31492 Federal Register / Vol. 65, No. 97 / Thursday, May 18, 2000 / Rules and Regulations

EPA-APPROVED MISSOURI REGULATIONS—Continued

Missouri citation Title State effective date EPA approval date Explanation

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[FR Doc. 00–12384 Filed 5–17–00; 8:45am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 228

[FRL–6702–1]

Ocean Dumping: Designation of Site

AGENCY: Environmental Protection

Agency.

ACTION: Final rule.

SUMMARY: The Environmental Protection

Agency (EPA) designates an existing

dredged material disposal site located in

the Gulf of Mexico at the mouth of

Atchafalaya Bay for the continued

disposal of dredged material removed

from the bar channel of the Atchafalaya

River and Bayous Chene, Boeuf, and

Black, Louisiana. This action is

necessary to provide an acceptable

ocean dumping site for current and

future disposal of this material. This

final site designation is for an indefinite

period and is subject to monitoring to

insure that unacceptable adverse

environmental impacts do not occur.

DATES: This rule is effective on June 19,

2000.

ADDRESSES: Monica Young (6WQ–EM),

EPA Region 6, 1445 Ross Avenue,

Dallas, TX 75202–2733.

Information supporting this

designation is available for review at the

following location: EPA, Region 6, 1445

Ross Ave, 9th floor file room, Dallas, TX

75202.

FOR FURTHER INFORMATION CONTACT:

Monica Young 214–665–7349.

SUPPLEMENTARY INFORMATION:

Background

Section 102(c) of the Marine

Protection, Research, and Sanctuaries

Act of 1972 (MPRSA), as amended, (33

U.S.C. 1401 et seq.), gives the

Administrator of EPA the authority to

designate sites where ocean dumping

may be permitted. On December 23,

1986, the Administrator delegated the

authority to designate ocean dumping

sites to the Regional Administrator of

the Region in which the site is located.

This site designation is being made

pursuant to that authority.

EPA’s Ocean Dumping Regulations

(40 CFR Chapter I, Subchapter H,

Section 228.4) state that ocean dumping

sites will be designated by promulgation

in Part 228. A list of ‘‘Approved Interim

and Final Ocean Dumping Sites’’ was

published on January 11, 1977 (42 FR

2461 et seq.). That list established the

Atchafalaya River Bar Channel ocean

dredged material disposal site (ODMDS)

on an interim basis.

The interim designation of the

Atchafalaya River Bar Channel ODMDS

was extended indefinitely in January

1980. However, Section 506 of the

Water Resources Development Act

(WRDA) of 1992, amended MPRSA such

that beginning January 1, 1997, open

water offshore disposal could only be

into ODMDSs either designated by EPA

under § 102(c) of the Act or selected by

the Corps of Engineers (COE) under

§ 103(b) as an alternative site. Since EPA

had not ruled on final designation by

January 1, 1997, the Atchafalaya River

Bar Channel ODMDS was selected by

the New Orleans District COE as a

§ 103(b) alternative to accommodate

annual channel maintenance dredging

beyond 1996. Recognizing a five (5) year

extension of the COE’s § 103(b) selection

allowed the continued use of the

Atchafalaya River Bar Channel ODMDS

through the year 2006, EPA was to

designate the Atchafalaya River Bar

Channel ODMDS site pursuant to

§ 102(c) of MPRSA, or to find that the

site is inappropriate for final

designation. This site designation is

being published as final rulemaking in

accordance with § 228.4(e) of the Ocean

Dumping Regulations, which permits

the designation of ocean disposal sites

for dredged material.

Regulated Entities

Entities potentially regulated by this

action are persons, organizations, or

government bodies seeking to dispose of

dredged material in ocean waters at the

Atchafalaya River Bar Channel ODMDS,

under the MPRSA, 33 U.S.C. 1401 et

seq. The Rule would be primarily of

relevance to parties in the Morgan City

area seeking permits from the COE to

transport dredged material for the

purpose of disposal into ocean waters at

the Atchafalaya River Bar Channel

ODMDS, as well as the COE itself (when

proposing to dispose of dredged

material at the ODMDS). Potentially

regulated categories and entities seeking

to use the ODMDS and thus subject to

this Rule include:

Category Examples of regulated entities

Federal Government ........................................... U.S. Army Corps of Engineers Civil Works Projects. Other Federal Agencies, including the Department of Defense.

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 lists the types of entities

that EPA is now aware could potentially

be regulated. EPA notes, however, that

nothing in this final ruling alters in any

way, the jurisdiction of EPA, or the

types of entities regulated under the

MPRSA. To determine if you or your

organization is potentially regulated by

this action, you should carefully

consider whether you expect to propose

ocean disposal of dredged material, in

accordance with the Purpose and Scope

provisions of 40 CFR 220.1, and if you

wish to use the Atchafalaya River Bar

Channel ODMDS. If you have questions

regarding the applicability of this action

to a particular entity, consult the person

listed in the preceding FOR FURTHER

INFORMATION CONTACT section. Since

ODMDS use is restricted to dredged

material removed from the bar channel

of the Atchafalaya River, EPA

anticipates that the COE will be the only

user of the ODMDS.

EIS Development

Section 102 (2)(c) of the National

Environmental Policy Act of 1969

(NEPA), as amended (Pub. L. 91–190, 42

U.S.C. 4321 et seq.), requires that

Federal Register / Vol. 65, No. 97 / Thursday, May 18, 2000 / Rules and Regulations 31493

Federal agencies prepare Environmental

Impact Statements (EISs) on proposals

for legislation and other major Federal

actions significantly affecting the

quality of the human environment.

NEPA does not apply to ODMDS

designations, however EPA voluntarily

prepared an EIS in connection with this

designation action.

EPA prepared a Draft EIS on the

designation of the Atchafalaya River Bar

Channel ODMDS in November, 1983.

Six comment letters were received on

the Draft EIS. Based on the comments

received, EPA determined that a

Supplemental Draft EIS was appropriate

to correct information deficiencies and

include more recent data in response to

the commenting agencies. EPA and the

COE jointly prepared the Supplemental

Draft EIS, which was distributed to

interested agencies, environmental

groups and individuals for review in

December, 1990. Five comments letters

were received on the Supplemental

Draft EIS. Responses to these comments

were included in EPA’s Final EIS,

which was completed and distributed to

interested agencies, environmental

groups and individuals in November,

1998. The 30-day comment period on

EPA’s Final EIS closed on January 11,

1999.

Only one comment letter, from the

State of Louisiana, Department of

Culture, Recreation and Tourism, Office

of Cultural Development, was received

on the Final EIS. The Louisiana Office

of Cultural Development found the

document to be thorough and well

written, and concurred with the

evaluation that there would be no effect

on significant cultural resources, and as

such, had no objections to the proposal.

EPA’s NEPA review included

coordination with the State of Louisiana

under requirements of the Coastal Zone

Management Act. The State of Louisiana

concurred with EPA’s determination

that final designation of the Atchafalaya

River Bar Channel ODMDS is

consistent, to the maximum extent

practicable, with the Louisiana Coastal

Resources Program.

This final rulemaking document fills

the same role as the Record of Decision

required under regulations promulgated

by the Council on Environmental

Quality for agencies subject to NEPA.

Site Designation

EPA’s proposal to designate the

Atchafalaya River Bar Channel ODMDS

was published in the Federal Register

on February 6, 1991 (pages 4777–4781).

The public comment period on this

proposed rule closed on March 25,

1991. One comment letter was received

on the proposed rule from the U.S.

Department of the Interior (DOI), Office

of the Secretary, in Washington, D.C.

The DOI recommended: (1) That

dredged material be used for beneficial

purposes (e.g., to rebuild eroded

shoreline and increase marsh habitats);

(2) that the final rule include a

requirement for dredged material to be

used to build bird islands and avoid

shell reefs, in consultation with the U.S.

Fish and Wildlife Service and the

Louisiana Department of Wildlife and

Fisheries; and (3) that the final rule

require, prior to each dredging event, an

interagency evaluation of the feasibility

of using the dredged material to create

marsh, reduce shoreline erosion, or

build bird nesting/roosting islands.

In response to DOI’s comments on the

proposed rule (and similar comments

received on the Supplemental Draft

EIS), the Final EIS evaluated these

recommendations, and other reasonable,

beneficial use alternatives. EPA’s action

[i.e., site designation under § 102(c) of

MPRSA] does not authorize the

placement of dredged materials or

require interagency evaluation of

beneficial use alternatives. However,

beneficial use alternatives and other

options for the placement of dredged

material are evaluated through annual

COE dredging conferences.

The Atchafalaya River Bar Channel

ODMDS is located east of, and parallel

to, the Atchafalaya River bar channel

and is approximately 18.5 miles long.

The center of the ODMDS is

approximately 16 miles from the mouth

of the Atchafalaya River. North Point of

Point au Fer Island is about 2 miles east

of the northern end of the site. The

average water depth at the site is

approximately 16 feet. Boundary

coordinates of the rectangular shaped

site are as follows: 29E20′59.92′′N, 91E

23′33.23′′W; 29E20′43.94′′N,

91E23′09.73′′W; 29E08′15.46′′N,

91E34′51.02′′W; and 29E07′59.43′′N,

91E34′27.51′′W.

Ocean Dumping Site Designation

Criteria

Five general criteria are used in the

selection and approval of ocean disposal

sites for continuing use. Sites are

selected so as to minimize interference

with other marine activities, to keep any

temporary perturbations from the

disposal from causing impacts outside

the disposal site, and to permit effective

monitoring to detect any adverse

impacts at an early stage. Where

feasible, locations off the Continental

Shelf are chosen. If at any time disposal

operations at a site cause unacceptable

adverse impacts, further use of the site

may be terminated or limitations placed

on the use of the site to reduce the

impacts to acceptable levels.

The five general criteria are given in

40 CFR 228.5 of the Ocean Dumping

Regulations. EPA has determined, based

on the information and analyses in the

Draft EIS, Supplemental Draft EIS, and

Final EIS, that the site is acceptable

under the five general criteria. The

Continental Shelf location is not feasible

and no environmental benefit would be

obtained by selecting such a site.

Historical use of the site has not

resulted in substantial adverse impacts

to living resources of the ocean or to

other uses of the marine environment.

Section 228.6 of the Ocean Dumping

Regulations lists eleven specific factors

to be used in evaluating a proposed

disposal site to assure that the general

criteria are met. The characteristics of

the site are reviewed below in terms of

these eleven specific factors.

1. Geographical position, depth of

water, bottom topography, and distance

from coast (40 CFR 228.6(a)(1)).

Geographical position and average

water depth are given above. The

Atchafalaya River Bar Channel ODMDS

is located in the near shore area of the

Gulf of Mexico (i.e., to a depth of about

75 feet). The ODMDS gently slopes from

a depth of about 5 feet at its near shore

end to about 22 feet at its seaward end.

Except for being located adjacent to the

dredged channel, the area occupied by

the ODMDS is similar in depth and

bottom topography to the overall lower

Atchafalaya River area.

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 northwestern Gulf of Mexico is a

breeding, spawning, nursery, and

feeding area for shrimp, menhaden, and

bottomfish. To complete their life

cycles, many of the species migrate

seasonally between the coastal estuaries

and the Gulf. Because the timing varies

by species, some migration can occur at

almost any time of the year. The

ODMDS is located in a region

dominated by species that are estuaryrelated. The ODMDS represents a small

area (9.14 square miles) of the total

range of the white and brown shrimp

and their related communities; however,

the nearby Atchafalaya River estuarine

area is one of the region’s major nursery

areas.

Disposal of material at the ODMDS

would have negligible effects on

Federally listed endangered and

threatened species. Endangered whale

species which may be found in the

vicinity of the ODMDS are the sei, fin,

humpback, right, and sperm. However,

occurrences of whales off Louisiana are

31494 Federal Register / Vol. 65, No. 97 / Thursday, May 18, 2000 / Rules and Regulations

considered rare, and because the

animals generally inhabit waters far

deeper than those in the ODMDS, it is

unlikely that disposal operations would

have any impact on whale species.

Three species of sea turtles

(hawksbill, Kemp’s ridley, and

leatherback) classified as endangered

and two species of sea turtles (green and

loggerhead) classified as threatened

could potentially inhabit the ODMDS.

Hopper dredging has been identified as

a source of mortality (incidental take) to

sea turtles in inshore waters. However,

disposal of maintenance material

dredged from the Atchafalaya River Bar

Channel is by hydraulic cutter head

pipeline dredge, which has not been

identified as a source of sea turtle

mortality.

3. Location in relation to beaches and

other amenity areas (40 CFR

228.6(a)(3)).

The nearest point of land is North

Point of Point au Fer Island, about 2

miles from the northeast end of the

ODMDS. While it may be possible to

observe the disposal plume, the plume

is expected to dissipate quickly after

completion of the disposal operations.

Except for minor affects of these limited

observations, there should be no effects

on the aesthetics of the area. There are

no known recreational parks, beaches,

or other amenity areas in proximity to

the ODMDS.

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)).

Material dredged from the upper onethird of the bar channel generally is

comprised of 26% sand, 30% silt, and

44% clay, and material from the lower

two-thirds of the bar channel generally

is comprised of 7% sand, 44% silt, and

49% clay. An estimated 9 to 11 million

cubic yards of material is removed

annually from the Atchafalaya River Bar

Channel using a hydraulic cutter head

pipeline dredge and released within the

ODMDS as an un-cohesive slurry.

Future disposal operations will follow

the past disposal pattern with respect to

types, quantities, and methods of

release. Any material disposed of at the

site is required to comply with the

criteria of the Ocean Dumping

Regulations. None of the material will

be packaged in any way. The COE will

likely be the only user of the site.

5. Feasibility of surveillance and

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

The ODMDS is shallow and close to

shore, which facilitates surveillance and

monitoring of the site. Operational

observations can be made using shorebased radar, aircraft, ship riders, and

day-use boats. Monitoring would be

facilitated by the database that has been

established for the ODMDS. A

monitoring program has been developed

by EPA in cooperation with the COE for

the ODMDS, as part of the ‘‘Atchafalaya

ODMDS Site Management Plan.’’

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)).

Water currents in the vicinity of the

ODMDS are very complex. Although

tides, loop current intrusions, and river

flow may affect the local currents, the

currents are influenced predominantly

by winds. Thus, the direction and

velocity of currents vary throughout the

year.

Water currents in the area can reach

velocities sufficient to resuspend the

disposed dredged material. The

resuspended material would be

transported in the direction of the

current causing the resuspension.

During these periods, constant mixing of

the dredged material and sediments

originally in the area takes place. The

mixed dredged material and background

sediments settle as the velocity

decreases, and become resuspended

when some event again raises the

current velocity.

Sediment transport at the ODMDS is

both to the northwest and to the

southeast. The prevailing northwest

currents are relatively weak and

generally transport silt-sized and claysized particles. In the winter, however,

stronger currents to the southeast,

which are driven by the passage of coldair outbreaks (northers), transport the

latter particle sizes plus sand-sized

particles. Gale-force winds for a

duration of 20 to 30 hours are common

during the passage of one of the cold-air

outbreaks, which occur from 15 to 30

times each year.

7. Existence and effects of current and

previous discharges dumping in the

area (including cumulative effects) (40

CFR 228.6(a)(7)).

Sediment physical and chemical

characteristics are generally similar

within and adjacent to the ODMDS.

Identified effects of dredged material

disposal on sediments within the

ODMDS include a few relatively high

concentrations for sedimentary

constituents (alpha chlordane, some

chlorinated biphenols, para-para-DDD,

iron, aluminum, perylene, zinc, oil, and

grease). However, the area is influenced

by shallow water depths, frequent

resuspension of bottom sediments by

winds and waves, and input of large

quantities of fine sediments from

riverine sources. Furthermore, dredged

materials released at the ODMDS are

similar to background sediments in the

vicinity and are widely distributed by

natural processes after deposition. Since

the effects of disposal area temporary,

there are no cumulative effects.

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 ODMDS is outside the navigation

channel and, thus, not in the path of

ocean-going vessels. Some smaller boats

may pass over the site; however, since

any mounds are expected to be shortlived, there should be no interference.

All dredging and disposal operations are

closely coordinated among the dredging

operators and the shipping interests to

avoid interference with ship traffic.

Without dredging, the channel would be

impassible to most shipping.

There is periodic, short-term,

interference with recreational activities

at the ODMDS during disposal

operations. The plumes of dredged

material have a minor impact on

targeted fish stocks, temporarily

affecting recreational fishing in the area.

This interference is temporary and

restricted to the relatively small area of

the ODMDS being used for disposal at

the particular time. Past experience with

use of the site for disposal of dredged

material has not indicated interference

with oil and gas exploration or

production. No other types of mineral

extraction are taking place either within

the site or in the general vicinity of the

site.

The nearest oyster leases are located

about 4 miles to the east of the ODMDS,

near Point au Fer. Because the transport

of suspended materials from the

ODMDS is mainly parallel to the

coastline, adverse effects of disposal

operations on these oyster beds should

be minimal. In addition, the oyster beds

are naturally subjected to periodic

episodes of high, suspended-solid

concentrations from the waters of the

Atchafalaya River. There have been no

impacts to oyster leases from past use,

and no impact is expected to result from

future use of the ODMDS.

The Atchafalaya Delta Wildlife

Management Area is located about 8

miles to the north of the ODMDS. Shell

Keys National Wildlife Refuge and

Russell Sage—Marsh Island State

Wildlife Refuge are located about 29

miles to the west of the ODMDS. There

has been no impact to the refuges from

past use, and none is expected to result

from future use of the ODMDS.

Periodically, scientific studies are

carried out in the area. Use of the site

Federal Register / Vol. 65, No. 97 / Thursday, May 18, 2000 / Rules and Regulations 31495

is not expected to interfere with any

such studies. It is not expected that use

of the site for disposal of dredged

material would interfere with any other

legitimate uses of the ocean.

9. The existing water quality and

ecology of the site as determined by

available data or by trend assessment of

baseline surveys (40 CFR 228.6(a)(9)).

The water quality and ecology of the

ODMDS generally reflect that of the near

shore region off the Louisiana coast

affected by discharges from the

Atchafalaya River. The variations in

water quality depend on the amount

and mixing of freshwater runoff, which

are highly variable.

In the summer, calm winds,

freshwater input, and intrusions of

offshore waters may restrict vertical

mixing in the near shore waters. Under

these conditions, bottom waters can be

depleted of oxygen. This hypoxic

condition (dissolved-oxygen content of

less than 2 ppm) may be an annual

phenomenon, but the event is patchy

and ephemeral and has been shown to

affect shelf waters from the Mississippi

Delta to the upper Texas coast.

With the following exceptions,

concentrations of trace metals in waters

from the Atchafalaya River Bar Channel

were below detection limits:

concentrations of barium, iron, and

manganese from the channel sample

were greater, by a factor of 4, 2, and 3,

respectively. There are no EPA marine

acute or chronic criteria for these

elements, however, and copper was less

than the detection limit.

None of the water-column parameters

measured during site surveys indicated

that dredged material after disposal has

a permanent or measurable effect on

water quality in the area of the ODMDS.

Waters off southeastern Louisiana are

generally turbid because of shallow

depths and riverine influences, and the

levels of most parameters in the ODMDS

appear to be typical of the region.

A site survey of macrofaunal

distribution and abundance found 40

taxa, with very little difference in

average taxa richness or overall average

abundance. The general pattern of

percent taxa and abundance group was

approximately similar to those

identified in other near-coastal and

estuarine waters of the northern Gulf of

Mexico.

The ODMDS benthic assemblage is

dominated by species that live for about

1 year and undergo rapid population

expansions. Results of site surveys

indicated that most macrofaunal species

were distributed in patches throughout

the study area and several are

considered opportunistic. Endemic

species have considerable ability to

adapt to a range of natural disturbances

in their habitat. Thus, if dredgedmaterial disposal had affected the

density of these organisms, these effects

could not be discerned.

Fish collected during site surveys are

characteristic of the area. Furthermore,

relative numbers of dominant organisms

collected, such as large numbers of

sciaenids (drums and croakers), are

similar to results of other baseline

studies conducted in the area.

10. Potentiality for the development or

recruitment of nuisance species in the

disposal site (40 CFR 228.6(a)(10)).

Past disposal of dredged material at

the existing ODMDS has not resulted in

the development or recruitment of

nuisance species. Considering the

similarity of the dredged material with

the existing sediments, it is expected

that continued disposal of dredged

material will not result in the

development or recruitment of such

species.

11. Existence at or in close proximity

to the site of any significant natural or

cultural features of historical

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

Studies, which involved literature

search and coordination with the

Louisiana State Historic Preservation

Officer, did not demonstrate any known

features of historical importance within

the ODMDS. However, results from the

literature review indicate shipwrecks

may be found near the Point Au Fer

Shell Reef and at the mouth of the

Atchafalaya River. Hence, the

northernmost portion of the ODMDS is

considered to have the greatest potential

to contain submerged cultural resources.

Future dredging and disposal

operations at the ODMDS will consider

the results of the submerged cultural

resources survey. Plans and

specifications for dredging contracts

would be reviewed by COE cultural

resources specialists to ensure that

significant cultural resources are not

impacted by any proposed action. In

addition, future disposal into the

ODMDS area will be reviewed by the

COE in compliance of Section 106 of the

National Historic Preservation Act of

1966 (as amended), Final Rule for

Operation and Maintenance Of Army

Corps of Engineers Civil Works Projects

Involving the Discharge of Dredged

Material Into Waters of the U.S. or

Ocean Waters (33 CFR parts 209, 335,

336, 337, and 338), and requirements of

the Louisiana SHPO.

Action

The action evaluated through this

EPA rulemaking and completed NEPA/

EIS processes is designation under

§ 102(c) of MPRSA of the existing COE

§ 103(b) alternative ODMDS for dredged

material removed from the Atchafalaya

River Bar Channel. The purpose of the

designation is to provide an

environmentally acceptable location for

ocean disposal of dredged materials

removed from the Atchafalaya River Bar

Channel. The evaluative processes

provide a thorough and objective

evaluation of reasonable alternatives,

including no action, and the

information needed to evaluate the

suitability of an ocean disposal area for

final site designation. EPA’s final site

designation is being conducted in

accordance with the MPRSA, the Ocean

Dumping Regulations, and other

applicable Federal environmental

legislation. Once designated, the

appropriateness of ocean disposal is

determined on a case-by-case basis.

EPA emphasizes that ocean disposal

site designation does not constitute or

imply EPA Region VI’s or the COE’s

approval of ocean disposal of dredged

material from any project. Before

disposal of any dredged material at the

Atchafalaya River Bar Channel ODMDS

may occur, EPA Region VI and the COE

must evaluate the proposed project

according to the Ocean Dumping

Criteria (40 CFR part 227) adopted

pursuant to the MPRSA. EPA Region VI

or the COE will not allow ocean

disposal of dredged material if either

agency determines that the Ocean

Dumping Criteria are not met. In

addition, the COE is required to

evaluate all proposed dredging projects

associated with the Atchafalaya River in

accordance with the Coastal Zone

Management Act, the MagnusonStevens Fishery Conservation and

Management Act, and the Endangered

Species Act.

Administrative Requirements

1. Executive Order 12875

Under Executive Order 12875, EPA

may not issue a regulation that is not

required by statute and that creates a

mandate upon a State, local, or tribal

government, unless the Federal

government provides the funds

necessary to pay the direct compliance

costs incurred by those governments, or

EPA consults with those governments. If

EPA complies by consulting, Executive

Order 12875 requires EPA to provide to

the OMB a description of the extent of

EPA’s prior consultation with

representatives of affected State, local,

and tribal governments, and a statement

supporting the need to issue the

regulation. In addition, Executive Order

12875 requires EPA to develop an

effective process permitting elected

officials and other representatives of

31496 Federal Register / Vol. 65, No. 97 / Thursday, May 18, 2000 / Rules and Regulations

State, local, and tribal governments to

provide meaningful and timely input in

the development of regulatory proposals

containing significant unfunded

mandates.

Today’s final Rule does not create a

mandate on State, local, or tribal

governments. As described elsewhere in

this preamble, today’s final Rule would

only have the effect of designating an

existing ocean disposal site pursuant to

section 102(c) of MPRSA. This final

Rule does not impose any enforceable

duties on these entities. Accordingly,

the requirements of section 1(a) of

Executive Order 12875 do not apply to

this Rule.

2. Executive Order 13084

Under Executive Order 13084, EPA

may not issue a regulation that is not

required by statute, that significantly or

uniquely affects the communities of

Indian tribal governments, and that

imposes substantial direct compliance

costs on those communities, unless the

Federal government provides the funds

necessary to pay the direct compliance

costs incurred by the tribal

governments, or EPA consults with

those governments. If EPA complies by

consulting, Executive Order 13084

requires EPA to provide to the OMB, in

a separately identified section of the

preamble to the rule, a description of

the extent of EPA’s prior consultation

with representatives of affected tribal

governments, a summary of the nature

of their concerns, and a statement

supporting the need to issue the

regulation. In addition, Executive Order

13084 requires EPA to develop an

effective process permitting elected

officials and other representatives of

Indian tribal governments to provide

meaningful and timely input in the

development of regulatory policies on

matters that significantly or uniquely

affect their communities.

Today’s final Rule does not

significantly or uniquely affect the

communities of Indian tribal

governments. As described elsewhere in

this preamble, today’s final Rule would

only have the effect of designating an

existing ocean disposal site pursuant to

section 102(c) of MPRSA. Accordingly,

the requirements of section 3(b) of

Executive Order 13084 do not apply to

this rule.

3. Executive Order 12866

Under Executive Order 12866, (58

FR51735, October 4, 1993), EPA must

determine whether the regulatory action

is ‘‘significant’’ and therefore subject to

OMB review and other requirements of

the Executive Order. The Order defines

‘‘significant regulatory action’’ as one

that is likely to lead to 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, 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

entitlements, 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 principals set forth in the

Executive Order.

This final Rule should have minimal

impact on permittees. As described

elsewhere in this preamble, today’s final

Rule would only have the effect of

designating an existing ocean disposal

site pursuant to section 102(c) of

MPRSA. Consequently, EPA has

determined that this Rule is not a

‘‘significant regulatory action’’ under

the terms of Executive Order 12866 and

is therefore not subject to OMB review.

4. Executive Order 13045

Executive Order 13045, Protection of

Children from Environmental Health

Risks and Safety Risks (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 may have a

disproportionate effect on children. If

the regulatory action meets both criteria,

EPA must evaluate the environmental

health or 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 EPA.

This final Rule is not subject to the

Executive Order because it is not

economically significant as defined in

Executive Order 12866, and because

EPA does not have any reason to believe

the environmental health or safety risks

addressed by this action present a

disproportionate risk to children. As

described elsewhere in this preamble,

today’s final Rule would only have the

effect of designating an existing ocean

disposal site pursuant to section 102(c)

of MPRSA.

5. Executive Order 13132

Executive Order 13132, entitled

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

1999), requires EPA to develop an

accountable process to ensure

‘‘meaningful and timely input by State

and local officials in the development of

regulatory policies that have federalism

implications.’’ ‘‘Policies that have

federalism implications’’ is 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.’’ Under

Executive Order 13132, EPA may not

issue a regulation that has federalism

implications, that imposes substantial

direct compliance costs, and that is no

required by statute, unless the Federal

government provides the funds

necessary to pay the direct compliance

costs incurred by State and local

governments, or EPA consults with

State and local officials early in the

process of developing the proposed

regulation. EPA also may not issue a

regulation that has federalism

implications and that preempts State

law unless the Agency consults with

State and local officials early in the

process of developing the proposed

regulation.

If EPA complies by consulting,

Executive Order 13132 requires EPA to

provide to the Office of Management

and Budget (OMB), in a separately

identified section of the preamble to the

rule, a federalism summary impact

statement (FSIS). The FSIS must include

a description of the extent of EPA’s

prior consultation with State and local

officials, a summary of the nature of

their concerns and the Agency’s

position supporting the need to issue

the regulation, and a statement of the

extent to which the concerns of State

and local officials have been met. Also,

when EPA transmits a draft final rule

with federalism implications to OMB for

review pursuant to Executive Order

12866, EPA must include a certification

from the agency’s Federalism Official

stating that EPA has met the

requirements of Executive Order 13132

in a meaningful and timely manner.

This final rule 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 because it only

has the effect of designating an existing

ocean disposal site and does not alter

the relationship or the distribution of

power and responsibilities among the

levels of government. Thus, the

requirements of section 6 of the

Executive Order do not apply to this

rule.

Federal Register / Vol. 65, No. 97 / Thursday, May 18, 2000 / Rules and Regulations 31497

6. Regulatory Flexibility Act, as

Amended by the Small Businesses

Regulatory Enforcement Fairness Act of

1996

The Regulatory Flexibility Act (RFA)

provides that whenever an agency

promulgates a final rule under 5 U.S.C.

553, the agency must prepare a

regulatory flexibility analysis (RFA)

unless the head of the agency certifies

that the final Rule will not have a

significant economic impact on a

substantial number of small entities (5

U.S.C. 604 and 605). Today’s final Rule

would only have the effect of

designating an existing ocean disposal

site pursuant to section 102(c) of

MPRSA. Consequently, EPA’s final Rule

will not impose any additional

economic burden on small entities. For

this reason, the Regional Administrator

certifies, pursuant to section 605(b) of

the RFA, that the final Rule will not

have a significant economic impact on

a substantial number of small entities.

7. Paperwork Reduction Act

The Paperwork Reduction Act, 44

U.S.C. 3501 et seq., is intended to

minimize the reporting and recordkeeping burden on the regulated

community, as well as to minimize the

cost of Federal information collection

and dissemination. In general, the Act

requires that information requests and

record-keeping requirements affecting

ten or more non-Federal respondents be

approved by OMB. Since the final Rule

would not establish or modify any

information or record-keeping

requirements, but only finalizes existing

requirements, it is not subject to the

provisions of the Paperwork Reduction

Act.

8. The Unfunded Mandates Reform Act

Title II of the Unfunded Mandates

Reform Act of 1995 (UMRA), Public

Law 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.

This final rule contains no Federal

mandates (under the regulatory

provisions of Title II of the UMRA) for

State, local, or tribal governments or the

private sector. As described elsewhere

in this preamble, today’s final Rule

would only have the effect of

designating an existing ocean disposal

site pursuant to section 102(c) of

MPRSA. Consequently, it imposes no

new enforceable duty on any State,

local, or tribal governments or the

private sector. Similarly, EPA has also

determined that this Rule contains no

regulatory requirements that might

significantly or uniquely affect small

government entities. Thus, the

requirements of section 203 of the

UMRA do not apply to this Rule.

9. National Technology Transfer and

Advancement Act

The National Technology Transfer

and Advancement Act of 1995

(NTTAA), Public Law No. 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 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

Rule does not involve technical

standards. Therefore, EPA did not

consider the use of any voluntary

consensus standards.

10. 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

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 June 19, 2000.

11. Endangered Species Act

Pursuant to section 7(a) of the

Endangered Species Act, federal

agencies must insure that their actions

are unlikely to jeopardize the continued

existence of listed threatened or

endangered species or result in adverse

modification or destruction of

designated critical habitat. Continuing

to dispose of dredged material at the

designated site will not materially

change the status quo and there is no

designated critical habitat in the area.

Moreover, the COE will continue to

consult with the National Marine

Fisheries Service (NMFS) on its own

project-specific use of the site and on

any project for which it proposes to

issue a permit authorizing disposal of

dredged material at the site. EPA

accordingly found today’s designation

action was unlikely to adversely affect

any listed species or critical habitat.

NMFS concurred in that finding by

letter dated September 9, 1999.

12. Magnuson-Stevens Fishery

Conservation and Management Act

Under section 305(b)(2) of the

Magnuson-Stevens Fishery

Conservation and Management Act,

federal agencies must consult with the

NMFS and appropriate fisheries

councils before undertaking actions that

may adversely affect designated

essential fish habitat. NMFS has

designated most of the Gulf of Mexico,

including the area in which the

designated disposal site is located, as

essential fish habitat. It is unlikely that

today’s designation action will

adversely affect essential fish habitat

because it will not materially change the

status quo. Because potentially adverse

effects might be associated with its

future use in the context of a specific

project, the COE will continue to

consult NMFS on a case-by-case basis.

See 50 CFR 605.920(2).

List of Subjects in 40 CFR Part 228

Environmental protection, Water

pollution control.

Dated: January 25, 2000.

Jerry Clifford,

Acting Regional Administrator of Region 6.

In consideration of the foregoing, EPA

amends subchapter H of chapter I of

title 40 of the Code of Federal

Regulations as set forth below.

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.

§ 228.14 [Amended]

2. Amend § 228.14 by removing and

reserving paragraph (j)(5).

3. Amend § 228.15 by adding a new

paragraph (j)(21) to read as follows:

31498 Federal Register / Vol. 65, No. 97 / Thursday, May 18, 2000 / Rules and Regulations

§ 228.15 Dumping sites designated on a

final basis.

* * * * *

(j) * * *

(21) Atchafalaya River and Bayous

Chene, Boeuf, and Black, LA

(i) Location: 29E20′59.92′′ N, 91E 23′

33.23′′ W; 29E20′43.94′′ N, 91E23′09.73′′

W; 29E08′15.46′′ N, 91E34′51.02′′ W;

and 29E07′59.43′′ N, 91E34′27.51′′ W.

(ii) Size: 9.14 square miles.

(iii) Depth: Average water depth of 16

feet.

(iv) Primary Use: Dredge material.

(v) Period of Use: Indefinite period of

time.

(vi) Restriction: Disposal shall be

limited to dredged material from the bar

channel of the Atchafalaya River and

Bayous Chene, Boeuf, and Black,

Louisiana.

* * * * *

[FR Doc. 00–12388 Filed 5–17–00; 8:45 am]

BILLING CODE 6560–50–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 73

[DA 00–322; MM Docket No. 98–112; RM–

9027; RM–9268; RM–9384]

Radio Broadcasting Services;

Anniston and Ashland, AL, and

College Park, GA

AGENCY: Federal Communications

Commission.

ACTION: Final rule.

SUMMARY: At the request of WNNX

License Investment Company this

document substitutes Channel 263C3 for

Channel 263C at Anniston, Alabama,

reallots Channel 263C3 to College Park,

Georgia, and modifies the license of

Station WHMA to specify operation on

Channel 263C3 at College Park. In

addition, this document allots Channel

261C3 to Anniston, Alabama, and

Channel 264A to Ashland, Alabama. See

63 FR 38787, published July 20, 1998.

The reference coordinates for Channel

263C3 at College Park, Georgia, are 33–

45–32 and 84–30–10. The reference

coordinates for Channel 261C3 at

Anniston, Alabama, are 33–40–51 and

85–48–56. The reference coordinates for

Channel 264A at Ashland, Alabama, are

33–13–15 and 85–49–35. With this

action, the proceeding is terminated.

DATES: Effective June 14, 2000.

FOR FURTHER INFORMATION CONTACT:

Robert Hayne, Mass Media Bureau (202)

418–2177.

SUPPLEMENTARY INFORMATION: This is a

synopsis of the Commission’s Report

and Order in MM Docket No. 98–112,

adopted April 24, 2000, and released

April 28, 2000. The full text of this

decision is available for inspection and

copying during normal business hours

in the FCC’s Reference Information

Center at Portals II, CY-A257, 445 12th

Street, SW, Washington, D.C. The

complete text of this decision may also

be purchased from the Commission’s

copy contractor, International

Transcription Service, Inc., (202) 857–

3800, 1231 20th Street, NW,

Washington, DC 20036.

List of Subjects in 47 CFR Part 73

Radio broadcasting.

Part 73 of title 47 of the Code of

Federal Regulations is amended as

follows:

PART 73—[AMENDED]

1. The authority citation for part 73

continues to read as follows:

Authority: 47 U.S.C. 154, 303, 334, 336.

§ 73.202 [Amended]

2. Section 73.202(b), the Table of FM

Allotments under Alabama, is amended

by removing Channel 263C and adding

Channel 261C3 at Anniston.

3. Section 73.202(b), the Table of FM

Allotments under Alabama, is amended

by adding Channel 264A, at Ashland.

4. Section 73.202(b), the Table of FM

Allotments under Georgia, is amended

by adding College Park, Channel 263C3.

Federal Communications Commission.

John A. Karousos,

Chief, Allocations Branch, Policy and Rules

Division, Mass Media Bureau.

[FR Doc. 00–12256 Filed 5–17–00; 8:45 am]

BILLING CODE 6712–01–P

ENVIRONMENTAL PROTECTION

AGENCY

48 CFR Parts 1516 and 1552

[FRL–6606–6]

RIN 2030–AA74

Acquisition Regulation: Award Fee

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Direct final rule.

SUMMARY: EPA is taking direct final

action on amending the EPA

Acquisition Regulation (EPAAR) to

comport with changes made to the

Federal Acquisition Regulation (FAR) in

Federal Acquisition Circular (FAC) 97–

15 dated December 27, 1999 (FAR Case

98–017). The changes to the FAR were

made to implement the rulings of the

United States Court of Appeals and the

United States Court of Federal Claims

that the Contracts Disputes Act applies

to all disputes arising under

Government contracts, unless a more

specific statute provides for other

remedies.

DATES: This rule is effective on August

16, 2000, without further notice, unless

EPA receives adverse comments by June

19, 2000. If we receive adverse

comments, we will, before the rule’s

effective date, publish a timely

withdrawal in the Federal Register

informing the public that this rule will

not take effect.

ADDRESSES: Written comments should

be submitted to the contact listed below

at the following address: U.S.

Environmental Protection Agency,

Office of Acquisition Management

(3802R), Ariel Rios Building, 1200

Pennsylvania Avenue, NW, Washington,

D.C. 20460. Comments and data may

also be submitted electronically by

sending electronic mail (e-mail) to:

rellins.jean@epa.gov. Electronic

comments must be submitted as an

ASCII file avoiding the use of special

characters and any form of encryption.

Comments and data will also be

accepted on disks in Corel WordPerfect

format or ASCII file format. No

confidential business information (CBI)

should be submitted through e-mail.

Electronic comments on this rule may

be filed on-line at many Federal

Depository Libraries.

FOR FURTHER INFORMATION CONTACT: Jean

Rellins, U.S. EPA, Office of Acquisition

Management, (3802R), Ariel Rios

Building, 1200 Pennsylvania Avenue,

NW, Washington, DC 20460, Telephone:

(202) 564–4434.

SUPPLEMENTARY INFORMATION:

A. Background

Why is EPA utilizing a direct final

rule to revise an EPAAR clause? Federal

Acquisition Circular 97–15 amended the

FAR to implement the rulings of the

United States Court of Appeals and the

United States Court of Federal Claims

(Burnside-Ott case) that the Contract

Disputes Act applies to all disputes

arising under Government contracts,

unless a more specific statute provides

for other remedies. This direct final rule

is being published without prior

proposal because we view this as a noncontroversial change to the EPAAR

intended to make the EPAAR consistent

with the FAR. We do not anticipate any

adverse comments. This rule will be

effective on August 16, 2000, without

further notice unless we receive adverse

comments by June 19, 2000. If EPA

receives adverse comments, we will,