75256 Federal Register / Vol. 69, No. 241 / Thursday, December 16, 2004 / Rules and Regulations 

of the Army, the Chief, Operations 

Division, Office of the Provost Marshal 

General, will determine the 

requirements for routine publication of 

Army aggregate crime statistics. 

(f) Normally, raw data will not be 

released without analysis on routine or 

non-routine requests. Comparison of 

MACOM crime data is generally not 

reported and should be avoided. 

General categories of CONUS or 

OCONUS are appropriate.

Subpart E—Victim and Witness 

Assistance Procedures

§ 635.33 General. 

(a) This subpart implements 

procedures to provide assistance to 

victims and witnesses of crimes that 

take place on Army installations and 

activities. The procedures in this 

subpart apply to—

(1) Every victim and witness. 

(2) Violations of the UCMJ, including 

crimes assimilated under the 

Assimilative Crimes Act reported to or 

investigated by military police. 

(3) Foreign nationals employed or 

visiting on an Army installation 

OCONUS. 

(b) Provost marshal personnel should 

refer to AR 27–10, chapter 18, for 

additional policy guidance on the Army 

Victim/Witness Program.

§ 635.34 Procedures. 

(a) As required by Federal law, Army 

personnel involved in the detection, 

investigation, and prosecution of crimes 

must ensure that victims and witnesses 

rights are protected. Victims rights 

include—

(1) The right to be treated with 

fairness, dignity, and a respect for 

privacy. 

(2) The right to be reasonably 

protected from the accused offender. 

(3) The right to be notified of court 

proceedings. 

(4) The right to be present at all public 

court proceedings related to the offense, 

unless the court determines that 

testimony by the victim would be 

materially affected if the victim heard 

other testimony at trial, or for other 

good cause. 

(5) The right to confer with the 

attorney for the Government in the case. 

(6) The right to restitution, if 

appropriate. 

(7) The right to information regarding 

conviction, sentencing, imprisonment, 

and release of the offender from 

custody. 

(b) In keeping with the requirements 

listed in paragraph (a) of this section, 

provost marshals must ensure that—

(1) All law enforcement personnel are 

provided copies of DD Form 2701 

(Initial Information for Victims and 

Witnesses of Crime). 

(2) A victim witness coordinator is 

appointed in writing. 

(3) Statistics are collected and 

reported into COPS. 

(4) Coordination with the installation 

staff judge advocate victim witness 

coordinator occurs to ensure that 

individuals are properly referred for 

information on restitution, 

administrative, and judicial 

proceedings. 

(5) Coordination with installation 

Family Advocacy Program’s Victim 

Advocate occurs to support victims of 

spouse abuse. Victim Advocacy services 

include crisis intervention, assistance in 

securing medical treatment for injuries, 

information on legal rights and 

proceedings, and referral to military and 

civilian shelters and other resources 

available to victims.

§ 635.35 Notification. 

(a) In addition to providing crime 

victims and witnesses a DD Form 2701, 

law enforcement personnel must ensure 

that individuals are notified about—

(1) Available military and civilian 

emergency medical care. 

(2) Social services, when necessary. 

(3) Procedures to contact the staff 

judge advocate victim/witness liaison 

office for additional assistance. 

(b) Investigating law enforcement 

personnel, such as military police 

investigators—

(1) Must ensure that victims and 

witnesses have been offered a DD Form 

2701. If not, investigating personnel will 

give the individual a copy. 

(2) In coordination with the provost 

marshal victim witness coordinator, 

provide status on investigation of the 

crime to the extent that releasing such 

information does not jeopardize the 

investigation. 

(3) Will, if requested, inform all 

victims and witnesses of the 

apprehension of a suspected offender.

§ 635.36 Statistical reporting 

requirements. 

(a) DOD policies on victim witness 

assistance require reporting of statistics 

on the number of individuals who are 

notified of their rights. The DA Form 

3975 provides for the collection of 

statistical information. 

(b) The COPS system supports 

automated reporting of statistics. HQDA, 

Office of the Provost Marshal General 

(DAPM–MPD–LE) as the program 

manager may require periodic reports to 

meet unique requests for information. 

(c) It is possible that a victim or 

witness may initially decline a DD Form 

2701. As the case progresses, the 

individual may request information. If a 

case is still open in the provost marshal 

office, the provost marshal victim 

witness coordinator shall provide the 

DA Form 2701 to the individual and 

update the records. Once the case is 

referred to the staff judge advocate or 

law enforcement activity ceases, COPS 

will not be updated.

[FR Doc. 04–27574 Filed 12–15–04; 8:45 am] 

BILLING CODE 3710–08–P

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 228

[FRL–7848–2] 

Ocean Disposal; Designation of a 

Dredged Material Disposal Site in 

Rhode Island Sound

AGENCY: Environmental Protection 

Agency.

ACTION: Final rule.

SUMMARY: The Environmental Protection 

Agency (EPA) today designates the 

Rhode Island Sound Disposal Site 

(RISDS) in Rhode Island Sound offshore 

of Rhode Island. This action is 

necessary to provide a long-term 

dredged material disposal site for the 

current and future disposal of dredged 

material from Rhode Island, 

southeastern Massachusetts, and 

surrounding harbors (hereinafter 

referred to as the Rhode Island Region, 

or RIR). The site designation is for an 

indefinite period of time. The RISDS 

will be subject to continuing monitoring 

to ensure that significant unacceptable, 

adverse environmental impacts do not 

occur. The action is described in the 

Rhode Island Region Long-Term 

Dredged Material Disposal Site 

Evaluation Project Final Environmental 

Impact Statement (FEIS), and the 

monitoring plan is described in the 

RISDS Site Management and Monitoring 

Plan (SMMP). The SMMP is provided as 

Appendix C of the FEIS. Site 

designation does not itself actually 

authorize the disposal of any particular 

dredged material at a site. Proposals to 

dispose of dredged material at a 

designated site are subject to projectspecific reviews and authorization and 

still must satisfy the criteria for ocean 

dumping.

DATES: This final regulation is effective 

on January 18, 2005.

ADDRESSES: EPA has established a file 

supporting this action that includes this 

rule, the FEIS and its appendices, 

including the SMMP, and other 

supporting documents. This information 

Federal Register / Vol. 69, No. 241 / Thursday, December 16, 2004 / Rules and Regulations 75257

is available for review by the public as 

follows: 

1. Electronically. You may review 

and/or obtain electronic copies of this 

document and various support 

documents from the EPA home page at 

the Federal Register, http://

www.epa.gov/fedrgstr/, or on the EPA 

New England Region’s homepage at: 

http://www.epa.gov/region1/eco/

ridredge/index.html.

2. In person. The Final Rule, the Final 

Environmental Impact Statement (FEIS) 

which includes the SMMP (Appendix 

C), and the complete administrative 

record for this action are available for 

inspection at the following locations: A. 

EPA New England Library, 11th Floor, 

One Congress Street, Suite 1100 (CWQ), 

Boston, MA 02114–2023. For access to 

the documents, call Peg Nelson at (617) 

918–1991 between 10 a.m. and 3 p.m. 

Monday through Thursday, excluding 

legal holidays, for an appointment. B. 

EPA Atlantic Ecology Division, Library, 

27 Tarzwell Drive, Narragansett, RI 

02882. For access to the documents, call 

Mimi Johnson at (401) 782–3025 

between 10 a.m and 3 p.m. Monday 

through Thursday, excluding legal 

holidays, for an appointment. The EPA 

public information regulation (40 CFR 

part 2) provides that a reasonable fee 

may be charged for copying. We also are 

putting copies of the FEIS in all of the 

town libraries in the coastal towns in 

Rhode Island and southeastern 

Massachusetts.

FOR FURTHER INFORMATION CONTACT: Ms. 

Olga Guza, U.S. Environmental 

Protection Agency New England Region, 

One Congress Street, Suite 1100 (CWQ), 

Boston, MA 02114–2023, telephone 

(617) 918–1542, electronic mail: 

guza.olga@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information 

A. Regulated Entities 

Entities potentially regulated by this 

action are persons, organizations, or 

government bodies seeking to dispose of 

dredged material into ocean waters of 

Rhode Island Sound, under the Marine 

Protection, Research, and Sanctuaries 

Act, 33 U.S.C. 1401 et seq. (hereinafter 

referred to as the MPRSA) and its 

implementing regulations. The rule is 

expected to be primarily of relevance to: 

(a) Parties seeking permits from the U.S. 

Army Corps of Engineers, New England 

District (Corps) to transport dredged 

material for the purpose of disposal into 

the waters of Rhode Island Sound; and 

(b) to the Corps itself for its own 

dredged material disposal projects. 

Potentially regulated categories and 

entities that may seek to use the RIR 

dredged material disposal site may 

include:

Category Examples of potentially 

regulated entities 

Federal Government Agencies.U.S. Army Corps of Engineers Civil Works 

Projects, and Other 

Federal Agencies. 

Industry and 

General Public.

Port Authorities, Marinas 

and Harbors, Shipyards, and Marine Repair Facilities, Berth 

Owners. 

State, local and 

tribal governments.

Governments owning 

and /or responsible for 

ports, harbors, and /or 

berths, Government 

agencies requiring disposal of dredged material associated with 

public works projects. 

This table is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

affected by this action. This table lists 

the types of entities that could 

potentially be regulated by this action. 

To determine whether your organization 

is affected by this action, you should 

carefully consider whether your 

organization is required to obtain an 

MPRSA permit (40 CFR 220.1), and you 

wish to use the RISDS. EPA notes that 

nothing in this final rule alters the 

jurisdiction or authority of EPA or the 

types of entities regulated under the 

MPRSA. Questions regarding the 

applicability of this final rule to a 

particular entity should be directed to 

the contact person listed in the 

preceding FOR FURTHER INFORMATION

CONTACT section. 

B. Background 

In 1972, the Congress of the United 

States enacted the MPRSA to address 

and control the dumping of materials 

into ocean waters. Title I of the MPRSA 

authorized EPA and the Corps to 

regulate dumping in ocean waters. 

Regulations implementing the MPRSA 

are set forth at 40 CFR parts 220 through 

229. With few exceptions, the MPRSA 

prohibits the transportation of material 

from the United States for the purpose 

of ocean dumping except as may be 

authorized by a permit or authorization 

(in the case of Corps projects) issued 

under the MPRSA. The MPRSA divides 

permitting responsibility between EPA 

and the Corps. Under Section 102 of the 

MPRSA, EPA has responsibility for 

issuing permits for all materials other 

than dredged material (e.g., vessels, fish 

wastes, burial at sea). Under Section 103 

of the MPRSA, the Secretary of the 

Army has the responsibility for issuing 

permits and authorizations (in the case 

of Corps projects) for the ocean 

dumping of dredged material. This 

permitting authority has been delegated 

to the District Engineers of the Corps’

district offices. Determinations to issue 

permits and authorizations (in the case 

of Corps projects) for dredged material 

are subject to EPA review and 

concurrence. 

Section 102(c) of the MPRSA, as 

amended, 33 U.S.C. 1401 et seq., gives 

the Administrator of EPA authority to 

designate sites and times where ocean 

disposal, also referred to 

interchangeably as ocean dumping, may 

be permitted. Section 103(b) further 

provides that the Corps should use such 

EPA designated sites to the maximum 

extent feasible. EPA’s ocean dumping 

regulations provide that EPA’s 

designation of an ocean dumping site is 

accomplished by promulgation of a site 

designation in 40 CFR part 228 

specifying the site. On October 1, 1986, 

the Administrator delegated authority to 

designate ocean dredged material 

disposal sites (ODMDS) to the Regional 

Administrator of the EPA Region in 

which the sites are located. The RISDS 

site is located within New England (EPA 

New England); therefore, this action is 

being taken pursuant to the Regional 

Administrator’s delegated authority. 

EPA regulations (40 CFR 228.4(e)(1)) 

promulgated under the MPRSA require, 

among other things, that EPA designate 

ocean dredged material disposal sites 

(ODMDS) by promulgation in 40 CFR 

part 228. Designated ocean dumping 

sites are codified at 40 CFR 228.15. 

On April 30, 2004, EPA published a 

draft rule and notice of availability of a 

Draft Environmental Impact Statement 

(DEIS) proposing the designation of the 

RISDS as an ODMDS (69 FR 23706). 

This final rule designates the site for 

open water disposal of dredged 

material. This site is currently being 

used by the Corps under the site 

selection authority provided by Section 

103 of the MPRSA as Site 69B for 

disposal of dredged material from the 

Providence River and Harbor 

Maintenance Dredging Project. The site 

is located in ocean waters of Rhode 

Island Sound approximately nine 

nautical miles (nmi) south of Point 

Judith, Rhode Island. 

The RISDS will provide a long-term 

disposal option for the Corps to 

maintain deep-draft, international 

commerce and navigation through 

authorized Federal navigation projects 

and to ensure safe navigation for public 

and private entities.

The RISDS will be subject to 

continuing site management and 

monitoring to ensure that unacceptable, 

75258 Federal Register / Vol. 69, No. 241 / Thursday, December 16, 2004 / Rules and Regulations 

adverse environmental impacts do not 

occur. The management of the RISDS is 

further described in the SMMP 

(Appendix C of the FEIS). 

The designation is in accordance with 

40 CFR 228.4(e) of the Ocean Dumping 

Regulations, which allows EPA to 

designate ocean sites for disposal of 

dredged materials. 

C. EIS Development 

Section 102(c) of the National 

Environmental Policy Act (NEPA) of 

1969, 42 U.S.C. 4321 et seq., requires 

that Federal agencies prepare an 

environmental impact statement (EIS) 

on proposals for major Federal actions 

significantly affecting environmental 

quality. The objective of NEPA is to 

build into agency decisionmaking 

processes careful consideration of all 

environmental aspects of proposed 

actions, including evaluation of 

reasonable alternatives to the proposed 

action. While NEPA does not apply to 

EPA activities in designating ocean 

disposal sites under the MPRSA, EPA 

has voluntarily agreed as a matter of 

policy to conduct a NEPA 

environmental review in connection 

with ocean dumping site designations. 

(63 FR 58045, October 29, 1998, ‘‘Notice 

of Policy and Procedures for Voluntary 

Preparation of National Environmental 

Policy Act (NEPA) Documents.’’) 

Consistent with this policy, EPA, in 

cooperation with the Corps, has 

prepared a FEIS entitled, ‘‘Rhode Island 

Region Long-Term Dredged Material 

Disposal Site Evaluation Project,’’ which 

considers the environmental aspects of 

site designation in ocean waters of 

Rhode Island Sound. Anyone wishing to 

receive a copy of the FEIS may do so in 

one of the ways described above in the 

ADDRESSES section. 

The purpose of today’s action is to 

designate an ocean disposal site that 

will meet the long-term dredged 

material disposal needs in the RIR. The 

appropriateness of ocean disposal for 

any specific, individual dredging project 

is determined on a case-by-case basis 

under the permit and authorization (in 

the case of Corps projects) process 

under MPRSA. 

Designation of an ocean disposal site 

under 40 CFR part 228 is essentially a 

preliminary, planning measure. The 

practical effect of such a designation is 

only to require that if future ocean 

disposal activity is permitted and/or 

authorized (in the case of Corps 

projects) under 40 CFR part 227, then 

such disposal should normally be 

consolidated at the designated sites (See 

33 U.S.C. 1413(b)). Designation of an 

ocean disposal site does not authorize 

any actual disposal and does not 

preclude EPA or the Corps from finding 

available and environmentally 

preferable alternative means of 

managing dredged materials, or from 

finding that certain dredged material is 

not suitable for ocean disposal under 

the applicable regulatory criteria. 

Nevertheless, EPA has determined that 

it is appropriate to designate an ocean 

disposal site for dredged material in the 

ocean waters of Rhode Island Sound 

now, because it appears unlikely that 

feasible alternative means of managing 

dredged material will be available to 

accommodate the quantity of dredged 

material that is projected to be generated 

in this region in the future. 

Proposals for the ocean disposal of 

dredged materials from individual 

projects are evaluated by EPA and the 

Corps on a case-by-case basis, taking 

into account all the disposal alternatives 

available at the time of permitting. 

Beneficial use alternatives will be 

preferred over ocean disposal whenever 

they are practicable. 

The FEIS describes the purpose and 

need for the proposed action and 

evaluates a number of alternatives to 

this action. EPA’s analysis of 

alternatives considered several different 

potential ocean disposal sites for 

dredged material from Rhode Island, 

southeastern Massachusetts, and 

surrounding harbors, as well as 

potential alternative means of managing 

these dredged materials other than 

ocean disposal. As described in the 

FEIS, the initial screening effort was 

established to consider the most 

environmentally sound, economically 

and operationally feasible area for site 

designation, termed the ‘‘zone of siting 

feasibility’’ (ZSF). Alternatives 

evaluated included various marine sites, 

upland disposal, beneficial uses, and 

the no action alternative. 

In addition to considering reasonable 

distances to transport dredged material, 

the ocean disposal analysis considered 

areas of critical resources as well as 

areas of incompatibility for use as a 

disposal site. This included but was not 

limited to such factors as the sensitivity 

and value of natural resources, 

geographically limited habitats, fisheries 

and shellfisheries, natural resources, 

shipping and navigation lanes, physical 

and environmental parameters, and 

economic and operational feasibility. 

The analysis was carried out in a tiered 

process. The final tier involved further 

analysis of the no action alternative and 

the following alternative sites: Site E 

and Site W (now the RISDS). These sites 

were evaluated and the RISDS was 

identified as the preferred alternative for 

potential ocean disposal site 

designation. Management strategies 

were developed for the preferred 

alternative and are described in the 

SMMP (Appendix C of the FEIS). 

In summary, the NEPA process 

informed EPA’s decision to take the 

current action designating the RISDS as 

an ODMDS. 

D. Site Description 

The RISDS is currently being used by 

the Corps under its short-term site 

selection authority as Site 69B. Since 

2003, Site 69B has received 

approximately 4.5 million cubic yards 

of dredged material from the Providence 

River and Harbor Maintenance Dredging 

Project. The RISDS is in the same exact 

location and is the same size as Site 

69B. The site is approximately one 

nautical mile by one nautical mile, for 

a size of one square nautical mile 

(nmi2). The RISDS is located 

approximately nine nmi south of Point 

Judith, Rhode Island and approximately 

6.5 nmi east of Block Island, Rhode 

Island, with depths from 115 to128 feet 

(35 to 39 m). The sediments at the site 

range from glacially derived till to soft, 

silty sand. The corner coordinates 

(North American Datum 1983: NAD 83) 

for the RISDS site, are as follows: 

41°14′21′′ N, 71°23′29′′ W; 41°14′21′′ N, 

71°22′09′′ W; 41°13′21′′ N, 71°23′29′′ W; 

41°13′21′′ N, 71°22′09′′ W. 

E. Analysis of Criteria Pursuant to the 

Ocean Dumping Act Regulatory 

Requirements 

Five general criteria are used in 

evaluating possible dredged material 

disposal sites for long-term use under 

the MPRSA (40 CFR 228.5). 

General Criteria (40 CFR 228.5) 

1. Minimize interference with other 

activities, particularly avoiding fishery 

areas or major navigation areas (40 CFR 

228.5(a)). The first of the five general 

criteria requires that a determination be 

made as to whether the site or its use 

will minimize interference with other 

uses of the marine environment. For this 

final rule, a determination was made to 

overlay individual uses and resources 

over GIS bathymetry and disposal site 

locations. This process was used to 

visually determine the maximum and 

minimum interferences with other uses 

of the marine environment that could be 

expected to occur. Areas that would 

interfere with other activities, 

particularly fishing and navigation, 

were eliminated from further 

consideration. Sites E and W were the 

only areas left for consideration. The 

RISDS (Site W) showed minimum 

interference with other activities and 

was thus selected for this proposal. The 

RISDS is not in an area of distinctive 

Federal Register / Vol. 69, No. 241 / Thursday, December 16, 2004 / Rules and Regulations 75259

lobster, shellfish, or finfish resources 

and thus will not interfere with 

lobstering or fishing activities. The 

RISDS is not located in shipping lanes 

or major navigation areas, is not in a 

geographically limited fishery area, and 

has been selected to minimize 

interference with fisheries, 

shellfisheries and regions of commercial 

and recreational navigation. 

2. Minimize Changes in Water 

Quality. Temporary water quality 

perturbations (during initial mixing) 

caused by disposal operations would be 

reduced to normal ambient levels before 

reaching areas outside of the disposal 

site (40 CFR 228.5(b)). The second of the 

five general criteria requires that 

locations and boundaries of disposal 

sites be selected so that temporary 

changes in water quality or other 

environmental conditions during initial 

mixing caused by disposal operations 

anywhere within a site can be expected 

to be reduced to normal ambient 

seawater levels or to undetectable 

contaminant concentrations or effects 

before reaching beaches, shorelines, 

sanctuaries, or geographically limited 

fisheries or shellfisheries. The RISDS 

will be used only for dredged material 

disposal of suitable sediments as 

determined by application of MPRSA 

criteria. Based on model results and 

data evaluated as part of the FEIS, 

disposal of either sandy or fine-grained 

material would have no long-term 

impact on water quality at the site. In 

addition, dredged material deposited at 

the RISDS will not reach any marine 

sanctuary, beach, or other important 

natural resource area. Further, disposal 

at the RISDS will be managed and 

monitored in accordance with the 

SMMP (Appendix C of the FEIS) such 

that there will be no temporary 

perturbations in water quality anywhere 

outside the site or within the site after 

allowance for initial mixing. 

3. Interim Sites Which Do Not Meet 

Criteria (40 CFR 228.5 (c)). There are no 

interim sites to be considered under this 

criterion. The RISDS (formerly known 

as Site 69B) is not an interim site as 

defined under the Ocean Dumping 

regulations.

4. Size of sites (40 CFR 228.5(d)). The 

fourth general criterion requires that the 

size of open water disposal sites be 

limited to localize for identification and 

control any immediate adverse impacts 

and to permit the implementation of 

effective monitoring and surveillance 

programs to prevent adverse long-range 

impacts. Size, configuration, and 

location are to be determined as part of 

the disposal site evaluation. For this 

final rule, EPA has determined, based 

on the information presented in the 

FEIS, that the RISDS (formerly known as 

Site 69B) has been sized to provide 

sufficient capacity to accommodate 

material dredged from within the RIR 

and to facilitate effective monitoring 

and surveillance. The site management 

and monitoring plan is described in the 

RISDS SMMP (Appendix C of the FEIS). 

5. EPA must, wherever feasible, 

designate dumping sites beyond the 

edge of the continental shelf and where 

historical disposal has occurred (40 CFR 

228.5(e)). The fifth criterion requires 

EPA, wherever feasible, to designate 

ocean dumping sites beyond the edge of 

the continental shelf and at other such 

sites that have historically been used. 

Sites beyond the edge of the continental 

shelf are not economically feasible due 

to the extended travel time and 

associated expense. In addition, the 

RISDS encompasses the footprint of Site 

69B, currently in use. Thus, the RISDS 

is consistent with this criterion. 

As discussed briefly above, EPA has 

determined that the RISDS satisfies the 

five general criteria described in 40 CFR 

228.5 of the EPA Ocean Dumping 

Regulations. More detailed information 

relevant to these criteria can be found in 

the FEIS and SMMP. 

In addition to the general criteria 

discussed above, 40 CFR 228.6(a) lists 

11 specific factors to be used in 

evaluating a proposed disposal site 

under the MPRSA to assure that the five 

general criteria are met. The RISDS, as 

discussed below, also is acceptable 

under each of the 11 specific criteria. 

The evaluation of the preferred disposal 

sites relevant to the five general and 11 

specific criteria is discussed in 

substantially more detail in the FEIS 

and SMMP. 

Specific Criteria (40 CFR 228.6) 

1. Geographical Position, Depth of 

Water, Bottom Topography and 

Distance From Coast (40 CFR 

228.6(a)(1)). The RISDS is in the same 

location and is the same size as Site 

69B. The RISDS will replace Site 69B. 

The site is a square area, approximately 

one nautical mile by one nautical mile, 

for a size of one nmi2. The RISDS is 

located approximately nine nmi south 

of Point Judith, Rhode Island and 

approximately 6.5 nmi east of Block 

Island, Rhode Island, with depths from 

115 to 128 feet (35 to 39 meters). The 

sediments at the site range from 

glacially derived till to soft, silty sand. 

Water depths in the surrounding areas 

are between 110 and 118 feet to the 

north, east, and south of the site. The 

southeastern portion of the site shoals 

more rapidly than the northern area. 

The corner coordinates (North American 

Datum 1983: NAD 83) of the RISDS site, 

are as follows: 41°14′21′′ N, 71°23′29′′

W; 41°14′21′′ N, 71°22′09′′ W; 41°13′21′′

N, 71°23′29′′ W; 41°13′21′′ N, 71°22′09′′

W. 

2. Location in Relation to Breeding, 

Spawning, Nursery, Feeding, or Passage 

Areas of Living Resources in Adult or 

Juvenile Phases (40 CFR 228.6(a)(2)).

The Corps and EPA initiated informal 

Endangered Species Act (ESA) and 

Essential Fish Habitat (EFH) 

consultation in January 2003 and formal 

consultation with publication of the 

DEIS in coordination with the National 

Marine Fisheries Service (NMFS) and 

U.S. Fish and Wildlife Service 

(USFWS). Additional coordination was 

conducted with the Commonwealth of 

Massachusetts and State of Rhode 

Island. Through these efforts, data has 

been obtained on current threatened or 

endangered species in the RIR. The 

plankton community at the RISDS 

includes zooplankton (copepods, larval 

forms of many species of invertebrates 

and fish, Foraminifera, and Radiolara) 

and phytoplankton (diatoms and 

dinoflagellates). These organisms 

display a range of abundance by season. 

The populations at or near the site are 

not unique to the site and are present 

over most of the RIR. It is expected that 

although small, short-term entrainment 

losses may occur immediately following 

disposal, no long term, adverse impacts 

to organisms in the water column will 

occur. 

The benthic community at the RISDS 

is comprised primarily of Annelida, 

Crustacea, and Mollusca. It is expected 

that short-term reduction in abundance 

and diversity at the sites may occur 

immediately following disposal, but 

long term, adverse impacts to benthic 

organisms are not expected to occur. 

Recovery to levels similar to predisposal is expected within a few years 

after disposal. 

The RISDS is located in the ocean 

waters of Rhode Island Sound, which is 

utilized by more than 116 fish species. 

Seven species appear consistently 

dominant among all trawl surveys. 

These were scup, butterfish, longfin 

squid, little skate, winter flounder, 

silver hake, and red hake. Atlantic 

herring, Atlantic mackerel, and ocean 

pout also were very abundant. It is 

expected that impacts to finfish 

resources will consist of short-term, 

local disruptions and the potential loss 

of some individual fish of certain nonmigratory species. Most of the finfish 

species are migratory. Several 

commercially harvested species of 

shellfish occur in the RIR. They are 

Atlantic surf clams, blue mussels, 

lobster, northern quahogs, ocean 

quahogs, sea scallops, razor clams, and 

75260 Federal Register / Vol. 69, No. 241 / Thursday, December 16, 2004 / Rules and Regulations 

whelks. It is expected that impacts to 

shellfish within the RISDS will be shortterm and associated with disposal, 

burial, and loss of habitat or food. No 

impacts to shellfish or finfish resources 

are anticipated outside of the RISDS.

Many different types of resident, 

migratory, and coastal birds may 

potentially use the RIR as a feeding 

habitat or resting area. Dozens of marine 

and coastal birds migrate through Rhode 

Island Sound annually. In addition, the 

RIR provides limited habitat for most 

marine mammals and reptiles. The 

species that are frequent or occasional 

visitors to the RIR are harbor porpoises, 

white-sided dolphins, minke whales, 

seals (harbor, hooded, and harp) and sea 

turtles (green, Kemp’s ridley, 

loggerhead, leatherback and hawksbill). 

There are 16 federally-listed 

threatened and endangered species and 

five species of ‘‘special concern’’ which 

may utilize the area of the RISDS. The 

threatened and endangered species are: 

whales (humpback, fin, northern right, 

sperm, blue and sei), turtles (loggerhead, 

green, Kemp’s ridley, leatherback, and 

hawksbill), birds (bald eagle, piping 

plover and roseate tern), and insects 

(American burying beetle and 

northeastern beach tiger beetle). The 

species of ‘‘special concern’’ are: 

common loon, common tern, arctic tern, 

least tern, and Leach’s storm-petrel. 

Occurrence of these species varies by 

season. Use of the site by whales and 

birds would be incidental. Sea turtles 

may be present in the RISDS during the 

summer and fall. It is not expected that 

disposal activities would have any 

significant adverse effect on these 

species or their critical habitat. With 

respect to endangered and threatened 

species, informal consultation was 

conducted with the U.S. Fish and 

Wildlife Service (USFWS) and the 

National Marine Fisheries Service 

(NMFS). In 2001, EPA prepared a 

Biological Assessment (BA) for selection 

of Site 69B, which is in the exact same 

location as the RISDS. 

The USFWS and NMFS concurred 

with EPA’s determination that species 

under its jurisdiction would not likely 

be adversely affected by the proposed 

action. The BA concludes that the 

proposed action is not likely to affect 

the threatened and endangered species. 

EPA reinitiated threatened and 

endangered species consultation with 

NMFS and USFWS as part of the 

designation process of the RISDS. NMFS 

concurred on April 8, 2004 and USFWS 

concurred on April 1, 2004 that there 

are unlikely to be any effects on 

threatened or endangered species or 

their critical habitat as a result of the 

proposed action. The BA is available 

upon request by contacting the person 

listed in the FOR FURTHER INFORMATION

CONTACT section. 

The RIR provides Essential Fish 

Habitat (EFH) for 33 finfish and five 

invertebrate species, mostly for adults 

and juveniles. All of the species occur 

along the northeastern Atlantic Coast of 

the United States and have EFH 

designated for waters other than those 

within the RIR. In 2001, an EFH 

assessment was prepared for the 

selection of Site 69B. The EFH 

assessment concludes that the proposed 

action is not likely to affect those waters 

and substrate necessary to fish for 

spawning, breeding, feeding, or growth 

to maturity. EPA reinitiated EFH 

consultation with NMFS as part of the 

designation process of the RISDS. NMFS 

concurred on April 8, 2004 that the 

proposed action is not likely to effect 

those waters and substrate necessary to 

fish for spawning, breeding, feeding, or 

growth to maturity. EPA has 

incorporated the NMFS 

recommendations into the SMMP 

(appendix C of the FEIS). The EFH 

assessment is available upon request by 

contacting the person listed in the FOR

FURTHER INFORMATION CONTACT section. 

The RISDS is not located in areas that 

provide limited or unique breeding, 

spawning, nursery, feeding, or passage 

areas. 

3. Location in Relation to Beaches and 

Other Amenity Areas (40 CFR 

228.6(a)(3). The RISDS is located 

approximately 8.3 nmi from the nearest 

beach or other amenity area. Modeling 

and sediment transport studies indicate 

a very low probability that any dredged 

material remaining in the water column 

following disposal would be transported 

more than one nmi. Plumes would be 

reduced to background concentrations 

shortly after disposal. Given the rapid 

dissipation characteristics of dredged 

material plumes and that the vast 

majority of released materials settle to 

the bottom near the release point, 

dredged material placed at the RISDS 

would not adversely affect beaches or 

similar amenities. As such, it is 

expected that impacts would not occur 

to beaches, areas of special concern, 

parks, natural resources, sanctuaries or 

refuges since they are either land-based 

or farther than 8.3 nmi from the 

proposed disposal site. There also are 

no marine sanctuaries or limited 

fisheries or shellfisheries at or near the 

RISDS. Therefore, EPA has determined 

that dredged material disposal at the 

RISDS location should not have any 

adverse effect on beaches or other 

amenity areas, including wildlife 

refuges or other areas of biological or 

recreational significance. 

4. Types and Quantities of Wastes 

Proposed to be Disposed of, and 

Proposed Methods of Release, Including 

Methods of Packing the Waste, if any (40 

CFR 228.6(a)(4)). The RISDS has an 

estimated capacity of approximately 20 

million cubic yards. However, there is 

no disposal site capacity volume 

restriction. The composition of dredged 

material to be disposed at the site is 

expected to be typical estuarine 

sediments dredged from channels, 

berths, and marinas from harbors and 

federal navigation areas within the RIR. 

The disposal of this material shall occur 

at designated buoys or coordinates and 

would be expected to be placed so as to 

concentrate material from each disposal. 

This placement is expected to help 

minimize bottom impacts to benthic 

organisms. EPA will make a suitability 

determination prior to the Corps issuing 

any MPRSA permit or authorization (in 

the case of Corps projects) for disposal 

at the RISDS. The site will receive only 

dredged material determined to be 

suitable for ocean disposal that is 

transported by either government or 

private contractor hopper dredges or 

ocean-going, bottom-dump barges towed 

by tugboat. Both types of equipment 

release the material at or very near the 

surface. Dredged material placed at the 

RISDS would not be containerized or 

packaged. 

Furthermore, it should be emphasized 

that the RISDS is being designated only 

to receive dredged material; disposal of 

other types of material at these sites will 

not be allowed. It also should be noted 

that the disposal of certain other types 

of material is expressly prohibited by 

the MPRSA and EPA regulations (e.g., 

industrial waste, sewage sludge, 

chemical warfare agents). See, e.g., 33 

U.S.C. 1414b; 40 CFR 227.5(b). For these 

reasons, no significant adverse impacts 

are expected to be associated with the 

types and quantities of dredged material 

that may be disposed at the RISDS. 

5. Feasibility of Surveillance and 

Monitoring (40 CFR 228.6(a)(5)).

Surveillance of the site can be 

accomplished by boat, plane, helicopter, 

disposal inspectors aboard barges, 

scows, and tugboats, or through radar or 

satellite. This effort would be conducted 

jointly by the EPA, the Corps, and the 

U.S. Coast Guard. Based on the various 

methods that can be utilized it has been 

determined that monitoring and 

surveillance are feasible at the RISDS. 

The site is readily accessible for 

bathymetric surveys and has undergone 

monitoring, including side-scan sonar. If 

field monitoring of the disposal 

activities is required because of a future 

concern for habitat changes or limited 

resources, a management decision will 

Federal Register / Vol. 69, No. 241 / Thursday, December 16, 2004 / Rules and Regulations 75261

be made by EPA and the Corps, who 

share the responsibilities of managing 

and monitoring the disposal sites. EPA 

and the Corps have prepared a RISDS 

SMMP (Appendix C of the FEIS). 

Monitoring shall be completed in 

accordance with the SMMP. It is 

expected that revisions to the SMMP 

may be made periodically; revisions 

will be circulated for review, 

coordinated with the affected states and 

become final when approved by EPA 

New England Region in conjunction 

with the Corps’ New England District. 

See 33 U.S.C. 1413(c)(3). 

6. Dispersal, Horizontal Transport 

and Vertical Mixing Characteristics of 

the Area, Including Prevailing Current 

Direction and Velocity, if any (40 CFR 

228.6(a)(6)). The RISDS is located 

within the ocean waters of Rhode Island 

Sound, a water body that is exposed to 

wind and wave energy from the 

northwest Atlantic Ocean. The 

dominant tidal flow directions are 

northwest and southeast. The amplitude 

of the tidal velocity decreases with 

depth (12.7 cm/s at the surface and 7 

cm/s near the bottom. The mean current 

velocity was 2.5 cm/s directed toward 

the west at mid-depth and 1.6 cm/s 

toward the west at the bottom. A 

modeling study performed as part of the 

Providence River and Harbor 

Maintenance Dredging Project EIS 

examined the likelihood of erosion and 

transport of cohesive sediments 

proposed for placement at Site 69B 

(now the RISDS), located at a depth of 

128 ft. The study concluded that a 

disposal mound placed at 69B would 

not be dispersive under any conditions 

other then the most severe (50-year 

return period) hurricane; their results, 

however, were based on an assumption 

of extremely cohesive material and 

should therefore be viewed as 

potentially under-predicting erosion. 

Areas of the ZSF between 170 and 105 

ft, including the north-central portion 

northeast of Block Island, were 

depositional areas with some infrequent 

sorting and reworking by waves and 

currents. The deepest areas here were 

the most depositional. 

It is expected that peak wave induced 

bottom orbital velocities are not 

sufficient to cause significant erosion of 

dredged material at the RISDS. For these 

reasons, EPA has determined that the 

dispersal, transport and mixing 

characteristics, and current velocities 

and directions at the RISDS are 

appropriate to support its designation as 

a dredged material disposal site.

7. Existence and Effects of Current 

and Previous Discharges and Dumping 

in the Area (including Cumulative 

Effects) (40 CFR 228.6(a)(7)). The RISDS 

is currently being used for disposal 

activity pursuant to the Corps’ shortterm site selection authority under 

Section 103(b) of the MPRSA. 33 U.S.C. 

1413(b) as Site 69B. This generally 

makes the RISDS preferable to more 

pristine sites that have either not been 

used or have been used in the more 

distant past (40 CFR 228.5(e)). Beyond 

this, however, EPA’s evaluation of data 

and modeling results indicates that 

these past disposal operations have not 

resulted in unacceptable or 

unreasonable environmental 

degradation, and that there should be no 

significant adverse cumulative 

environmental effects from continuing 

to use the RISDS on a long-term basis. 

8. Interference With Shipping, 

Fishing, Recreation, Mineral Extraction, 

Desalination, Fish and Shellfish 

Culture, Areas of Special Scientific 

Importance and Other Legitimate Uses 

of the Ocean (40 CFR 228.6(a)(8)). In 

evaluating whether disposal activity at 

the RISDS could interfere with 

shipping, fishing, recreation, mineral 

extraction, desalination, areas of 

scientific importance and other 

legitimate uses of the ocean, EPA 

considered both the direct effects from 

depositing dredged material on the 

ocean bottom at the proposed sites and 

the indirect effects associated with 

increased vessel traffic that will result 

from transportation of dredged material 

to the RISDS. Areas that raised concerns 

with respect to these criteria were 

removed from consideration early in the 

screening process for the FEIS. The 

RISDS is not located in shipping lanes 

and is not an area of special scientific 

importance, desalination, fish and 

shellfish culture or mineral extraction. 

Accordingly, depositing dredged 

material at the RISDS will not interfere 

with any of the activities mentioned in 

this criterion. Increased vessel traffic 

involved in the transportation of 

dredged material to the disposal site 

should not impact shipping or activities 

discussed above. 

9. The Existing Water Quality and 

Ecology of the Sites as Determined by 

Available Data or by Trend Assessment 

or Baseline Surveys (40 CFR 

228.6(a)(9)). Water and sediment quality 

analyses conducted at the site and 

experience with past disposal in this 

region have not identified any adverse 

water quality or ecological impacts from 

ocean disposal of dredged material. 

Baseline data on which this 

determination is based are further 

described in the FEIS. 

10. Potentiality for the Development 

or Recruitment of Nuisance Species in 

the Disposal Sites (40 CFR 228.6(a)(10)).

Based on the available evidence, 

dredged material is not a potential 

source for the development or 

recruitment of nuisance species at the 

RISDS. Monitoring results and available 

data indicate that placement of dredged 

material at Site 69B (which is in the 

same exact location as the RISDS) has 

not extended the range of undesirable 

living organisms, pathogens, degraded 

areas, or introduced viable nonindigenous species into the area. Local 

opportunistic benthic species 

characteristic of disturbed conditions 

are expected to be present and abundant 

at any ocean dredged material disposal 

site in response to physical deposition 

of sediments. However, no recruitment 

of nuisance species or species capable of 

harming human health or the marine 

ecosystem is expected to occur at the 

site. 

11. Existence at or in Close Proximity 

to the Sites of any Significant Natural or 

Cultural Feature of Historical 

Importance (40 CFR 228.6(a)(11)). As 

part of the site selection for Site 69B, the 

Corps conducted an archaeological 

assessment entitled, ‘‘Archaeological 

Assessment, Remote Sensing, and 

Underwater Archaeological Survey for 

the Providence River and Harbor 

Maintenance Dredging Project, Rhode 

Island, April 12, 2001.’’ The 

archaeological assessment is available 

upon request by contacting the person 

listed in the FOR FURTHER INFORMATION

CONTACT section. The assessment 

determined that no significant sites 

were likely to be found within the areas 

of interest, but there was a potential for 

historic resources because of known 

shipwrecks in the vicinity. Additional 

remote sensing studies were conducted 

and no significant cultural resources 

were identified. Coordination between 

EPA and the Corps and the 

Commonwealth of Massachusetts and 

State of Rhode Island are detailed in the 

FEIS. The Narragansett Tribe was 

included as a cooperating agency during 

the development of the FEIS. The Tribe 

has not raised any objections to the final 

choice of location for the RISDS. 

F. Public Comments 

In the preamble to the proposed rule, 

EPA requested public comment by June 

21, 2004. EPA held two public hearings 

attended by an estimated total of 50 

people.

June 15, 2002, at 1 p.m.: Lighthouse Inn, 

307 Great Island Road, Galilee, Rhode 

Island 02882. (One individual 

presented testimony.) 

June 15, 2002, at 7 p.m.: Lighthouse Inn, 

307 Great Island Road, Galilee, Rhode 

Island 02882. (Three individuals 

presented testimony.)

75262 Federal Register / Vol. 69, No. 241 / Thursday, December 16, 2004 / Rules and Regulations 

In addition to the testimony and 

comments provided at the hearings, 

EPA also received three sets of written 

comments on the proposed action.

EPA received both supportive and 

non-supportive comments. In 

developing the final rule, EPA reviewed 

and considered all the written 

comments as well as those received 

verbally at the two public hearings. 

Following are summaries of the most 

significant comments and EPA’s 

responses: 

Designation of the RISDS as a LongTerm Disposal Site was Premature 

When the Currently Selected Site (69B) 

Would Remain in Effect Until 2013. This 

project was initiated at the written 

request on the Governor of Rhode Island 

in September 2000. There was a concern 

that the navigational needs of the region 

were not being met due to the lack of 

viable disposal options. In addition, 

there also was a concern that additional 

disposal sites, other than Site 69B, 

could be selected for disposal of 

dredged material. There are several 

advantages, including environmental 

reasons, to a designated long-term 

disposal site, rather than a selected site 

(i.e., the current Site 69B). The site 

designation process evaluates the 

cumulative impacts of placing dredged 

material from the RIR at the site. In 

contrast, the site selection process 

requires only project-specific and 

individual action review of the 

environmental consequences at the 

disposal site associated with its use and 

not an evaluation of cumulative impacts 

of all potential projects. An EPAdesignated site also must have a Site 

Monitoring and Management Plan 

(SMMP), whereas a selected site is not 

required to have a SMMP. Moreover, the 

EPA designation process evaluates 

dredging needs over long planning 

horizons, while the site selection 

process evaluates each proposed 

dredging project on a project-specific 

basis. Designating a single long-term site 

would limit the ocean floor footprint 

that would be disturbed, whereas 

having additional sites selected would 

potentially impact more of the ocean 

bottom. 

The DEIS Relies Extensively on 

Outdated Baseline Data Used by the 

USACE to Select Site 69B. The 

commenter incorrectly assumed that 

this DEIS relied only on surveys 

conducted as part of the Providence 

River and Harbor Maintenance Dredging 

Project EIS and that no other surveys 

were conducted. The DEIS contains 

references and information from 

numerous baseline studies that were 

conducted in 2001–2003 in support of 

the RIR EIS. These surveys included: 

bathymetry, physical oceanography, 

water quality, side scan sonar, sediment 

profile imaging, benthic infauna, 

sediment chemistry, finfish trawls and 

chemistry, lobster trawls and chemistry, 

shellfish tows, and chemistry. A 

complete listing of surveys conducted is 

provided in Section 9 of the DEIS. 

Information from these surveys is used 

and referenced throughout Sections 3 

and 4 of the DEIS to establish a baseline 

for assessing potential environmental 

impacts. Survey plans, survey reports, 

and data reports were prepared for each 

of the baseline surveys and approved by 

EPA and the Corps. As part of the public 

review process, these data reports also 

were made available to the public at two 

repositories and were posted on the 

project Web page: (http://www.epa.gov/

ne/eco/ridredge/index.html). The 

availability of this information was 

published in the Project Public Notice of 

Availability. 

The Rulemaking Should Limit the 

RISDS Capacity to 8.8 Million Cubic 

Yards or Less. EPA believes the 

comment was based on the estimated 

dredging needs derived from a survey of 

potential users, including the Corps. 

Based on that survey, the estimated 

dredging needs would generate 

approximately 8.8 million cubic yards 

of dredged material. However, there is a 

strong likelihood of additional needs in 

the future, due in part to the fact that 

only about 40 percent of the potential 

users responded to the survey. The 

capacity of the disposal site should not 

be limited to the current estimate of 

dredging needs.

The analysis in the DEIS calculated 

that the preferred alternative has an 

estimated physical consolidated 

capacity of ∼20 million cubic yards. The 

evaluation of impacts conducted in the 

DEIS was performed assuming that up 

to 20 million cubic yards would be 

disposed of at the proposed site. The 

current disposal from the Providence 

River and Harbor Maintenance dredging 

project (projected to be ∼5.5 million 

cubic yards) also was taken into 

consideration. 

The SMMP reflects that the estimated 

capacity of the site, as designated by the 

specified boundaries, is approximately 

20 million cubic yards. This is just an 

estimated capacity; there is no capacity 

restriction on the RISDS. 

EPA carefully considered and 

responded to each comment it received 

on the FEIS. A complete Response to 

Comments Document (Appendix D of 

the FEIS) has been prepared which 

contains all the comments received and 

EPA’s responses to each of these 

comments. That document is available 

for viewing at the locations specified in 

the ADDRESSES section. 

G. Action 

The FEIS concludes that the RISDS 

(currently known as Site 69B) may 

appropriately be designated for longterm use as a dredged material ocean 

disposal site. The site is compatible 

with the general and specific factors 

used for site evaluation. 

EPA is publishing this Final Rule to 

finalize the designation of the RISDS as 

an EPA-approved dredged material 

ocean disposal site. The monitoring and 

management of requirements that will 

apply to this site are described in the 

draft SMMP (Appendix C of the FEIS). 

Management and monitoring will be 

carried out by EPA New England in 

conjunction with the Corps’ New 

England District. 

It should be emphasized that an ocean 

disposal site designation does not 

constitute or imply Corps or EPA 

approval of open water disposal of 

dredged material from any specific 

project. Before disposal of dredged 

material at the site may commence, EPA 

and the Corps must evaluate the 

proposal according to the ocean 

dumping regulatory criteria (40 CFR 

part 227) and authorize disposal. EPA 

has the right to disapprove of the actual 

disposal, if it determines that 

environmental requirements under the 

MPRSA have not been met. 

The information generated for this 

project and referenced in the FEIS is 

available for review on line at the 

address: http://www.epa.gov/region1/

eco/ridredge/index.html.

H. Supporting Documents 

1. EPA Region 1/USACE NED. 2004. 

Draft Environmental Impact Statement 

Rhode Island Region Long-Term 

Dredged Material Disposal Site 

Evaluation Project. April, 2004. 

2. EPA Region 1/USACE New England 

District. 2004. Final Environmental 

Impact Statement Rhode Island Region 

Long-Term Dredged Material Disposal 

Site Evaluation Project. October, 2004. 

3. EPA/USACE. 1991. Evaluation of 

Dredged Material Proposed for Ocean 

Disposal-Testing Manual. 

Environmental Protection Agency, 

Washington, DC, and U.S. Army Corps 

of Engineers, Washington, DC. EPA–

503/8–91/001. February 1991. 

4. EPA Region 1/USACE/NED (New 

England District). 2004. Regional 

Implementation Manual for the 

Evaluation of Dredged Material 

Proposed for Disposal in New England 

Waters. U.S. Army Corps of Engineers 

New England District and 

Federal Register / Vol. 69, No. 241 / Thursday, December 16, 2004 / Rules and Regulations 75263

Environmental Protection Agency 

Region 1, Boston, MA. April 2004.

5. Memorandum to the File from Olga 

Guza. Subject: Small Businesses 

Applications to Place Dredged Material 

at Site 69B. September 28, 2004. 

I. Statutory and Executive Order 

Reviews 

1. Executive Order 12866: Regulatory 

Planning and Review 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), the Agency 

must determine whether the regulatory 

action is ‘‘significant’’ and therefore 

subject to OMB review and the 

requirements of the Executive Order. 

The Order defines ‘‘significant 

regulatory action’’ as one that is likely 

to result in a rule that may: 

(A) Have an annual effect on the 

economy of $100 million or more or 

adversely affect in a material way the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local or tribal governments or 

communities; 

(B) Create a serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency; 

(C) Materially alter the budgetary 

impact of entitlement, grants, user fees, 

or loan programs or the rights and 

obligations of recipients thereof; or 

(D) Raise novel legal or policy issues 

arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in the Executive Order. 

After considering the anticipated 

effects of this action in relation to these 

criteria, EPA has determined that it is 

not a ‘‘significant regulatory action’’

under Executive Order 12866 and is 

therefore not subject to OMB review. 

2. Paperwork Reduction Act 

Revised in 1995, the PRA is managed 

by the Office of Management and 

Budget through its approval of 

Information Collection Requests (ICRs) 

submitted by Federal agencies. The 

statute was written and revised to 

reduce the information collection 

burden on the public. 

Burden means the total time, effort, or 

financial resources expended by persons 

to generate, maintain, retain, or disclose 

or provide information to or for a 

Federal agency. This includes the time 

needed to review instructions; develop, 

acquire, install, and utilize technology 

and systems for the purposes of 

collecting, validating, and verifying 

information, processing and 

maintaining information, and disclosing 

and providing information; adjust the 

existing ways to comply with any 

previously applicable instructions and 

requirements; train personnel to be able 

to respond to a collection of 

information; search data sources; 

complete and review the collection of 

information; and transmit or otherwise 

disclose the information. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for EPA’s regulations are listed 

in 40 CFR part 9. 

This action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act of 1995 (44 U.S.C. 3501, et seq.) 

because it would not require persons to 

obtain, maintain, retain, report, or 

publicly disclose information to or for a 

Federal agency. 

3. Regulatory Flexibility Act (RFA), as 

Amended by the Small Business 

Regulatory Enforcement Fairness Act of 

1996, (SBREFA), 5 U.S.C. 601 et seq.

The RFA generally requires an agency 

to prepare a regulatory flexibility 

analysis of any rule subject to notice 

and comment rulemaking requirements 

under the Administrative Procedure Act 

or any other statute unless the agency 

certifies that the rule will not have a 

significant economic impact on a 

substantial number of small entities. For 

the purposes of assessing the impacts of 

today’s rule on small entities, a small 

entity is defined as: (1) A small business 

based on the Small Business 

Administration’s (SBA) size standards; 

(2) a small governmental jurisdiction 

that is a government of a city, county, 

town, school district or special district 

with a population of less than 50,000; 

and (3) a small organization that is any 

not-for-profit enterprise which is 

independently owned and operated and 

is not dominant in its field. EPA has 

determined that this action will not 

have a significant adverse economic 

impact on small entities because the 

ocean disposal site designation does not 

regulate small entities. The site 

designation will only have the effect of 

providing a long-term, environmentally 

acceptable disposal option for dredged 

material. This action will help to 

facilitate the maintenance of safe 

navigation on a continuing basis. After 

considering the economic impacts of 

today’s final rule on small entities, it 

has been determined that this action 

will not have a significant adverse 

economic impact on a substantial 

number of small entities. 

4. The Unfunded Mandates Reform Act 

and Executive Order 12875

Title II of the Unfunded Mandates 

Reform Act (UMRA), Pub. L. 104–4, 

establishes requirements for Federal 

agencies to assess the effects of their 

regulatory actions on State, local, and 

tribal governments and the private 

sector. Under Section 202 of the UMRA, 

EPA generally must prepare a written 

statement, including a cost-benefit 

analysis, for proposed and final rules 

with ‘‘Federal Mandates’’ that may 

result in expenditures to State, local, 

and tribal governments, in the aggregate, 

or to the private sector, of $100 million 

or more in any one year. Before 

promulgating an EPA rule for which a 

written statement is needed, Section 205 

of the UMRA generally requires EPA to 

identify and consider a reasonable 

number of regulatory alternatives and 

adopt the least costly, most costeffective or least burdensome alternative 

that achieves the objectives of the rule. 

The provisions of Section 205 do not 

apply when they are inconsistent with 

applicable law. Moreover, Section 205 

allows EPA to adopt an alternative other 

than the least costly, most cost-effective 

or least burdensome alternative if the 

Administrator publishes with the final 

rule an explanation of why that 

alternative was not adopted. Before EPA 

establishes any regulatory requirements 

that may significantly or uniquely affect 

small governments, including tribal 

governments, it must have developed 

under Section 203 of the UMRA a small 

government agency plan. The plan must 

provide for notifying potentially 

affected small governments to have 

meaningful and timely input in the 

development of EPA regulatory 

proposals with significant Federal 

intergovernmental mandates, and 

informing, educating, and advising 

small governments on compliance with 

the regulatory requirements. 

EPA has determined that today’s 

action contains no Federal mandates 

(under the regulatory provisions of Title 

II of the UMRA) for State, local and 

tribal governments or the private sector. 

It imposes no new enforceable duty on 

any State, local or tribal governments or 

the private sector. Similarly, EPA also 

has determined that this final rule 

contains no regulatory requirements that 

might significantly or uniquely affect 

small government entities. Thus, the 

requirements of section 203 and 205 of 

the UMRA do not apply to this rule. 

5. Executive Order 13132: Federalism 

Executive Order 13132, entitled 

‘‘Federalism’’ (64 FR 43255, August 10, 

1999), requires EPA to develop an 

75264 Federal Register / Vol. 69, No. 241 / Thursday, December 16, 2004 / Rules and Regulations 

accountable process to ensure 

‘‘meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have federalism 

implications.’’ ‘‘Policies that have 

federalism implications’’ are defined in 

the Executive Order to include 

regulations that have, ‘‘substantial direct 

effects on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government.’’

This final rule does not have 

federalism implications. It will not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. This final rule 

addresses the designation of an ocean 

disposal site in Rhode Island Sound for 

the potential disposal of dredged 

material. This action neither creates 

new obligations nor alters existing 

authorizations of any State, local or 

governmental entities. Thus, Executive 

Order 13132 does not apply to this rule. 

Although Section 6 of the Executive 

Order 13132 does not apply to this final 

rule, EPA did consult with 

representatives of State and local 

governments in developing this rule. In 

addition, and consistent with Executive 

Order 13132 and EPA policy to promote 

communications between EPA and State 

and local governments, EPA specifically 

solicited comments on the proposed 

rule from State and local officials. A 

summary of the concerns raised during 

that consultation and EPA’s response to 

those concerns is provided in sections C 

and D of this preamble. 

6. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, November 6, 2000), requires EPA 

to develop an accountable process to 

ensure ‘‘meaningful and timely input by 

Tribal officials in the development of 

regulatory policies that have Tribal 

implications.’’ ‘‘Policies that have Tribal 

implications’’ are defined in the 

Executive Order to include regulations 

that have ‘‘substantial direct effects on 

one or more Indian Tribes, on the 

relationship between the Federal 

government and the Indian Tribes, or on 

the distribution of power and 

responsibilities between the Federal 

government and Indian Tribes.’’

This final rule does not have Tribal 

implications. It will not have substantial 

direct effects on Tribal governments, on 

the relationship between the Federal 

government and Indian Tribes, or on the 

distribution of power and 

responsibilities between the Federal 

government and Indian Tribes, as 

specified in Executive Order 13175. 

This final rule designates an ocean 

dredged material disposal site and does 

not establish any regulatory policy with 

tribal implications. Thus, Executive 

Order 13175 does not apply to this rule. 

Although Executive Order 13175 does 

not apply to this rule, EPA consulted 

with tribal officials in developing this 

rule, particularly as it relates to 

potential impacts to historic or cultural 

resources. EPA specifically solicited 

additional comment on the proposed 

rule from tribal officials but didn’t 

receive any. 

7. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

Executive Order 13045 (62 FR 19885, 

April 23, 1997) applies to any rule that 

(1) is determined to be ‘‘economically 

significant’’ as defined under Executive 

Order 12866, and (2) concerns an 

environmental health or safety risk that 

EPA has reason to believe might have a 

disproportionate effect on children. If 

the regulatory action meets both criteria, 

the Agency must evaluate the 

environmental health and safety effects 

of the planned rule on children, and 

explain why the planned regulation is 

preferable to other potentially effective 

and reasonably feasible alternatives 

considered by the Agency. This final 

rule is not an economically significant 

rule as defined under Executive Order 

12866 and does not concern an 

environmental health or safety risk that 

EPA has reason to believe may have a 

disproportionate effect on children. 

Therefore, it is not subject to Executive 

Order 13045. 

8. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This final rule is not subject to 

Executive Order 13211, ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355, May 

22, 2001) because it is not a significant 

regulatory action under Executive Order 

12866. 

9. National Technology Transfer 

Advancement Act 

Section 12(d) of the National 

Technology Transfer Advancement Act 

of 1995 (‘‘NTTAA’’), Pub. L. 104–113, 

Section 12(d) (15 U.S.C. 272 note), 

directs EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus bodies. The 

NTTAA directs EPA to provide 

Congress, through OMB, explanations 

when the Agency decides not to use 

available and applicable voluntary 

consensus standards. This final rule 

does not involve technical standards. 

Therefore, EPA did not consider the use 

of any voluntary consensus standards. 

10. Executive Order 12898: Federal 

Actions to Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 requires that, 

to the greatest extent practicable and 

permitted by law, each Federal agency 

must make achieving environmental 

justice part of its mission. Executive 

Order 12898 provides that each Federal 

agency must conduct its programs, 

policies, and activities that substantially 

affect human health or the environment 

in a manner that ensures that such 

programs, policies, and activities do not 

have the effect of excluding persons 

(including populations) from 

participation in, denying persons 

(including populations) the benefits of, 

or subjecting persons (including 

populations) to discrimination under 

such programs, policies, and activities 

because of their race, color, national 

origin, or income level. 

No action from this final rule would 

have a disproportionately high and 

adverse human health and 

environmental effect on any particular 

segment of the population. In addition, 

this rule does not impose substantial 

direct compliance costs on those 

communities. Accordingly, the 

requirements of Executive Order 12898 

do not apply. 

11. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

Federal Register / Vol. 69, No. 241 / Thursday, December 16, 2004 / Rules and Regulations 75265

the Federal Register. A ‘‘major rule’’

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a major rule as 

defined by 5 U.S.C. 804(2). This rule 

will be effective January 18, 2005. 

12. National Environmental Policy Act 

of 1969

Section 102(c) of the National 

Environmental Policy Act of 1969, 

Section 4321 et seq., (NEPA) requires 

Federal agencies to prepare 

environmental impact statements (EIS) 

for major Federal actions significantly 

affecting the quality of the human 

environment. The object of NEPA is to 

build into the Agency decisionmaking 

process careful consideration of all 

environmental aspects of proposed 

actions. Although EPA ocean dumping 

program activities have been 

determined to be ‘‘functionally 

equivalent’’ to NEPA, it is EPA policy to 

voluntarily follow NEPA procedures 

when designating ocean dumping sites 

(63 FR 58045, October 29, 1998). In 

addition to the Notice of Intent 

published in the Federal Register on 

April 6, 2001 (66 FR 18244), EPA and 

the Corps published legal notices in 

local newspapers and issued a press 

release inviting the public to participate 

in DEIS scoping meetings. Formal 

scoping meetings were conducted on 

May 17, 2001 and May 22, 2001. In 

addition EPA and the Corps have held 

public workshops and several working 

group meetings. A DEIS entitled, 

‘‘Rhode Island Region Long-Term 

Dredged Material Disposal Site 

Evaluation Project,’’ was issued on April 

30, 2004. A FEIS entitled, ‘‘Rhode Island 

Region Long-Term Dredged Material 

Disposal Site Evaluation Project,’’ was 

issued on October 22, 2004. The FEIS 

includes a Response to Comments 

Document (Appendix D) and final 

SMMP (Appendix C). 

In addition, EPA submitted a Coastal 

Zone Consistency Determination to the 

State of Rhode Island on September 21, 

2004. Coordination efforts with NMFS 

and USFWS for ESA and EFH 

consultation was completed on April 8 

and April 1, respectively, during the 

DEIS process. 

13. The Endangered Species Act 

Under Section 7(a)(2) of the 

Endangered Species Act, 16 U.S.C. 

1536(a)(2), Federal agencies are required 

to ‘‘insure that any action authorized, 

funded, or carried on by such agency 

* * * is not likely to jeopardize the 

continued existence of any endangered 

or threatened species or result in the 

destruction or adverse modification of 

habitat of such species * * *.’’ Under 

regulations implementing the 

Endangered Species Act, a Federal 

agency is required to consult with either 

the U.S. Fish and Wildlife Service or the 

National Marine Fisheries Service 

(depending on the species involved) if 

the agency’s action ‘‘may affect’’

endangered or threatened species or 

their critical habitat (50 CFR 402.14(a)). 

In 2001, EPA prepared a BA for the 

selection of Site 69B, which is in the 

exact same location as the RISDS. EPA 

reinitiated threatened and endangered 

species consultation with NMFS and 

USFWS as part of the designation 

process of the RISDS. NMFS concurred 

on April 8, 2004 and USFWS concurred 

on April 1, 2004 that there are unlikely 

to be any effects on threatened or 

endangered species or their critical 

habitat as a result of the proposed 

action. The USFWS and NMFS 

concurred with EPA’s determination 

that species under its jurisdiction would 

not likely be adversely affected by the 

proposed action. The BA concludes that 

the proposed action is not likely to 

affect threatened and endangered 

species. The BA is available upon 

request by contacting the person listed 

in the FOR FURTHER INFORMATION

CONTACT section. 

14. Magnuson-Stevens Fishery 

Conservation and Management Act 

The 1996 Sustainable Fisheries Act 

amendments to the Magnuson-Stevens 

Fishery Conservation and Management 

Act (MSFCMA) require the designation 

of essential fish habitat (EFH) for 

federally managed species of fish and 

shellfish. Pursuant to section 305(b)(2) 

of the MSFCMA, Federal agencies are 

required to consult with the National 

Marine Fisheries Service (NMFS) 

regarding any action they authorize, 

fund, or undertake that may adversely 

affect EFH. An adverse effect has been 

defined by the Act as follows: ‘‘Any 

impact which reduces the quality and/

or quantity of EFH. Adverse effects may 

include direct (e.g., contamination or 

physical disruption), indirect (e.g., loss 

of prey, reduction in species’ fecundity), 

site-specific or habitat-wide impacts, 

including individual, cumulative, or 

synergistic consequences of actions.’’ In 

2001, an EFH assessment was prepared 

for the selection of Site 69B (the RISDS). 

EPA reinitiated EFH consultation with 

NMFS as part of the designation process 

of the RISDS. NMFS concurred on April 

8, 2004 that the designation of the 

RISDS is not likely to affect those waters 

and substrate necessary to fish for 

spawning, breeding, feeding, or growth 

to maturity. EPA has incorporated 

NMFS recommendations into the SMMP 

(appendix C of the FEIS). The EFH 

assessment concludes that the proposed 

action is not likely to affect those waters 

and substrate necessary to fish for 

spawning, breeding, feeding, or growth 

to maturity. The EFH assessment is 

available upon request by contacting the 

person listed in the FOR FURTHER

INFORMATION CONTACT section. 

15. Plain Language Directive 

Executive Order 12866 requires each 

agency to write all rules in plain 

language. EPA has written this final rule 

in plain language to make this final rule 

easier to understand. 

16. Executive Order 13158: Marine 

Protected Areas 

Executive Order 13158 (65 FR 34909, 

May 31, 2000) requires EPA to 

‘‘expeditiously propose new sciencebased regulations, as necessary, to 

ensure appropriate levels of protection 

for the marine environment.’’ EPA may 

take action to enhance or expand 

protection of existing marine protected 

areas and to establish or recommend, as 

appropriate, new marine protected 

areas. The purpose of the Executive 

Order is to protect the significant 

natural and cultural resources within 

the marine environment, which means 

‘‘those areas of coastal and ocean 

waters, the Great Lakes and their 

connecting waters, and submerged lands 

thereunder, over which the United 

States exercises jurisdiction, consistent 

with international law.’’

Today’s final rule implements Section 

103 of the MPRSA, which requires that 

permits for dredged material are subject 

to EPA review and concurrence. The 

final rule will amend 40 CFR 228.15 by 

establishing the RISDS. As such, this 

final rule will afford additional 

protection of aquatic organisms at 

individual, population, community, or 

ecosystem levels of ecological 

structures. Therefore, EPA expects 

today’s final rule will advance the 

objective of the Executive Order to 

protect marine areas.

List of Subjects in 40 CFR Part 228

Environmental protection, Water 

pollution control.

Dated: December 8, 2004. 

Robert W. Varney, 

Regional Administrator, EPA New England.

■ In consideration of the foregoing, EPA 

is amending part 228, chapter I of title 40 

of the Code of Federal Regulations as 

follows:

75266 Federal Register / Vol. 69, No. 241 / Thursday, December 16, 2004 / Rules and Regulations 

PART 228—CRITERIA FOR THE 

MANAGEMENT OF DISPOSAL SITES 

FOR OCEAN DUMPING

■ 1. The authority citation for part 228 

continues to read as follows:

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

■ 2. Section 228.15 is amended by 

adding paragraph (b) (3) to read as 

follows:

§ 228.15 Dumping sites designated on a 

final basis.

* * * * *

(b) * * *

(3) Rhode Island Sound Disposal Site 

(RISDS). 

(i) Location: Corner Coordinates (NAD 

1983): 41°14′21′′ N, 71°23′29′′ W; 

41°14′21′′ N, 71°22′09′′ W; 41°13′21′′ N, 

71°23′29′′ W; 41°13′21′′ N, 71°22′09′′ W. 

(ii) Size: One square nautical mile. 

(iii) Depth: Ranges from 115 to 128 

feet (35 to 39 meters). 

(iv) Primary use: Dredged material 

disposal. 

(v) Period of use: Continuing use. 

(vi) Restriction: Disposal shall be 

limited to dredged material. Disposal 

shall comply with conditions set forth 

in the most recent approved Site 

Management and Monitoring Plan.

* * * * *

[FR Doc. 04–27439 Filed 12–15–04; 8:45 am] 

BILLING CODE 6560–50–P

PANAMA CANAL COMMISSION

48 CFR Chapter 35

Federal Acquisition Regulations

Removal of CFR Chapter 

Effective October 1, 2004, the Panama 

Canal Commission was terminated by 

Public Law 108–309. Therefore the 

Office of the Federal Register is 

removing the Panama Canal 

Commission’s regulations pursuant to 

its authority to maintain an orderly 

system of codification under 44 U.S.C. 

1510 and 1 CFR 8.2

Accordingly, 48 CFR is amended by 

removing Chapter 35 consisting of parts 

3501 through 3599.

[FR Doc. 04–55528 Filed 12–15–04; 8:45 am] 

BILLING CODE 1505–01–D