[Federal Register Volume 81, Number 27 (Wednesday, February 10, 2016)]
[Proposed Rules]
[Pages 7055-7063]
[FR Doc No: 2016-02585]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 228

[FRL-9942-08-Region 1]

Ocean Disposal; Proposed Amendments to Restrictions on Use of
Dredged Material Disposal Sites in the Central and Western Portions of
Long Island Sound; Connecticut

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) today proposes to
amend federal regulations that designated, and placed restrictions on
the use of, the Central Long Island Sound and Western Long Island Sound
dredged material disposal sites, located offshore from New Haven and
Stamford, Connecticut, respectively. The amended regulation
incorporates standards and procedures for the use of those sites as
recommended in the Long Island Sound Dredged Material Management Plan,
which was completed by the U.S. Army Corps of Engineers on January 11,
2016. The Dredged Material Management Plan identifies a wide range of
alternatives to open-water disposal and recommends standards and
procedures for determining which alternatives to pursue for different
dredging projects, so as to reduce or eliminate wherever practicable
the open-water disposal of dredged material.

DATES: Comments must be received on or before March 25, 2016. EPA will
hold two public meetings to receive comment on the proposed rule. The
first will be held on March 1, 2016, from 5 p.m. to 7 p.m. at the Port
Jefferson Free Library, 100 Thompson Street, Port Jefferson, New York.
The second will be held on March 2, 2016, from 3:30 p.m. to 5:30 p.m.
at the University of Connecticut-Stamford, Auditorium 2, 1 University
Place, Stamford, Connecticut.

ADDRESSES: Written comments should be sent to: Stephen Perkins, U.S.
Environmental Protection Agency, New England Regional Office, 5 Post
Office Square, Suite 100, Mail Code: OEP06-3, Boston, MA 02109-3912 or
electronically to<EMAIL_ADDRESS>
FOR FURTHER INFORMATION CONTACT: Stephen Perkins, U.S. Environmental
Protection Agency, New England Regional Office, 5 Post Office Square,
Suite 100, Mail Code: OEP06-3, Boston, MA 02109-3912, telephone (617)
918-1501, electronic mail<EMAIL_ADDRESS>    Public Review of Documents: The file supporting these proposed
revisions is available for inspection as follows:
    In person. The Proposed Rule and the U.S. Army Corps of Engineers'
Dredged Material Management Plan (DMMP) and Programmatic Environmental
Impact Statement (PEIS) for Long Island Sound are available for
inspection at the U.S. Environmental Protection Agency, New England
Regional Office, 5 Post Office Square, Boston, MA. Persons interested
in inspecting materials in person should contact Stephen Perkins by
telephone<PHONE_NUMBER> or electronic mail<EMAIL_ADDRESS>to
arrange a time to view them.
    Electronically. You also may review and/or obtain electronic copies
of the Proposed Rule from EPA's Web site http://www3.epa.gov/region1/eco/lisdreg/eis.html. The DMMP and PEIS are available from the U.S.
Army Corps of Engineers' Long Island Sound DMMP Web site at: http://www.nae.usace.army.mil/Missions/ProjectsTopics/LongIslandSoundDMMP.aspx.

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

I. Background
II. The Dredged Material Management Plan for Long Island Sound
III. Standards and Procedures
    A. Standards
    B. Procedures
IV. Compliance With Statutory and Regulatory Requirements
V. Proposed Action
VI. Statutory and Executive Order Reviews

I. Background

    On June 3, 2005, EPA published in the Federal Register (70 FR
32498) a final rule (the 2005 Rule) designating two open-water dredged
material disposal sites, the Central Long Island Sound site (CLDS,
previously referred to as CLIS) and the Western Long Island Sound site
(WLDS, previously referred to as WLIS), for the disposal of dredged
material from harbors and navigation channels in Long Island Sound
(LIS) in the states of Connecticut and New York. These disposal site
designations were subject to various restrictions designed both to
ensure appropriate use of the sites and to support the goal of reducing
or eliminating the disposal of dredged material into Long Island Sound.
In support of this action, EPA also prepared a Final Environmental
Impact Statement (FEIS) under the National Environmental Policy Act
(NEPA) pursuant to the Agency's voluntary NEPA compliance policy.
    Pursuant to the Coastal Zone Management Act (CZMA), EPA consulted
with the New York Department of State (NY DOS) and the Connecticut
Department of Environmental Protection (CT DEP) \1\ on the designation
of these two sites. NY DOS raised objections as to the consistency of
the designations with the enforceable policies of New York's Coastal
Management Program. After consulting with both states, as well as with
the U.S. Army Corps of Engineers (USACE) and the National Oceanic and
Atmospheric Administration (NOAA), EPA negotiated an interim resolution
with NY DOS regarding its concerns. Specifically, EPA agreed to include
restrictions on the use of the sites in order to meet NY DOS's concerns
and provide enhanced assurance that the requirements of the CZMA, the
Marine Protection, Research, and Sanctuaries Act (MPRSA), and NEPA are
met.\2\ These restrictions were agreed to by both the NY DOS and the CT
DEP.
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    \1\ CT DEP has since been renamed and reconfigured as the
Connecticut Department of Energy & Environmental Protection (CT
DEEP).
    \2\ EPA held, and continues to hold, the view that the site
designations without the additional restrictions would have been
consistent with the enforceable policies of New York's CMP.
Nevertheless, EPA agreed that the additional site restrictions
placed reasonable conditions on when the disposal sites could be
used that provided enhanced assurance that the requirements of the
CZMA, the MPRSA, and NEPA are met. Moreover, adding these site use
restrictions represented a reasonable course of action lying between
the alternatives of not designating any disposal sites at all, and
designating sites for an indefinite term without the Restrictions.
Furthermore, EPA noted that the added site use restrictions arose
out of comments submitted by NY DOS and other parties and would be
consistent with EPA's environmental analysis and proposed action.
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    The restrictions were designed to ensure appropriate use and
management of the designated disposal sites and to support the common
goal of New York and Connecticut to reduce or eliminate wherever
practicable the disposal of dredged material in Long Island Sound. To
support this goal, the restrictions contemplated that there would be a
regional dredged material management plan (DMMP) for Long Island Sound
that would help to guide the management of dredged material from
projects which occur after completion of the DMMP. DMMPs are
comprehensive studies carried out by the USACE, in consultation with
the EPA and the affected states, to help manage dredged material in a
cost-effective and environmentally acceptable manner.
    The Governors of New York and Connecticut jointly requested the
USACE to develop a regional DMMP for Long Island Sound. Consistent with
the two states' requests, the 2005 designations contemplated that the
DMMP for Long Island Sound would include the identification of
alternatives to open-water disposal and the development of procedures
and standards for the use of the disposal sites and any practicable
alternatives to open-water disposal, so as to reduce or eliminate
wherever practicable the open-water disposal of dredged material. The
restrictions also included transitional conditions to govern dredged
material management during the development of the DMMP,

including sunset provisions for the sites if the DMMP was not
completed.
    The restrictions also included conditions that specified that use
of the sites would be suspended if, (a) within 60 days of the
completion of the DMMP, the EPA does not propose legally binding
amendments to the regulations for the two disposal sites to incorporate
lawful procedures and standards consistent with those recommended in
the DMMP for the use of the disposal sites and the use of practicable
alternatives to open-water disposal, and (b) within 120 days of
completion of the DMMP, and subject to the EPA's consideration of
public comments, the EPA does not issue legally binding final
amendments adopting such procedures and standards. Any such suspension
in the use of the sites would be lifted if and when EPA issued the
required final rule.

 II. The Dredged Material Management Plan for Long Island Sound

    On January 11, 2016, the USACE completed the Dredged Material
Management Plan for Long Island Sound--Connecticut, New York, Rhode
Island. EPA, NOAA, and the states of Connecticut and New York were
active participants in the development of the DMMP. These agencies
participated on a Steering Committee and other sub-groups to assist the
USACE throughout the process. EPA provided feedback to USACE on
individual sections of the DMMP as they were developed and on the draft
of the complete DMMP.
    The DMMP examines the need for dredging over a 30-year horizon,
past dredging history and dredged material placement, and current
beneficial use practices. The DMMP covers adjacent waters from which
dredged material was likely to originate within the draw area of any
proposed regional disposal solution, including Block Island Sound,
Little Narragansett Bay, Fishers Island Sound, Peconic Bay and
Gardiners Bay. A total of nearly 240 harbors, coves, bays and rivers
supporting various levels of navigational access are located along
these shores.
    The Long Island Sound DMMP estimates a dredging need of 52.9 cubic
yards over its 30-year planning horizon. Of this total, about 29
percent is expected to be sand, about 65 percent is expected to be
fine-grained materials suitable for open-water placement, and about 6
percent is expected to be unsuitable for open-water placement. The
distribution of this material among the three states is as follows:
About 74 percent is from Connecticut, 25 percent is from New York and 1
percent from Rhode Island. Of the total volume, about 63 percent is
from the USACE Federal Navigation Projects (FNP), 2 percent is from
other federal agency projects, and 35 percent is from non-federal
dredging activities under permit. The USACE has indicated that
budgetary constraints are likely to reduce the dredging volumes from
FNPs.
    The DMMP identifies and assesses alternatives for future dredged
material placement and beneficial use for each federal project and
separable component, and identifies the likely Federal Base Plans (the
least cost environmentally acceptable alternative) for future FNP
dredging activities. Finally, the DMMP recommends procedures to be
followed and standards to be applied in evaluating and recommending
dredged material placement options, tracking dredged material
placement, pursuing opportunities for alternative and beneficial uses
of dredged material in Long Island Sound, and researching and
monitoring the impacts of past and future placement activities.
    The DMMP is not a decision document, in that it does not determine
the specific dredged material placement solution for any specific
Federal Navigation Project activity. It also does not authorize
disposal or any other form of management of any particular dredged
material. Instead, the DMMP will serve as a framework to help guide
future investigations and inform decision-making for federal actions
with respect to dredging and dredged material placement. As individual
projects come up for their next maintenance cycle, or as feasibility
studies for proposed improvement dredging projects are prepared, those
studies should reference the evaluations and recommendations in the
DMMP in examining placement alternatives and making a final
determination as to the Federal Base Plan and appropriate beneficial
use opportunities beyond the base plan.
    The DMMP identifies the likely Federal Base Plans for each of the
52 FNPs and sub-projects in the Long Island Sound region that will or
may require maintenance dredging of project features during the 30-year
planning horizon. Opportunities for federal participation in beneficial
use options are also identified along with non-federal responsibilities
for study and implementation of the various placement alternatives.
    Identification of the likely Federal Base Plan for a particular
federal dredging project is not the same as selecting a placement
option for that project, nor does it limit potential federal
participation in the project. For each federal project, as it is
considered for funding for dredging, the Corps must analyze the
available alternatives, other eligible authorities, and the willingness
and capability of non-federal cost-sharing partners to participate
before recommending any final plan for dredged material placement or
beneficial use. Other factors beyond cost can also contribute to
decisions on placement options for dredging projects. Ecosystem
restoration is recognized as one of the primary missions of the USACE
under its planning guidance, and the placement option that is selected
for a project should maximize the sum of net economic development and
environmental restoration benefits. A beneficial use option may be
selected for a project even if it is not the Federal Base Plan for that
project.
    In response to the 2005 Rule, and in accordance with the DMMP
Project Management Plan (work plan), Section 7 of the DMMP recommends
procedures to be followed and standards to be applied in evaluating and
recommending dredged material placement options, tracking dredged
material placement, pursuing opportunities for alternative and
beneficial uses of dredged material in Long Island Sound, and
researching and monitoring impacts of past and future placement
activities. These recommendations form the basis for EPA's proposed
amendments to the 2005 restrictions, as described below.

III. Standards and Procedures

    Consistent with the 2005 Rule and with the recommendations of the
DMMP, EPA is proposing to amend the current restrictions to include
standards and procedures for the use of practicable alternatives to
open-water disposal, so as to reduce or eliminate wherever practicable
the open-water disposal of dredged material.

A. Standards

    EPA proposes to retain the current restriction at 40 CFR
228.15(b)(4)(vi)(I)(1) which provides that disposal at the sites shall
be allowed only if there is no practicable alternative to open-water
disposal and that any practicable alternative will be fully utilized
for the maximum volume of dredged material practicable. EPA also
proposes to retain the first sentence of Sec.  228.15(b)(4)(vi)(I)(2)
which recognizes that any alternative to open-water disposal may add
additional costs.
    As discussed in the preamble to the 2005 Rule, the decision
regarding whether there is a ``practicable alternative'' will continue
to be made on

a case-by-case basis, in connection with the permitting process. The
term ``practicable alternative'' is defined in 40 CFR 227.16(b) of the
EPA's ocean disposal regulations as an alternative which is,
``available at reasonable incremental cost and energy expenditures,
[and] which need not be competitive with the costs of ocean dumping,
taking into account the environmental benefits derived from such
activity, including the relative adverse environmental impacts
associated with the use of alternatives to ocean dumping.'' This
definition is incorporated by reference in 40 CFR
228.15(b)(4)(vi)(I)(1).
    In addition, 40 CFR 228.15(b)(4)(vi)(I)(2)) in the 2005 Rule
emphasizes that the designated sites may not be used whenever a
``practicable alternative'' is available even when this means
reasonable added incremental costs. Under this paragraph and the
general ocean dumping regulations, the USACE (the permitting agency)
must make the initial determination of whether this test has been met,
but the USACE decision is subject to review and possible objection by
the EPA. Given that these regulations entail restrictions on an EPA
site designation, if the EPA objects to any USACE determination that
practicable alternatives are not available, use of the designated sites
will be prohibited unless and until the EPA objection is resolved.
    By definition, the requirement that projects use ``practicable
alternatives'' will not impose unreasonably higher costs. Also, if an
alternative does not have less adverse environmental impact or
potential risk to other parts of the environment than use of the Sound,
today's rule will not require that it be used. However, the EPA
recognizes that even where use of Long Island Sound has been determined
to be environmentally acceptable, there may be alternatives (e.g.,
those involving beneficial use) that are environmentally preferable to
open-water disposal at the designated disposal sites in the Sound. When
such preferable alternatives are identified, they will need to be used
if they are available at ``reasonable incremental cost.''
    The language retained from the 2005 Rule does not attempt to
specify in advance how the ``reasonable incremental cost'' standard
will be applied in any particular case. The regulation contemplates a
balancing test, and the EPA believes that the determination is best
made on a case-by-case basis. The language of the 2005 Rule also does
not attempt to specify who will need to pay for any reasonable
incremental costs. Rather, the share of such costs (if any) to be borne
by private parties, state government, local government, or the federal
government also will need to be worked out in response to actual
situations. It should be understood, however, that if the use of a
practicable alternative is required in the future pursuant to today's
proposed rule (and 40 CFR 227.16), and no entity is willing to pay the
reasonable incremental costs, then use of the sites will be prohibited
for such projects even when this means that planned projects cannot go
forward. EPA recognizes that this could result in deferral of
maintenance or improvement projects that could impact navigation.
    EPA proposes to add the following standards, derived from the DMMP,
for the disposal of dredged material, by type of material, in the
amended restrictions for both disposal sites. These proposed amendments
do not make decisions about the suitability of any particular dredged
material for open-water disposal or any other type of management. Each
dredging project will have to go through project-specific permitting
evaluations.
1. Unsuitable Material
    ``Unsuitable fine-grained materials'' are those determined by
physical, chemical and biological testing to be unsuitable for
unconfined open-water placement. Accordingly, EPA's proposed rule
specifies that unsuitable fine-grained materials shall not be disposed
of at the designated sites.
2. Sandy Material
    ``Sandy material'' in Long Island Sound is coarse-grained material
of generally up to 20 percent fines when used for direct beach
placement, or up to 40 percent fines when used for nearshore bar/berm
nourishment. Clean sandy material should be used for beach or nearshore
bar/berm nourishment whenever practicable. Sandy material has a high
value as nourishment or in other coastal resiliency applications, and
recent experience is that state and local governments, as well as
property owner groups, are willing to fund the additional cost for such
material even where there is no other federal project authority to
assist in that cost. This is primarily because using dredged sand is
typically far less costly than acquiring sand from an upland source. As
long as beach or nearshore placement is a practicable alternative,
project proponents will need to identify and secure funding for any
needed non-federal cost-sharing. Accordingly, the proposed rule
specifies that coarse-grained material should be used for beach or
nearshore bar/berm nourishment, or other beneficial use whenever
practicable.
3. Suitable Fine-Grained Material
    ``Suitable fine-grained material'' in Long Island Sound is
typically clay and silty material of more than 20 to 40 percent fines
that is not suitable for beach or nearshore placement, yet is
determined through testing and analysis to be suitable for open-water
placement. Although the most likely cost-effective and environmentally
acceptable method of placement of this material is at open-water
disposal sites, EPA proposes that every proposed project exhaust the
possibility for a practicable alternative to open-water disposal. More
specifically, for materials dredged from upper river channels in the
Connecticut, Housatonic and Thames Rivers, whenever practicable, the
one existing Confined Open Water site, and on-shore or in-river
placement, should be used for such projects.
    Other beneficial uses, such as marsh creation, should be examined
and used whenever practicable. Project proponents should determine if
environmental and/or other benefits may offset the incremental project
cost sufficiently to warrant federal participation under one or more of
the other authorities discussed in Section 6 of the DMMP. EPA
anticipates that the opportunities for beneficial use of fine grained
materials may increase in the future as sea level rise and related
resiliency concerns generate demand for materials to conserve and
protect shorelines. As such, the alternatives for fine-grained
materials described in the DMMP should be viewed as a current
assessment of possible beneficial uses rather than the limit of such
possibilities in the future.
    The proposed rule specifies that beneficial uses such as marsh
creation, should be examined and used whenever practicable. If no other
alternative is determined to be practicable, suitable fine-grained
material may be placed at the designated sites.
4. Source Reduction
    Efforts to control sediment entering waterways can reduce the need
for maintenance dredging of harbor features and facilities by reducing
shoaling rates. Reducing sediment loads could help reduce the volumes
dredged in each maintenance operation as well as reduce the frequency
of maintenance. In addition, efforts to prevent introduction of
contaminants into the watershed (e.g., multi-sector and municipal
stormwater permits, measures to control nonpoint agricultural runoff)
can result in

reduced contaminant levels in sediments that can increase the range of
options available to beneficially use those sediments. Continued source
reduction efforts for both sediment and contaminants will assist in
further reducing the need for open-water placement of dredged material
in Long Island Sound. The EPA expects that federal, state and local
agencies tasked with regulating those discharges into the watersheds
tributary to Long Island Sound will exercise their authority under
various statues and regulations in a continuing effort to reduce the
flow of sediments and contaminants into state waterways and harbors.

B. Procedures

    The restrictions in the 2005 Rule established a Regional Dredging
Team (RDT) to identify practicable alternatives to open-water disposal
and recommend their use for projects proposed while the DMMP was being
prepared. The RDT was effectively used to review six projects while the
DMMP was being prepared and the experience of the RDT resulted in some
of the recommendations in the DMMP. Consistent with the recommendations
in the DMMP, EPA proposes to extend and redefine the role of the RDT to
ensure that the Standards described above are utilized in evaluating
proposed dredging projects in Long Island Sound.
    EPA proposes to retain the core linkage between the RDT and the
USACE project approval process as described in the 2005 Rule (40 CFR
228.15(b)(4)(vi)((I) and (I)(1)). Disposal of dredged material at the
designated sites shall be allowed only if, after full consideration of
recommendations provided by the RDT, the USACE finds (and the EPA does
not object to such finding), based on a fully documented analysis, that
for a given dredging project there are no practicable alternatives (as
defined in 40 CFR 227.16(b)) to open-water disposal in Long Island
Sound, or that any available alternative to open-water disposal will be
fully utilized for the maximum volume of dredged material practicable.
    EPA proposes to amend the 2005 Rule to make more explicit the RDT's
purpose, geographic scope, membership, structure and general process as
described below.
1. Purpose of the Long Island Sound Regional Dredging Team (LIS RDT)
    The primary purpose of the LIS RDT is to reduce or eliminate
wherever practicable the open-water disposal of dredged material in
Long Island Sound. The LIS RDT will accomplish this by reviewing all
proposed dredging projects subject to MPRSA (namely all federal
projects and non-federal projects that generate greater than 25,000
cubic yards) to assess whether there are practicable alternatives to
open-water disposal, by recommending that any available alternative(s)
to open-water disposal be utilized for the maximum volume of dredged
material practicable, and to provide documented findings and
recommendations to USACE on these points so that the USACE and the EPA
can consider the LIS RDT's recommendations. The LIS RDT should review
the alternatives analysis for all projects submitted to help ensure
that available alternatives as described in the DMMP for each harbor
and dredging center have been thoroughly evaluated and are implemented
where practicable. While the LIS RDT will conduct project reviews and
make submissions and recommendations to the USACE, the LIS RDT will not
supplant the regulatory obligations or authorities of participant
agencies under the MPRSA, CWA, CZMA or other applicable laws.
    Other purposes of the LIS RDT include: Serving as a forum for
continuing exploration of new beneficial use alternatives to open-water
disposal; promoting the use of such alternatives; and suggesting
approaches for cost-sharing opportunities. For example, the LIS RDT
could further investigate and develop opportunities for approving and
funding long-term regional Confined Disposal Facilities which could
accommodate suitable and unsuitable dredged material and provide
environmental and social benefits such as parkland and habitat once
filled and closed.
    The LIS RDT and its member agencies should also assist USACE and
EPA in continuing a number of long term activities to continue the
environmentally sound implementation of dredging and dredged material
management in Long Island Sound. These activities include supporting
USACE's dredged material tracking system, supporting USACE's DAMOS
(Disposal Area Monitoring System) program and related efforts to study
the long-term impacts of open-water placement, and promoting
opportunities for beneficial use of clean, parent marine sediments
often generated in the development of CAD cells.
2. Geographic Scope
    The geographic range of the LIS RDT would be expanded to include
all of Long Island Sound and adjacent waters landward of the seaward
edge of the territorial sea (three mile limit) or, in other words, from
Throgs Neck to a line three miles east of the baseline across western
Block Island Sound. These boundaries would encompass all harbors and
areas included in the DMMP except Block Island. If any other disposal
sites are designated within these boundaries, review of projects
proposed to be disposed of at those sites would also be within the
RDT's purview.
3. Membership
    The LIS RDT should include representatives from affected federal
and state government organizations. EPA anticipates that federal
participation would include EPA Regions 1 & 2; the New England and New
York Districts and the North Atlantic Division of the USACE and the
National Oceanic and Atmospheric Administration. EPA encourages the
participation of the U.S. Navy, the U.S. Coast Guard and the U.S. Fish
& Wildlife Service. EPA expects that the states of Connecticut, New
York and Rhode Island would be participants through their environmental
agencies, coastal zone management programs and relevant port
authorities. EPA requests that, to the extent possible, member
organizations will provide sufficient funding to enable their active
participation in the LIS RDT.
4. Structure and Process
    EPA proposes that the specific details for structure (e.g., chair,
committees, working groups) and process (e.g., how projects come before
the LIS RDT, coordination with other entities) be left for the LIS RDT
to determine and allowed to evolve as best accomplishes the team's
purpose.
    The LIS RDT is encouraged to establish and maintain cooperative
working relationships with other Long Island Sound-based organizations
(e.g., the Long Island Sound Study's Science and Technical Advisory
Committee, non-governmental organizations, relevant university-based
programs) so that relevant scientific, program and policy information
is effectively shared and resources are leveraged to the maximum
extent. The LIS RDT is also encouraged to consider retaining the
Technical Working Group as a means of apprising stakeholder groups of
the progress being made on beneficial use alternatives and aiding in
soliciting public views on new alternatives that may arise.
    Finally, EPA is proposing to revise 40 CFR 228.15(b)(4)(vi)(G) to
retain only the provision that provides for a party to petition EPA if
the party is not satisfied that EPA's 2016 amendments to the rule adopt
procedures and standards to reduce or eliminate

wherever practicable disposal of dredged material in Long Island Sound
to the greatest extent practicable, the party may petition the EPA to
do a rulemaking to amend the designation to establish different or
additional standards. The EPA will act on any such petition within 120
days by either, granting the petition (and proposing a rule change) or
denying the petition. Consistent with the 2005 Rule, a party will have
the obligation to first petition the EPA prior to filing any court
action.

IV. Compliance With Statutory and Regulatory Requirements

    The dredged material disposal site designation process that
culminated in the 2005 Rule was conducted consistent with the
requirements of the Marine Protection, Research, and Sanctuaries Act
(MPRSA), the Clean Water Act (CWA), the National Environmental Policy
Act (NEPA), the Coastal Zone Management Act (CZMA), the Endangered
Species Act (ESA), and the Magnuson-Stevens Fishery Conservation and
Management Act (MSFCMA). See 70 FR 32502 (June 3, 2005).
    EPA has determined that the proposed amendments to the 2005 Rule
provide the same or greater protection of water quality and the marine
environment and thus are also consistent with the laws noted above, as
evaluated for the 2005 Rule. These proposed amendments do not make
decisions about the suitability of any particular dredged material for
open-water disposal or any other type of management of the material.
Specific dredging projects will have to go through project-specific
permitting evaluations to make those decisions. The proposed
amendments, instead, provide specific standards and procedures that
will further the goal of reducing or eliminating open-water disposal of
dredged material at the CLDS and WLDS. Furthermore, EPA is not aware of
any new information that would alter our prior conclusions that the
disposal site designations, as restricted, comply with the MSFCMA, and
will continue to do so with the proposed amendments to the 2005 Rule.
To the extent that there are recurring requirements or new conditions
under some of the applicable laws, the evaluation of the compliance of
the proposed amendments with applicable requirements is described
below.

1. Marine Protection, Research, and Sanctuaries Act (MPRSA)

    Consistent with MPRSA, EPA, in cooperation with the USACE,
published final Site Management and Monitoring Plans for the two
disposal sites in 2004, and they went into effect when the sites were
designated by the 2005 Rule. Section 102(c)(3)(F) of MPRSA requires
that plans be updated no less frequently than every ten years. EPA and
USACE initiated revisions in 2015 to the two SMMPs and EPA expects to
separately release the updated plans for public comment by March 1,
2016. The draft revised SMMPs will be available at http://www3.epa.gov/region1/eco/lisdreg/eis.html.

2. National Environmental Policy Act (NEPA)

    As stated above, EPA prepared a Final Environmental Impact
Statement in 2004 (the 2004 FEIS) to support designation of the CLDS
and WLDS, which ultimately included the applicable use restrictions set
forth in the 2005 Rule. EPA has determined that a Supplemental EIS is
not needed for the proposed amendments to the 2005 Rule because the new
information that EPA has considered is sufficient to show that proposed
amendments will not affect the environment in a significant manner or
to a significant extent not already considered.\3\ The proposed
amendments retain and build on key substantive aspects of the original
site use restrictions (see, e.g., 40 CFR 228.15(b)(4)(vi)(A), (B), (G),
(J) and (K)). In addition, key aspects of these site use restrictions
were themselves built upon various preexisting requirements from EPA's
MPRSA regulations (see, e.g., 40 CFR 227.16(b) and
228.15(b)(4)(vi)(J)). While EPA expects the proposed amendments to help
foster reductions in the disposal of dredged material at the CLDS and
WLDS by clarifying and retaining the application of existing site use
restrictions, the environment will not be affected by the amendments in
a significant manner, or to a significant extent, that has not already
considered.
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    \3\ Recognizing that, as discussed previously, EPA is not
legally required to prepare an EIS for a dredged material disposal
site designation, but has exercised its discretion to do so under
EPA's Voluntary NEPA Policy. (See 63 FR 58045 (Notice of Policy and
Procedures for Voluntary Preparation of National Environmental
Policy Act Documents), October 29, 1998).
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    For example, unsuitable dredged material (i.e., material that does
not satisfy the sediment quality criteria in EPA's MPRSA regulations)
could not be disposed of in Long Island Sound even before the 2005
Rule. This was specified in the 2005 Rule (see 40 CFR
228.15(b)(4)(vi)(J)), and this specification would be retained in the
new amendments. As another example, under the regulations prior to the
2005 Rule, dredged material consisting of clean (i.e., suitable) sand
should not have been disposed of in Long Island Sound when a
practicable upland management alternative, such as a beach nourishment
site or near shore placement, was available for the material. This
remained the case under the 2005 Rule and will continue to be the case
under the proposed amendments. Moreover, the likelihood of identifying
practicable alternatives for dredged material should be greater given
(1) the enhanced procedures involving the RDT that were created for the
2005 Rule and will be retained and strengthened in the proposed
amendments, and (2) the additional information concerning beneficial
use options and management methods presented in the DMMP. At the same
time, of course, the proposed amendments do not address any specific
dredging projects, and the regulatory review of such projects will
occur on a project-specific basis.
    In addition, the DMMP and the standards and procedures it
recommends have been evaluated under NEPA. The USACE prepared a
Programmatic Environmental Impact Statement (PEIS) for the LIS DMMP
that also was completed on January 11, 2016. Throughout the NEPA
process, EPA served as a cooperating agency. (See 40 CFR 1501.6 and
1508.5.) For the Final PEIS, the USACE made adjustments to the Draft
PEIS in response to comments provided by EPA. The Final PEIS, among
other things, evaluates available or potentially developable dredged
material management alternatives in the LIS DMMP, including those
contemplated by the proposed amendment for the CLDS and WLDS, such as,
open-water placement, confined aquatic disposal; coastal, nearshore,
and upland beneficial use; and landfill placement. Accordingly, EPA
hereby adopts the Final PEIS as part of the record for this proposed
rule amendment pursuant to 40 CFR 1506.3. As stated previously, because
the proposed amendment does not, by itself, authorize the disposal of
dredged material from a particular project at either site, appropriate
additional NEPA analysis will be performed during the permitting
process for individual projects.

3. Coastal Zone Management Act (CZMA)

    Under the CZMA, EPA, like any other federal agency, is required to
provide relevant states with a determination that any activity it
proposes that could affect the uses or natural resources of a state's
coastal zone is consistent to the

maximum extent practicable with the enforceable policies of the state's
coastal zone management program. EPA has determined that the proposed
amendments to the 2005 Rule are consistent with the enforceable
policies of the coastal zone management programs of Connecticut and New
York. EPA has provided each state with a written determination to this
effect. EPA be will consulting with each state's coastal zone
management program prior to final rulemaking, and the final
determinations will be included in the record.

4. Endangered Species Act

    Since the 2005 Rule, the National Marine Fishery Service has listed
the Atlantic sturgeon as an endangered species under the ESA. Parts of
Long Island Sound are among the distinct population segments listed as
endangered by NOAA, National Marine Fisheries Service (NMFS) in 2012.
Consistent with ESA, EPA has initiated consultation with NMFS on this
rulemaking action. The consultation includes EPA's review of the Site
Management and Monitoring Plans (SMMPs) for the two disposal sites as
described below.

V. Proposed Action

    EPA is publishing this Proposed Rule to amend the restrictions on
the use of the CLDS and WLDS. This action is consistent with a number
of the restrictions contained in the original designation of these
sites in 2005. Some of those restrictions required the completion of a
Dredged Materials Management Plan that would identify procedures and
standards for reducing or eliminating the disposal of dredged material
in Long Island Sound. Since the DMMP has been completed, EPA is
proposing to remove the restrictions related to its development. The
original restrictions further require EPA to propose, within 60 days of
completion of the DMMP, amendments to the restrictions to incorporate
procedures and standards consistent with those recommended in the DMMP
for reducing or eliminating the disposal of dredged material in Long
Island Sound. Today's proposal is intended to satisfy that requirement.

VI. Statutory and Executive Order Reviews

1. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review

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

2. Paperwork Reduction Act (PRA)

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

3. Regulatory Flexibility Act (RFA)

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

4. Unfunded Mandates Reform Act (UMRA)

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

5. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.

6. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

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

7. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks

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

8. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use

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

9. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

10. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations

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

11. Executive Order 13158: Marine Protected Areas

    Executive Order 13158 (65 FR 34909, May 31, 2000) requires EPA to
``expeditiously propose new science-based regulations, as necessary, to
ensure appropriate levels of protection for the marine environment.''
EPA may take action to enhance or expand protection of existing marine
protected areas and to establish or recommend, as appropriate, new
marine protected areas. The purpose of the Executive Order is to
protect the significant natural and cultural resources within

the marine environment, which means, ``those areas of coastal and ocean
waters, the Great Lakes and their connecting waters, and submerged
lands thereunder, over which the United States exercises jurisdiction,
consistent with international law.''
    The EPA expects that this proposed rule will afford additional
protection to the waters of Long Island Sound and organisms that
inhabit them. Building on the existing protections of the MPRSA and the
ocean dumping regulations, the proposed regulatory amendments are
designed to promote the reduction of open-water disposal of dredged
material in Long Island Sound.

12. Executive Order 13547: Stewardship of the Ocean, Our Coasts, and
the Great Lakes

    Section 6(a)(i) of Executive Order 13547, (75 FR 43023, July 19,
2010) requires, among other things, that EPA and certain other agencies
``. . . to the fullest extent consistent with applicable law [to] . . .
take such action as necessary to implement the policy set forth in
section 2 of this order and the stewardship principles and national
priority objectives as set forth in the Final Recommendations and
subsequent guidance from the Council.'' The policies in section 2 of
Executive Order 13547 include, among other things, the following: ``. .
. it is the policy of the United States to: (i) Protect, maintain, and
restore the health and biological diversity of ocean, coastal, and
Great Lakes ecosystems and resources; (ii) improve the resiliency of
ocean, coastal, and Great Lakes ecosystems, communities, and economies.
. . .'' As with Executive Order 13158 (Marine Protected Areas), the
overall purpose of the Executive Order is to promote protection of
ocean and coastal environmental resources.
    The EPA expects that this proposed rule will afford additional
protection to the waters of Long Island Sound and organisms that
inhabit them. Building on the existing protections of the MPRSA and the
ocean dumping regulations, the proposed regulatory amendments are
designed to promote the reduction or elimination of open-water disposal
of dredged material in Long Island Sound.

List of Subjects in 40 CFR Part 228

    Environmental protection, Water pollution control.

    Dated: February 1, 2016.
H. Curtis Spalding,
Regional Administrator, EPA Region 1-New England.

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

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

0
1. The authority citation for part 228 continues to read as follows:

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

0
2. Section 228.15(b) is amended by:
0
a. Revising paragraphs (b)(4) introductory text and (b)(4)(i) and (v)
and (b)(4)(vi) introductory text;
0
b. Removing paragraphs (b)(4)(vi)(C) through (F);
0
c. Adding new paragraph (b)(4)(vi)(D);
0
d. Adding new paragraph (b)(4)(vi)(E);
0
e. Redesignating paragraph (b)(4)(vi)(G) as (b)(4)(vi)(F) and revising
it;
0
f. Removing paragraph (b)(4)(vi)(H);
0
g. Redesignating paragraph (b)(4)(vi)(I) as (b)(4)(vi)(C) and revising
it;
0
h. Redesignating paragraph (b)(4)(vi)(J) through (L) as (b)(4)(vi)(G)
through (I), respectively;
0
i. Removing paragraph (b)(4)(vi)(M);
0
j. Redesignating paragraph (b)(4)(vi)(N) as (b)(4)(vi)(J); and
0
k. Revising paragraphs (b)(5) introductory text and (b)(5)(v).
    The revisions and additions read as follows:

Sec.  228.15  Dumping sites designated on a final basis.

* * * * *
    (b) * * *
    (4) Central Long Island Sound Dredged Material Disposal Site
(CLDS).
    (i) Location: Corner Coordinates (NAD 1983) 41[deg]9.5' N.,
72[deg]54.4' W.; 41[deg]9.5' N., 72[deg]51.5' W.; 41[deg]08.4' N.,
72[deg]54.4' W.; 41[deg]08.4' N., 72[deg]51.5' W.
* * * * *
    (v) Period of use: Continuing use.
    (vi) Restrictions: The designation in this paragraph (b)(4) sets
forth conditions for the use of Central Long Island Sound (CLDS) and
Western Long Island Sound (WLDS) Dredged Material Disposal Sites. These
conditions apply to all disposal subject to the MPRSA, namely, all
federal projects and nonfederal projects greater than 25,000 cubic
yards. All references to ``permittees'' shall be deemed to include the
U.S. Army Corps of Engineers (USACE) when it is authorizing its own
dredged material disposal from a USACE dredging project. The conditions
for this designation are as follows:
* * * * *
    (C) Disposal of dredged material at the designated sites pursuant
to the designation in this paragraph (b)(4) shall be allowed only if,
after full consideration of recommendations provided by the Long Island
Sound Regional Dredging Team (LIS RDT), the USACE finds (and the EPA
does not object to such finding), based on a fully documented analysis,
that for a given dredging project:
    (1) There are no practicable alternatives (as defined in 40 CFR
227.16(b)) to open-water disposal in Long Island Sound. Any available
practicable alternative to open-water disposal will be fully utilized
for the maximum volume of dredged material practicable;
    (2) Determinations relating to paragraph (b)(4)(vi)(C)(1) of this
section will recognize that any alternative to open-water disposal may
add additional costs. Disposal of dredged material at the designated
sites pursuant to this paragraph (b)(4) shall not be allowed to the
extent that a practicable alternative is available.
    (3) The following standards for different dredged material types
have been appropriately considered:
    (i) Unsuitable material. Any materials proposed for dredging that
have been determined by physical, chemical and biological testing to be
unsuitable for open-water placement shall not be disposed of at the
designated sites.
    (ii) Suitable sandy material. Coarse-grained material, which
generally may include up to 20 percent fines when used for direct beach
placement, or up to 40 percent fines when used for nearshore bar/berm
nourishment, should be used for beach or nearshore bar/berm nourishment
or other beneficial use whenever practicable.
    (iii) Suitable fine-grained material. This material has typically
greater than 20 to 40 percent fine content and, therefore, is not
typically considered appropriate for beach or nearshore placement, but
has been determined to be suitable for open-water placement by testing
and analysis. Materials dredged from upper river channels in the
Connecticut, Housatonic and Thames Rivers, whenever possible, should be
disposed of at existing Confined Open Water sites, on-shore or through
in-river placement. Other beneficial uses such as marsh creation,
should be examined and used whenever practicable. If no other
alternative is determined to be practicable, suitable fine-grained
material may be placed at the designated sites.

    (D) Source reduction. Efforts to control sediment entering
waterways can reduce the need for maintenance dredging of harbor
features and facilities by reducing shoaling rates. Federal, state and
local agencies tasked with regulating discharges into the watershed
should continue to exercise their authorities under various statues and
regulations in a continuing effort to reduce the flow of sediments into
state waterways and harbors.
    (E) The goal of the Long Island Sound Regional Dredging Team (LIS
RDT) is to reduce or eliminate wherever practicable the open-water
disposal of dredged material. The LIS RDT's purpose, geographic scope,
membership, organization and procedures are provided as follows:
    (1) Purpose. The LIS RDT's primary purpose is to conduct the review
of dredging projects and make recommendations as described in paragraph
(vi)(C) above. The LIS RDT shall also: Serve as a forum for continuing
exploration of new beneficial use alternatives to open-water disposal;
promote the use of such alternatives; and suggest approaches for cost-
sharing opportunities. The LIS RDT and its member agencies should also
assist USACE and EPA in continuing long term activities intended to
track disposal of dredged material and monitor dredging impacts in Long
Island Sound. These activities include supporting USACE's dredged
material tracking system, supporting USACE's DAMOS (Disposal Area
Monitoring System) program and related efforts to study the long-term
impacts of open-water placement, and promoting opportunities for
beneficial use of clean, parent marine sediments often generated in the
development of CAD cells.
    (2) Geographic scope. The geographic scope of the LIS RDT includes
all of Long Island Sound and adjacent waters landward of the seaward
boundary of the territorial sea (three-mile limit) or, in other words,
from Throgs Neck to a line three miles seaward of the baseline across
western Block Island Sound.
    (3) Membership. The LIS RDT shall be comprised of representatives
from affected federal and state government organizations.
    (4) Organization and procedures. Specific details regarding
structure (e.g., chair, committees, working groups) and process shall
be determined by the RDT and may be revised as necessary to best
accomplish the team's purpose.
    (F) If any party is not satisfied that EPA's 2016 amendments to
this rule adopt procedures and standards to reduce or eliminate
wherever practicable disposal of dredged material in Long Island Sound
to the greatest extent practicable, the party may petition the EPA to
do a rulemaking to amend the designation to establish different or
additional procedures and standards. The EPA will act on any such
petition within 120 days by either, granting the petition (and
proposing a rule change) or denying the petition.
    (5) Western Long Island Sound Dredged Material Disposal Site
(WLDS).
* * * * *
    (v) Period of use: Continuing use.
* * * * *
[FR Doc. 2016-02585 Filed 2-9-16; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 80, Number 202 (Tuesday, October 20, 2015)]
[Rules and Regulations]
[Pages 63426-63427]
[FR Doc No: 2015-26280]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 71

[Docket No. FAA-2015-1649; Airspace Docket No. 15-AGL-6]

Amendment of Class D Airspace and Revocation of Class E Airspace;
Columbus, Ohio State University Airport, OH, and Amendment of Class E
Airspace; Columbus, OH

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

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SUMMARY: This action amends Class D and Class E airspace and removes
Class E airspace in the Columbus, OH, area. Decommissioning of the non-
directional radio beacon (NDB) and/or cancellation of NDB approaches at
Ohio State University Airport, Columbus, OH, has made this action
necessary for the safety and management of Instrument Flight Rules
(IFR) operations at the airport. Also, the geographic coordinates of
the airport, as well as the Port Columbus International Airport, are
updated.

DATES: Effective 0901 UTC, December 10, 2015. The Director of the
Federal Register approves this incorporation by reference action under
title 1, Code of Federal Regulations, part 51, subject to the annual
revision of FAA Order 7400.9 and publication of conforming amendments.

ADDRESSES: FAA Order 7400.9Z, Airspace Designations and Reporting
Points, and subsequent amendments can be viewed on line at http://www.faa.gov/airtraffic/publications/. For further information, you can
contact the Airspace Policy and ATC Regulations Group, Federal Aviation
Administration, 800 Independence Avenue SW., Washington, DC, 29591;
telephone:<PHONE_NUMBER>. The Order is also available for inspection at
the National Archives and Records Administration (NARA). For
information on the availability of this material at NARA, call 202-741-
6030, or go to http://www.archives.gov/federal_register/code_of_federal-regulations/ibr_locations.html.
    FAA Order 7400.9, Airspace Designations and Reporting Points, is
published yearly and effective on September 15.

FOR FURTHER INFORMATION CONTACT: Jim Pharmakis, Operations Support
Group, Central Service Center, Federal Aviation Administration,
Southwest Region, 10101 Hillwood Parkway, Fort Worth, TX 76177;
telephone:<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is
found in Title 49 of the United States Code. Subtitle I, Section 106
describes the authority of the FAA Administrator. Subtitle VII,
Aviation Programs, describes in more detail the scope of the agency's
authority. This rulemaking is promulgated under the authority described
in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section,
the FAA is charged with prescribing regulations to assign the use of
airspace necessary to ensure the safety of aircraft and the efficient
use of airspace. This regulation is within the scope of that authority
as it amends Class D and Class E airspace and removes Class E airspace
in the Columbus, OH, area.

History

    On July 17th, 2015, the FAA published in the Federal Register a
notice of proposed rulemaking (NPRM) to amend Class D and Class E
airspace and remove Class E airspace in the Columbus, OH, area. (80 FR
42434). Interested parties were invited to participate in this
rulemaking effort by submitting written comments on the proposal to the
FAA. No comments were received.
    Class E airspace designations are published in paragraph 6005 of
FAA Order 7400.9Z dated August 6, 2015, and effective September 15,
2015, which is incorporated by reference in 14 CFR part 71.1. The Class
E airspace designations listed in this document will be published
subsequently in the Order.

Availability and Summary of Documents for Incorporation by Reference

    This document amends FAA Order 7400.9Z, airspace Designations and
Reporting Points, dated August 6, 2015, and effective September 15,
2015. FAA Order 7400.9Z is publicly available as listed in the
ADDRESSES section of this document. FAA Order 7400.9Z lists Class A, B,
C, D, and E airspace areas, air traffic service routes, and reporting
points.

The Rule

    This amendment to Title 14, Code of Federal Regulations (14 CFR)
part 71 modifies Class D and E airspace in the Columbus, OH, area.
Decommissioning of the Dan Scott NDB navigation aid and cancellation of
the NDB approach at Ohio State University Airport has made this action
necessary. Class E airspace designated as an extension to Class D is
removed as it is no longer required. Class E airspace extending upward
from 700 feet above the surface at Port Columbus International Airport
is reconfigured due to the Dan Scott NDB decommissioning. The
geographic coordinates of Ohio State University Airport and Port
Columbus International Airport are updated to coincide with the FAAs
aeronautical database.
    Class D and E airspace designations are published in Paragraphs
5000, 6004, and 6005, respectively, of FAA Order 7400.9Z, dated August
6, 2015, and effective September 15, 2015, which is incorporated by
reference in 14 CFR

71.1. The Class D and E airspace designations listed in this document
will be published subsequently in the Order.

Regulatory Notices and Analyses

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

Environmental Review

    The FAA has determined that this action qualifies for categorical
exclusion under the National Environmental Policy Act in accordance
with FAA Order 1050.1F, ``Environmental Impacts: Policies and
Procedures,'' paragraph 311a. This airspace action is not expected to
cause any potentially significant environmental impacts, and no
extraordinary circumstances exists that warrant preparation of an
environmental assessment.

Lists of Subjects in 14 CFR Part 71:

    Airspace, Incorporation by reference, Navigation (air).

Adoption of the Amendment

    In consideration of the foregoing, the Federal Aviation
Administration amends 14 CFR part 71 as follows:

PART 71--DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR
TRAFFIC SERVICE ROUTES; AND REPORTING POINTS

0
1. The authority citation for Part 71 continues to read as follows:

    Authority: 49 U.S.C. 106(f), 106(g); 40103, 40113, 40120, E.O.
10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

Sec.  71.1  [Amended]

0
2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.9Z,
Airspace Designations and Reporting Points, dated August 6, 2015,
effective September 15, 2015, is amended as follows:

Paragraph 5000 Class D Airspace.

* * * * *

AGL OH D Columbus, Ohio State University Airport, OH [Amended]

Columbus, Ohio State University Airport, OH
    (Lat. 40[deg]04'47'' N., long. 83[deg]04'23'' W.)

That airspace extending upward from the surface to and including
3,400 feet MSL within a 4-mile radius of Ohio State University
Airport, excluding that airspace within the Port Columbus
International Airport, OH, Class C airspace area. This Class D
airspace area is effective during the specific dates and times
established in advance by a Notice to Airmen. The effective dates
and times will thereafter be continuously published in the Airport/
Facility Directory.

Paragraph 6004 Class E Airspace Areas Designated as a Surface Area.

* * * * *

AGL OH E4 Columbus, Ohio State University Airport, OH [Removed]

Paragraph 6005 Class E Airspace Areas Extending Upward From 700
Feet or More Above the Surface of the Earth.

* * * * *

AGL OH E5 Columbus, OH [Amended]

Columbus, Port Columbus International Airport, OH
    (Lat. 39[deg]59'49'' N., long. 82[deg]53'32'' W.)
Columbus, Rickenbacker International Airport, OH
    (Lat. 39[deg]48'50'' N., long. 82[deg]55'40'' W.)
Columbus, Ohio State University Airport, OH
    (Lat. 40[deg]04'47'' N., long. 83[deg]04'23'' W.)
Columbus, Bolton Field Airport, OH
    (Lat. 39[deg]54'04'' N., long. 83[deg]08'13'' W.)
Columbus, Darby Dan Airport, OH
    (Lat. 39[deg]56'31'' N., long. 83[deg]12'18'' W.)
Lancaster, Fairfield County Airport, OH
    (Lat. 39[deg]45'20'' N., long. 82[deg]39'26'' W.)

That airspace extending upward from 700 feet above the surface
within a 7-mile radius of Port Columbus International Airport, and
within 3.3 miles either side of the 094[deg] bearing from Port
Columbus International Airport extending from the 7-mile radius to
12.1 miles east of the airport, and within a 7-mile radius of
Rickenbacker International Airport, and within 4 miles either side
of the 045[deg] bearing from Rickenbacker International Airport
extending from the 7-mile radius to 12.5 miles northeast of the
airport, and within a 6.5-mile radius of Ohio State University
Airport, and within a 7.4-mile radius of Bolton Field Airport, and
within a 6.4-mile radius of Fairfield County Airport, and within a
6.5-mile radius of Darby Dan Airport, excluding that airspace within
the London, OH, Class E airspace area.

    Issued in Fort Worth, TX, on October 8, 2015.
Robert W. Beck,
Manager, Operations Support Group, ATO Central Service Center.
[FR Doc. 2015-26280 Filed 10-19-15; 8:45 am]
BILLING CODE 4910-13-P


[Federal Register Volume 87, Number 156 (Monday, August 15, 2022)]
[Notices]
[Pages 50140-50142]
[FR Doc No: 2022-17435]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-95460; File No. SR-LTSE-2022-04]

Self-Regulatory Organizations; Long-Term Stock Exchange, Inc.;
Notice of Filing and Immediate Effectiveness of Proposed Rule Change
Relating to a Temporary Reduction in the Annual Listing Fee

August 9, 2022.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(the ``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given
that on July 27, 2022, Long-Term Stock Exchange, Inc. (``LTSE'' or the
``Exchange'') filed with the Securities and Exchange Commission (the
``Commission'') the proposed rule change as described in Items I, II
and III below, which Items have been prepared by the self-regulatory
organization. The Commission is publishing this notice to solicit
comments on the proposed rule change from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    LTSE proposes a rule change to: (i) amend the Annual Listing Fee
applicable for Companies renewing their listing for calendar year 2023,
and (ii) make a minor clarifying change to the Initial Listing Fee
provisions.
    The text of the proposed rule change is available at the Exchange's
website at https://longtermstockexchange.com/, at the principal office
of the Exchange, and at the Commission's Public Reference Room.

II. Self-Regulatory Organization's Statement on the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the self-regulatory organization
included statements concerning the purpose of and basis for the
proposed rule change and discussed any comments it received on the
proposed rule change. The text of these statements may be examined at
the places specified in Item IV below. The self-regulatory organization
has prepared summaries, set forth in Sections A, B, and C below, of the
most significant aspects of such statements.

A. Self-Regulatory Organization's Statement on the Purpose of, and
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange is filing this proposed rule change to amend Rule
14.601 to reduce the Annual Listing Fee for any listed Company \3\
renewing its listing for calendar year 2023 by 40 percent in light of
the recent market dislocation. The Initial Listing Fees would remain at
their current levels.\4\
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    \3\ Capitalized terms shall have the meaning provided in the
LTSE Rule Book. See e.g., LTSE Rule 14.002(a)(8) [sic] (definition
of ``Company'').
    \4\ A Company that lists on the Exchange is assessed an Initial
Listing Fee at the time it lists, which covers the period from date
of listing until the end of the calendar year. The Annual Listing
Fee is assessed on a Company for remaining listed on the Exchange in
a subsequent year.
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a. Annual Listing Fee
    Upon listing its Primary Equity Securities on LTSE, a Company is
assessed an Initial Listing Fee in accordance with LTSE Rule
14.601(a)(1). The amount of the Initial Listing Fee is set forth in the
fee schedule in LTSE Rule 14.601(a)(3) and is based on the market
capitalization of the Company when it lists on the Exchange.\5\
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    \5\ The Initial Listing Fee is prorated based on the number of
trading days in the year remaining at the time of a Company's
initial listing. See LTSE Rule 14.601(a)(1)(iv).
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    For each subsequent year that a Company remains listed on the
Exchange, it is assessed an Annual Listing Fee. The Annual Listing Fee
for a Company's Primary Equity Securities also is based on the
Company's market capitalization. Specifically, the Annual Listing Fee
for an upcoming calendar year is calculated on December 1 (or such date
of listing if after December 1), and is based on the company's Form 10-
Q and Form 10-K filings over the prior four fiscal quarters. Thus, the
Annual Listing Fee is calculated from filings covering the fourth
quarter of the prior calendar year and the first three quarters of the
current calendar year. Where a Company does not have Form 10-Q and Form
10-K filings for the prior four fiscal quarters, its Annual Listing Fee
is calculated in the same manner as its Initial Listing Fee (but not

at the prorated level).\6\ The Annual Listing Fee is not refunded if a
company is delisted or elects to delist during the calendar year.\7\
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    \6\ LTSE Rule 14.601(a)(2)(i).
    \7\ LTSE Rule 14.601(a)(2)(ii).
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    In light of the recent market dislocation as discussed below, LTSE
is reducing its Annual Listing Fee by 40 percent for any listed Company
renewing its listing for calendar year 2023. This fee reduction will
apply only to a Company that will be assessed an Annual Listing Fee in
2022 for purposes of remaining listed on LTSE for calendar year
2023.\8\ The 40 percent reduction applies only to the Annual Listing
Fee; the Initial Listing Fee remains unchanged. Additionally, the
reduction in the Annual Listing Fee pursuant to the proposed rule
change is applicable only for an Annual Listing Fee assessed in 2022
for purposes of remaining listed on LTSE for calendar year 2023.
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    \8\ Likewise, all Companies who will be assessed an Annual
Listing Fee in December 2023 for remaining listed on the Exchange in
2024 will do so in accordance with the same fee schedule. This is a
one time reduction and does not carry forward to listed Companies in
subsequent years.
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    To better reflect the temporary divergence in the Initial Listing
Fee and Annual Listing Fee, LTSE is creating two separate fee
schedules.\9\
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    \9\ See Rule 14.602(a)(3)(i) covering the Initial Listing Fee,
and Rule 14.602(a)(3)(ii) covering the Annual Listing Fee.
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    The Exchange believes that it is reasonable and appropriate to
temporarily reduce the Annual Listing Fee in light of the recent
significant market dislocation. The broad-based market dislocation in
the first half of 2022 has led stocks to some of their largest declines
in many decades.\10\ Although these market-wide dislocations are in
many cases unrelated to the long-term fundamentals of a company, their
impact to Companies in the short-term is real. The Exchange is designed
to support Companies in realizing their success over the long-term, and
the temporary reduction in the Annual Listing Fee recognizes the
pressures created by current market conditions.\11\ Additionally,
inasmuch as the market for listings is highly competitive, the Exchange
believes that a temporary reduction in Annual Listing Fees is
appropriate to signal its commitment to those Companies that have
listed on the Exchange or long-term focused Companies that may do so
later this year under the current macroeconomic climate.
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    \10\ Akuna Otani, Markets Post Worst First Half of a Year in
Over Five Decades, Wall Street Journal (June 30, 2022). https://www.wsj.com/articles/markets-head-toward-worst-start-to-a-year-in-decades-11656551051.
    \11\ See, e.g., Martin Alvarez, The Canary in the Capital
Markets' Coal Mine: Protecting Long-Term Strategy, Medium (May 16,
2022) https://medium.com/@martin_46598/the-canary-in-the-capital-markets-coal-mine-protecting-long-term-strategy-62c5044bcdc7; Martin
Alvarez, Fasten your Seatbelts: The Fed and the Art of Economic
Cycle Maintenance, Medium (June 27, 2022) https://medium.com/@martin_46598/fasten-your-seatbelts-the-fed-and-the-art-of-economic-cycle-maintenance-ff669b8781b3.
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    The Exchange does not believe that the proposed temporary reduction
in its Annual Listing Fee will have any adverse impact on the amount of
funds available for its regulatory program.
b. Initial Listing Fee
    In addition, the proposed rule change would make a minor clarifying
change to paragraph (a)(1)(iv) to provide that the reference to
prorating the Initial Listing Fee is based on the number of remaining
trading days after listing on the Exchange in that calendar year. Since
the Initial Listing Fee covers only the calendar year in which a
Company initially lists on the Exchange, the phrase ``remaining trading
days after listing on the Exchange'' was always intended to refer to
the number of remaining trading days in the calendar year of listing;
the proposed rule change now makes that explicit.
2. Statutory Basis
    The Exchange believes the proposed rule change is consistent with
the requirements of Section 6(b) of the Act \12\ in general, and
furthers the objectives of Section 6(b)(4) of the Act \13\ in
particular, because it provides for the equitable allocation of
reasonable dues, fees, and other charges among its members, issuers,
and other persons using its facilities. The Exchange also believes that
the proposed rule change is consistent with the requirements of Section
6(b)(5) of the Act \14\ because it is designed to promote just and
equitable principles of trade, to foster cooperation and coordination
with persons engaged in regulating, clearing, settling, processing
information with respect to, and facilitating transactions in
securities, to remove impediments to and perfect the mechanism of a
free and open market and a national market system, and, in general to
protect investors and the public interest and is not designed to permit
unfair discrimination between customers, issuers, brokers and dealers.
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    \12\ 15 U.S.C. 78f(b).
    \13\ 15 U.S.C. 78f(b)(4).
    \14\ 15 U.S.C. 78f(b)(5).
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    The Exchange believes that the temporary reduction of the Annual
Listing Fee for remaining listed on the Exchange for calendar year 2023
represents an equitable allocation of charges among issuers and is non
unfairly discriminatory in that it applies a consistent 40% fee
reduction to the Annual Listing Fee for all Companies listed on the
Exchange, or any company that becomes listed on the Exchange in 2022,
which will then be assessed an Annual Listing Fee in 2022 to remain
listed in calendar year 2023. LTSE further believes that the proposed
rule change is reasonable and appropriate in view of the highly
competitive market for listings and the disruptions faced by Companies
as a result of the recent market dislocation. The benefits to a
Company, its shareholders and stakeholders from pursuing long-term
value creation were discussed extensively in the background and
rationale for LTSE's Long-Term Policies.\15\ While LTSE believes that
the current environment reinforces the importance for a Company to
demonstrate its commitment to long-termism and the Long-Term Policies
set forth in Rule 14.425, the Exchange believes that a temporary
reduction in the Annual Listing Fee is reasonable and appropriate in
the current environment where companies have resource constraints.\16\
As noted above, the proposed rule change applies the reduction to the
Annual Listing Fee to all Companies who will be charged such fee to
remain listed on the Exchange in 2023.
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    \15\ See Securities Exchange Act Release No. 86327 (July 8,
2019), 84 FR 33293 (July 12, 2019).
    \16\ The Exchange considered, but ultimately decided against,
proposing a similar, temporary reduction in the Initial Listing
Fees. Because any Company that lists on LTSE this year would receive
the benefit of the reduced Annual Listing Fee for remaining listed
on the Exchange in 2023, it was decided that amending the Initial
Listing Fees, which are also already prorated, was unnecessary.
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    Additionally, the Exchange operates in a highly competitive market
for the listing of Primary Equity Securities. The Commission has
repeatedly expressed its preference for competition over regulatory
intervention in determining prices, products, and services in the
securities markets. A temporary reduction in Annual Listing Fee
contributes to the competitive marketplace. The Exchange believes
therefore that the proposed rule change supports an open market and the
national market system, and is consistent with the public interest.
    Finally, the Exchange believes that the proposed clarifying text
regarding the Initial Listing Fees is consistent with Section 6(b)(5)
of the Act in that it merely clarifies the meaning of an existing rule,
with further clarity being in the public interest.

B. Self-Regulatory Organization's Statement on Burden on Competition

    LTSE does not believe that the proposed rule change will result in
any burden on competition that is not necessary or appropriate in
furtherance of the purposes of the Act. The proposed rule change would
establish a temporary reduction in the Annual Listing Fee.
    The market for listing services is highly competitive. Each listing
exchange has established a fee schedule that applies to issuers seeking
to list securities, or keep their securities listed, on its exchange.
Issuers have the option to list their securities on these alternative
venues based on the fees charged and the value provided by each
listing. Because issuers have a choice to list their securities on a
different national securities exchange, the Exchange does not believe
that the proposed rule change imposes a burden on competition.
    Intramarket Competition. The proposed rule change would establish a
temporarily-reduced Annual Listing Fee that will be charged to all
Companies listed on LTSE on the same basis. The Exchange does not
believe that the proposed temporary fee change will have any meaningful
effect on the competition among issuers listed on the Exchange. Again,
the reduced Annual Listing Fee is available for all Companies that are
listed on LTSE in calendar year 2022 for purposes of remaining listed
for calendar year 2023.
    Intermarket Competition. The Exchange operates in a highly
competitive market in which issuers can readily choose to list
securities on other exchanges and transfer listings to other exchanges
if they deem fee levels at those other venues to be more favorable.
Consequently, the Exchange does not believe the proposed rule change
will impose any burden on intermarket competition in a manner that is
not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange also notes that other listing venues adjust their fees
from time to time.\17\
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    \17\ See, e.g., Securities Exchange Act Release No. 90519
(November 25, 2020), 85 FR 77324 (December 1, 2020) (Nasdaq's Notice
of Filing and Immediate Effectiveness of Proposed Rule Change To
Modify Certain Annual Listing Fees).
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C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others

    Written comments were neither solicited nor received.

III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action

    The foregoing proposal has become effective pursuant to section
19(b)(3)(A)(ii) of the Act,\18\ and Rule 19b-4(f)(2) \19\ thereunder.
At any time within 60 days of the filing of such proposed rule change,
the Commission summarily may temporarily suspend such rule change if it
appears to the Commission that such action is necessary or appropriate
in the public interest, for the protection of investors, or otherwise
in furtherance of the purposes of the Act. If the Commission takes such
action, the Commission shall institute proceedings to determine whether
the proposed rule should be approved or disapproved.
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    \18\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \19\ 17 CFR 240.19b-4(f)(2).
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IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include
File Number SR-LTSE-2022-04 on the subject line.

Paper Comments

     Send paper comments in triplicate to Secretary, Securities
and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.

All submissions should refer to File Number SR-LTSE-2022-04. This file
number should be included on the subject line if email is used. To help
the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (http://www.sec.gov/rules/sro.shtml).
Copies of the submission, all subsequent amendments, all written
statements with respect to the proposed rule change that are filed with
the Commission, and all written communications relating to the proposed
rule change between the Commission and any person, other than those
that may be withheld from the public in accordance with the provisions
of 5 U.S.C. 552, will be available for website viewing and printing in
the Commission's Public Reference Room, 100 F Street NE, Washington, DC
20549 on official business days between the hours of 10:00 a.m. and
3:00 p.m. Copies of the filing also will be available for inspection
and copying at the principal office of the Exchange. All comments
received will be posted without change. Persons submitting comments are
cautioned that we do not redact or edit personal identifying
information from comment submissions. You should submit only
information that you wish to make available publicly. All submissions
should refer to File Number SR-LTSE-2022-04 and should be submitted on
or before September 6, 2022.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\20\
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    \20\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Deputy Secretary.
[FR Doc. 2022-17435 Filed 8-12-22; 8:45 am]
BILLING CODE 8011-01-P