[Federal Register Volume 65, Number 97 (Thursday, May 18, 2000)]
[Rules and Regulations]
[Pages 31492-31498]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-12388]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 228

[FRL-6702-1]


Ocean Dumping: Designation of Site

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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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 Sec. 102(c) of the Act or 
selected by the Corps of Engineers (COE) under Sec. 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 Sec. 103(b) alternative to 
accommodate annual channel maintenance dredging beyond 1996. 
Recognizing a five (5) year extension of the COE's Sec. 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 Sec. 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 Sec. 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 owning and/or responsible for
 governments.                   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

[[Page 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 Sec. 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 estuary-related. 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

[[Page 31494]]

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 one-third 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 shore-based 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 clay-sized particles. In the winter, 
however, stronger currents to the southeast, which are driven by the 
passage of cold-air 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 short-lived, 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

[[Page 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 dredged-
material 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 Sec. 102(c) of MPRSA of the 
existing COE Sec. 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 Magnuson-Stevens 
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

[[Page 31496]]

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.

[[Page 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 record-keeping 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.


Sec. 228.14  [Amended]

    2. Amend Sec. 228.14 by removing and reserving paragraph (j)(5).

    3. Amend Sec. 228.15 by adding a new paragraph (j)(21) to read as 
follows:

[[Page 31498]]

Sec. 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