. 6

The CARB is the Primary Quality Assurance Organization (PQAO) responsible for assuring that the area meets air quality monitoring requirements in the Los Angeles County and San Bernardino County portions of the Southeast Desert, and the SCAQMD is the PQAO responsible for assuring that the requirements are met in the Riverside County portion of the Southeast Desert. The AVAQMD operates monitors in the Los Angeles County portion of the Southeast Desert; the MDAQMD operates monitors in the San Bernardino County portion of the Southeast Desert; and the SCAQMD operate monitors in the Riverside County portion of the Southeast Desert. All agencies are required to submit annual monitoring network plans to EPA. The AVAQMD and MDAQMD monitoring networks are included in the CARB annual network plan, while SCAQMD submits a separate annual network plan. These plans discuss the status of the air monitoring network, as required under 40 CFR 58.10.

With respect to the annual network plans submitted by CARB that includes the AVAQMD and MDAQMD monitors, we have reviewed these plans and found that they meet the applicable requirements under 40 CFR part 58. 7 The Technical System Audit (TSA) we conducted in 2011 of the CARB PQAO included a review of the network requirements in AVAQMD and MDAQMD. In the TSA, we concluded that the combined ambient air monitoring networks operated by CARB and the air districts currently meet or exceed the requirements for the minimum number of SLAMS monitoring sites for ozone in the Southeast Desert. Also, AVAQMD and MDAQMD annually certify that the data submitted to AQS are quality-assured. 8

EPA has reviewed SCAQMD's plans for compliance with the applicable requirements in 40 CFR part 58 on an annual basis. With respect to ozone, EPA has found that the SCAQMD's network plans meet the applicable requirements under 40 CFR part 58. 9 Furthermore, we concluded in our TSA of the SCAQMD network conducted during April 2010, that the ambient air monitoring network operated by SCAQMD currently meets or exceeds the requirements for the minimum number of SLAMS monitoring sites for all criteria pollutants, and the ozone monitoring sites within the Southeast Desert are properly located with respect to monitoring objectives, spatial scales and other site criteria, as required by 40 CFR part 58, appendix D. 10 Also, SCAQMD annually certifies that the data it submits to AQS are quality-assured. 11

There were eight ozone monitoring sites located throughout the Southeast Desert in calendar years 2011 through 2013 that collected data for regulatory purposes: one in Los Angeles County, two in Riverside County, and five in San Bernardino County. 12 All of the sites monitor ozone concentrations on a continuous basis using Federal Equivalent Method (FEM) monitors. AVAQMD operates the one monitor in Los Angeles County. SCAQMD operates two in Riverside County. MDAQMD operates four in San Bernardino County. The National Park Service operates one monitor in San Bernardino County at Joshua Tree National Park (Yucca Valley). 13 Also, the National Park Service annually certifies that the data it submits to AQS are quality-assured. 14

Table 1 summarizes the ozone monitoring data from the various monitoring sites in the Southeast Desert, showing the expected exceedances per year and as an average over the 2011-2013 period. The data summarized in table 1 are considered complete for the purposes of determining if the standard is met. 15

I. Where can I get copies of this document and other related information?

This Federal Register notice, the petitions for reconsideration and the response letters to the Petitioners are available in the EPA's docket established for the rulemaking to promulgate the air quality designations for the 2010 SO 2 NAAQS, under Docket ID No. EPA-HQ-OAR-2012-0233. The table below identifies the Petitioners, the date the EPA received the petitions, the document identification number of the petitions, the date of the EPA's responses and the document identification numbers for the EPA's responses.

All documents in the docket are listed in the index at http://www.regulations.gov. Although listed in the index, some information is not publicly available, e.g., confidential business information or other information where disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through http://www.regulations.gov or in hard copy at EPA's Docket Center, Public Reading Room, U.S. Environmental Protection Agency, William Jefferson Clinton West Building, 1301 Constitution Avenue, Northwest, Room 3334, Washington, DC 20004. This Docket Center is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the Air Docket is (202) 566-1742.

In addition, the EPA has established a Web site for the SO 2 designations rulemaking at http://www.epa.gov/so2designations. This Federal Register notice, the petitions for reconsideration and the response letters to the Petitioners are also available on this Web site along with other information relevant to the designations process.

Section 307(b)(1) of the Clean Air Act indicates which Federal Courts of Appeal have venue for petitions for review of final actions by the EPA. This section provides, in part, that petitions for review must be filed in the Court of Appeals for the District of Columbia Circuit (i) when the agency action consists of “nationally applicable regulations promulgated, or final actions taken, by the Administrator,” or (ii) when such action is locally or regionally applicable, if “such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination.” In the rule establishing air quality designations for the 2010 SO 2 NAAQS, the EPA determined that the actions are of nationwide scope and effect for the purposes of section 307(b)(1). [ See 78 FR 47191, 47197 (August 5, 2013)].

The EPA has determined that its actions denying these petitions for reconsideration also are of nationwide scope and effect because they directly relate to the SO 2 designations rulemaking that the EPA previously determined is of nationwide scope and effect. Thus, any petition for review of the final letters denying the petitions for reconsideration must be filed in the Court of Appeals for the District of Columbia Circuit on or before October 24, 2014.

This draft guidance will apply to Federal agencies in accordance with sections 1507.2 and 1507.3 of the CEQ Regulations Implementing the Procedural Provisions of the National Environmental Policy Act, 40 CFR Parts 1500-1508. The National Environmental Policy Act (NEPA), 42 U.S.C. 4321-4370, enacted in 1970, is a fundamental tool used to harmonize our environmental, economic, and social aspirations and is a cornerstone of our Nation's efforts to protect the environment. NEPA recognizes that many Federal activities affect the environment and mandates that Federal agencies consider the environmental impacts of their decisions before acting. Additionally, NEPA emphasizes public involvement in government actions affecting the environment by requiring that the benefits and risks associated with proposed actions be assessed and publicly disclosed.

CEQ, which is charged with overseeing NEPA, recognizes that NEPA is a visionary and versatile law that can be used effectively to address new environmental challenges facing our nation and also to engage the public widely and effectively. Programmatic NEPA reviews are one method of NEPA implementation that merits increased attention and use to facilitate agency compliance with NEPA, and enhance the quality of public involvement in governmental decisions relating to the environment. For example, programmatic NEPA environmental reviews provide another mechanism for agencies to address efforts on improving environmental reviews for various sectors and types of Federal activities such as infrastructure  1 and disaster recovery. 2 In March 2012, CEQ published guidance focused on improving the efficiency and timeliness of NEPA environmental reviews  3 and this guidance provides NEPA practitioners with another tool to improve the effectiveness and efficiency of NEPA reviews.

CEQ interprets its regulations as allowing for the use of a programmatic review in an Environmental Assessment (EA) as well as in an Environmental Impact Statement (EIS). A programmatic NEPA review may be appropriate when the action being considered falls into any one of the categories of Federal actions subject to NEPA, including: (1) Adopting official policy; (2) adopting formal plans; (3) adopting agency programs; and (4) approving multiple actions.

CEQ is seeking public comment on this guidance for 45 days. The draft guidance and Appendix A which provides a table of key distinctions between programmatic and the subsequent tiered NEPA reviews are available for review and comment here and at the CEQ Web site at http://www.whitehouse.gov/administration/eop/ceq/initiatives/. Appendices B (CEQ regulations and guidance relevant to programmatic reviews) and C (examples of successful programmatic NEPA reviews) are also available for review on that Web site. CEQ welcomes your comments and any suggestions on all the Appendices.

Public comments are requested on or before October 9, 2014. CEQ intends to make all comments received available online without change, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Please do not include any personal information or any information that you consider to be Confidential Business Information or otherwise protected as part of a public comment.

A programmatic National Environmental Policy Act (NEPA) review should assist agency decision-makers and the public in understanding the environmental impacts from proposed large scope Federal actions and activities. The analyses in a programmatic review are valuable in setting out the broad view of environmental harms and benefits, which can then be relied upon when agencies make decisions based on the Programmatic Environmental Assessment (PEA) or Programmatic Environmental Impact Statement (PEIS), 4 as well as decisions based on a subsequent (tiered)  5 NEPA review. Programmatic NEPA reviews should result in clearer and more transparent decision-making, as well as provide a better defined and more expeditious path toward decisions on proposed actions. Agencies are encouraged to revise or amend their NEPA implementing procedures, if necessary, to allow for analyses at a programmatic level.

This guidance was prepared to assist Federal agencies to improve and modernize their use of programmatic NEPA reviews (analysis and documentation). The term “programmatic” describes any broad or high-level NEPA review; it is not limited to a NEPA review for a particular program. 6 Programmatic NEPA reviews assess the environmental impacts of proposed policies, plans, programs, or projects for which subsequent actions will be implemented either based on the PEA or PEIS, or based on subsequent NEPA reviews tiered to the programmatic review (e.g., a site- or project- specific document). Programmatic NEPA reviews designed to meet NEPA responsibilities for proposed actions without a tiered review are governed by the same regulations and guidance that apply to non-programmatic NEPA reviews. They should be developed and their adequacy judged as a stand-alone final NEPA review. This guidance addresses both programmatic NEPA reviews that make decisions applicable to subsequent tiered NEPA reviews and programmatic NEPA reviews without any subsequent review.

The programmatic approach under NEPA has not been fully used for its intended purpose and when used, it often has not fulfilled agency or stakeholder expectations. 7 On March 6, 2012, the Council on Environmental Quality (CEQ) published guidance highlighting the efficiencies provided for in the CEQ Regulations Implementing the Procedural Requirements of the National Environmental Policy Act (CEQ Regulations)  8 and received feedback from several stakeholders that additional guidance on programmatic and tiered NEPA reviews would provide a valuable addition to agency practices and procedures for providing more timely and efficient NEPA reviews. 9

This guidance is designed to provide practitioners with guidance to assist in the preparation and proper use of programmatic NEPA reviews, and help agencies inform and meet public expectations for programmatic reviews that will enhance the focus and utility of public review and comment. It builds on guidance issued in 1983 that explains the use of tiering and its place in the NEPA process. 10

This new guidance focuses specifically on NEPA reviews and not on other types of programmatic analyses. CEQ recognizes that analyses conducted outside the context of NEPA can also play an important role, for example, in assessing existing conditions. Although these types of analyses may be used—either by incorporation by reference or as a starting point for developing the NEPA review—an analysis prepared by an agency is not a NEPA programmatic review unless that agency is making decisions on a proposed Federal action. This important distinction was explained in previous NEPA guidance which referred to a non-NEPA programmatic review as a joint inventory or planning study:

A PEA or PEIS addresses the general environmental issues and concerns at a broad policy or program level, and can effectively frame the scope of subsequent site- and project-specific proposed Federal actions. A well-crafted NEPA programmatic review provides the basis for broad or high-level decisions such as identifying geographically bounded areas within which future proposed activities can be taken or identifying broad mitigation and conservation measures that can be applied to subsequent tiered reviews.

One advantage of preparing a programmatic NEPA review for repetitive agency activities is that the programmatic NEPA review can effectively provide a starting point for the analysis of cumulative and indirect impacts. Using such an approach allows an agency to subsequently tier to this analysis, and address more narrow, site-specific, details. This avoids repetitive broad level analyses in subsequent tiered NEPA reviews and provides a more comprehensive picture of the consequences of possible actions. An agency relying on a programmatic NEPA review must consider whether the depth of analysis needed for a tiered action requires adding to, or building on, the analysis provided in the programmatic NEPA document. A programmatic NEPA review can also be an effective means to narrow the consideration of alternatives and impact discussions in a subsequent tiered NEPA review.

Decision-makers may also call for a programmatic NEPA review for other reasons. For example, programmatic analyses may serve to influence the nature of subsequent decisions, thereby providing for an integrated and sustainable policy, planning framework, or program. Programmatic NEPA reviews may also support policy- and planning-level decisions when there are limitations in available information and uncertainty regarding the timing, location, and environmental impacts of subsequent implementing action(s). For example, in the absence of certainty regarding the environmental consequences of future tiered actions, agencies may be able to make broad program decisions and establish parameters for subsequent analyses based on a programmatic review that adequately examines the reasonably foreseeable consequences of a proposed program, policy, plan, or suite of projects.

The concept of “programmatic” NEPA reviews is imbedded in the CEQ Regulations Implementing the Procedural Requirements of NEPA (CEQ Regulations) that address analyses of “broad actions” and the tiering process. 12

The CEQ Regulations state in relevant part that environmental impact statements may be prepared, and are sometimes required, for broad Federal actions such as the adoption of new agency programs or regulations, and that agencies shall prepare statements on broad actions so that they are relevant to policy and are timed to coincide with meaningful points in agency planning and decisionmaking. 13 The regulations also state that when preparing statements on broad actions (including proposals by more than one agency), agencies may find it useful to evaluate the proposal(s) in one of the following ways: geographically, including actions occurring in the same general location, such as body of water, region, or metropolitan area; generically, including actions that have relevant similarities, such as common timing, impacts, alternatives, methods of implementation, media, or subject matter; or by stage of technological development, including Federal or Federally assisted research, development or demonstration programs for new technologies which, if applied, could significantly affect the quality of the human environment. 14 CEQ interprets its regulations as allowing for the use of a programmatic approach in developing an EA as well as in an EIS.

CEQ interprets its regulations as allowing for the use of a programmatic approach in developing an EA as well as in an EIS.

In cases where a policy, plan, program, or broad project analysis identifies but does not provide sufficiently in-depth analysis for potential future actions, then subsequent analyses are appropriate and are referred to as “tiered” analyses. Tiering is one way “to relate broad and narrow actions and to avoid duplication and delay.”  15 Appendix A provides a table of key distinctions between programmatic and the subsequent tiered NEPA reviews, Appendix B provides the CEQ regulations and guidance relevant to programmatic reviews, and Appendix C contains examples of successful programmatic NEPA reviews. 16

Programmatic NEPA reviews add value and efficiency to the decision-making process when they inform the scope of decisions and subsequent tiered NEPA reviews. Programmatic NEPA reviews can facilitate decisions on matters that precede site- or project-specific implementation, such as mitigation commitments for subsequent actions, or narrowing of future alternatives. They also provide information and analyses that can be incorporated by reference in future NEPA reviews. Programmatic NEPA documents may help an agency look at a large or multi-faceted action without becoming immersed in all the details of future site or project-specific proposals. Using programmatic and subsequent tiered NEPA reviews effectively will allow for a focused review at the proper level.

A programmatic NEPA review may be appropriate when the action being considered falls into one of the four major categories of actions to which NEPA can apply:

• Adopting Official Policy. Decision to adopt in a formal document an official policy that would result in or substantially alter agency programs. The programmatic analysis for such a decision should include a road map for future agency actions with defined objectives, priorities, rules, or mechanisms to implement objectives. Programmatic examples include:

○ Rulemaking at National- or regional-level;

○ Adoption of an agency-wide policy; or

○ Redesign of an existing program.

• Adopting Formal Plans. Decision to adopt formal plans, such as documents that guide or prescribe alternative uses of Federal resources, upon which future agency actions will be based. For example, setting priorities, options, and measures for future resource allocation according to resource suitability and availability. Specific programmatic examples include:

○ Strategic planning linked to agency resource allocation; or

○ Adoption of an agency plan for a group of related projects.

• Adopting Agency Programs. Decision to proceed with a group of concerted actions to implement a specific policy or plan; e.g., an organized agenda with defined objectives to be achieved during implementation of specified activities. Programmatic examples include:

○ A new agency mission or initiative; or

○ Proposals to substantially redesign existing programs.

• Approving Multiple Actions. Decision to proceed with multiple projects that are temporally or spatially connected and that will have a series of associated concurrent or subsequent decisions. Programmatic examples include:

○ Several similar actions or projects in a region or nationwide (e.g., a large scale corridor project); or

○ A suite of ongoing, proposed or reasonably foreseeable actions that share a common geography or timing, such as multiple activities within a defined boundary (i.e., Federal land or facility).

Agencies should exercise their judgment and discretion when determining whether to prepare a PEA or PEIS. 17 CEQ recommends agencies give particular consideration to preparing a PEA or PEIS when: (1) Initiating or revising a national or regional rulemaking, policy, or program; (2) adopting a plan for managing a range of resources; or (3) making decisions on common elements or aspects of a series or suite of closely related projects.

A programmatic NEPA review may not be a cost effective effort for an agency if the effort required to perform the review is substantially greater than the time and effort saved in analyzing subsequent proposals or if the lifespan of the programmatic NEPA document is limited. Agencies usually benefit by asking two questions when determining whether to prepare a programmatic NEPA review: (1) Could the PEA or PEIS be sufficiently forward looking to contribute to the agency's basic planning of an overall program?; and (2) does the PEA or PEIS provide the agency the opportunity to avoid `segmenting' the overall program from subsequent individual actions and thereby avoid unreasonably constricting the scope of environmental regulation?  18

This section provides practical guidance to help agencies implement a successful programmatic approach. The following points will be addressed:

• Answering the fundamental question of what decision(s) does the agency need to make;

• Answering the question of what actions would the agency subsequently want to take based on the programmatic NEPA review;

• Determining the purpose and need of the programmatic proposal to be analyzed and decided on and its relationship to subsequent tiered level proposals and decisions;

• Defining a practical scope for the programmatic review that is appropriate to the particular type of broad action being analyzed;

• Gathering and analyzing data for broadly scoped actions that potentially affect large geographic areas;

• Coordinating among the multiple overlapping jurisdictions and agencies that may have a role in assessing or determining whether and how a subsequent action may proceed;

• Communicating the scope, content, and purpose of a programmatic NEPA analysis in a way the parties involved in the process and the public can understand;

• Communicating the opportunities for public engagement in the development of the tiered NEPA reviews; and

• Maintaining the relevancy of programmatic NEPA documents for subsequent tiered analyses.

Agencies should carefully consider, as early as practicable, the benefits of making the initial broad decisions and the amount of effort required to perform the programmatic review to ensure that using the programmatic approach facilitates decision-making and merits the investment of time and effort. To determine the utility of the PEA or PEIS, and the scope of analysis, an agency may find it helpful to consider:

• What Federal decisions need to be made now and in the future regarding the broad Federal action being proposed?

• What are the meaningful decision points  19 from proposal through implementation, and where are the most effective points in that continuum to address the potential for effects?

• What are the appropriate geographic limits and time frames for this programmatic review?

• Is it necessary to analyze the particular effects of a proposed action at a broader scale to facilitate analysis and/or decision-making at a more refined (i.e., tiered) level, and is a programmatic NEPA review the best way to do this? For example, a programmatic NEPA review may serve as an efficient mechanism to describe Federal agency efforts to adopt sustainable practices for energy efficiency, reduce or avoid greenhouse gas emissions, reduce petroleum product use, and increase the use of renewable energy including bioenergy, as well as other sustainability practices. The definition of “proposal” for the purposes of NEPA review should be considered when answering this question. 20

• How long will the programmatic review continue to provide a relevant framework for tiering subsequent actions and what factors may result in the need to supplement or refresh the review?

The purpose and need statement is key to developing the NEPA review, as it establishes the scope of the analyses, range of reasonable alternatives, and frames the decision to be made. The purpose and need for a programmatic review will differ from the purpose and need for a project- or site-specific EA or EIS. The purpose and need for a PEA or a PEIS needs to be broad enough so as to avoid eliminating reasonable alternatives for a tiered EA or EIS and focused enough for the agency to conduct a rational analysis of the impacts and allow for the public to provide meaningful comment on the programmatic action. The purpose and need sets the tone for the scoping process and the course for conducting the NEPA review.

The scope consists of the range of actions, the alternatives, and the associated impacts to be considered in a NEPA review. 21 A programmatic NEPA review, like project- or site-specific NEPA reviews, must address the potentially significant environmental impacts of a proposed Federal action. Consequently, the nature of the pending decision drives the scope of the environmental analyses and documentation. The planning process for the proposed action and the development of a programmatic NEPA review should start as early as practicable. By starting the planning process early, there should be sufficient time for establishing the reasonable scope of actions, alternatives, and impacts in the programmatic review, and identifying the decisions the programmatic review will support so that the level of analysis is clear from the start.

In addition to unconnected single actions, there are three types of actions set out in 40 CFR 1508.25(a) that may be analyzed in NEPA reviews, including those that are programmatic: connected actions, cumulative actions, and similar actions.

Connected actions are those that enable other actions that require a Federal action, or where the enabled action cannot or will not proceed unless the underlying action is taken; or are interdependent parts of a larger action and depend on the larger action for justification. 22 Projects that have independent utility are not connected actions. 23

• Example: An agency could analyze a proposed pesticide aerial application program for a large metropolitan area in the same NEPA document with related actions such as the following: equipment purchase and location; pesticide purchase, storage methods and location; and loading locations that will be needed. These are examples of connected actions that are interdependent parts of the larger proposed pesticide aerial application program.

Cumulative actions are those with impacts which, when viewed with other proposed actions, have the potential for cumulatively significant impacts and should therefore be discussed collectively in the same NEPA review. 24

• Example: A proposed pesticide use program can be analyzed in conjunction with a proposed pest eradication program as cumulative actions because they have the potential to affect the same resources. Note that cumulative effects would have to be considered when conducting the NEPA reviews for each of the proposals, whether in separate or combined NEPA reviews.

Similar actions are those which, when viewed with other reasonably foreseeable or proposed agency actions, have similarities such as timing, impacts, alternatives, or methods of implementation. 25 A programmatic NEPA review provides a platform for evaluating their environmental consequences together.

• Example: Several energy development programs proposed in a region of the country are similar actions if they have similar proposed methods of implementation and best practice mitigation measures that can be analyzed in the same document.

Broad Federal actions may be implemented over large geographic areas and/or a long time frame. Programmatic NEPA documents must include connected and cumulative actions, and the responsible official should consider whether it is helpful to include a series or suite of similar actions. 26

Agencies may prepare a single NEPA document to support both programmatic and project-specific proposals. Such an approach may be appropriate when an agency plans to make a broad program decision, as well as decisions to implement one or more specific projects under the program. For example, the programmatic approach may address both the broad impacts of the proposed broad Federal action and provide sufficiently detailed environmental analyses for specific decisions, such as determining the locations and designs of one or more proposals to implement the broad Federal action. The challenge for agencies is to clearly communicate why some environmental aspects are analyzed in greater detail—such as the project- or site-specific effects—than others—such as the programmatic effects. It is essential to clearly state the decisions the agency proposes to make based directly on the PEA or PEIS and distinguish the analysis of impacts and alternatives of the broad programmatic proposals from the project- or site-specific proposals.

Alternatives in a programmatic NEPA review are expected to reflect the level of the broad Federal action being proposed and would include the standard NEPA requirements for alternatives. 27 In situations where there is an existing program, plan or policy, CEQ expects that the no-action alternative would typically be the continuation of the present course of action until a new program, plan or policy is developed. 28

When preparing the programmatic NEPA review for a policy, plan, program, or project, alternatives can be considered at the programmatic level to support focusing future decisions and eliminating certain alternatives from detailed study in subsequent NEPA reviews. By clearly articulating the nature of subsequent tiered decisions, agencies can craft the alternatives for a programmatic review to focus the scope and development of alternatives for the subsequent tiered NEPA documents. By articulating the reasoned choice between alternatives, with a discussion of why considered alternatives were not chosen, the range of alternatives in tiered NEPA reviews can be appropriately narrowed. Including a brief written discussion of the reasons alternatives were eliminated  29 should provide the justification for narrowing the range of reasonable alternatives to be considered in those tiered NEPA documents.

All NEPA reviews are concerned with three types of reasonably foreseeable impacts: direct, indirect, and cumulative. 30 The contrast between a programmatic and a project- or site-specific NEPA review is most strongly reflected in how these environmental impacts are analyzed. Because impacts in a programmatic NEPA review typically concern environmental effects over a large geographic and/or time horizon, the depth and detail in programmatic analyses will reflect the major broad and general impacts that might result from making broad programmatic decisions. Agencies should be clear about the context of the decision to be made and how it relates to the intensity of any potential impacts.

As noted previously, agencies may propose decisions regarding standard mitigation protocols and/or operating procedures in a programmatic NEPA review and thereby provide a framework and scope for the subsequent tiered analysis of environmental impacts. For example, proposals for long range energy or transportation infrastructure programs are potentially good candidates for PEAs and PEISs that include an assessment of how the programs will contribute to or reduce water quantity and quality. Discussions of water quantity and quality could then be incorporated by reference in tiered NEPA reviews. By identifying potential program impacts early, particularly cumulative and indirect impacts, programmatic NEPA reviews provide opportunities to modify program components and avoid or mitigate adverse impacts when developing subsequent proposals.

The types of actions that agencies analyze in programmatic reviews may feature some jurisdictional complexity. Impacts on state, tribal and private lands, and potentially overlapping authorities between agencies and governments with different missions and authorities should be considered in programmatic reviews that address resources or actions across jurisdictional boundaries. Collaboration and cooperation among Federal agencies, tribes, and state and local governments is especially critical for successful completion of meaningful programmatic NEPA reviews. Scoping early in the process provides agency decision-makers with access to other agencies' and governments' expertise and can help agencies identify broad scale issues, develop alternatives for analysis, identify the appropriate temporal and spatial parameters, and determine the appropriate depth of analysis or level of detail for the NEPA review.

Engaging the public is particularly important when developing programmatic NEPA reviews in order to ensure agency objectives are understood and to clarify how a programmatic review relates to subsequent tiered reviews. Effective public engagement also will help manage expectations with regard to the purpose and need, the scope of the programmatic NEPA review, and the purpose and need and scope of subsequent site- and project-specific NEPA reviews. Outreach to potentially interested stakeholders should begin as early as possible—even in advance of formal scoping periods—to afford the public a meaningful opportunity to comment on and shape the NEPA review.

When the public has a chance to see the big picture early it can provide fresh perspectives and new ideas before determinations are made that will shape the programmatic review as well as subsequent tiered proposals. Early outreach also provides an opportunity to develop trust and good working relationships that may extend throughout the programmatic and subsequent NEPA reviews and continue during the implementation of the proposed action. 31 An agency can encourage early public participation by clearly explaining to the public not only what the proposed programmatic evaluation is meant to accomplish, but also how it relates to future actions, and why the public should get involved at the programmatic stage and not wait for any tiered reviews. Clarity of approach is essential to avoid the impression that a programmatic NEPA review creates a situation whereby the public is too early to raise issues in the broader programmatic analysis and then too late to raise them in any subsequent tiered analyses.

Stakeholders for a programmatic review may span multiple states and large areas. Consequently, public engagement should be well thought through to include all the potentially interested Federal and state agencies, tribes, local governments, private organizations, and individual citizens. 32

The purpose and need statement and the proposed action for the programmatic NEPA review are critical for determining the compliance requirements under other applicable laws and regulations, such as the Endangered Species Act, National Historic Preservation Act, and Clean Water Act. They are also critical for determining when these other reviews must be completed and for developing a strategy to address all environmental review and consultation requirements in a coordinated manner. Coordinating compliance with other environmental reviews supports a broad discussion, facilitates a comprehensive project management schedule, provides opportunities to meet data, public engagement, and documentation requirements more efficiently, and generally promotes greater transparency in Federal decision-making.

Programmatic NEPA analysis and subsequent tiered NEPA analysis support a phased decision-making process that allows certain statutory and regulatory compliance to be achieved at the programmatic level. The nature of the decision at each phase and the extent to which it may constrain the subsequent consideration of alternatives will help determine an agency's overall environmental compliance requirements. NEPA requires a full evaluation of all specific impacts when the agency proposes to make an irreversible and irretrievable commitment of the availability of resources to a project. This usually occurs at the site-specific level. 33

Provided the PEA or PEIS has sufficient specific data and information, it may satisfy other relevant legal requirements for site-specific future actions, even when there is no irreversible or irretrievable commitment of resources at the programmatic level. The determination of whether a particular decision in a phased or incremental decision-making process represents this level of commitment begins with a well formulated description of the proposed action. 34 Agencies should be aware that preparing a programmatic NEPA review is not a substitute for compliance with other environmental laws.

For example, approval of land use plans that establish future management goals and objectives for resource management, and the measures to achieve those goals and objectives, do not necessarily require completion of the Section 106 process under the National Historic Preservation Act. In some cases, an agreement with stakeholders, such as a programmatic agreement pursuant to sec. 106 of the National Historic Preservation Act, demonstrates an agency's compliance requirements for phased decisions being analyzed through a programmatic NEPA review. For instance, where a Federal agency's broad decision will narrow the opportunities for adverse effects in future specific proposals, then the agency may initiate the sec. 106 process as part of the programmatic review. This will allow the agency to complete that process by establishing steps for meeting its responsibility as it implements the broad decision and prior to subsequent project- and site-specific proposals.

Agencies should clearly and concisely articulate their intentions to defer particular environmental review and consultation requirements for consideration until a subsequent project- or site-specific proposal is developed. When deferring these requirements, agencies may still need to analyze and address related statutory requirements to some extent in the programmatic document. For example, if the subsequent actions tiered to the programmatic document will require authorization under sec. 404 of the Clean Water Act prior to construction, agencies should include, after consultation with the U.S. Army Corps of Engineers, a discussion of the range of alternatives that are necessary to demonstrate compliance with the sec. 404(b)(1) Guidelines, and whether there are any practicable alternatives that have less adverse impact on the aquatic ecosystem—and do not have other significant environmental effects—will be made at the project-specific or site-specific level.

Programmatic approaches are usually associated with EISs and tiered documents more typically with proposal-specific EAs. Tiering an EA from a PEIS is appropriate when there are no new significant affects or considerations and the programmatic NEPA review addresses those measures that tiered proposals can rely on to address and reduce the significance of the site- or project-specific impacts.

An agency may prepare a PEA to determine whether an EIS is required or when considering a proposal that does not have significant impacts at the programmatic level. Following a PEA that results in a finding of no significant impact (FONSI), an agency may tier to an EA that results in a finding of no significant impact, 35 or may tier to an EIS when a subsequent site- or project- specific proposal has the potential for a significant impact on the environment.

Whether the agency prepares a PEA or a PEIS, that programmatic review should explain how the agency intends to use it to complete future proposal-specific NEPA reviews. Reasonably available information that should be provided both during scoping and in the PEA or PEIS includes the expected timing of the tiered review(s) as well as the issues, and depth of analysis, it is expected to consider. At the project- or site-specific level, it is necessary to consider the potential impacts that have not been analyzed and considered in the previous programmatic review to which it tiers.

A PEA or PEIS addresses the broad environmental consequences relevant at the programmatic level. A subsequent tiered EA or EIS will address more particularized considerations, but can benefit from the programmatic by summarizing and incorporating by reference parts of it. 36 For example, with the Forest Service's programmatic Gypsy Moth Supplemental EIS, the PEIS analyzed the human health and ecological risk assessments for each pesticide approved for use in the Gypsy Moth Eradication Program thereby eliminating the need for such analysis when individual spraying projects are proposed. The PEIS analyzed and disclosed these risks, and deferred to site or project level analyses the specific application of these risk data to how the insecticides would be used in a given project (e.g., dose rates, number of applications, presence of “sensitive populations”) and other specific issues and concerns raised during scoping.

The PEA or PEIS must provide sufficient detail to foster informed decision-making that reflects broad environmental consequences from a wide-ranging federal program. 37 Site- or project-specific impacts need not be fully evaluated at the programmatic level when the decision to act on a site development or its equivalent is yet to be made. 38 Alternatives need only be specific enough to make a reasoned choice between programmatic directions. The alternatives need not consider every specific aspect of a proposal. For example, a programmatic analysis of a plan would not require consideration of detailed alternatives with respect to each aspect of the plan—otherwise a programmatic analysis would be impossible to prepare and would become a compilation of a vast series of site specific analyses. 39

The following considerations may be helpful to determine the scale and scope of impacts to be addressed in a programmatic NEPA review:

• First, what are the appropriate scales of the affected environment to be analyzed (e.g., watershed, basin, etc.)?

• Second, what environmental impacts are of concern at this scale?

• Third, what information can be garnered about environmental impact criteria (thresholds) to assist in describing when those impacts are best addressed in detail?

Determining the level of detail appropriate to a programmatic analysis requires weighing several factors, including the extent of the interrelationship among proposed actions, the scale and scope of any subsequent decisions, as well as practical considerations of feasibility. Resolving these issues will require the expertise of the agencies responsible for the proposed action informed by the agencies responsible for the potentially impacted resources. 40

The agency is obligated to conduct a meaningful impact analysis in accordance with NEPA, and that analysis should be commensurate with the nature and extent of potential impacts of the decision being made. A programmatic NEPA review should contain sufficient discussion of the relevant issues and opposing viewpoints to enable the decision-maker to take a “hard look” at the environmental effects and make a reasoned choice among alternatives. 41 There should be enough detail to enable those who did not have a part in its compilation to understand and meaningfully consider the factors involved. 42

A broad (e.g., regional) description may suffice for characterizing the affected environment in most programmatic NEPA reviews, so long as potentially impacted resources are meaningfully identified and evaluated. Impacts can often be discussed in a broad geographic and temporal context with particular emphasis on cumulative impacts. Those impacts can often be shown in a meaningful way by displaying a range of potential effects. The scope and range of impacts may also be more qualitative in nature than those found in project- or site-specific NEPA reviews.

It may be more difficult for an agency to analyze the environmental impacts in depth when there is no clear indication—no site- or project-specific proposal pending—for the level of activity that may follow a programmatic decision. 43 A programmatic NEPA review should carefully consider the scope of both the programmatic and the subsequent tiered NEPA review. CEQ's 1981 scoping guidance addressed this issue and the need to be clear about the type of programmatic NEPA review.

Thus, the deferred analysis should be identified and the intended use of tiering made clear at the outset of scoping, and articulated in the programmatic review. Informing participants and the public of the expected timing of the tiered review(s), as well as the issues and depth of analysis, allows them to concentrate on the issues at hand, rather than on those that will be addressed later. Courts have affirmed NEPA's requirement that Federal agencies document the environmental impacts of proposed broad actions, such as programs, recognizing the difficulty in predicting the level of activity that will occur and that it may not be possible to analyze thoroughly the environmental effects of, and the resource commitments involved in, such a broad proposed activity. 45

For example, in the PEIS for the Container Terminal Development Plan prepared by the Port of Seattle Marine Planning & Development Department, the port determined that it was impossible to know the precise demand for container service in the future, and therefore it was impossible to predict the precise location, type and timing of specific facilities and their environmental impacts. Recognizing the uncertainties involved, the PEIS evaluated potential environmental impacts and opportunities comprehensively by focusing on a bounded range of potential activities and their impacts. The port's Container Plan projected a low and high range for container service demand and a range of new or improved facilities. The EIS evaluated strategies for meeting low and high range demand and the preferred alternative based on the plan, providing a flexible market-driven approach in recognition of the dynamic nature of the shipping industry and supply of regional container facilities. 46

Programmatic NEPA reviews provide an opportunity for agencies to incorporate comprehensive mitigation planning and monitoring strategies into the Federal policymaking process at a broad or strategic, rather than specific, or site-by-site, level. These analyses can promote sustainability and allow Federal agencies to advance the nation's environmental policy as articulated in sec. 101 of NEPA. 47

By identifying potential adverse impacts early during the broad programmatic planning, programmatic NEPA reviews provide a unique opportunity to modify aspects of the proposal and subsequent tiered proposals to avoid or otherwise mitigate those impacts. A thoughtful and broad-based approach to planning for future development can include best management practices, standard operating procedures and comprehensive mitigation measures that address impacts on a broad programmatic scale (e.g., program-, region-, or nation-wide). These can expedite the preparation of subsequent project- or site-specific proposals by establishing siting, design, operational, or other relevant implementation criteria, requirements, and protocols. The subsequent tiered NEPA review would then include those measures to address potentially significant impacts and focus on the impacts and mitigation alternatives available at the project- or site-specific level that were not considered in the PEA or PEIS.

For example, a Forest Service and Bureau of Land Management PEIS for coal bed methane development on Federal lands in San Juan National Forest established siting and engineering techniques and best management practices to reduce the effects of coal bed methane development on surface water quality, quantity, and use; established a suite of mitigation measures for when pipelines, roads, or power lines crossed a stream, wetland, or riparian area; established the development of site-specific mitigation plans; and required monitoring plans for individual wells that would disturb wetlands or riparian areas. 48 These types of programmatic decisions provide valuable information for project proponents (e.g., applicants for Federal licenses or rights-of-way) as they design proposals and implementation activities and give the public insight into the kinds of protections that would be afforded in designing and permitting such facilities.

Programmatic NEPA reviews also afford agencies the opportunity to develop monitoring programs to address impacts on a broad scale. This provides agencies the opportunity to ensure that mitigation commitments on the programmatic level are actually being implemented. Further, it allows agencies to determine whether the mitigation measures achieved the environmental outcomes they were designed to accomplish. 49

Finally, monitoring is critical when agencies establish adaptive management strategies in a programmatic NEPA document to increase their flexibility in developing and analyzing subsequent resource management proposals. Identifying triggers for changing the course of implementation and the associated effects and analyzing those impacts at the programmatic level, can allow the agency to change the course of implementation without the need for developing supplemental NEPA reviews and the associated documentation. Ranges of results inform the public and the decision-maker about what parameters are acceptable for continued management under the proposed adaptive management regime and monitoring provides assurance that the environmental impacts have been adequately considered in the programmatic review.

Agencies are sometimes reluctant to conduct programmatic NEPA reviews because of the risk of delaying ongoing and newly proposed actions. The CEQ Regulations enable interim actions to proceed provided certain criteria are met. 50 Typically, proposed actions of relatively limited scope or scale that would have local utility may be taken as an interim action before completing the programmatic analysis.

The CEQ Regulations address interim action criteria for site- or project-specific EAs or EISs when required PEAs and PEISs are not yet completed. 51 Although the CEQ Regulations address criteria for interim actions specifically in the context of PEISs, in those cases where part of a proposed action needs to proceed while a PEA is being prepared, agencies should use the criteria in the CEQ Regulations. The CEQ Regulations recognize and provide for situations where the programmatic review is not available when the program is at an investment stage or there is a commitment to implementation that will limit future alternatives. 52

Under the first criterion regarding independent justification, agencies may take an interim action that the agency determines could be undertaken irrespective of whether or how the program goes forward, assuming the other two criteria are met. For example, in cases where an agency is obligated by law to carry out a proposed interim action, the agency should be able to demonstrate that the action has independent utility.

The second criterion makes it clear that an EIS must be prepared for a proposed interim action that has the potential for significant environmental impacts. Although completion of a PEIS first may be more efficient than preparing an adequate EIS for a proposed interim action, the agency could complete an adequate EIS for the interim action. In cases that don't involve significant impacts, an EA would be sufficient to provide adequate NEPA support to meet this second criterion.

Under the third criterion, agencies may take an interim action when they determine that the proposed interim action would not jeopardize the objective consideration of reasonable alternatives. Agencies should take care to distinguish interim actions from ongoing actions. An agency does not need to suspend all operations because it has elected to prepare a programmatic NEPA document. For example, in the case of an area-wide or site-wide PEIS considering a new proposed operations plan, ongoing operations within the area or site may continue and such ongoing operations would be considered under the no action alternative in the PEIS.

The decision is documented in a Record of Decision (ROD) following preparation of a PEIS or a decision may be based on a FONSI following preparation of a PEA. The decision document should clearly explain the decision and indicate whether tiered analyses will follow. For example, the agency should articulate its intentions with regard to future decisions, describe how the agency will use the programmatic NEPA document as a basis for tiering future NEPA reviews, and indicate when any deferred issues will be addressed.

The programmatic decision document following a PEA or a PEIS should provide the information required in a ROD. It should include a description of the alternatives considered, the environmentally preferable alternative, economic and technical considerations, agency statutory missions, essential considerations of national policy, and all practicable means to avoid or minimize environmental harm from the alternative selected that were adopted or, if not, why not. A monitoring and enforcement program should also be adopted and summarized for any mitigation where that is applicable. 54

Certain issues may not be addressed in a PEA or PEIS, but rather are discussed fully in subsequent tiered NEPA analysis. These deferred issues can include issues that will be addressed in additional tribal consultations or further National Historic Preservation Act Section 106 consultation, Endangered Species Act Section 7 consultation, or other determinations and consultations. To provide clarity to the public and the decision-maker, programmatic NEPA reviews should make clear when the analysis of potential environmental impacts will be deferred. When preparing a PEA, it is acceptable for an agency to limit its analysis to those foreseeable effects resulting from the programmatic decision at hand. The programmatic document should clearly explain that, while there may be other effects, they do not affect the programmatic decision and full review of these issues is being deferred. In this case agencies should logically explain why there is no effect on the programmatic decision, and also include sufficient information to explain where and when deferred issues raised by the public and/or regulatory agencies will be addressed.

The scoping process and subsequent public involvement provide an opportunity to clarify the triggers for determining when subsequent reviews and opportunities for review and comment will take place. 55 The programmatic document should also, whenever practicable, explain how and when the interested parties will be notified of any subsequent reviews.

One of the main advantages of a programmatic NEPA review is the ability to tier subsequent reviews, such as site- or proposal-specific reviews. 56 Tiering has the advantage of not repeating information that has already been considered at the programmatic level so as to focus and expedite the preparation of the tiered NEPA review(s). When a PEA or PEIS has been prepared and an action is one anticipated in, consistent with, and sufficiently explored within the programmatic NEPA review, the agency need only summarize the issues discussed in the broader statement and incorporate discussion from the broader statement by reference and concentrate on the issues specific to the subsequent tiered proposal. 57

There are times when an analysis at one level is sufficient. For example, when the programmatic review has taken the required “hard look” at the potential environmental impacts, an agency can rely upon the analysis provided in the PEA or PEIS. 58 On the other hand, an agency may determine that detailed analysis should be deferred to the tiered analysis. The programmatic review must be clear when issues are being deferred, and any subsequent tiered documents will need to review briefly what level of analysis has been considered and whether it is still contemporary.

While CEQ Regulations specifically authorize an agency to tier other NEPA reviews to an EIS, there is no barrier to tiering an EIS to an EA prepared in accordance with NEPA, the CEQ Regulations, and agency NEPA implementing procedures, so long as a sufficient explanation for such an approach is proffered. A programmatic NEPA review may defer some decisions, and make use of tiering and incorporation by reference, and still be considered a “hard look.” Cases that address “improper tiering” involve situations where an agency attempts to tier to a non-NEPA document. 59

Confusion over what level of NEPA analysis is required for tiered proposals may occur when a programmatic EIS is complete and the site-specific project will have a significant impact as indicated in the programmatic document. When this occurs, the appropriate question is not if there is a significant impact from the proposed action, but if there is a new significant impact that was not already considered and addressed in the programmatic review. If there are no new significant impacts, an EA may be appropriate instead of an EIS so long as the aspects of the proposed action that involve significant effects have not changed since the PEIS, and the agency presents its reasons for determining that the effects and potential mitigation measures were adequately considered in the PEIS. Consequently, as an agency determines the appropriate scope for a PEIS, it should consider the potential for significant site- or project-specific impacts and the cost/benefit of addressing them programmatically.

The CEQ Regulations provide a procedural framework for keeping environmental analyses current. They require agencies to prepare supplements upon determining there is significant new information of relevance to the proposed action or its impacts. 60 The possibility of new information arising after an EA or EIS is completed exists regardless of whether that NEPA review is a programmatic review.

When new information reaches an agency, it should be initially screened with respect to the following considerations:

• Does the new information pertain to a programmatic NEPA review that was prepared for a now-completed decision-making process?

• Are there any more decisions to be made by the agency that would use the original NEPA review to meet all or a portion of the agency's NEPA compliance responsibilities for any upcoming decision?

If there are no further decisions to be made, revising the original programmatic NEPA review serves no purpose and is not required. If the new information is relevant to a future decision for which the agency intends to rely upon the original programmatic NEPA review to meet all or a portion of its NEPA compliance responsibilities, then the new information must be reviewed in order to determine if it has any potential effect on the content of the original programmatic review, either in terms of: (a) The accuracy of the previously analyzed impacts (direct, indirect or cumulative); or (b) the feasibility of the alternatives presented or their comparative analysis. If supplementation is not required, agencies should consider documenting that determination which, for example, could be done, through a memorandum to the record that could be included in the administrative record for the programmatic NEPA review.

The agency is responsible for making a reasoned determination whether new information raises significant new circumstances or information regarding environmental impacts or involves substantial changes in the actions decided upon in the programmatic analysis. 61 When a PEA was used, the determination must consider whether the PEA and FONSI are sufficient or whether an EIS is now necessary. If there is a need to supplement, a supplemental PEA can address the new information and result in a FONSI when the agency's consideration of the context and intensity of the effects of the programmatic proposal warrant a FONSI. 62

When an agency determines there is a need to supplement a NEPA review, programmatic NEPA reviews provide alternative ways to complete that supplementation. The traditional approach would be to supplement the base document, the original PEA or PEIS. Alternatively, if a new tiered NEPA review can include consideration of the programmatic issues, then the tiered review can also serve as the vehicle for supplementing the PEA or PEIS. When the new information's effects are limited to potential impacts or alternatives associated with the next stage, or project- or site-specific decision, then the tiered analysis can address the new information without having to supplement the PEA or PEIS.

Agencies must consider and make reasonable efforts to anticipate the length of time the programmatic decision and its supporting NEPA review will be maintained and used for subsequent tiered reviews. Programmatic documents may become outdated depending on the specificity and analyses included in them. Agencies should determine the factors that may result in the need to supplement or refresh the analysis, 63 establish criteria for evaluating the programmatic document for its use as a basis for subsequent proposal-specific NEPA, and communicate this to stakeholders. When a programmatic review is projected to have a long life span, then the agency should pay close attention to the possible effects of new information.

This guidance is intended to assist agencies in preparing PEISs and PEAs that address broad, strategic, programmatic level analyses. Agencies should consider using PEAs and PEISs whenever appropriate. Programmatic NEPA reviews provide an opportunity for considering environmental consequences at a broader level and enhance the integration of environmental concerns and mitigations into an agency's planning procedures. In addition, agencies that are able to clearly explain how specific, outstanding, or future actions will be addressed in subsequent tiered documents, and how the analyses will be vetted publicly, will ensure that the public is informed and can improve the quality of participation and analysis agencies receive from the public, thereby enhancing decision-making. This guidance also is intended to assist NEPA practitioners in realizing the benefits of programmatic NEPA reviews. It should be used in conjunction with the regulations and guidance previously issued by CEQ (see relevant excerpts in Appendix B) and any applicable agency NEPA procedures established in accordance with 40 CFR 1507.3.

Programmatic and tiered analyses differ in their focus and scope. The following table indicates the general differences between programmatic and subsequent tiered analyses. 64

What is the List of Fisheries?

Section 118 of the MMPA requires NMFS to place all U.S. commercial fisheries into one of three categories based on the level of incidental mortality and serious injury of marine mammals occurring in each fishery (16 U.S.C. 1387(c)(1)). The classification of a fishery on the LOF determines whether participants in that fishery may be required to comply with certain provisions of the MMPA, such as registration, observer coverage, and take reduction plan requirements. NMFS must reexamine the LOF annually, considering new information in the Marine Mammal Stock Assessment Reports (SARs) and other relevant sources, and publish in the Federal Register any necessary changes to the LOF after notice and opportunity for public comment (16 U.S.C. 1387(c)(1)(C)).

The definitions for the fishery classification criteria can be found in the implementing regulations for section 118 of the MMPA (50 CFR 229.2). The criteria are also summarized here.

The fishery classification criteria consist of a two-tiered, stock-specific approach that first addresses the total impact of all fisheries on each marine mammal stock and then addresses the impact of individual fisheries on each stock. This approach is based on consideration of the rate, in numbers of animals per year, of incidental mortalities and serious injuries of marine mammals due to commercial fishing operations relative to the potential biological removal (PBR) level for each marine mammal stock. The MMPA (16 U.S.C. 1362 (20)) defines the PBR level as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population. This definition can also be found in the implementing regulations for section 118 of the MMPA (50 CFR 229.2).

Tier 1: If the total annual mortality and serious injury of a marine mammal stock, across all fisheries, is less than or equal to 10 percent of the PBR level of the stock, all fisheries interacting with the stock will be placed in Category III (unless those fisheries interact with other stock(s) in which total annual mortality and serious injury is greater than 10 percent of PBR). Otherwise, these fisheries are subject to the next tier (Tier 2) of analysis to determine their classification.

Tier 2, Category I: Annual mortality and serious injury of a stock in a given fishery is greater than or equal to 50 percent of the PBR level (i.e., frequent incidental mortality and serious injury of marine mammals).

Tier 2, Category II: Annual mortality and serious injury of a stock in a given fishery is greater than 1 percent and less than 50 percent of the PBR level (i.e., occasional incidental mortality and serious injury of marine mammals).

Tier 2, Category III: Annual mortality and serious injury of a stock in a given fishery is less than or equal to 1 percent of the PBR level (i.e., a remote likelihood of or no known incidental mortality and serious injury of marine mammals).

While Tier 1 considers the cumulative fishery mortality and serious injury for a particular stock, Tier 2 considers fishery-specific mortality and serious injury for a particular stock. Additional details regarding how the categories were determined are provided in the preamble to the final rule implementing section 118 of the MMPA (60 FR 45086, August 30, 1995).

Because fisheries are classified on a per-stock basis, a fishery may qualify as one Category for one marine mammal stock and another Category for a different marine mammal stock. A fishery is typically classified on the LOF at its highest level of classification (e.g., a fishery qualifying for Category III for one marine mammal stock and for Category II for another marine mammal stock will be listed under Category II). Stocks driving a fishery's classification are denoted with a superscript “1” in Tables 1 and 2.

The tier analysis requires a minimum amount of data, and NMFS cannot perform a tier analysis on certain fisheries. Therefore, NMFS has classified certain fisheries by analogy to other Category I or II fisheries that use similar fishing techniques or gear that are known to cause mortality or serious injury of marine mammals, or according to factors discussed in the final LOF for 1996 (60 FR 67063, December 28, 1995) and listed in the regulatory definition of a Category II fishery: “In the absence of reliable information indicating the frequency of incidental mortality and serious injury of marine mammals by a commercial fishery, NMFS will determine whether the incidental mortality or serious injury is `frequent,' `occasional,' or `remote' by evaluating other factors such as fishing techniques, gear used, methods used to deter marine mammals, target species, seasons and areas fished, qualitative data from logbooks or fisher reports, stranding data, and the species and distribution of marine mammals in the area, or at the discretion of the Assistant Administrator for Fisheries” (50 CFR 229.2).

Further, eligible commercial fisheries not specifically identified on the LOF are deemed to be Category II fisheries until the next LOF is published (50 CFR 229.2).

The LOF includes a list of marine mammal species and/or stocks incidentally killed or injured in each commercial fishery. The list of species and/or stocks incidentally killed or injured includes “serious” and “non-serious” documented injuries as described later in the List of Species and/or Stocks Incidentally Killed or Injured in the Pacific Ocean and the Atlantic Ocean, Gulf of Mexico, and Caribbean sections. To determine which species and stocks are included as incidentally killed or injured in a fishery, NMFS annually reviews the information presented in the current SARs. The SARs are based upon the best available scientific information and provide the most current and inclusive information on each stock's PBR level and level of interaction with commercial fishing operations. The best available scientific information used in the SARs reviewed for the 2015 LOF generally summarizes data from 2007-2011. NMFS also reviews other sources of new information, including injury determination reports, bycatch estimation reports, observer data, logbook data, stranding data, disentanglement network data, fisher self-reports (i.e. MMPA reports), and anecdotal reports from that time period.

The best available information on the level of observer coverage and the spatial and temporal distribution of observed marine mammal interactions is presented in the SARs. Data obtained from the observer program and observer coverage levels are important tools in estimating the level of marine mammal mortality and serious injury in commercial fishing operations. Starting with the 2005 SARs, each SAR includes an appendix with detailed descriptions of each Category I and II fishery on the LOF, including the observer coverage in those fisheries. The SARs generally do not provide detailed information on observer coverage in Category III fisheries because, under the MMPA, Category III fisheries are generally not required to accommodate observers aboard vessels due to the remote likelihood of mortality and serious injury of marine mammals. Fishery information presented in the SARs' appendices and other resources referenced during the tier analysis may include: Level of observer coverage, target species, levels of fishing effort, spatial and temporal distribution of fishing effort, characteristics of fishing gear and operations, management and regulations, and interactions with marine mammals. Copies of the SARs are available on the NMFS Office of Protected Resources Web site at: http://www.nmfs.noaa.gov/pr/sars/. Information on observer coverage levels in Category I and II fisheries can also be found in the Category I and II fishery fact sheets on the NMFS Office of Protected Resources' Web site: http://www.nmfs.noaa.gov/pr/interactions/lof/. Additional information on observer programs in commercial fisheries can be found on the NMFS National Observer Program's Web site: http://www.st.nmfs.gov/st4/nop/.

This rule includes three tables that list all U.S. commercial fisheries by LOF Category. Table 1 lists all of the commercial fisheries in the Pacific Ocean (including Alaska); Table 2 lists all of the commercial fisheries in the Atlantic Ocean, Gulf of Mexico, and Caribbean; and Table 3 lists all U.S.-authorized commercial fisheries on the high seas. A fourth table, Table 4, lists all commercial fisheries managed under applicable TRPs or take reduction teams (TRTs).

Beginning with the 2009 LOF, NMFS includes high seas fisheries in Table 3 of the LOF, along with the number of valid High Seas Fishing Compliance Act (HSFCA) permits in each fishery. As of 2004, NMFS issues HSFCA permits only for high seas fisheries analyzed in accordance with the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA). The authorized high seas fisheries are broad in scope and encompass multiple specific fisheries identified by gear type. For the purposes of the LOF, the high seas fisheries are subdivided based on gear type (e.g., trawl, longline, purse seine, gillnet, troll, etc.) to provide more detail on composition of effort within these fisheries. Many fisheries operate in both U.S. waters and on the high seas, creating some overlap between the fisheries listed in Tables 1 and 2 and those in Table 3. In these cases, the high seas component of the fishery is not considered a separate fishery, but an extension of a fishery operating within U.S. waters (listed in Table 1 or 2). NMFS designates those fisheries in Tables 1, 2, and 3 by a “*” after the fishery's name. The number of HSFCA permits listed in Table 3 for the high seas components of these fisheries operating in U.S. waters does not necessarily represent additional effort that is not accounted for in Tables 1 and 2. Many vessels/participants holding HSFCA permits also fish within U.S. waters and are included in the number of vessels and participants operating within those fisheries in Tables 1 and 2.

HSFCA permits are valid for five years, during which time FMPs can change. Therefore, some vessels/participants may possess valid HSFCA permits without the ability to fish under the permit because it was issued for a gear type that is no longer authorized under the most current FMP. For this reason, the number of HSFCA permits displayed in Table 3 is likely higher than the actual U.S. fishing effort on the high seas. For more information on how NMFS classifies high seas fisheries on the LOF, see the preamble text in the final 2009 LOF (73 FR 73032; December 1, 2008). Additional information about HSFCA permits can be found at: http://www.nmfs.noaa.gov/ia/permits/highseas.html.

Starting with the 2010 LOF, NMFS developed summary documents, or fishery fact sheets, for each Category I and II fishery on the LOF. These fishery fact sheets provide the full history of each Category I and II fishery, including: When the fishery was added to the LOF, the basis for the fishery's initial classification, classification changes to the fishery, changes to the list of species and/or stocks incidentally killed or injured in the fishery, fishery gear and methods used, observer coverage levels, fishery management and regulation, and applicable TRPs or TRTs, if any. These fishery fact sheets are updated after each final LOF and can be found under “How Do I Find Out if a Specific Fishery is in Category I, II, or III?” on the NMFS Office of Protected Resources' Web site: http://www.nmfs.noaa.gov/pr/interactions/lof/, linked to the “List of Fisheries by Year” table. NMFS is developing similar fishery fact sheets for each Category III fishery on the LOF. However, due to the large number of Category III fisheries on the LOF and the lack of accessible and detailed information on many of these fisheries, the development of these fishery fact sheets is taking significant time to complete. NMFS will begin posting Category III fishery fact sheets online with the final 2015 LOF.

Owners of vessels or gear engaging in a Category I or II fishery are required under the MMPA (16 U.S.C. 1387(c)(2)), as described in 50 CFR 229.4, to register with NMFS and obtain a marine mammal authorization to lawfully take non-endangered and non-threatened marine mammals incidental to commercial fishing operations. Owners of vessels or gear engaged in a Category III fishery are not required to register with NMFS or obtain a marine mammal authorization.

NMFS has integrated the MMPA registration process, implemented through the Marine Mammal Authorization Program (MMAP), with existing state and Federal fishery license, registration, or permit systems for Category I and II fisheries on the LOF. Participants in these fisheries are automatically registered under the MMAP and are not required to submit registration or renewal materials directly under the MMAP. In the Pacific Islands, West Coast, and Alaska regions, NMFS will issue vessel or gear owners an authorization certificate and/or mortality/injury reporting forms via U.S. mail or with their state or Federal license at the time of renewal. In the Greater Atlantic Region, NMFS will issue vessel or gear owners an authorization certificate via U.S. mail automatically at the beginning of each calendar year; but vessel or gear owners must request or print mortality/injury reporting forms by contacting the NMFS Greater Atlantic Regional Office at 978-281-9328 or by visiting the Greater Atlantic Regional Office Web site ( http://www.nero.noaa.gov/mmap ). In the Southeast region, NMFS will issue vessel or gear owners notification of registry and vessel or gear owners may receive their authorization certificate and/or mortality/injury reporting form by contacting the Southeast Regional Office at 727-209-5952 or by visiting the Southeast Regional Office Web site ( http://sero.nmfs.noaa.gov/protected_resources/marine_mammal_authorization_program/ ) and following the instructions for printing the necessary documents. Mortality/injury forms are also available online at http://www.nmfs.noaa.gov/pr/pdfs/interactions/mmap_reporting_form.pdf.

The authorization certificate, or a copy, must be on board the vessel while it is operating in a Category I or II fishery, or for non-vessel fisheries, in the possession of the person in charge of the fishing operation (50 CFR 229.4(e)). Although efforts are made to limit the issuance of authorization certificates to only those vessel or gear owners that participate in Category I or II fisheries, not all state and Federal permit systems distinguish between fisheries as classified by the LOF. Therefore, some vessel or gear owners in Category III fisheries may receive authorization certificates even though they are not required for Category III fisheries. Individuals fishing in Category I and II fisheries for which no state or Federal permit is required must register with NMFS by contacting their appropriate Regional Office (see ADDRESSES ).

In Alaska regional and Greater Atlantic Regional fisheries, registrations of vessel or gear owners are automatically renewed and participants should receive an authorization certificate by January 1 of each new year. In Pacific Islands regional fisheries, vessel or gear owners receive an authorization certificate by January 1 for state fisheries and with their permit renewal for federal fisheries. In West Coast regional fisheries, vessel or gear owners receive authorization with each renewed state fishing license, the timing of which varies based on target species. Vessel or gear owners who participate in fisheries in these regions and have not received authorization certificates by January 1 or with renewed fishing licenses must contact the appropriate NMFS Regional Office (see ADDRESSES ).

In Southeast regional fisheries, vessel or gear owners' registrations are automatically renewed and participants will receive a letter in the mail by January 1 instructing them to contact the Southeast Regional Office to have an authorization certificate mailed to them or to visit the Southeast Regional Office Web site ( http://sero.nmfs.noaa.gov/protected_resources/marine_mammal_authorization_program/ ) to print their own certificate.

In accordance with the MMPA (16 U.S.C. 1387(e)) and 50 CFR 229.6, any vessel owner or operator, or gear owner or operator (in the case of non-vessel fisheries), participating in a fishery listed on the LOF must report to NMFS all incidental mortalities and injuries of marine mammals that occur during commercial fishing operations, regardless of the category in which the fishery is placed (I, II, or III) within 48 hours of the end of the fishing trip. “Injury” is defined in 50 CFR 229.2 as a wound or other physical harm. In addition, any animal that ingests fishing gear or any animal that is released with fishing gear entangling, trailing, or perforating any part of the body is considered injured, regardless of the presence of any wound or other evidence of injury, and must be reported. Mortality/injury reporting forms and instructions for submitting forms to NMFS can be downloaded from: http://www.nmfs.noaa.gov/pr/pdfs/interactions/mmap_reporting_form.pdf or by contacting the appropriate Regional office (see ADDRESSES ). Forms may be faxed directly to the NMFS Office of Protected Resources at 301-713-4060 or 301-713-0376. Reporting requirements and procedures can be found in 50 CFR 229.6.

Individuals participating in a Category I or II fishery are required to accommodate an observer aboard their vessel(s) upon request from NMFS. MMPA section 118 states that an observer may not be required on a vessel if the facilities for quartering an observer or performing observer functions are inadequate or unsafe; thereby exempting vessels too small to accommodate an observer from this requirement. However, observer requirements will not be exempted, regardless of vessel size, for U.S. Atlantic Ocean, Caribbean, or Gulf of Mexico large pelagics longline vessels operating in special areas designated by the Pelagic Longline Take Reduction Plan implementing regulations (50 CFR 229.36(d)). Observer requirements can be found in 50 CFR 229.7.

Table 4 in this rule provides a list of fisheries affected by TRPs and TRTs. TRP regulations can be found at 50 CFR 229.30 through 229.37. A description of each TRT and copies of each TRP can be found at: http://www.nmfs.noaa.gov/pr/interactions/trt/. It is the responsibility of fishery participants to comply with applicable take reduction regulations.

Information regarding the LOF and the Marine Mammal Authorization Program, including registration procedures and forms, current and past LOFs, information on each Category I and II fishery, observer requirements, and marine mammal mortality/injury reporting forms and submittal procedures, may be obtained at: http://www.nmfs.noaa.gov/pr/interactions/lof/, or from any NMFS Regional Office at the addresses listed below:

NMFS reviewed the marine mammal incidental mortality and serious injury information presented in the SARs for all fisheries to determine whether changes in fishery classification are warranted. The SARs are based on the best scientific information available at the time of preparation, including the level of mortality and serious injury of marine mammals that occurs incidental to commercial fishery operations and the PBR levels of marine mammal stocks. The information contained in the SARs is reviewed by regional Scientific Review Groups (SRGs) representing Alaska, the Pacific (including Hawaii), and the U.S. Atlantic, Gulf of Mexico, and Caribbean. The SRGs were created by the MMPA to review the science that informs the SARs, and to advise NMFS on marine mammal population status, trends, and stock structure, uncertainties in the science, research needs, and other issues.

NMFS also reviewed other sources of new information, including marine mammal stranding data, observer program data, fisher self-reports through the Marine Mammal Authorization Program, reports to the SRGs, conference papers, FMPs, and ESA documents.

The LOF for 2015 was based on, among other things, information provided in the NEPA and ESA documents analyzing authorized high seas fisheries; stranding data; fishermen self-reports through the MMAP; and SARs, primarily the draft 2013 SARs, which are generally based on data from 2007-2011. The final SARs referenced in this LOF include: 2007 (73 FR 21111, April 18, 2008), 2008 (74 FR 19530, April 29, 2009), 2009 (75 FR 12498, March 16, 2010), 2010 (76 FR 34054, June 10, 2011), 2011 (77 FR 29969, May 21, 2012), and 2012 (78 FR 19446, April 1, 2013), and the draft SAR for 2013 (78 FR 66681, November 6, 2013). The SARs are available at: http://www.nmfs.noaa.gov/pr/sars/.

The following summarizes proposed changes to the LOF for 2015, including the fisheries listed in the LOF, the estimated number of vessels/persons in a particular fishery, and the species and/or stocks that are incidentally killed or injured in a particular fishery. The proposed LOF for 2015 proposes no re-classifications of the fisheries provided in the LOF for 2014. NMFS proposes changes to the list of species and/or stocks killed or injured in certain fisheries and the estimated number of vessels/persons in certain fisheries, as well as certain administrative changes. Additionally, NMFS proposes adding 6 Category III fisheries to the LOF and removing 6 fisheries from the LOF. The classifications and definitions of U.S. commercial fisheries for 2015 are identical to those provided in the LOF for 2014 with the proposed changes discussed below. State and regional abbreviations used in the following paragraphs include: AK (Alaska), CA (California), DE (Delaware), FL (Florida), GMX (Gulf of Mexico), HI (Hawaii), MA (Massachusetts), ME (Maine), NC (North Carolina), NY (New York), OR (Oregon), RI (Rhode Island), SC (South Carolina), VA (Virginia), WA (Washington), and WNA (Western North Atlantic).

NMFS proposes to add “HI aquarium collecting” as a Category III fishery. This fishery is conducted primarily in Hawaii state waters, and includes fishing with small meshed nets, except throw nets, and small meshed traps for aquatic life that is kept alive for display. The fishery targets coral reef species for the aquarium trade. The fishery is managed by the Hawaii Department of Land and Natural Resources, Division of Aquatic Resources (DAR). An annual permit to collect reef fish is required. Regional bag, slot, and species-specific bans on live harvest may apply in certain designated areas. There have been no documented interactions of this fishery with marine mammals.

NMFS proposes to remove the Category III “OR salmon ranch” fishery from the LOF because this fishery no longer exists. The salmon ranching industry in Oregon ended in 1994. A commercial salmon ranch in Oregon must have a private salmon hatchery permit issued by the Oregon Department of Fish and Wildlife (ODFW). NMFS contacted the ODFW, which informed us that as of 2013 there are no active private hatchery permits issued by ODFW and no permits are anticipated for the future.

NMFS proposes to remove the Category III “WA herring brush weir” fishery because brush weirs have not been used in the herring fishery since 1994 and the brush weir fishery is considered obsolete. The brush weir, a type of marine impoundment or fish trap, was defined as a gear type for herring harvest by the Washington Department of Fish and Wildlife in 1973, but was removed from the Department's list of lawful gear types for use in the herring fishery in 1994.

NMFS proposes to remove the Category III “WA herring spawn on kelp” fishery as there are currently no participants in this fishery. In 1972, a sac-roe fishery targeting Cherry Point herring stock began in northern Puget Sound. The fishery peaked in the mid-1970s but declines in the north Puget Sound herring stocks, including Cherry Point, led to closure of the fishery by the mid-1980s. In 1988, a non-treaty herring spawn on kelp fishery opened on the Cherry Point stock. However, the decline in Cherry Point herring stock abundance in the mid-1990s led to closure of the spawn on kelp fishery and it has remained closed.

NMFS proposes to remove the Category III “CA abalone” fishery, listed under the “dive, hand/mechanical collection fisheries” section of Table 1 as this is not a commercial fishery. Although there is a limited recreational fishery for abalone, it is illegal to harvest wild abalone for commercial sale anywhere in California.

NMFS proposes to remove the Category III “HI lobster tangle net” fishery from the LOF. The fishery had zero participants in 2011 and 2012, the most recent years for which data are available.

NMFS proposes to remove the Category III “HI charter vessel” fishery from the LOF. Commercial fishing effort with the gears and methods used in charter fishing (e.g., troll, inshore handline, deep sea handline, casting) is already accounted for in those individual fisheries on the LOF.

NMFS proposes to rename the Category II “WA coastal Dungeness crab pot/trap” fishery to “WA coastal Dungeness crab pot.” The proposed change will be consistent with state regulations and the name commonly used to describe this fishery. This proposed change will also make the name consistent with the names for the California and Oregon Dungeness crab pot fisheries.

NMFS proposes to rename the Category III “WA/OR North Pacific halibut longline/setline” to the “WA/OR Pacific halibut longline” fishery to reflect that Pacific halibut is the correct common name for the fishery target species Hippoglossus stenolepis. In addition, setline is not used in this fishery and thus is proposed to be eliminated from the current name.

NMFS proposes to rename the Category III “Coastwide scallop dredge” fishery to the “Alaska scallop dredge” because there is no scallop dredge fishery off Washington, Oregon, and California. Dredge gear is prohibited to protect groundfish essential fish habitat (see 50 CFR Section 660.312), and conforming regulations have been adopted by these three coastal states. Alternative gear types (bottom trawl, hand pick/dive) have not been utilized in recent years. The scallop fishery off Alaska harvests weathervane scallops, and there have been no U.S. commercial landings of scallops off the U.S. West Coast south of Alaska since 2006. The State of Alaska has been delegated authority to manage the scallop dredge fishery in state waters and the EEZ off Alaska under the Scallop FMP developed by the North Pacific Fishery Management Council. There is a federally administered license limitation program that limits effort in the fishery.

NMFS proposes to rename the Category III “OR/CA hagfish pot or trap” to the “WA/OR/CA hagfish pot” fishery because the fishery includes participants in Washington. Landings of hagfish from the pot fishery between 2004 and 2008 averaged 50,000 to 100,000 pounds for ports in Washington (Saez et al. 2013). In addition, the fishery is referred to as a pot fishery; therefore, NMFS is proposing to remove the word “trap” from the title.

NMFS proposes to rename the Category I “HI deep-set (tuna target) longline/set line” fishery to “HI deep-set longline.” This fishery uses deep-set longline gear, as defined in regulations (50 CFR 665.800). Specification of the target species in the fishery name is not necessary to differentiate it from shallow-set fishing.

NMFS proposes to rename the Category II “HI shallow-set (swordfish target) longline/set line” fishery to “HI shallow-set longline.” This fishery uses shallow-set longline gear, as defined in regulations (50 CFR 665.800). Specification of the target species in the fishery name is not necessary to differentiate it from deep-set fishing.

NMFS proposes to rename the Category III “HI opelu/akule net” fishery to “HI lift net.” Standard nets used to catch opelu are called lift nets, while standard nets used to catch akule are called purse seine nets (see the “HI purse seine” fishery). These nets have different configurations and are used differently. This proposed change will harmonize state and federal terminology for these fisheries, reduce confusion, and enhance collaborative management.

NMFS proposes to rename Category III “HI hukilau net” fishery to “HI seine net.” Seine net is a broader term, encompassing hukilau. This proposed change will harmonize State and Federal terminology for these fisheries, reduce confusion, and enhance collaborative management.

NMFS proposes to rename the Category III “HI vertical longline” fishery to “HI vertical line.” The fishery uses a vertical mainline less than one nautical mile in length, so it does not meet the State or Federal definition of longline. This proposed change will harmonize State and Federal terminology for these fisheries, reduce confusion, and enhance collaborative management.

NMFS proposes to rename the Category III “HI MHI deep-sea bottomfish handline” fishery to “HI bottomfish handline” to clarify the fishery's target species. This fishery corresponds with the State's deep-sea handline fishing method.

NMFS proposes to rename the Category III “HI tuna handline” fishery to “HI pelagic handline.” The pelagic handline fishery targets tunas and other pelagic fish species. This fishery corresponds with the State's ika-shibi, palu ahi, and hybrid handline fishing methods.

NMFS proposes to split the Category III “CA coonstripe shrimp, rock crab, tanner crab pot or trap” fishery into two Category III fisheries, “CA/OR coonstripe shrimp pot” and “CA rock crab pot,” and eliminate the tanner crab component of the pot fishery. The “CA/OR coonstripe pot” fishery is a relatively small fishery with the majority of effort in northern California with some landings made in Oregon (Saez et al. 2013). Therefore, it is appropriate to revise the name to reflect effort in California and Oregon. The “CA rock crab pot” fishery is a significant fishery throughout much of California. It is distinct in time and area fished, compared to other pot fisheries, and, thus, appropriate to be listed as a separate fishery. In addition, the state of California has regulations in place for managing this fishery. NMFS proposes removing tanner crab from the title because tanner crab is not a target species for an existing pot fishery in California. California established regulations over a decade ago for experimental fishery permits to support the development of a tanner crab fishery; however, no permits have been issued. At this time, there is no expectation that a tanner crab directed pot fishery will develop, thus, NMFS proposes to remove this species as a component of either of the newly named fisheries.

NMFS proposes to split the Category III “HI trolling, rod and reel” fishery into two separate Category III fisheries, the “HI troll” and “HI rod and reel” fisheries. Although the gear types used may be similar in some cases, the methods used are different, which may affect the likelihood of encountering or interacting with marine mammals. Trolling involves fishing by towing or dragging line(s) with artificial lure(s) or dead or live bait, or green stick and danglers using a sail, surf, or motor-powered vessel underway. Rod and reel fishing can be conducted from shore or from an anchored or drifting vessel using a spinning or casting reel (spinning or casting) with baited hooks or lures. We propose to retain Pantropical spotted dolphin (HI stock) on the list of species injured or killed in the HI troll fishery, but not the HI rod and reel fishery, given that fishing in close proximity to groups of spotted dolphins and anecdotal reports of spotted dolphin hookings occur in the troll fishery, but not the rod and reel fishery.

NMFS proposes to update the estimated number of vessels/persons in the commercial fisheries in the Pacific Ocean (Table 1). Updates are based on state and federal fisheries permit data. The estimated number of vessels/persons participating in fisheries operating within U.S. waters is expressed in terms of the number of active participants in the fishery, when possible. If this information is not available, the estimated number of vessels/persons licensed for a particular fishery is provided. If no recent information is available on the number of participants, vessels, or persons licensed in a fishery, then the number from the most recent LOF is used for the estimated number of vessels/persons in the fishery. NMFS acknowledges that, in some cases, these estimates may be inflations of actual effort. However, in these cases, the numbers represent the potential effort for each fishery, given the multiple gear types for which several state permits may allow, and thus the potential impact on marine mammals.

NMFS proposes to update the estimated number of vessels/persons as follows. Fisheries are labeled with their proposed name on the 2015 LOF:

NMFS proposes to update the list of species and/or stocks incidentally killed or injured by fisheries in the Pacific Ocean (Table 1). The agency notes here that while only mortalities and “serious injuries” are used to categorize fisheries as Category I, II, or III, the list of species and/or stocks incidentally killed or injured includes stocks that have any documented mortalities or injuries, including “non-serious” injuries. For information on how NMFS determines whether a particular injury is serious or non-serious, please see NMFS Instruction 02-038-01, “Process for Distinguishing Serious from Non-Serious Injury of Marine Mammals” ( http://www.nmfs.noaa.gov/pr/laws/mmpa/policies.htm ). NMFS proposes the following updates:

NMFS proposes to add the Central North Pacific stock of humpback whales to the list of species and/or stocks killed or injured in the Category III HI crab trap fishery. From 2007-2011, five humpback whales were reported as entangled in Hawaii trap gear (Lyman 2013, NMFS unpublished data). The gear involved in two of the five entanglements was identified as crab trap gear, the gear involved in one was identified as possibly crab trap gear, and the gear involved in the remaining two could not be identified to a specific trap fishery (NMFS unpublished data). Pre-mitigation injury determinations for the crab trap and possible crab trap entanglements were two serious injuries and one prorated as 0.75 serious injury (Bradford and Lyman 2013, NMFS unpublished data). Based on these data, humpback serious injury and mortality in the crab trap fishery from 2007-2011 is 2.75, with a 5-year annual average of 0.55 per year. The fishery remains a Category III fishery based on the following tier analysis: Tier 1: The stock's PBR level is 61.2 (Allen and Angliss 2013). Total commercial fishery-related mortality and serious injury of this stock from 2007-2011 is an average of 1.1 per year (0.55 from confirmed commercial fisheries, as reported in Allen and Angliss 2013, plus 0.55 from the Hawaii crab trap fishery noted above), which is 1.8% of the stock's PBR. This is less than 10% of the PBR, so a Tier 2 analysis is not necessary. The Hawaii crab trap fishery warrants Category III classification.

NMFS proposes to add the South Central Alaska stock of northern sea otters to the list of species and/or stocks killed or injured in the Category II AK Cook Inlet salmon set gillnet fishery. Sea otter mortalities were documented in set nets in Seldovia Bay and Clam Gulch in 2009.

NMFS proposes to add the South Central Alaska stock of northern sea otters to the list of species and/or stocks killed or injured in the Category III AK Prince William Sound set gillnet fishery. A sea otter mortality was documented in a set net near Egg Island in 2013.

NMFS proposes to add the Alaska stock of ringed seals to the list of species and/or stocks killed or injured in the Category III AK Bering Sea, Aleutian Islands Pacific cod trawl fishery. An observer report documented a ringed seal mortality in 2011.

NMFS proposes to add the Alaska stock of ringed seals to the list of species and/or stocks killed or injured in the Category III AK Bering Sea, Aleutian Islands Pacific cod longline fishery. An observer report documented a ringed seal mortality in 2011.

NMFS proposes to remove the Hawaiian monk seal from the list of species and/or stocks killed or injured in the Category III HI MHI deep sea bottomfish handline fishery (proposed to be renamed “HI bottomfish handline”). Although the SAR reports monk seal hookings in the main Hawaiian Islands, no mortalities or injuries are attributed to the deep-sea bottomfish handline fishery (Carretta et al. 2013).

NMFS proposes to remove the Hawaiian monk seal from the list of species and/or stocks killed or injured in the Category III HI lobster trap fishery. The Hawaiian monk seal has been listed as injured or killed in the lobster trap fishery since the fishery was added to the LOF in 1996. Lobster trap fishing effort in Hawaii is substantially different now than when it was originally added to the LOF. Commercial fishing is now prohibited within the Papahanaumokuakea Marine National Monument in the Northwest Hawaiian Islands, where most lobster trap fishing in Hawaii historically occurred, and lobster trap fishing effort is very low within the main Hawaiian Islands, with fewer than three active commercial fishermen. There are no reports of monk seal entanglements involving this gear since 1986, when one monk seal died in a trap in the Northwestern Hawaiian Islands. The SAR reports no monk seal mortalities or injuries in the fishery (Carretta et al. 2013). NMFS previously retained this species on the list of species and/or stocks injured or killed in this fishery because monk seals in the main Hawaiian Islands are hooked and entangled in fishing gear at a rate that cannot be reliably assessed. However, given the very low fishing effort and lack of any reports of monk seal injuries or mortalities in this fishery in almost 20 years, NMFS proposes to remove the species from the list of species injured or killed in the lobster trap fishery.

NMFS proposes to add the Gulf of Maine sea urchin dredge to the list of Category III fisheries. Sea urchin dredges are used in state waters in the Gulf of Maine to harvest green sea urchins ( Strongylocentrotus drobachiensis ). This fishery uses dredge gear that has an upturned, sled-like shape at the front that includes several automobile leaf springs tied together with a steel bar. A tow bail is welded to one of the springs and a chain mat is rigged behind the mouth box frame. The frame is fitted with skids or wheels. The springs act as runners, enabling the sled to move over rocks without hanging up. The chain mat scrapes up the urchins. The bag is fitted with a cod-end for ease of emptying. This gear is generally used in depths up to 27.5 m (90ft) (Stevenson et al., 2004). There have been no documented interactions of this fishery with marine mammals. This fishery is not currently observed and is not managed under a federal fishery management plan (FMP).

NMFS proposes to add the Mid-Atlantic blue crab dredge fishery to the list of Category III fisheries. Blue crabs ( Callinectes sapidus ) are harvested with dredges (or “scrapes”) similar to oyster dredges in state waters in New York, New Jersey, Delaware, Virginia, and North Carolina. Stem-rig dredge boats (approximately 15m (49-ft) long) tow two dredges in tandem from a single chain warp. The dredges are equipped with 10-cm (4-in) long teeth that rake the crabs out of the bottom (Stevenson et al., 2004). There have been no documented interactions of this fishery with marine mammals. This fishery is not currently observed. It is managed under interstate FMPs.

NMFS proposes to add the Mid-Atlantic whelk dredge fishery to the list of Category III fisheries. In this fishery, assorted dredges or rakes may be used to target channeled and knobbed whelks ( Busycon canaliculatus and B. carica, respectively) in New York, Delaware, and Virginia (Stevenson et al. 2004). Toothed crab dredges and dredges with a toothless bar or a chain in place of the toothed bar may be used (Bruce 2006). There have been no documented interactions of this fishery with marine mammals. This fishery is not currently observed and is not managed under a federal fishery management plan.

NMFS proposes to add the Mid-Atlantic soft shell clam dredge fishery to the list of Category III fisheries. This fishery uses hydraulic dredges to target soft shell clams ( Mya arenaria ) in the state waters of Maryland and Virginia. In this fishery, the dredge manifold and blade are located just forward of an escalator, or conveyor belt, that carries the clams to the deck of the vessel. Escalator dredges are typically operated from 15-m (49-ft) vessels in water depths of 2-6 m (7-20 ft). This gear cannot be operated in water depths less than one-half the length of the escalator. Use of the escalator dredge is not managed under federal FMPs. This gear is subject to many of the same state laws and regulations that apply to surf clam and ocean quahog dredges in state waters (Stevenson et al., 2004). There have been no documented interactions of this fishery with marine mammals. This fishery is not currently observed.

NMFS proposes the following additions to and deletions from the list of marine mammal species and/or stocks incidentally killed or injured in commercial fisheries in the Atlantic, Gulf of Mexico, and Caribbean (Table 2). These additions and deletions are based on information contained in the U.S. Atlantic and Gulf of Mexico Marine Mammal Stock Assessments, strandings data, and/or observer data. The agency notes here that while only mortalities and “serious injuries” are used to categorize fisheries as Category I, II, or III, the list of species and/or stocks incidentally killed or injured includes stocks that have any documented mortalities or injuries, including “non-serious” injuries. For information on how NMFS determines whether a particular injury is serious or non-serious, please see NMFS Instruction 02-038-01, “Process for Distinguishing Serious from Non-Serious Injury of Marine Mammals” ( http://www.nmfs.noaa.gov/pr/laws/mmpa/policies.htm ). NMFS proposes the following updates:

NMFS proposes to add the Canadian East Coast stock of minke whales to the list of species and/or stocks incidentally killed or injured by the Category I Atlantic Ocean, Caribbean, Gulf of Mexico large pelagics longline fishery. In 2010, a minke whale was caught in the pelagic longline fishery, South Atlantic Bight fishing area; it was released alive and not seriously injured (Garrison and Stokes, 2012 cited in Waring et al., 2013).

NMFS proposes to add the Western North Atlantic stock of Kogia species whale (pygmy or dwarf sperm whale) to the list of species and/or stocks incidentally killed or injured in the Category I Atlantic Ocean, Caribbean, and Gulf of Mexico large pelagics longline fishery. A 2011 observer report documented this fishery seriously injuring a Kogia species.

NMFS proposes to add the Western North Atlantic stock of false killer whale to the list of species and/or stocks incidentally killed or injured in the Category I Atlantic Ocean, Caribbean, and Gulf of Mexico large pelagics longline fishery. A 2011 observer report documented a false killer whale injury by this fishery.

NMFS proposes to add the Florida stock of West Indian manatee to the list of species and/or stocks incidentally killed or injured by the Category II Southeastern U.S. Atlantic, Gulf of Mexico shrimp trawl fishery. A manatee was killed in 2010 by the Georgia in-shore bait fishery, which is included in this fishery (USFWS, 2014).

NMFS proposes to update the stock names of bottlenose dolphins on the list of species and/or stocks incidentally killed or injured in Atlantic Ocean, Gulf of Mexico, and Caribbean fisheries to align with recently identified stocks in the SARs. In 2009, NMFS began splitting stock complexes of bottlenose dolphins into individually defined stocks in the SARs. Specifically, the WNA Coastal stocks were split into 15 stocks between 2009 and 2013: 1. Biscayne Bay stock, 2. Central Florida coastal stock, 3. Charleston Estuarine System stock, 4. Florida Bay stock, 5. Indian River Lagoon Estuarine System stock, 6. Jacksonville Estuarine System stock, 7. Northern Florida Coastal stock, 8. Northern Georgia/Southern South Carolina Estuarine System stock, 9. Northern South Carolina Estuarine System stock, 10. Northern Migratory Coastal stock, 11. Northern North Carolina Estuarine System stock, 12. SC/GA coastal, 13. Southern Georgia Estuarine System stock, 14. Southern Migratory coastal, and 15. Southern North Carolina Estuarine System stock.

Bottlenose dolphins on the Atlantic coast were listed on the LOF, through 2010, by the stock complex name “bottlenose dolphin, WNA coastal.” In the 2011-2014 LOFs, newly defined bottlenose dolphin stocks broken out from the WNA coastal complex were added to the list of species and/or stocks incidentally killed or injured by a fishery if they overlapped in time and space with the fishery and if the fishery had been originally listed as interacting with the “WNA coastal” stock. Some newly defined stocks were also added based on spatial and temporal overlap with a fishery take documented in self-reports, strandings data, or observer data. Along the Atlantic coast, there is some uncertainty regarding which of the 15 newly identified bottlenose dolphin stocks or combination of stocks interact with Atlantic fisheries. Due to spatial and temporal overlap of stocks with active fisheries and uncertainty in stock identification for historic takes it is unclear, in some cases, exactly which stock a fishery take should be assigned to and in these instances all potential stocks in range of the take were historically added.

Beginning with this 2015 LOF, we will add a bottlenose dolphin stock to the list of species and/or stocks incidentally killed or injured only if a fishery take can be definitively identified to a specific stock. If the fishery mortality or injury cannot be definitively identified to a particular stock due to multiple stocks overlapping in time and space with the fishery take location, then we will list “bottlenose dolphin, unknown” on the LOF with the potential stock names within range in parentheses. We will review the bottlenose dolphin stocks currently listed on the LOF to ensure that they are consistent with this new approach and include any necessary corrections in future LOFs.

We propose to update the list of species and/or stocks on Table 2 to reflect the following administrative changes:

1. Add the Northern South Carolina estuarine system stock to the Category II Atlantic blue crab trap/pot fishery. Burdett and McFee (2004) reviewed bottlenose dolphin strandings in South Carolina and found bottlenose dolphin entanglements associated with the blue crab fishery.

2. Add unknown stocks of bottlenose dolphin to the Category II Southeastern U.S. Atlantic shark gillnet fishery. We propose to rename the Central Florida coastal stock and Northern Florida coastal stocks as “Bottlenose dolphin, unknown stocks.” There is some uncertainty regarding which of four bottlenose dolphin stocks or combination of stocks interact with the Southeastern U.S. Atlantic shark gillnet fishery. Due to spatial overlap of stocks when the fishery is active and uncertainty in stock identification for historic takes, interactions with this fishery can be either assigned to the Central Florida coastal stock, Northern Florida coastal stock, Southern migratory coastal stock, or South Carolina/Georgia coastal stock.

3. Add unknown stocks of bottlenose dolphin to the Category II North Carolina roe mullet stop net fishery. There is some uncertainty regarding which of the bottlenose dolphin stocks or combination of stocks interact with the North Carolina roe mullet stop net fishery. Due to spatial overlap of stocks when the fishery is active and uncertainty in stock identification for some historic takes, we propose to combine the Southern North Carolina estuarine system stock and the Southern migratory coastal stock as “Bottlenose dolphin, unknown stock.”

NMFS proposes to add two stocks of bottlenose dolphins, Charleston estuarine system and Southern migratory coastal, to the list of the species and/or stocks incidentally killed or injured in the Category II Southeastern U.S. Atlantic, Gulf of Mexico shrimp trawl fishery. We propose to add the Charleston estuarine system stock based on a take reported in a 2013 MMPA mortality/injury report. We propose to add the Southern migratory coastal stock based on a dolphin mortality in 2006 in a fisheries research shrimp trawl.

NMFS proposes to add the Northern North Carolina estuarine system stock of bottlenose dolphins to the list of species and/or stocks incidentally killed or injured in the Category II North Carolina roe mullet stop net fishery. A Northern North Carolina estuarine system bottlenose dolphin mortality was reported in a 2013 MMPA mortality/injury report.

NMFS proposes to add the Northern South Carolina estuarine system stock of bottlenose dolphins to the list of species and/or stocks incidentally killed or injured in the Category III Southeast Atlantic inshore gillnet fishery. Based on strandings data, a mortality in this fishery was documented in 2011.

NMFS proposes to add two stocks of bottlenose dolphins, Choctawhatchee Bay and Florida Bay, to the list of species and/or stocks incidentally killed or injured in the Category III Atlantic Ocean, Gulf of Mexico, Caribbean commercial passenger fishing vessel fishery. In 2008, there was a Choctawhatchee Bay dolphin calf mortality as a result of an attempt to disentangle the animal from monofilament line. We propose to add the Florida Bay stock based on an at-sea observation in 2011 of a Florida Bay dolphin entangled in monofilament.

NMFS proposes to remove the Western North Atlantic stock of gray seal from the list of species and/or stocks incidentally killed or injured in the Category III Gulf of Maine herring and Atlantic mackerel stop seine/weir fishery. According to Waring et al. (2013), there have been no reports of gray seal injuries or deaths caused by the Gulf of Maine herring and Atlantic mackerel stop seine/weir fishery over the past five years. We are soliciting public input through the 2015 Proposed List of Fisheries as to whether or not anecdotal evidence exists for keeping this species listed as a species injured or killed by this Category III fishery.

NMFS proposes to remove the Western North Atlantic stock of long-finned and short-finned pilot whales from the list of species and/or stocks incidentally killed or injured in the Category I Mid-Atlantic gillnet fishery. The last known documented take of a pilot whale (sp.) in this fishery was in 1998.

NMFS proposes to remove the Western North Atlantic stock of Northern bottlenose whale from the list of species and/or stocks incidentally killed or injured in the Category I Atlantic Ocean, Caribbean, Gulf of Mexico large pelagics longline fishery. This species was listed by analogy in the 2007 LOF due to a fishery interaction in 2001 in the U.S. Northeast Distant Waters (NED) experimental pelagic longline fishery in Canadian waters where the animal taken was observed to be seriously injured. Since 2001, there have been no additional takes documented in this fishery despite continued observer coverage in this fishery.

NMFS proposes to make the following typographical corrections to the list of marine mammal species and/or stocks incidentally killed or injured: Remove Northern migratory coastal stock of bottlenose dolphin from the NC roe mullet stop net fishery; add Northern migratory coastal stock of bottlenose dolphin to, and remove Southern North Carolina estuarine system stock of bottlenose dolphin from, the VA pound net fishery; and add Gulf of Mexico stock of Gervais beaked whale to the Atlantic Ocean, Caribbean, Gulf of Mexico large pelagics longline.

NMFS proposes to correct a stock name listed under the Category III Georgia cannonball jellyfish trawl fishery from “Southern South Carolina/Georgia” stock of bottlenose dolphins to “SC/GA coastal” stock.

NMFS proposes to add the Northwest Atlantic trawl fishery to the list of Category III fisheries. This fishery is also managed under the Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries (16 U.S.C. 5601) and operates in the Northwest Atlantic Fisheries Organization's (NAFO) Regulatory Area (NRA) in accordance with NAFO's Conservation and Enforcement Measures. The NRA is located roughly north of 35° N latitude and west of 42° W longitude in the Northwest Atlantic outside of the Exclusive Economic Zones of the United States, Canada, France (with respect to St. Pierre and Miquelon), and Denmark (with respect to Greenland). Yellowtail flounder, American plaice, wolfish (unclassified), skates, Atlantic cod, haddock, Atlantic halibut, monkfish, redfish, Greenland halibut, shrimp, and Illex squid are the primary target species for this fishery. We propose to list this fishery as Category III because the high seas Northwest Atlantic trawl fishery has operated with 100% observer coverage for the two years of its operation and no marine mammal interactions have been documented.

NMFS proposes to add the Northwest Atlantic bottom longline fishery to the list of Category III fisheries. This fishery is managed under the Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries (16 U.S.C. 5601) and operates in the NRA in accordance with NAFO's Conservation and Enforcement Measures. The high seas Northwest Atlantic bottom longline fishery began operation in 2014. Based on analogy to other bottom longline fisheries, we anticipate that this fishery will have a remote likelihood of incidental mortality or serious injury of marine mammals. Therefore, we propose to list this fishery as Category III.

NMFS proposes to update the estimated number of HSFCA permits in multiple high seas fisheries for multiple gear types (Table 3). The proposed updated numbers of HSFCA permits reflect the current number of permits in the NMFS National Permit System database, with the exception of the Western Pacific Pelagic HI deep-set and shallow-set component longline fisheries. The HSFCA permit does not distinguish between deep and shallow-set, therefore, the estimated number of participants from Table 1 for only these fisheries is used. NMFS proposes to update the estimated number of HSFCA permits as follows:

NMFS proposes to update the list of species and/or stocks incidentally killed or injured by fisheries in high seas fisheries (Table 3). The agency notes here that while only mortalities and “serious injuries” are used to categorize fisheries as Category I, II, or III, the list of species and/or stocks incidentally killed or injured includes stocks that have any documented mortalities or injuries, including “non-serious” injuries. For information on how NMFS determines whether a particular injury is serious or non-serious, please see NMFS Instruction 02-038-01, “Process for Distinguishing Serious from Non-Serious Injury of Marine Mammals” ( http://www.nmfs.noaa.gov/pr/laws/mmpa/policies.htm ). The lists of species and/or stocks injured or killed in fisheries that operate both within U.S. waters and on the high seas are identical to their Table 1 or 2 counterparts, except for those with distributions known to occur on only one side of the EEZ boundary. Stock structure on the high seas is unclear or unknown for most species, which leads to uncertainty in stock identification for animals injured or killed on the high seas. Therefore, for Table 3, we report the stock names as identified in the SARs. NMFS proposes the following updates:

NMFS proposes to add the Canadian East Coast stock of minke whales to the list of species incidentally killed or injured by the Category I Atlantic highly migratory species longline fishery. In 2010, a minke whale was caught but released alive with no serious injury in the Category I Atlantic Ocean, Caribbean, Gulf of Mexico large pelagics longline fishery, South Atlantic Bight fishing area (Garrison and Stokes 2012 cited in Waring et al., 2013). The Category I Atlantic highly migratory species longline fishery is considered to be the high seas extension of the Atlantic Ocean, Caribbean, Gulf of Mexico large pelagics longline fishery, utilizing the same gear and fishing practices. Since minke whales may also occur on the high seas and have been documented to interact with the domestic component of this fishery (Garrison and Stokes 2012 cited in Waring et al., 2013), we propose to add the Canadian East Coast stock of minke whale to the list of species incidentally killed or injured in the Atlantic highly migratory species longline fishery.

NMFS proposes to add the Western North Atlantic stock of Kogia spp. whale (pygmy or dwarf sperm whale) to the list of species and/or stocks incidentally killed or injured by Category I Atlantic highly migratory species longline fishery. In 2011, an observer report documented that a Kogia species was seriously injured by the Atlantic Ocean, Caribbean, Gulf of Mexico large pelagics longline fishery. This stock may reside outside of EEZ waters, thus it has the potential to interact with the high seas portion of the pelagic longline fishery.

NMFS proposes to add the Western North Atlantic stock of false killer whales to the list of species incidentally killed or injured by Category I Atlantic highly migratory species longline fishery. In 2011, an observer report documented that a false killer whale was injured by the Atlantic Ocean, Caribbean, Gulf of Mexico large pelagics longline fishery. This stock may reside outside of EEZ waters, thus it has the potential to interact with the high seas portion of the pelagic longline fishery.

NMFS proposes to add the Gulf of Mexico stock of Risso's dolphins to the list of species incidentally killed or injured by Category I Atlantic highly migratory species longline fishery. In 2011, an observer report documented injury to Risso's dolphins by the Atlantic Ocean, Caribbean, Gulf of Mexico large pelagics longline fishery. This stock may reside outside of EEZ waters, thus it has the potential to interact with the high seas portion of the pelagic longline fishery.

NMFS proposes to add the Gulf of Mexico oceanic stock of killer whales to the list of species incidentally killed or injured by the Category I Atlantic highly migratory species longline fishery. In 2008, an observer report documented an entangled killer whale in the Atlantic Ocean, Caribbean, Gulf of Mexico large pelagics longline fishery. This stock may reside outside of EEZ waters, thus it has the potential to interact with the high seas portion of the pelagic longline fishery.

NMFS proposes to add the Western North Atlantic stock of Pantropical spotted dolphins to the to the list of species incidentally killed or injured by Category I Atlantic highly migratory species longline fishery. In 2005, an observer report documented an interaction with the Atlantic Ocean, Caribbean, Gulf of Mexico large pelagics longline fishery. This stock may reside outside of EEZ waters, thus it has the potential to interact with the high seas portion of the pelagic longline fishery.

The following tables set forth the list of U.S. commercial fisheries according to their classification under section 118 of the MMPA. Table 1 lists commercial fisheries in the Pacific Ocean (including Alaska); Table 2 lists commercial fisheries in the Atlantic Ocean, Gulf of Mexico, and Caribbean; Table 3 lists commercial fisheries on the high seas; and Table 4 lists fisheries affected by TRPs or TRTs.

In Tables 1 and 2, the estimated number of vessels or persons participating in fisheries operating within U.S. waters is expressed in terms of the number of active participants in the fishery, when possible. If this information is not available, the estimated number of vessels or persons licensed for a particular fishery is provided. If no recent information is available on the number of participants, vessels, or persons licensed in a fishery, then the number from the most recent LOF is used for the estimated number of vessels or persons in the fishery. NMFS acknowledges that, in some cases, these estimates may be inflations of actual effort, such as for many of the Mid-Atlantic and New England fisheries. However, in these cases, the numbers represent the potential effort for each fishery, given the multiple gear types for which several state permits may allow. Changes made to Mid-Atlantic and New England fishery participants will not affect observer coverage or bycatch estimates, as observer coverage and bycatch estimates are based on vessel trip reports and landings data. Table 1 and 2 serve to provide a description of the fishery's potential effort (state and Federal). If NMFS is able to extract more accurate information on the gear types used by state permit holders in the future, the numbers will be updated to reflect this change. For additional information on fishing effort in fisheries found on Table 1 or 2, contact the relevant regional office (contact information included above in SUPPLEMENTARY INFORMATION ).

For high seas fisheries, Table 3 lists the number of valid HSFCA permits currently held. Although this likely overestimates the number of active participants in many of these fisheries, the number of valid HSFCA permits is the most reliable data on the potential effort in high seas fisheries at this time. As noted previously in this rule, the number of HSFCA permits listed in Table 3 for the high seas components of fisheries that also operate within U.S. waters does not necessarily represent additional effort that is not accounted for in Tables 1 and 2. Many vessels holding HSFCA permits also fish within U.S. waters and are included in the number of vessels and participants operating within those fisheries in Tables 1 and 2.

Tables 1, 2, and 3 also list the marine mammal species and/or stocks incidentally killed or injured (seriously or non-seriously) in each fishery based on SARs, injury determination reports, bycatch estimation reports, observer data, logbook data, stranding data, disentanglement network data, fisher self-reports (i.e. MMPA reports), and anecdotal reports. The best available scientific information included in these reports is based on data through 2011. This list includes all species and/or stocks known to be injured or killed in a given fishery but also includes species and/or stocks for which there are anecdotal records of a mortality or injury. Additionally, species identified by logbook entries, stranding data, or fishermen self-reports (i.e., MMPA reports) may not be verified. In Tables 1 and 2, NMFS has designated those species/stocks driving a fishery's classification (i.e., the fishery is classified based on mortalities and serious injuries of a marine mammal stock that are greater than or equal to 50 percent [Category I], or greater than 1 percent and less than 50 percent [Category II], of a stock's PBR) by a “ 1 ” after the stock's name.

In Tables 1 and 2, there are several fisheries classified as Category II that have no recent documented mortalities or serious injuries of marine mammals, or fisheries that did not result in a mortality or serious injury rate greater than 1 percent of a stock's PBR level based on known interactions. NMFS has classified these fisheries by analogy to other Category I or II fisheries that use similar fishing techniques or gear that are known to cause mortality or serious injury of marine mammals, as discussed in the final LOF for 1996 (60 FR 67063, December 28, 1995), and according to factors listed in the definition of a “Category II fishery” in 50 CFR 229.2 (i.e., fishing techniques, gear used, methods used to deter marine mammals, target species, seasons and areas fished, qualitative data from logbooks or fisher reports, stranding data, and the species and distribution of marine mammals in the area). NMFS has designated those fisheries listed by analogy in Tables 1 and 2 by a “ 2 ” after the fishery's name.

There are several fisheries in Tables 1, 2, and 3 in which a portion of the fishing vessels cross the EEZ boundary and therefore operate both within U.S. waters and on the high seas. These fisheries, though listed separately between Table 1 or 2 and Table 3, are considered the same fishery on either side of the EEZ boundary. NMFS has designated those fisheries in each table by a “*” after the fishery's name.