20590 Federal Register / Vol. 77, No. 66 / Thursday, April 5, 2012 / Proposed Rules 

F. Executive Order 13175 (Consultation 

and Coordination With Indian Tribal 

Governments) 

This action does not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000). This rule imposes no regulatory 

requirements or costs on any tribal 

government. It does not have substantial 

direct effects on tribal governments, 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. 

Thus, Executive Order 13175 does not 

apply to this action. 

G. Executive Order 13045 (Protection of 

Children From Environmental Health 

and Safety Risks) 

This action is not subject to Executive 

Order 13045 (62 FR 19885, April 23, 

1997) because it is not economically 

significant as defined in Executive 

Order 12866, and because the Agency 

does not believe the environmental 

health or safety risks addressed by this 

action present a disproportionate risk to 

children. The public is invited to submit 

comments or identify peer-reviewed 

studies and data that assess effects of 

early-life exposure to the toxic 

pollutants for which we are soliciting 

comments. 

H. Executive Order 13211 (Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use) 

This 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. 

I. National Technology Transfer 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, 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 standards 

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 rulemaking does not involve 

technical standards. Therefore, EPA is 

not considering the use of any voluntary 

consensus standards. 

J. Executive Order 12898—Federal 

Actions to Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629, 

February 16, 1994) establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA has determined that this rule will 

not have disproportionately high and 

adverse human health or environmental 

effects on minority or low-income 

populations because (1) New Jersey’s, 

Puerto Rico’s, and California’s criteria 

apply to all marine waters in the State, 

and thus EPA does not believe that this 

action would disproportionately affect 

any one group over another, and (2) EPA 

has previously determined, based on the 

most current science and EPA’s CWA 

Section 304(a) recommended criteria, 

that New Jersey’s, Puerto Rico’s, and 

California’s adopted and EPA-approved 

criteria are protective of human health 

and aquatic life. 

List of Subjects in 40 CFR Part 131 

Environmental protection, 

Administrative practice and procedure, 

Reporting and recordkeeping 

requirements, Water pollution control. 

Dated: March 30, 2012. 

Lisa P. Jackson, 

Administrator. 

• For the reasons set out in the 

preamble title 40, Chapter I, part 131 of 

the Code of Federal Regulations is 

proposed to be amended as follows: 

PART 131—WATER QUALITY 

STANDARDS 

1. The authority citation for part 131 

continues to read as follows: 

Authority: 33 U.S.C. 1251 et seq. 

§ 131.36 [Amended] 

2. Section 131.36 is amended as 

follows: 

a. Removing and reserving paragraph 

(d)(3). 

b. Removing and reserving paragraph 

(d)(4). 

c. Revising the table in paragraph 

(d)(10)(ii) as follows: 

(i) Under the heading ‘‘Water and use 

classification’’ add a new first line to 

read as follows: 

Waters of the Sacramento-San Joaquin 

Delta within Regional Water Board 5 

(ii) Under the heading ‘‘Applicable 

criteria’’ add a new first line to read as 

follows: 

These waters are assigned the criteria 

in: 

Column C1—pollutant 14 

Column C2—pollutant 14 

(iii) Under the heading ‘‘Applicable 

criteria’’, opposite the entry for ‘‘Waters 

of San Francisco Bay upstream to and 

including Suisun Bay and the 

Sacramento-San Joaquin Delta’’, remove 

‘‘Column C1—pollutant 14’’ and 

‘‘Column C2—pollutant 14’’. 

§ 131.38 [Amended] 

3. Section 131.38 is amended as 

follows: 

a. Revise footnote ‘‘r’’ in the 

‘‘Footnotes to Table in Paragraph (b) 

(1)’’ to read as follows: 

r. These criteria were promulgated for 

specific waters in California in the NTR. 

The specific waters to which the NTR 

criteria apply include: Waters of the 

State defined as bays or estuaries 

including the Sacramento-San Joaquin 

Delta within California Regional Water 

Board 5, but excluding the San 

Francisco Bay. This section does not 

apply instead of the NTR for these 

criteria. 

[FR Doc. 2012–8202 Filed 4–4–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 228 

[EPA–R10–OW–2012–0197; FRL–9654–6] 

Ocean Dumping; Designation of Ocean 

Dredged Material Disposal Sites 

Offshore of Yaquina Bay, OR 

AGENCY: The Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The EPA is proposing to 

designate two new ocean dredged 

material disposal (ODMD) sites offshore 

of Yaquina Bay, Oregon pursuant to the 

Marine Protection, Research and 

Sanctuaries Act (MPRSA), as amended. 

The new sites are needed primarily to 

serve the long-term need for a location 

to dispose of material dredged from the 

Yaquina River navigation channel, and 

to provide a location for the disposal of 

dredged material for persons who have 


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received a permit for such disposal. The 

newly designated sites will be subject to 

ongoing monitoring and management to 

ensure continued protection of the 

marine environment. 

DATES: Comments on this proposed rule 

must be received no later than May 7, 

2012. 

ADDRESSES: For more information on 

this proposed rule, Docket ID No. EPA– 

R10–OW–2012–0197 use one of the 

following methods: 

• www.regulations.gov: Follow the 

on-line instructions for accessing the 

docket and materials related to this 

proposed rule. 

• Email: Lohrman.Bridgette@epa.gov. 

• Mail: Bridgette Lohrman, U.S. 

Environmental Protection Agency, 

Region 10, Office of Ecosystems, Tribal 

and Public Affairs, Environmental 

Review and Sediment Management 

Unit, Oregon Operations Office, 805 SW 

Broadway, Suite 500, Portland, Oregon 

97205. 

Publicly available docket materials are 

available either electronically at 

www.regulations.gov or in hard copy 

during normal business hours from the 

regional library at the U.S. 

Environmental Protection Agency, 

Region 10 Library, 10th Floor, 1200 

Sixth Avenue, Seattle, Washington 

98101. For access to the documents at 

the Region 10 Library, contact the 

Region 10 Library Reference Desk at 

(206) 553–1289, between the hours of 

9 a.m. to 12 p.m., and between the hours 

of 1 p.m. to 4 p.m., Monday through 

Friday, excluding legal holidays, for an 

appointment. 

FOR FURTHER INFORMATION CONTACT: 

Bridgette Lohrman, U.S. Environmental 

Protection Agency, Region 10, Office of 

Ecosystems, Tribal and Public Affairs, 

Environmental Review and Sediment 

Management Unit, Oregon Operations 

Office, 805 SW Broadway, Suite 500, 

Portland, Oregon 97205; phone number 

(503) 326–4006; email: 

Lohrman.Bridgette@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Potentially Affected Persons 

Persons potentially affected by this 

action include those who seek or might 

seek permits or approval by the EPA to 

dispose of dredged material into ocean 

waters pursuant to the Marine 

Protection, Research, and Sanctuaries 

Act (MPRSA), as amended, 33 U.S.C. 

1401 to 1445. The EPA’s proposed 

action would be relevant to persons, 

including organizations and government 

bodies seeking to dispose of dredged 

material in ocean waters offshore of 

Yaquina Bay, Oregon. Currently, the 

U.S. Army Corps of Engineers (Corps) 

would be most affected by this action. 

Potentially affected categories and 

persons include: 

Category Examples of potentially regulated persons 

Federal government ................................................................................. U.S. Army Corps of Engineers Civil Works projects, and other Federal 

agencies. 

Industry and general public ...................................................................... Port authorities, marinas and harbors, shipyards and marine repair facilities, berth owners. 

State, local and tribal governments .......................................................... Governments owning and/or responsible for ports, harbors, and/or 

berths, Government agencies requiring disposal of dredged material 

associated with public works projects. 

This table is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding persons likely to 

be affected by this action. For any 

questions regarding the applicability of 

this action to a particular person, please 

refer to the contact person listed in the 

preceding FOR FURTHER INFORMATION

CONTACT section. 

II. Background 

A. History of Disposal Sites Offshore of 

Yaquina Bay, Oregon 

The Corps historically used the 

general area offshore of Yaquina Bay for 

dredged material disposal. In 1977, an 

Interim ODMD site offshore of Yaquina 

Bay received EPA interim designation 

and was used by the Corps for dredged 

material disposal after 1977 and prior to 

1986 (Figure 1). However, because of 

increased mounding in the Interim Site 

and its potential adverse effect on 

navigation safety, the Corps selected an 

alternate ODMD site, the ‘‘Adjusted 

Site,’’ under the authority of section 103 

of the MPRSA, with EPA concurrence. 

The Corps began to use this ‘‘Adjusted 

Site’’ in 1986. By 1990, dredged material 

had accumulated in the Adjusted Site to 

an extent that necessitated careful 

placement of material on specific 

portions of the Adjusted Site. In 2000, 

the Corps ceased disposal of material at 

the Adjusted Site. In 2001, the Corps 

and the EPA completed an examination 

of possible new locations for ocean 

disposal further offshore from the 

entrance to Yaquina Bay. The 

recommended locations from that study 

are the proposed Yaquina North and 

South Sites. 

In October 2000, these disposal sites 

were authorized to be used by the 

Corps, with EPA concurrence, under 

Section 103 of the MPRSA as selected 

sites. The Yaquina North Site has been 

the preferred site for disposal. The 

authorization to use the Yaquina North 

Site under section 103 of the MPRSA 

expired at the end of the 2011 dredge 

season and is unavailable for future 

dredge seasons unless designated as 

proposed in this action. Since the 

Yaquina South Site has never been used 

for disposal of dredged material due to 

prevailing southwest winds, it is 

currently available for use as a selected 

site under section 103. To provide for 

sufficient disposal capacity over the 

long term, the EPA proposes to 

designate both a Yaquina North Site and 

a Yaquina South Site under section 102 

of the MPRSA, for the ocean disposal of 

dredged material offshore of Yaquina 

Bay using the footprints of the section 

103 selected sites. 

The proposed designation of the two 

ocean disposal sites for dredged 

material does not mean that the Corps 

or the EPA has approved the use of the 

Sites for open water disposal of dredged 

material from any specific project. 

Before any person can dispose dredged 

material at either of the proposed Sites, 

the EPA and the Corps must evaluate 

the project according to the ocean 

dumping regulatory criteria (40 CFR 

part 227) and authorize the disposal. 

The EPA independently evaluates 

proposed dumping and has the right to 

restrict and/or disapprove of the actual 

disposal of dredged material if the EPA 

determines that environmental 

requirements under the MPRSA have 

not been met. 

B. Location and Configuration of 

Yaquina North and South Ocean 

Dredged Material Disposal Sites 

This action proposes the designation 

of two ocean dredged material sites to 

the north and south, respectively, 

offshore of Yaquina Bay. The location of 

the two proposed ocean dredged 

material disposal sites (Yaquina North 

and South ODMD Sites, North and 


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South Sites, or Sites) are bounded by the 

coordinates, listed below, and shown in 

Figure 1. The proposed designation of 

these two Sites will allow the EPA to 

adaptively manage the Sites to 

maximize their capacity, minimize the 

potential for mounding and associated 

safety concerns, and minimize the 

potential for any long-term adverse 

effects to the marine environment. 

The coordinates for the two Sites are, 

in North American Datum 83 (NAD 83): 

Yaquina North ODMD Site Yaquina South ODMD Site 

44°38′17.98′′ N, 124°07′25.95′′ W 44°36′04.50′′ N, 124°07′52.66′′ W 

44°38′12.86′′ N, 124°06′31.10′′ W 44°35′59.39′′ N, 124°06′57.84′′ W 

44°37′14.33′′ N, 124°07′37.57′′ W 44°35′00.85′′ N, 124°08′04.27′′ W 

44°37′09.22′′ N, 124°06′42.73′′ W 44°34′55.75′′ N, 124°07′09.47′′ W 

The two proposed Sites are located in 

approximately 112 to 152 feet of water, 

and are located to the north and south 

of the entrance to Yaquina Bay on the 

central Oregon Coast. The proposed 

Yaquina North Site would be located 

about 1.7 nautical miles northwest of 

the entrance to Yaquina Bay and the 

proposed Yaquina South Site would be 

located about 2.0 nautical miles 

southwest of the bay’s entrance. Both 

ocean disposal sites would be 6,500 feet 

long by 4,000 feet wide, about 597 acres 

each. 

BILLING CODE 6560–50–P 


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BILLING CODE 6560–50–C 

C. Management and Monitoring of the 

Sites 

The proposed Sites are expected to 

receive sediments dredged by the Corps 

to maintain the federally authorized 

navigation project at Yaquina Bay, 

Oregon and dredged material from other 

persons who have obtained a permit for 

the disposal of dredged material at the 

Sites. All persons using the Sites are 

required to follow a Site Management 

and Monitoring Plan (SMMP) for the 

Sites. The SMMP includes management 

and monitoring requirements to ensure 

that dredged materials disposed at the 

Sites are suitable for disposal in the 

ocean and that adverse impacts of 

disposal, if any, are addressed to the 

maximum extent practicable. The 

SMMP for the Yaquina North and South 

Sites, in addition to the aforementioned, 

also addresses management of the Sites 

to ensure adverse mounding does not 

occur and to ensure that disposal events 

minimize interference with other uses of 


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ocean waters in the vicinity of the 

proposed Sites. The SMMP is available 

as a draft document for review and 

comment at this time. The public is 

encouraged to take advantage of this 

opportunity to read and submit 

comments on the draft SMMP. 

D. MPRSA Criteria 

In proposing to designate these Sites, 

the EPA assessed the proposed Sites 

according to the criteria of the MPRSA, 

with particular emphasis on the general 

and specific regulatory criteria of 40 

CFR part 228, to determine whether the 

proposed site designations satisfy those 

criteria. The EPA’s draft Yaquina Bay, 

Oregon Ocean Dredged Material 

Disposal Sites Evaluation Study and 

Environmental Assessment, [February 

2012] (EA), provides an extensive 

evaluation of the criteria and other 

related factors for the designation of 

these Sites. The EA is available as a 

draft document for review and comment 

at this time. The public is encouraged to 

take advantage of this opportunity to 

read and submit comments on the draft 

EA. 

General Criteria (40 CFR 228.5) 

1. Sites must be selected to minimize 

interference with other activities in the 

marine environment, particularly 

avoiding areas of existing fisheries or 

shellfisheries, and regions of heavy 

commercial or recreational navigation 

(40 CFR 228.5(a)). 

The EPA reviewed the potential for 

the Sites to interfere with navigation, 

recreation, shellfisheries, aquatic 

resources, commercial fisheries, 

protected geologic features, and cultural 

and/or historically significant areas and 

found low potential for conflicts. The 

proposed Sites spatially overlap with 

recreational activities such as boating 

and whale watching, recreational and 

commercial finfish or Dungeness crab 

fishing, tow lane agreements between 

tow boat operations and Dungeness crab 

fishermen, and recreational and 

commercial navigation. However, the 

Sites are unlikely to cause interference 

with these or other uses provided close 

communication and coordination is 

maintained among users, vessel traffic 

control and the U.S. Coast Guard. 

Recreational users are expected to more 

heavily use areas that are shoreward of 

the Sites and to focus their activities on 

Yaquina Reef. Commercial fishing, 

including that for salmon and 

Dungeness crab, is expected to occur at 

the Sites, but the EPA does not expect 

disposal operations at the Sites to 

conflict with this use because of the 

limited space and time during which 

disposal occurs. The draft SMMP 

outlines site management objectives, 

including minimizing interference with 

other uses of the ocean. Should a site 

use conflict be identified, site use could 

be modified according to the SMMP to 

minimize that conflict. 

2. Sites must be situated such that 

temporary perturbations to water quality 

or other environmental conditions 

during initial mixing caused by disposal 

operations would be reduced to normal 

ambient levels or undetectable 

contaminant concentrations or effects 

before reaching any beach, shoreline, 

marine sanctuary, or known 

geographically limited fishery or 

shellfishery (40 CFR 228.5(b)). 

Based on the EPA’s review of 

modeling, monitoring data, sediment 

quality, and history of use, no detectable 

contaminant concentrations or water 

quality effects, e.g., suspended solids, 

would be expected to reach any beach 

or shoreline from disposal activities at 

the Sites. The primary impact of 

disposal activities on water quality is 

expected to be temporary turbidity 

caused by the physical movement of 

sediment through the water column. All 

dredged material proposed for disposal 

will be evaluated according to the ocean 

dumping regulations at 40 CFR 227.13 

and guidance developed by the EPA and 

the Corps. In general, dredged material 

which meets the criteria under 40 CFR 

227.13(b) is deemed environmentally 

acceptable for ocean dumping without 

further testing. Dredged material which 

does not meet the criteria of 40 CFR 

227.13(b) must be further tested as 

required by 40 CFR 227.13(c). 

Disposal of suitable material meeting 

the regulatory criteria and deemed 

environmentally acceptable for ocean 

dumping will be allowed at the 

proposed Sites. Most of the dredged 

material (approximately 95%) to be 

disposed at the Sites is expected to be 

sandy material, while a small amount of 

material (up to 5% of the material) 

would be classified as fine-grained. 

Hopper dredges, which are typically 

used for the Corps’ annual navigation 

dredging, are not capable of removing 

debris from the dredge site. However, 

specific projects may utilize a clamshell 

dredge, in which case there is the 

potential for the occasional placement 

of naturally occurring debris at the 

disposal Sites. 

3. The sizes of disposal sites will be 

limited in order to localize for 

identification and control any 

immediate adverse impacts, and to 

permit the implementation of effective 

monitoring and surveillance to prevent 

adverse long-range impacts. Size, 

configuration, and location are to be 

determined as part of the disposal site 

evaluation (40 CFR 228.5(d)). 

To ensure that site managers can be 

responsive to the specifics of each 

dredging season based on dredge 

schedules, weather, and bathymetry at 

the Sites, the EPA proposes to designate 

both the North and South Sites. The 

footprints of the proposed Sites are 

designed to maximize their capacity, 

helping to assure minimal mounding 

and minimize any adverse affects to the 

wave climate. The presence of Yaquina 

Reef, close to shore at shallow depths, 

prevents nearshore designation and 

dredged material disposal in dispersive 

locations at depths less than 60 feet. The 

North Site will be the preferred 

placement area for disposal of dredged 

material as was the case when the Site 

was used as a Section 103 selected site. 

During some periods, disposal may be 

alternated between the two Sites. The 

use of the South Site is more dependent 

upon wind and wave conditions, 

particularly in April and May when the 

typical dredge season starts, and for this 

reason will tend to be used less 

frequently than the North Site. Effective 

monitoring of the Sites is necessary and 

required. The EPA will require annual 

bathymetric surveys for each Site to 

track site capacity and to assess the 

potential for mounding concerns. These 

surveys will inform the active 

management of the proposed Sites. 

4. EPA will, wherever feasible, 

designate ocean dumping sites beyond 

the edge of the continental shelf and 

other such sites where historical 

disposal has occurred (40 CFR 228.5(e)). 

Disposal areas located off of the 

continental shelf would be at least 20 

nautical miles offshore. This distance is 

well beyond the 4.5 nautical mile haul 

distance determined to be feasible by 

the Corps for maintenance of their 

Yaquina Bay project. Additional 

disadvantages to off-shelf ocean 

disposal would be the unknown 

environmental impacts of disposal on 

deep-sea, stable, fine-grained benthic 

communities and the higher cost of 

monitoring sites in deeper waters and 

further offshore. 

Historic disposal has occurred at the 

proposed location for these Sites. The 

substrate of the proposed Sites is similar 

grain size to the disposal material and 

the placement avoids the unique habitat 

features of Yaquina Reef. 

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 EPA does not anticipate that the 

geographical position of the proposed 

Sites, including the depth, bottom 


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topography and distance from the 

coastline, will unreasonably degrade the 

marine environment. To help avoid 

adverse mounding at the Sites, site 

management will generally include 

uniform placement, i.e., spreading 

disposal material throughout the Sites 

in a manner that will result in a 

relatively uniform accumulation of 

disposed material on the bottom over 

the long-term. Site management will 

include creating dump plans for each 

Site where disposal will occur. Dump 

plans establish cells within the Site to 

ensure uniform placement. In addition 

to minimizing mounding, the uniform 

placement is expected to minimize the 

thickness of disposal accumulations 

which is expected to be less disruptive 

to benthic communities and aquatic 

species, such as crabs, that might be 

present at the Sites during disposal 

events. Because the proposed Sites are 

relatively deep, to avoid the nearshore 

Yaquina Reef, they are not considered 

dispersive. Material placed in the Sites 

is not expected to move from the Sites 

except during large storm events. 

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 proposed Sites are not located in 

exclusive breeding, spawning, nursery, 

feeding or passage areas for adult or 

juvenile phases of living resources. At 

and in the immediate vicinity of the 

proposed Sites, a variety of pelagic and 

demersal fish species, including salmon, 

green sturgeon, and flatfish, as well as 

Dungeness crab, are found. Studies 

conducted by the EPA and the Corps at 

the proposed Sites found the benthic 

infaunal and epifaunal community to be 

dominated by organisms that are 

adapted to a sandy environment. The 

benthic species, densities and 

diversities collected during these 

studies were typical of the nearshore 

sandy environment along the Oregon 

coast. 

3. Location in Relation to Beaches and 

Other Amenity Areas (40 CFR 

228.6(a)(3)). 

The proposed Sites are approximately 

2 nautical miles off the beach in water 

depths greater than 100 feet and beyond 

the ecologically and economically 

important Yaquina Reef. Given the 

depth of these Sites, the material is not 

expected to disperse from the Sites 

except during infrequent large storm 

events. Thus, impacts to beaches or the 

reef will be avoided. The sand removed 

from the Newport littoral cell is not 

expected to affect Newport’s beaches 

because Pacific Northwest beaches tend 

to respond strongly to storm effects, the 

episodic nature of which would mask 

any long-term discrete changes such as 

disposal at these Sites. Site monitoring 

and adaptive management are 

components of the proposed SMMP to 

ensure beaches and other amenity areas 

are not adversely impacted. 

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)). 

Dredged material found suitable for 

ocean disposal pursuant to the 

regulatory criteria for dredged material, 

or characterized by chemical and 

biological testing and found suitable for 

disposal into ocean waters, will be the 

only material allowed to be disposed at 

the Sites. No material defined as 

‘‘waste’’ under the MPRSA will be 

allowed to be disposed at the Sites. The 

dredged material to be disposed at the 

Sites will be predominantly marine 

sand. Generally, disposal is expected to 

occur from a hopper dredge, in which 

case, material will be released just 

below the surface while the disposal 

vessel remains under power and slowly 

transits the disposal location. This 

method of release is expected to spread 

material at the Sites to minimize 

mounding, while minimizing impacts to 

the benthic community and to aquatic 

species present at the Sites at the time 

of a disposal event. 

5. Feasibility of Surveillance and 

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

The EPA expects monitoring and 

surveillance at the Sites to be feasible 

and readily performed from small, 

surface research vessels. The EPA will 

ensure monitoring of the sites for 

physical, biological and chemical 

attributes. Bathymetric surveys will be 

conducted annually, contaminant levels 

in the dredged material will be analyzed 

prior to dumping, and the benthic 

infauna and epibenthic organisms will 

be monitored every 5 years, as funding 

allows. 

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)). 

Disposal at the proposed Sites will 

not degrade the existing wave 

environment within or outside the Sites. 

The placement of dredged material may 

have a minor effect on circulation 

within or outside the site boundaries. 

Due to the size of the mound resulting 

from the accumulated dredged material 

(10–14 feet high covering 597 acres) 

over 20 years, it is possible the currents 

in the vicinity of the Sites may be 

affected. Any potential effect would not 

be expected to occur until a substantial 

amount of dredged material has been 

placed at the site (4–6 million cubic 

yards). At that time, the EPA plans to reassess these assumptions and associated 

potential effects. Currently, disposal has 

occurred at the North Site for 10 years 

with a total disposal volume of 

approximately 2.2 million cubic yards. 

7. Existence and Effects of Current 

and Previous Discharges and Dumping 

in the Area (including Cumulative 

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

The proposed North Site was used for 

disposal of dredged material from 2001 

to 2011. The seafloor elevation at the 

Site has risen 12 feet in a few locations. 

Annual bathymetric surveys will 

continue to be conducted to monitor 

mounding at the North Site. To date 

disposal of dredged material has not 

changed the benthic infaunal nor 

epifaunal species expected to inhabit 

nearshore sandy substrates at this 

location. The South Site, selected by the 

Corps under their Section 103 authority 

under the MPRSA, has never been used. 

Preferential use of the North Site is 

expected at this time, but capacity and 

other factors may result in more 

frequent use of the South Site in the 

future. The proposed SMMP includes 

monitoring and adaptive management 

measures to address potential mounding 

issues. 

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)). 

The proposed Sites are not expected 

to interfere with shipping, fishing, 

recreation or other legitimate uses of the 

ocean. Commercial and recreational 

fishing and commercial navigation are 

the primary activities that may spatially 

overlap with disposal at the Sites. This 

overlap is more likely at the South Site 

given the South Site’s proximity to the 

commercial shipping lane and a more 

direct alignment with the entrance 

channel to Yaquina Bay. The likelihood 

of direct interference with these 

activities is low, provided there is close 

communication and coordination 

among users, vessel traffic control and 

the U.S. Coast Guard. The EPA is not 

aware of any plans for mineral 

extraction, desalination plants, or fish 

and shellfish culture operations near the 

proposed Sites at this time. The 

proposed Sites are not located in areas 

of special scientific importance. They 

are located to the south of the Newport 

Hydrographic line, south of the 

proposed Northwest National Marine 

Renewable Energy Center’s nearshore 

test facility, and west of the Yaquina 

Reef. 


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9. The Existing Water Quality and 

Ecology of the Sites as Determined by 

Available Data or Trend Assessment of 

Baseline Surveys (40 CFR 228.6(a)(9)). 

The EPA has not identified any 

potential adverse water quality impacts 

from the proposed ocean disposal of 

dredged material at the Sites based on 

water and sediment quality analyses 

conducted in the study area of the Sites, 

and based on past disposal experience 

at the proposed North Site when it was 

used as a Section 103 selected site. 

Benthic grabs and trawl data show the 

ecology of the area to be that associated 

with sandy nearshore substrate typical 

of the Oregon Coast. 

10. Potentiality for the Development 

or Recruitment of Nuisance Species in 

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

Nuisance species, considered as any 

undesirable organism not previously 

existing at a location, have not been 

observed at, or in the vicinity of, the 

proposed Sites. Material expected to be 

disposed at the Sites will be 

uncontaminated marine sands similar to 

the sediment present at the Sites. Some 

fine-grained material, finer than natural 

background, may also be disposed. 

While this finer-grained material could 

have the potential to attract nuisance 

species to the Sites, no such recruitment 

is known to have taken place at the 

proposed North Site while the Site was 

used as a Section 103 selected site. The 

proposed SMMP includes benthic 

infaunal and epifaunal monitoring 

requirements, which will act to identify 

any nuisance species and allow the EPA 

to direct special studies and/or 

operational changes to address the issue 

if it arises. 

1. Existence at or in Close Proximity 

to the Site of any Significant Natural or 

Cultural Feature of Historical 

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

No significant cultural features have 

been identified at, or in the vicinity of, 

the proposed Sites at this time. The EPA 

is coordinating with Oregon’s State 

Historic Preservation Officer and with 

Tribes in the vicinity of the Sites to 

identify any cultural features. The EPA 

expects to complete that coordination 

effort before making a final decision on 

the proposed Sites. No shipwrecks have 

been observed or documented within 

the proposed Sites or their immediate 

vicinity. 

III. Environmental Statutory Review— 

National Environmental Policy Act 

(NEPA); Magnuson-Stevens Act (MSA); 

Marine Mammal Protection Act 

(MMPA); Coastal Zone Management 

Act (CZMA); Endangered Species Act 

(ESA); National Historic Preservation 

Act (NHPA) 

A. NEPA 

Section 102 of the National 

Environmental Policy Act of 1969, as 

amended (NEPA), 42 U.S.C. 4321 to 

4370f, requires Federal agencies to 

prepare an Environmental Impact 

Statement (EIS) for major federal actions 

significantly affecting the quality of the 

human environment. NEPA does not 

apply to EPA designations of ocean 

disposal sites under the MPRSA because 

the courts have exempted the EPA’s 

actions under the MPRSA from the 

procedural requirements of NEPA 

through the functional equivalence 

doctrine. The EPA has, by policy, 

determined that the preparation of 

NEPA documents for certain EPA 

regulatory actions, including actions 

under the MPRSA, is appropriate. The 

EPA’s ‘‘Notice of Policy and Procedures 

for Voluntary Preparation of NEPA 

Documents,’’ (Voluntary NEPA Policy), 

63 FR 58045, (October 29, 1998), sets 

out both the policy and procedures the 

EPA uses when preparing such 

environmental review documents. The 

EPA’s primary voluntary NEPA 

document for designating the Sites is 

the draft Yaquina Bay, Oregon Ocean 

Dredged Material Disposal Sites 

Evaluation Study and Environmental 

Assessment, [February 2012] (EA), 

jointly prepared by the EPA and the 

Corps. The draft EA and its Technical 

Appendices, which are part of the 

docket for this action, provide the 

threshold environmental review for 

designation of the two Sites. The 

information from the proposed EA is 

used above, in the discussion of the 

ocean dumping criteria. 

B. MSA and MMPA 

The EPA prepared an essential fish 

habitat (EFH) assessment pursuant to 

Section 305(b), 16 U.S.C. 1855(b)(2), of 

the Magnuson-Stevens Act, as amended 

(MSA), 16 U.S.C. 1801 to 1891d, and 

submitted that assessment to the 

National Marine Fisheries Service 

(NMFS) on December 19, 2011. NMFS is 

reviewing the EPA’s EFH assessment 

and an Endangered Species Act (ESA) 

Biological Assessment and addendum 

thereto for purposes of the Marine 

Mammal Protection Act of 1972, as 

amended (MMPA), 16 U.S.C. 1361 to 

1389. The EPA will not take final action 

on the proposed Sites until the NMFS 

review is complete. 

C. CZMA 

The Coastal Zone Management Act, as 

amended (CZMA), 16 U.S.C. 1451 to 

1465, requires Federal agencies to 

determine whether their actions will be 

consistent to the extent practicable with 

the enforceable policies of approved 

state programs. The EPA prepared a 

consistency determination for the 

Oregon Coastal Management Program 

(OCMP), the approved state program in 

Oregon, to meet the requirements of the 

CZMA and submitted that 

determination to the Oregon Department 

of Land Conservation and Development 

(DLCD) for review on February 17, 2012. 

The EPA will not take final action on 

the proposed Sites until the DLCD 

review of EPA’s consistency 

determination is complete. 

D. ESA 

The Endangered Species Act, as 

amended (ESA), 16 U.S.C. 1531 to 1544, 

requires Federal agencies to consult 

with NMFS and the U.S. Fish and 

Wildlife Service (USFWS) to ensure that 

any action authorized, funded, or 

carried out by the Federal agency is not 

likely to jeopardize the continued 

existence of any endangered species or 

threatened species or result in the 

destruction or adverse modification of 

any critical habitat. The EPA prepared 

a Biological Assessment (BA) to assess 

the potential effects of designating the 

two proposed Sites on aquatic and 

wildlife species and submitted that BA 

to the NMFS and USFWS on December 

19, 2011. The EPA found that site 

designation does not have a direct 

impact on any of the identified ESA 

species, and also found that indirect 

impacts associated with reasonably 

foreseeable future disposal activities 

had to be considered. These anticipated 

indirect impacts from disposal included 

a short-term increase in suspended 

sediment, short-term disruption in avian 

foraging behavior, modification of 

bottom topography, loss of benthic prey 

species from burial, and loss of pelagic 

individuals during disposal of material 

through the water column. The EPA 

concluded that its action may affect, but 

is not likely to adversely affect 18 ESAlisted species and is not likely to 

adversely affect designated critical 

habitat for southern green sturgeon 

(Acipenser medirostris) but is likely to 

adversely affect Oregon Coast coho 

salmon (Oncorhynchus kisutch). The 

USFWS concurred on EPA’s finding that 

the proposed action is not likely to 

adversely affect listed endangered or 

threatened species under the 


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Federal Register / Vol. 77, No. 66 / Thursday, April 5, 2012 / Proposed Rules 20597 

jurisdiction of the USFWS. The EPA 

will not take final action on the 

proposed Sites until consultation with 

NMFS under the ESA is complete. 

E. NHPA 

The EPA initiated consultation with 

the State of Oregon’s Historic 

Preservation Officer (SHPO) on 

February 27, 2012, to address the 

National Historic Preservation Act, as 

amended (NHPA), 16 U.S.C. 470 to 

470a–2, which requires Federal agencies 

to take into account the effect of their 

actions on districts, sites, buildings, 

structures, or objects, included in, or 

eligible for inclusion in the National 

Register. The EPA determined that no 

historic properties were affected, or 

would be affected, by designation of the 

Sites. The EPA did not find any historic 

properties within the geographic area of 

the Sites. This determination was based 

on a review of the National Register of 

Historic Districts in Oregon, the Oregon 

National Register list and an assessment 

of potential cultural resources near the 

Sites. The EPA will not take final action 

on the proposed Sites until the 

coordination with the SHPO is 

complete. 

IV. Statutory and Executive Order 

Reviews 

This rule proposes the designation of 

two ocean dredged material disposal 

sites pursuant to Section 102 of the 

MPRSA. This proposed action complies 

with applicable executive orders and 

statutory provisions as follows: 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This proposed action is not a 

‘‘significant regulatory action’’ under 

the terms of Executive Order 12866 (58 

FR 51735, October 4, 1993) and is 

therefore not subject to review under 

Executive Orders 12866 and 13563 (76 

FR 3821, January 21, 2011). 

B. Paperwork Reduction Act 

In this proposed site designation, the 

EPA does not reasonably anticipate 

collection of information from ten or 

more people based on the historic use 

of designated sites. Consequently, the 

proposed action is not subject to the 

Paperwork Reduction Act. 

C. Regulatory Flexibility 

The Regulatory Flexibility Act (RFA) 

generally requires Federal agencies 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. 

Small entities include small businesses, 

small organizations, and small 

governmental jurisdictions. For 

purposes of assessing the impacts of this 

rule on small entities, small entity is 

defined as: A small business defined by 

the Small Business Administration’s 

size regulations at 13 CFR 121.201; 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 a 

small organization that is any not-forprofit enterprise which is independently 

owned and operated and is not 

dominant in its field. The EPA 

determined that this proposed action 

will not have a significant economic 

impact on small entities because the 

proposed rule will only have the effect 

of regulating the location of sites to be 

used for the disposal of dredged 

material in ocean waters. After 

considering the economic impacts of 

this proposed rule, I certify that this 

action will not have a significant 

economic impact on a substantial 

number of small entities. 

D. Unfunded Mandates Reform Act 

This proposed action contains no 

Federal mandates under the provisions 

of Title II of the Unfunded Mandates 

Reform Act (UMRA) of 1995, 2 U.S.C. 

1531 to 1538, for State, local, or tribal 

governments or the private sector. This 

action imposes no new enforceable duty 

on any State, local or tribal governments 

or the private sector. Therefore, this 

action is not subject to the requirements 

of sections 202 or 205 of the UMRA. 

This action is also not subject to the 

requirements of section 203 of the 

UMRA because it contains no regulatory 

requirements that might significantly or 

uniquely affect small government 

entities. Those entities are already 

subject to existing permitting 

requirements for the disposal of dredged 

material in ocean waters. 

E. Executive Order 13132: Federalism 

This proposed action does not have 

federalism implications. It does 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 various levels of 

government, as specified in Executive 

Order 13132. Thus, Executive Order 

13132 does not apply to this action. In 

the spirit of Executive Order 13132, and 

consistent with EPA policy to promote 

communications between the EPA and 

State and local governments, the EPA 

specifically solicits comment on this 

proposed action from State and local 

officials. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This proposed action does not have 

tribal implications, as specified in 

Executive Order 13175 because the 

designation of the two ocean dredged 

material disposal Sites will not have a 

direct effect on Indian Tribes, on the 

relationship between the federal 

government and Indian Tribes, or on the 

distribution of power and 

responsibilities between the federal 

government and Indian Tribes. Thus, 

Executive Order 13175 does not apply 

to this action. Although Executive Order 

13175 does not apply to this proposed 

action the EPA consulted with tribal 

officials in the development of this 

action, particularly as the action relates 

to potential impacts to historic or 

cultural resources. The EPA specifically 

solicits additional comment on this 

proposed action from tribal officials. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

The EPA interprets Executive Order 

13045 (62 FR 19885) as applying only to 

those regulatory actions that concern 

health or safety risks, such that the 

analysis required under Section 5–501 

of the Executive Order has the potential 

to influence the regulation. This 

proposed action is not subject to 

Executive Order 13045 because it does 

not establish an environmental standard 

intended to mitigate health or safety 

risks. The proposed action concerns the 

designation of two ocean dredged 

material disposal sites and only has the 

effect of providing designated locations 

to use for ocean disposal of dredged 

material pursuant to Section 102(c) of 

the MPRSA. We welcome comments on 

this proposed action related to this 

Executive Order. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This proposed action is not subject to 

Executive Order 13211, ‘‘Actions 

Concerning Regulations that 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355) 

because it is not a ‘‘significant 

regulatory action’’ as defined under 

Executive Order 12866. We welcome 

comments on this proposed action 

related to this Executive Order. 


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20598 Federal Register / Vol. 77, No. 66 / Thursday, April 5, 2012 / Proposed Rules 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, 12(d) (15 U.S.C. 272), directs 

the 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 the EPA to provide 

Congress, through OMB, explanations 

when the Agency decides not to use 

available and applicable voluntary 

consensus standards. This proposed 

action includes environmental 

monitoring and measurement as 

described in EPA’s proposed SMMP. 

The EPA will not require the use of 

specific, prescribed analytic methods for 

monitoring and managing the 

designated Sites. The Agency plans to 

allow the use of any method, whether it 

constitutes a voluntary consensus 

standard or not, that meets the 

monitoring and measurement criteria 

discussed in the proposed SMMP. The 

EPA welcomes comments on this aspect 

of the proposed rulemaking and, 

specifically, invites the public to 

identify potentially-applicable 

voluntary consensus standards and to 

explain why such standards should be 

used in this proposed action. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and Low 

Income Populations 

Executive Order 12898 (59 FR 7629) 

establishes federal executive policy on 

environmental justice. Its main 

provision directs federal agencies, to the 

greatest extent practicable and 

permitted by law, to make 

environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. The 

EPA determined that this proposed rule 

will not have disproportionately high 

and adverse human health or 

environmental effects on minority or 

low-income populations because it does 

not affect the level of protection 

provided to human health or the 

environment. The EPA has assessed the 

overall protectiveness of designating the 

disposal Sites against the criteria 

established pursuant to the MPRSA to 

ensure that any adverse impact to the 

environment will be mitigated to the 

greatest extent practicable. We welcome 

comments on this proposed action 

related to this Executive Order. 

List of Subjects in 40 CFR Part 228 

Environmental protection, Water 

pollution control. 

Authority: This action is issued under the 

authority of Section 102 of the Marine 

Protection, Research, and Sanctuaries Act, as 

amended, 33 U.S.C. 1401, 1411, 1412. 

Dated: March 20, 2012. 

Dennis J. McLerran, 

Regional Administrator, Region 10. 

For the reasons set out in the 

preamble, The EPA proposes to amend 

chapter I, title 40 of the Code of Federal 

Regulations as follows: 

PART 228—[AMENDED] 

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 (n)(15) to read as 

follows: 

§ 228.15 Dumping sites designated on a 

final basis. 

* * * * * 

(n) * * * 

(15) Yaquina Bay, OR—North and 

South Ocean Dredged Material Disposal 

Sites. 

(i) North Site. 

(A) Location: 44°38′17.98′′ N, 

124°07′25.95′′ W, 44°38′12.86′′ N, 

124°06′31.10′′ W, 44°37′14.33′′ N, 

124°07′37.57′′ W, 44°37′09.22′′ N, 

124°06′42.73′′ W. 

(B) Size: Approximately 1.07 nautical 

miles long and 0.66 nautical miles wide 

(0.71 square nautical miles); 597 acres 

(242 hectares). 

(C) Depth: Ranges from 

approximately112 to 152 feet (34 to 46 

meters). 

(D) Primary Use: Dredged material. 

(E) Period of Use: Continuing use. 

(F) Restrictions: (1) Disposal shall be 

limited to dredged material determined 

to be suitable for ocean disposal 

according to 40 CFR 227.13 from the 

Yaquina Bay and River navigation 

channel and adjacent areas; 

(2) Disposal shall be managed by the 

restrictions and requirements contained 

in the currently-approved Site 

Management and Monitoring Plan 

(SMMP); 

(3) Monitoring, as specified in the 

SMMP, is required. 

(ii) South Site 

(A) Location: 44°36′04.50′′ N, 

124°07′52.66′′ W, 44°35′59.39′′ N, 

124°06′57.84′′ W, 44°35′00.85′′ N, 

124°08′04.27′′ W, 44°34′55.75′′ N, 

124°07′09.47′′ W. 

(B) Size: Approximately 1.07 nautical 

miles long and 0.66 nautical miles wide 

(0.71 square nautical miles); 597 acres 

(242 hectares). 

(C) Depth: Ranges from approximately 

112 to 152 feet (34 to 46 meters). 

(D) Primary Use: Dredged material. 

(E) Period of Use: Continuing use. 

(F) Restrictions: (1) Disposal shall be 

limited to dredged material determined 

to be suitable for ocean disposal 

according to 40 CFR 227.13, from the 

Yaquina Bay and River navigation 

channel and adjacent areas; 

(2) Disposal shall be managed by the 

restrictions and requirements contained 

in the currently-approved Site 

Management and Monitoring Plan 

(SMMP); 

(3) Monitoring, as specified in the 

SMMP, is required. 

[FR Doc. 2012–8193 Filed 4–4–12; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 203, 204, 205, 209, 211, 

212, 219, 225, 226, 227, 232, 237, 243, 

244, 246, 247, and 252 

[DFARS Case 2011–D056] 

RIN 0750–AH63 

Defense Federal Acquisition 

Regulation Supplement: Solicitation 

Provisions and Contract Clauses for 

Acquisitions of Commercial Items 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Proposed rule. 

SUMMARY: DoD is proposing to amend 

the Defense Federal Acquisition 

Regulation Supplement (DFARS) to 

simplify prescriptions for provisions 

and clauses that are applicable to the 

acquisition of commercial items and to 

specify flowdown of clauses to 

commercial subcontracts. 

DATES: Comments on the proposed rule 

should be submitted in writing to the 

address shown below on or before June 

4, 2012, to be considered in the 

formation of a final rule. 

ADDRESSES: Submit comments 

identified by DFARS Case 2011–D056, 

using any of the following methods: 


rmajette on DSK2TPTVN1PROD with PROPOSALS