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[Federal Register: June 15, 2010 (Volume 75, Number 114)]
[Rules and Regulations]               
[Page 33708-33712]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15jn10-17]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 228

[EPA-R10-OW-2006-0409; FRL-9161-7]

 
Ocean Dumping; Correction of Typographical Error in 2006 Federal 
Register Final Rule for Designation of Ocean Dredged Material Disposal 
Site at Coos Bay, OR, Site F; Restoration of Coordinates for Ocean 
Dredged Material Disposal Site at Coos Bay, OR, Site H

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to correct a typographical 
error in the Final Rule for the Ocean Dumping; De-designation of Ocean 
Dredged Material Disposal Site and Designation of New Site near Coos 
Bay, Oregon.

DATES: This rule is effective on August 16, 2010 without further 
notice, unless EPA receives adverse comment by July 15, 2010. If EPA 
receives adverse comment, we will publish a timely withdrawal in the 
Federal Register informing the public that the rule will not take 
effect.

ADDRESSES: Submit any comments, identified by Docket ID No. EPA-R10-OW-
2006-0409 by one of the following methods:
    http://www.regulations.gov: Follow the on-line 
instructions for accessing the docket and materials related to this 
direct final rule and for submitting comments.
     E-mail: Winkler.Jessica@epa.gov.
     Mail: Jessica Winkler, U.S. Environmental Protection 
Agency, Region 10, Office of Ecosystems, Tribal and Public Affairs 
(ETPA-088), Environmental Review and Sediment Management Unit, 1200 
Sixth Avenue, Suite 900, Seattle, Washington 98101.
    Publicly available docket materials are available either 
electronically at http://www.regulations.gov or in hard copy during 
normal business hours for the regional library at the U.S. 
Environmental Protection Agency, Region 10, Library, 10th Floor, 1200 
Sixth Avenue, Suite 900, Seattle, Washington 98101. For access to the 
documents at the Region 10 Library, contact the Region 10 Library 
Reference Desk at (206) 553-1289, between the hours of 9 a.m, to 12 
p.m., and between the hours of 1 p.m. to 4 p.m., Monday through Friday, 
excluding legal holidays, for an appointment.

FOR FURTHER INFORMATION CONTACT: Jessica Winkler, U.S. Environmental

[[Page 33709]]

Protection Agency, Region 10, Office of Ecosystems, Tribal and Public 
Affairs (ETPA-088), Environmental Review and Sediment Management Unit, 
1200 Sixth Avenue, Suite 900, Seattle, Washington 98101, phone number: 
(206) 553-7369, e-mail: winkler.jessica@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Why is EPA using a direct final rule?

    EPA is publishing this rule without a prior proposed rule because 
this is a noncontroversial action and EPA anticipates no adverse 
comment. The sites have been used as EPA intended and as described in 
the preamble to the Federal Register and in the Site Management and 
Monitoring Plan (SMMP) and the typographical error was only brought to 
EPA's attention in late April 2010. However, in the ``Proposed Rules'' 
section of this Federal Register, we are publishing a separate document 
that will serve as the proposed rule to allow EPA to withdraw this 
final rule and respond to comments on this action if adverse comments 
are received on this direct final rule. We will not institute a second 
comment period on this action. Any parties interested in commenting 
must do so at this time. For further information about commenting on 
this rule, see the ADDRESSES section of this document.
    If EPA receives adverse comment, we will publish a timely 
withdrawal in the Federal Register informing the public that this 
direct final rule will not take effect. We will address all public 
comments in any subsequent final rule based on the proposed rule.

II. Does this action apply to me?

    Persons potentially affected by this action include those who seek 
or might seek permits or approval by EPA to dispose of dredged material 
into ocean waters pursuant to the Marine Protection, Research, and 
Sanctuaries Act (MPRSA), 33 U.S.C. 1401 to 1445. EPA's action would be 
relevant to persons, including organizations and government bodies 
seeking to dispose of dredged material in ocean waters offshore of the 
Coos Bay, Oregon. Currently, the U.S. Army Corps of Engineers (Corps) 
would be most affected by this action. Potentially affected categories 
and persons include:

------------------------------------------------------------------------
                                             Examples of potentially
                Category                        regulated persons
------------------------------------------------------------------------
Federal Government.....................  U.S. Army Corps of Engineers
                                          Civil Works Projects, and
                                          other Federal Agencies.
Industry and General Public............  Port Authorities, Marinas and
                                          Harbors, Shipyards and Marine
                                          Repair Facilities, Berth
                                          Owners.
State, local and tribal governments....  Governments owning and/or
                                          responsible for ports,
                                          harbors, and/or berths,
                                          Government agencies requiring
                                          disposal of dredged material
                                          associated with public works
                                          projects.
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding persons likely to be affected by this 
action. For any questions regarding the applicability of this action to 
a particular person, please refer to the contact person listed in the 
preceding FOR FURTHER INFORMATION CONTACT section.

III. What is the background for this action?

    In 1986, the Regional Administrator designated three disposal sites 
(Site E, original Site F and Site H) off of Coos Bay, Oregon under the 
MPRSA. Original Site F began to experience mounding and the Corps 
selected a 103 Site F to enable the three Coos Sites to accommodate the 
total volume of dredged material generated on an annual basis. The 
Corps intended to seek designation of the 103 site as soon as 
reasonable, however, the 103 Site F was too small for 102 designation 
by EPA. Consequently EPA proposed a new Site F on March 31, 2000, which 
was larger than the 103 site. In that proposal, EPA also proposed to 
de-designate the original Site F. EPA published a final rule, 71 FR 
27396 (May 11, 2006), to de-designate original Site F and to designate 
new Site F. Figure 1, below, shows all of the Coos Sites, including 
Sites E and H, the de-designated Site F, the 103 configured Site F and 
the new Site F. The new Site F was designed to ensure that disposal of 
dredged material into Site F would be managed to retain material in the 
active littoral drift area to augment shoreline building processes and 
to allow material placed in the corner of the site closest to the jetty 
to continue augmentation toward the nearshore and toward the North 
Jetty. The coordinates (North American Datum--NAD 83) for new Site F, 
as finalized in the Final Rule preamble, were:

43[deg]22'54.8887'' N., 124[deg]19'28.9905'' W.
43[deg]21'32.8735'' N., 124[deg]20'37.7373'' W.
43[deg]22'51.4004'' N., 124[deg]23'32.4318'' W.
43[deg]23'58.4014'' N., 124[deg]22'35.4308'' W.

    These coordinates were the coordinates used in the final Site 
Management and Monitoring Plan (SMMP) for the Coos Sites. These 
coordinates were to be codified at 40 CFR 228.15(n)(3). However, a 
typographical error in the final rule mistakenly allowed the 
coordinates to be codified at 40 CFR 228.15(n)(4). This typographical 
error led to the result on paper, but not in practice, of leaving the 
Original Site F coordinates unchanged and inadvertently overwriting the 
coordinates for Site H. The error did not result in any disposal taking 
place at any of the Coos Sites in locations not described in the rule 
preambles or in the SMMP. The error itself was not discovered until 
late April 2010. At all times, disposals of dredged material suitable 
for ocean disposal at the Coos Sites took place in the Sites as 
described in the preamble to the Final Rule, 71 FR 27396 (May 11, 
2006), and in the final SMMP for the Coos Sites.
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IV. What action is EPA taking?

    This action corrects the typographical error in EPA's final rule, 
71 FR 27396 (May 11, 2006) to amend 40 CFR 228.15 by revising 
paragraphs (n)(3) and (n)(4) to read as set forth in the regulatory 
text of this final rule.
    This correction is an administrative action which replaces the 
currently codified coordinates for Site F at 40 CFR 228.15(n)(3) with 
the coordinates EPA inadvertently, through a typographical error, named 
40 CFR 228.15(n)(4) at 71 FR 27396, (May 11, 2006). This correction 
also restores the coordinates for Site H at 40 CFR 228.15(n)(4) which 
were overwritten through EPA's typographical error.
    This correction does not require re-consultation under the 
Endangered Species Act (ESA), 16 U.S.C.1531 to 1544, the Magnuson-
Stevens Act (MSA), 16 U.S.C. 1801 to 1891d, the Marine Mammal 
Protection Act of 1972 (MMPA), 16 U.S.C. 1361 to 1389; the Coastal Zone 
Management Act (CZMA), 16 U.S.C. 1451 to 1465; or the National Historic 
Preservation Act (NHPA), 16 U.S.C. 470 to 470a-2. Consultations under 
each of those acts were completed at the time EPA published the final 
rule in the Federal Register in 2006. The National Environmental Policy 
Act of 1969 (NEPA), 42 U.S.C. 4321 to 4370f, does not apply to EPA 
designations of ocean disposal sites under the MPRSA because the courts 
have exempted EPA's actions under the MPRSA from the procedural 
requirements of NEPA through the functional equivalence doctrine. EPA's 
action to correct the placement of coordinates in the Federal Register 
is not an action under EPA's ``Notice of Policy and Procedures for 
Voluntary Preparation of NEPA Documents,'' (Voluntary NEPA Policy), 63 
FR 58045, (October 29, 1998), requiring the preparation of an 
environmental review document.

V. Statutory and Executive Order Review

    This rule corrects a typographical error by replacing the currently 
codified coordinates for Site F at 40 CFR 228.15(n)(3) with the 
coordinates EPA inadvertently, through a typographical error, named 40 
CFR 228.15(n)(4) at 71 FR 27396, (May 11, 2006) and by restoring the 
coordinates for Site H at 40 CFR 228.15(n)(4) which were overwritten 
through EPA's typographical error. This action complies with applicable 
executive orders and statutory provisions as follows:

A. Executive Order 12866

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is 
therefore not subject to review under the Executive Order.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501, et seq., 
because this rule does not establish or modify any information or 
recordkeeping requirements for the regulated community.

C. Regulatory Flexibility

    The Regulatory Flexibility Act (RFA) generally requires Federal 
agencies to prepare a regulatory flexibility analysis of any rule 
subject to notice and comment rulemaking requirements under the 
Administrative Procedure Act or any other statute unless the agency 
certifies that the rule will not have a significant economic impact on 
a substantial number of small entities. Small entities include small 
businesses, small organizations, and small governmental jurisdictions. 
For purposes of assessing the impacts of this rule on small entities, 
small entity is defined as: (1) A small business defined by the Small 
Business Administration's size regulations at 13 CFR 121.201; (2) a 
small governmental jurisdiction that is a government of a city, county, 
town, school district, or special district with a population of less 
than 50,000; and (3) a small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field. EPA determined that this action will not have a 
significant economic impact on small entities because the final rule 
will only have the effect of regulating the location of sites to be 
used for the disposal of dredged material in ocean waters. After 
considering the economic impacts of this final rule, I certify that 
this action will not have a significant economic impact on a 
substantial number of small entities.

D. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act (UMRA) of 1995, 2 U.S.C. 
1531 to 1538, for State, local, or tribal governments or the private 
sector. This action imposes no new enforceable duty on any State, local 
or tribal governments or the private sector. Therefore, this action is 
not subject to the requirements of sections 202 or 205 of the UMRA. 
This action is also not subject to the requirements of section 203 of 
the UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small government entities. Those 
entities are already subject to existing permitting requirements for 
the disposal of dredged material in ocean waters.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It does not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among various levels of government, as specified 
in Executive Order 13132. Thus, Executive Order 13132 does not apply to 
this action.

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

    This action does not have tribal implications, as specified in 
Executive Order 13175 because the correction of coordinates for Site F 
and the restoration of the appropriate coordinates for Site H will not 
have a direct effect on Indian Tribes, on the relationship between the 
federal government and Indian Tribes, or on the distribution of power 
and responsibilities between the federal government and Indian tribes. 
Thus, Executive Order 13175 does not apply to this action.

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

    EPA interprets Executive Order 13045 (62 FR 19885) as applying only 
to those regulatory actions that concern health or safety risks, such 
that the analysis required under section 5-501 of the Executive Order 
has the potential to influence the regulation. This action is not 
subject to Executive Order 13045 because it does not establish an 
environmental standard intended to mitigate health or safety risks.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This action is not subject to Executive Order 13211, ``Actions 
Concerning Regulations that Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355) because it is not a ``significant 
regulatory action'' as defined under Executive Order 12866.

[[Page 33712]]

I. National Technology Transfer and Advancement Act

    Section 12(d) of 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. NTTAA directs EPA to 
provide Congress, through OMB, explanations when the Agency decides not 
to use available and applicable voluntary consensus standards. This 
action does not involve technical standards. Therefore, EPA did not 
consider the use of any voluntary consensus standards.

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

    Executive Order 12898 (59 FR 7629) establishes federal executive 
policy on environmental justice. Its main provision directs federal 
agencies, to the greatest extent practicable and permitted by law, to 
make environmental justice part of their mission by identifying and 
addressing, as appropriate, disproportionately high and adverse human 
health or environmental effects of their programs, policies, and 
activities on minority populations and low-income populations in the 
United States. EPA determined that this rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment.

K. Congressional Review Act

    The Congressional Review Act (CRA), 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 the 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 sixty days from the date of 
publication in the Federal Register if no adverse comment is received.

List of Subjects in 40 CFR Part 228

    Environmental protection, Water pollution control.

    Authority: This action is issued under the authority of Section 
102 of the Marine Protection, Research, and Sanctuaries Act, 33 
U.S.C. 1401, 1411, 1412.

    Dated: June 3, 2010.
Dennis J. McLerran,
Regional Administrator, Region 10.

0
For the reasons set out in the preamble, EPA amends chapter I, title 40 
of the Code of Federal Register as follows:

PART 228--[AMENDED]

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

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

0
2. Section 228.15 is amended by revising paragraphs (n)(3) and (n)(4) 
to read as follows:

Sec.  228.15  Dumping sites designated on a final basis.

* * * * *
    (n) * * *
(3) Coos Bay, OR Dredged Material Site F
    (i) Location: 43[deg]22'54.8887'' N., 124[deg]19'28.9905'' W.; 
43[deg]21'32.8735'' N., 124[deg]20'37.7373'' W.; 43[deg]22'51.4004'' 
N., 124[deg]23'32.4318'' W.; 43[deg]23'58.4014'' N., 
124[deg]22'35.4308'' W. (NAD 83).
    (ii) Size: 4.45 kilometers long and 2.45 kilometers wide.
    (iii) Depth: Ranges from 6 to 51 meters.
    (iv) Primary Use: Dredged material determined to be suitable for 
ocean disposal.
    (v) Period of Use: Continuing Use.
    (vi) Restriction: Disposal shall be limited to dredged material 
determined to be suitable for unconfined disposal; Disposal shall be 
managed by the restrictions and requirements contained in the 
currently-approved Site Management and Monitoring Plan (SMMP); 
Monitoring, as specified in the SMMP, is required.
(4) Coos Bay, OR Dredged Material Site H
    (i) Location: 43[deg]23'53[sec] N., 124[deg]22'48[sec] W.; 
43[deg]23'42[sec] N., 124[deg]23'01[sec] W.; 43[deg]24'16[sec] N., 
124[deg]23'26[sec] W.; 43[deg]24'05[sec] N., 124[deg]23'38[sec] W.
    (ii) Size: 0.13 square nautical mile.
    (iii) Depth: Averages 55 meters.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Continuing use.
    (vi) Restriction: Disposal shall be limited to dredged material in 
the Coos Bay area of type 2 and 3, as defined in the site designation 
final EIS.
* * * * *
[FR Doc. 2010-14242 Filed 6-14-10; 8:45 am]
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