18648 Federal Register / Vol. 74, No. 78 / Friday, April 24, 2009 / Rules and Regulations 

12898, entitled Federal Actions to 

Address Environmental Justice in 

Minority Populations and Low-Income 

Populations (59 FR 7629, February 16, 

1994). 

Since tolerances and exemptions that 

are established on the basis of a petition 

under section 408(d) of FFDCA, such as 

the tolerances in this final rule, do not 

require the issuance of a proposed rule, 

the requirements of the Regulatory 

Flexibility Act (RFA) (5 U.S.C. 601 et 

seq.) do not apply. 

This final rule directly regulates 

growers, food processors, food handlers, 

and food retailers, not States or tribes, 

nor does this action alter the 

relationships or distribution of power 

and responsibilities established by 

Congress in the preemption provisions 

of section 408(n)(4) of FFDCA. As such, 

the Agency has determined that this 

action will not have a substantial direct 

effect on States or tribal governments, 

on the relationship between the national 

government and the States or tribal 

governments, or on the distribution of 

power and responsibilities among the 

various levels of government or between 

the Federal Government and Indian 

tribes. Thus, the Agency has determined 

that Executive Order 13132, entitled 

Federalism (64 FR 43255, August 10, 

1999) and Executive Order 13175, 

entitled Consultation and Coordination 

with Indian Tribal Governments (65 FR 

67249, November 9, 2000) do not apply 

to this final rule. In addition, this final 

rule does not impose any enforceable 

duty or contain any unfunded mandate 

as described under Title II of the 

Unfunded Mandates Reform Act of 1995 

(UMRA) (Public Law 104–4). 

This action does not involve any 

technical standards that would require 

Agency consideration of voluntary 

consensus standards pursuant to section 

12(d) of the National Technology 

Transfer and Advancement Act of 1995 

(NTTAA), Public Law 104–113, section 

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

VII. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report 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 this final rule in the 

Federal Register. This final rule is not 

a ‘‘major rule’’ as defined by 5 U.S.C. 

804(2). 

List of Subjects in 40 CFR Part 180 

Environmental protection, 

Administrative practice and procedure, 

Agricultural commodities, Pesticides 

and pests, Reporting and recordkeeping 

requirements. 

Dated: April 17, 2009. 

Lois Rossi, 

Director, Registration Division, Office of 

Pesticide Programs. 

■ Therefore, 40 CFR chapter I is 

amended as follows: 

PART 180—[AMENDED] 

■ 1. The authority citation for part 180 

continues to read as follows: 

Authority: 21 U.S.C. 321(q), 346a and 371. 

■ 2. Section 180.605 is amended by 

alphabetically adding the following 

commodities to the table in paragraph 

(a) to read as follows: 

§ 180.605 Penoxsulam; tolerances for 

residues. 

(a) *** 

Commodity Parts per 

million 

Almond, hulls ................................ 0.01 

* * * * * 

Grape ............................................ 0.01 

Nut, tree, group 14 ....................... 0.01 

Pistachio ....................................... 0.01 

* * * * * 

* * * * * 

[FR Doc. E9–9441 Filed 4–23–09; 8:45 am] 

BILLING CODE 6560–50–S 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 228 

[EPA–R10–OW–2008–0826; FRL–8893–1] 

Ocean Dumping; Designation of Ocean 

Dredged Material Disposal Sites 

Offshore of the Umpqua River, Oregon 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: This action finalizes the 

designation of the Umpqua River ocean 

dredged material sites pursuant to the 

Marine Protection, Research and 

Sanctuaries Act, as amended (MPRSA). 

The new sites are needed primarily to 

serve the long-term need for a location 

to dispose of material dredged from the 

Umpqua River navigation channel, and 

to provide a location for the disposal of 

dredged material for persons who have 

received a permit for such disposal. The 

newly designated sites will be subject to 

ongoing monitoring and management 

specified in this rule and in the Site 

Management and Monitoring Plan, 

which is also finalized as part of this 

action. The monitoring and management 

requirements will help to ensure 

ongoing protection of the marine 

environment. 

DATES: Effective Date: This final rule 

will be effective May 26, 2009. 

ADDRESSES: For more information on 

this final rule, Docket ID No. EPA–R10– 

OW–2008–0826 use one of the following 

methods: 

• http://www.regulations.gov: Follow 

the on-line instructions for accessing the 

docket and materials related to this final 

rule. 

• E-mail: 

Freedman.Jonathan@epa.gov 

• Mail: Jonathan Freedman, U.S. 

Environmental Protection Agency, 

Region 10, Office of Ecosystems, Tribal 

and Public Affairs (ETPA–083), Aquatic 

Resources 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 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 11:30 a.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: 

Jonathan Freedman, U.S. Environmental 

Protection Agency, Region 10, Office of 

Ecosystems, Tribal and Public Affairs 

(ETPA–083), Aquatic Resources Unit, 

1200 Sixth Avenue, Suite 900, Seattle, 

Washington 98101, phone number: 

(206) 553–0266, e-mail: 

freedman.jonathan@epa.gov, or contact 

Jessica Winkler, U.S. Environmental 

Protection Agency, Region 10, Office of 

Ecosystems, Tribal and Public Affairs 

(ETPA–083), Aquatic Resources Unit, 

1200 Sixth Avenue, Suite 900, Seattle, 

Washington 98101, phone number: 

(206) 553–7369, e-mail: 

winkler.jessica@epa.gov. 

SUPPLEMENTARY INFORMATION: On 

November 25, 2008, EPA published a 

proposed rule at 73 FR 71575 to 

designate two new ocean dredged 

material disposal sites near the mouth of 

the Umpqua River, Oregon and to 

withdraw an earlier proposed rule to 

designate a single site. EPA received one 

comment on the proposed rule. 


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1. Potentially Affected Persons 

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, as amended (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 Umpqua 

River, Oregon. Currently, the U.S. Army 

Corps of Engineers (Corps) would be 

most affected by this action. Potentially 

affected categories and persons include: 

Category Examples of potentially regulated persons 

Federal Government ............... U.S. Army Corps of Engineers Civil Works Projects, and other Federal Agencies. 

Industry and General Public ... Port Authorities, Marinas and Harbors, Shipyards and Marine Repair Facilities, Berth Owners. 

State, local and tribal governments.Governments owning and/or responsible for ports, harbors, and/or berths, Government agencies requiring disposal of dredged material associated with public works projects. 

This table is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding persons likely to 

be affected by this action. For any 

questions regarding the applicability of 

this action to a particular person, please 

refer to the contact person listed in the 

preceding FOR FURTHER INFORMATION

CONTACT section. 

2. Background 

a. History of Disposal Sites Offshore of 

the Umpqua River, Oregon 

Two ocean dredged material disposal 

sites, an Interim Site and an Adjusted 

Site, were formerly used by the U.S. 

Army Corps of Engineers (Corps) for the 

disposal of sediments dredged from the 

Umpqua River navigation project. An 

‘‘Interim Site’’ was included in the list 

of approved ocean disposal sites for 

dredged material in the Federal Register 

in 1977 (42 FR 2461), a status 

superseded by later statutory changes to 

the MPRSA. A realignment of the 

approach channel to the Umpqua River 

estuary re-routed the navigation channel 

over the Interim Site so that in 1991 an 

Adjusted Site was selected by the Corps 

pursuant to Section 103 of the MPRSA. 

That authority allows the Corps to select 

a site for disposal when a site has not 

been designated. Selection of the 

Adjusted Site was intended to reduce 

potential hazards associated with 

navigational conflicts in the channel 

and associated with mounding of 

dredged material at the Interim Site. The 

selection of the Adjusted Site was also 

intended to increase long-term disposal 

site capacity near the mouth of the 

Umpqua River. EPA concurred on the 

selection of the Adjusted Site and 

approved the Corps’ request to continue 

to use the site through the end of the 

2008 dredging season. The Adjusted 

Site is not a suitable candidate for 

designation by EPA pursuant to section 

102 of the MPRSA because use of the 

Adjusted Site resulted in mounding that 

severely limited site capacity. In 1996, 

shoaling and breaking waves associated 

with mounding at the Adjusted Site 

were reported. Subsequently a site 

utilization study was conducted by the 

Corps in 1998. That study found 

evidence of mounding sufficient to 

warrant serious concern regarding 

impact on the wave environment near 

the Umpqua River entrance channel. To 

address that concern the volume of 

dredged material placed at the Adjusted 

Site was reduced from an average 

annual volume of 188,000 cubic yards 

(cy) prior to 1999 to an average annual 

volume of 108,000 cy from 1999 to 

2007. EPA determined that alternatives 

to the Adjusted Site would be needed 

for long-term disposal capacity near the 

mouth of the Umpqua River. 

b. Location and Configuration of 

Umpqua River Ocean Dredged Material 

Disposal Sites 

This action finalizes the withdrawal 

of the rule the Agency proposed on 

October 2, 1991, at 56 FR. 49858, to 

designate an Umpqua River site, and 

finalizes the designation of two Umpqua 

River ocean dredged material sites to the 

north and south, respectively, of the 

mouth of the Umpqua River. The 

coordinates for the two sites are listed 

below and the figure below shows the 

location of the two Umpqua River ocean 

dredged material disposal sites 

(Umpqua River ODMD Sites or Sites). 

The configuration of the Sites is 

expected to allow dredged material 

disposed in shallower portions of each 

Site to naturally disperse into the 

littoral zone without creating mounding 

conditions that could contribute to 

adverse impacts to navigation. This will 

allow EPA to manage the Sites to keep 

as much material disposed at the Sites 

as possible in the active littoral drift 

area to augment shoreline building 

processes. 

The coordinates for the two Umpqua 

River ODMD Sites are, in North 

American Datum 83 (NAD 83). 

North Umpqua ODMD site South Umpqua ODMD site 

43°41′23.09′′ N., 124°14′20.28′′ W. 43°39′32.31′′ N., 124°14′35.60′′ W. 

43°41′25.86′′ N., 124°12′54.61′′ W. 43°39′35.23′′ N., 124°13′11.01′′ W. 

43°40′43.62′′ N., 124°14′17.85′′ W. 43°38′53.08′′ N., 124°14′32.94′′ W. 

43°40′46.37′′ N., 124°12′52.74′′ W. 43°38′55.82′′ N., 124°13′08.36′′ W. 

The two Sites are situated in 

approximately 30 to 120 feet of water 

located to the north and south of the 

entrance to the Umpqua River on the 

southern Oregon Coast (see Figure 1). 

The dimensions of each of the Sites are 

6,300 by 4,000 feet. Each disposal Site 

will contain a drop zone, defined by a 

500-foot setback inscribed within all 

sides of the boundary of each Site, 

reducing the permissible disposal area 

to a zone 5,300 feet long by 3,000 feet 

wide. The drop zone will ensure that 

dredged material initially stays within 

each Site. 

BILLING CODE 6560–50–P 


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BILLING CODE 6560–50–C 

c. Management and Monitoring of the 

Sites 

The final Umpqua River ODMD Sites 

are expected to receive sediments 

dredged by the Corps to maintain the 

federally authorized navigation project 

at the Umpqua River, Oregon and 

dredged material from other persons 

who have obtained a permit for the 

disposal of dredged material at the Sites. 

The ocean dumping regulations do not 

require a modification of any existing 

permits issued before this final action. 

All persons using the Sites are required 

to follow the Site Management and 

Monitoring Plan (SMMP) for the 

Umpqua River ODMD Sites. The SMMP 

is available to the public as part of this 

action. The SMMP includes 

management and monitoring 

requirements to ensure that dredged 

materials disposed at the Sites are 

suitable for disposal in the ocean. The 

final SMMP also addresses management 

of the Sites to ensure adverse mounding 

does not occur and to ensure that 

disposal events are timed to minimize 

interference with other uses of ocean 

waters in the vicinity of the Sites. 

d. MPRSA Criteria 

EPA assessed this action against the 

criteria of the MPRSA, with particular 

emphasis on the general and specific 

regulatory criteria of 40 CFR part 228, to 

determine that the final site 

designations satisfied those criteria. 

General Criteria (40 CFR 228.5) 

(1) Sites must be selected to minimize 

interference with other activities in the 

marine environment, particularly 

avoiding areas of existing fisheries or 

shellfisheries, and regions of heavy 

commercial or recreational navigation 

(40 CFR 228.5(a)). 

EPA reviewed the potential for the 

Sites to interfere with navigation, 

recreation, shellfisheries, aquatic 

resources, commercial fisheries, 

protected geologic features, and cultural 

and/or historically significant areas and 

found low potential for conflicts. The 

Sites are located away from the 

approach to the Umpqua River entrance 

channel and are unlikely to cause 

interference with navigation near the 

mouth of the Umpqua River. 

Commercial crab and salmon fishing 

have the potential to take place in the 

Sites because of overlapping disposal 

and fishing seasons, but conflicts are not 


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anticipated based on the past history of 

fishing and disposal operations in this 

area. Other recreational users, for 

example, surfers, boarders, and divers, 

may use the near-shore area in the 

vicinity of the Sites. EPA does not 

expect disposal operations at the Sites 

to conflict with these recreationists. 

(2) Sites must be situated such that 

temporary perturbations to water quality 

or other environmental conditions 

during initial mixing caused by disposal 

operations would be reduced to normal 

ambient levels or undetectable 

contaminant concentrations or effects 

before reaching any beach, shoreline, 

marine sanctuary, or known 

geographically limited fishery or 

shellfishery (40 CFR 228.5(b)). 

Based on EPA’s review of modeling, 

monitoring data, analysis of sediment 

quality, and history of use, no detectable 

contaminant concentrations or water 

quality effects, e.g., suspended solids, 

would be expected to reach any beach, 

shoreline, or other area outside of the 

Sites. The drop zones at each of the 

Sites will help ensure this criterion is 

satisfied. All dredged material proposed 

for disposal will be evaluated according 

to the ocean dumping regulations at 40 

CFR 227.13 and guidance developed by 

EPA and the Corps. In general, dredged 

material which meets the criteria under 

40 CFR 227.13(b) is deemed 

environmentally acceptable for ocean 

dumping without further testing. 

Dredged material which does not meet 

the criteria of 40 CFR 227.13(b) must be 

further tested as required by 40 CFR 

227.13(c). Suitable material can be 

disposed at the Sites. Modeling work 

performed by the Corps at the Umpqua 

River demonstrates that water column 

turbidity, a temporary perturbation 

during disposal, would be expected to 

dissipate for an anticipated 97% of the 

coarser material within a few minutes of 

disposal. The remaining 3% of the 

material, which would be classified as 

fine-grained, would be expected to 

dissipate within a half hour. Over time, 

some of the suitable disposed material 

would be expected to migrate into the 

littoral system, and potentially to 

coastal shorelines. Bottom movement of 

material, based on historic trends near 

the mouth of the Umpqua River, is 

expected to show a net movement to the 

north at the depth of the disposal Sites 

with rapid dispersion after movement. 

(3) If Site designation studies show 

that any interim disposal sites do not 

meet the site selection criteria, use of 

such sites shall be terminated as soon as 

any alternate site can be designated (40 

CFR 228.5(c)). 

EPA’s recent final rule at 73 FR 74983 

(December 10, 2008) repealed obsolete 

regulations under the MPRSA regarding 

interim ocean dumping sites and 

interim ocean dumping criteria. EPA 

stated in the proposed rule that the use 

of the Interim Site near the Umpqua 

River Sites was terminated upon 

selection of the 103-selected site, the 

Adjusted Site, by the Corps. However, 

the category of ‘‘interim site’’ has now 

been removed from the ocean dumping 

regulations. 

(4) The sizes of disposal sites will be 

limited in order to localize for 

identification and control any 

immediate adverse impacts, and to 

permit the implementation of effective 

monitoring and surveillance to prevent 

adverse long-range impacts. Size, 

configuration, and location are to be 

determined as part of the disposal site 

evaluation (40 CFR 228.5(d)). 

EPA sized the final Sites to meet this 

criterion. The Sites tend to be 

moderately dispersive in the near-shore 

area and less dispersive farther from 

shore. The Sites were designed to be 

large enough to minimize the potential 

for adverse mounding and to allow for 

a minimum twenty-year capacity. 

Effective monitoring of the Sites is 

necessary and annual bathymetric 

surveys are required for each Site. Those 

surveys are expected to be used to 

document the fate of the dredged 

material disposed at the Sites and to 

provide information for active 

management of the Sites. 

(5) EPA will, wherever feasible, 

designate ocean dumping sites beyond 

the edge of the continental shelf and 

other such sites where historical 

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

The Sites are located near where 

historic disposal occurred with only 

minimal impact to the environment. 

Locations off the continental shelf in the 

Pacific Ocean as a general rule are 

inhabited by stable benthic and pelagic 

ecosystems on steeper gradients that are 

not well adapted to the type of frequent 

disturbance events that are typical of 

dredged material disposal in ocean 

waters. Monitoring and surveillance of 

these Sites do not pose the challenges 

inherent in locations beyond the edge of 

the continental shelf. Material disposed 

at a location beyond the continental 

shelf would not be available to the 

littoral system. The loss of material 

would potentially have a negative 

impact on the mass balance of the 

system with a resulting negative impact 

on erosion/accretion patterns along this 

limited area of coastline near the 

Umpqua River. 

Specific Criteria (40 CFR 228.6) 

(1) Geographical Position, Depth of 

Water, Bottom Topography and 

Distance from Coast (40 CFR 

228.6(a)(1)). 

The geographical position, including 

the depth, bottom topography and 

distance from the coastline in the 

vicinity of the Sites will not cause 

adverse effects to the marine 

environment. Based on EPA’s 

understanding of currents at the Sites 

and the influence of those currents on 

the movement of material in the area, 

there is a high likelihood that much of 

the material disposed at the Sites will be 

transported to the littoral sediment 

circulation system. Limited onshore 

transport of material disposed of at the 

Sites is expected because of the nature 

of the prevailing currents and wave 

transport in the vicinity of the Sites. Net 

predicted material transport at the Sites 

is southward in the summer months and 

northward during the remainder of the 

year. These transport mechanisms are 

expected to move material into the 

active littoral drift area and to 

significantly decrease or eliminate 

mounding as an issue for disposal of 

dredged material near the mouth of the 

Umpqua River. This movement is 

expected to allow for long-term disposal 

without creation of adverse mounding 

conditions at either of the Sites. 

To help avoid adverse mounding at 

the Sites, the site management strategy 

will include placing the majority of 

dredged material within drop zones at 

each Site and in shallower portions of 

the Sites closer to shore where the 

material can return to the regional 

littoral sediment system. Disposal runs 

will be managed to avoid multiple 

dumps in any location to further 

minimize mounding. Management may 

include establishing ‘‘cells’’ along the 

nearshore portions of each Site and 

assigning numbers of ‘‘dumps’’ to each 

cell to minimize material accumulation 

and avoid excessive or persistent 

mounding. Disposal will also alternate 

as necessary between the two Sites to 

allow for maximum dispersal of 

material and minimal impact to each 

Site. 

(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 Sites are not located in exclusive 

breeding, spawning, nursery, feeding or 

passage areas for adult or juvenile 

phases of living resources. Near the 

Sites, a variety of pelagic and demersal 

fish species, as well as shellfish, are 

found. Modeling of the water column 

over the Sites indicates that turbidity 

from a disposal event is expected to 

dissipate rapidly and consequently 

avoidance behavior by any species in 

the Sites or in the surrounding area at 


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the time of a disposal event would be 

short-term. 

(3) Location in Relation to Beaches 

and Other Amenity Areas (40 CFR 

228.6(a)(3)). 

The Sites, although located in close 

proximity to the Umpqua River 

navigation channel, are located a 

sufficient distance offshore to avoid 

adverse impacts to beaches and other 

amenity areas. Transportation of 

dredges or barges to and from the Sites 

to dispose of dredged material will be 

coordinated to avoid disturbance of 

other activities near the Umpqua River 

entrance channel. Dredged material 

disposed of at the Sites is expected to 

disperse into the littoral system, with a 

possible positive effect over time of 

reducing erosion of coastal beaches. 

There are no rocks or pinnacles in the 

vicinity of either Site. The Oregon 

Dunes National Recreation Area, a part 

of the Siuslaw National Forest, is 

located on the beach adjacent to the 

South ODMD Site, but does not extend 

into the water. Use of the South ODMD 

Site is not expected to interfere with any 

upland uses. 

The ocean area north and south of the 

south jetty is utilized for wavedependent near-shore recreation, such 

as surfing, diving, kayaking, boogieboarding, skim boarding, and body 

surfing. While some of these uses may 

overlap with the Sites, resulting in 

temporary usage conflict during 

disposal activities, the SMMP contains 

provisions to minimize or avoid such 

conflicts. The Sites are sized and 

located to provide long-term capacity 

for the disposal of dredged material 

without causing any impacts to the 

wave environment at, or near, the Sites. 

Site monitoring and adaptive 

management are components of the final 

SMMP. 

(4) Types and Quantities of Wastes 

Proposed to be Disposed of, and 

Proposed Methods of Release, including 

Methods of Packing the Waste, if any (40 

CFR 228.6(a)(4)). 

Dredged material found suitable for 

ocean disposal pursuant to the 

regulatory criteria for dredged material 

or characterized by chemical and 

biological testing and found suitable for 

disposal into ocean waters will be the 

only material allowed to be disposed of 

at the Sites. No material defined as 

‘‘waste’’ under the MPRSA will be 

allowed to be disposed of at the Sites. 

The dredged material to be disposed of 

at the Sites will be predominantly 

marine sand, far removed from known 

sources of contamination. With respect 

to methods of releasing material at the 

Sites, material will be released just 

below the surface and the disposal 

vessel will be required to be under 

power and to slowly transit the disposal 

location during disposal. This method 

of release is expected to spread material 

at the Sites to minimize mounding and 

to minimize impacts to the benthic 

community and to species at the Sites 

at the time of a disposal event. 

(5) Feasibility of Surveillance and 

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

EPA expects monitoring and 

surveillance at the Sites to be feasible 

and readily performed from small 

surface research vessels. The Sites are 

accessible for bathymetric and side-scan 

sonar surveys. At a minimum, annual 

bathymetric surveys will be conducted 

at each of the Sites to confirm that no 

unacceptable mounding is taking place 

within the Sites or in their immediate 

vicinity. Routine monitoring will 

concentrate on examining how the 

distribution of material in the nearshore portions of the Sites is working to 

minimize mounding of material and 

how the distribution of material 

augments littoral processes. Monitoring 

will also examine the distribution of 

material in the deeper portions of the 

Sites to avoid or minimize mounding. 

(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)). 

Dispersal, horizontal transport and 

vertical mixing characteristics of the 

area at and in the vicinity of the Sites 

indicate that the marine sands and 

fluvial gravels from the Umpqua River 

distribute away from the river mouth 

rapidly. The beaches do not show 

significant accretion or loss, suggesting 

the system is in equilibrium and that 

littoral transport is in balance. The 

bottom current records suggest a bias in 

transport to the north. Fine grained 

material tends to remain in suspension 

and to experience rapid offshore 

transport compared to other sediment 

sizes. Sediment transport of sand-sized 

or coarser material tends to move 

directly as bedload, but is occasionally 

suspended by wave action near the 

seafloor. The final Sites are not expected 

to change these characteristics. 

(7) Existence and Effects of Current 

and Previous Discharges and Dumping 

in the Area (including Cumulative 

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

The two Sites have not been used 

before for any type of disposal activity. 

Disposal of dredged material is not 

expected to result in unacceptable 

environmental degradation at the Sites 

or in the vicinity of the Sites. The final 

SMMP includes requirements, including 

bathymetric surveys and preventative 

steps, for managing the Sites to address 

potential mounding issues. 

(8) Interference with Shipping, 

Fishing, Recreation, Mineral Extraction, 

Desalination, Fish and Shellfish 

Culture, Areas of Special Scientific 

Importance and Other Legitimate Uses 

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

The Sites are not expected to interfere 

with shipping, fishing, recreation or 

other legitimate uses of the ocean. 

Disposals at the new Sites will be 

managed according to the final SMMP 

to minimize interference with other 

legitimate uses of the ocean through 

careful timing and staggering of 

disposals in the Sites. Commercial and 

recreational fishing and commercial 

navigation are the primary uses for 

which such timing will be needed. No 

plans for mineral extraction offshore of 

the Umpqua River are planned or 

proposed for this area. Wave-dependent 

near shore recreation may possibly 

overlap with the Sites resulting in 

temporary usage conflict during 

disposal activities but the Sites will be 

managed to minimize such potential 

conflicts. Use of the Sites is not 

expected to change the wave conditions 

for any recreational uses. Two wave 

energy projects are in the preliminary 

permitting phases near the Sites. EPA 

would expect to revise the SMMP if 

necessary in the event the proposed 

wave energy projects moved forward 

and potential conflicts seemed likely. 

Fish and shellfish culture operations are 

not under consideration for the area. 

There are no known areas of scientific 

importance in the vicinity of the Sites. 

(9) The Existing Water Quality and 

Ecology of the Sites as Determined by 

Available Data or Trend Assessment of 

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

EPA did not identify any adverse 

water quality impacts from ocean 

disposal of dredged material at the Sites 

based on water and sediment quality 

analyses conducted in the study area of 

the Sites and based on experience with 

past disposals near the mouth of the 

Umpqua River. Fisheries and benthic 

data show the ecology of the area to be 

that of a mobile sand community typical 

of the Oregon Coast. 

(10) Potentiality for the Development 

or Recruitment of Nuisance Species in 

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

Nuisance species, considered as any 

undesirable organism not previously 

existing at a location, have not been 

observed at, or in the vicinity of, the 

Sites. Material expected to be disposed 

at the Sites will be uncontaminated 

marine sands similar to the sediment 

present at the Sites. Some fine-grained 

material, finer than natural background, 

may also be disposed. While this finerVerDate Nov<24>2008 14:46 Apr 23, 2009 Jkt 217001 PO 00000 Frm 00032 Fmt 4700 Sfmt 4700 E:\FR\FM\24APR1.SGM 24APR1

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grained material could have the 

potential to attract nuisance species to 

the Sites, no such recruitment occurred 

in the past at either the Interim or the 

Adjusted Site. The final SMMP includes 

specific biological monitoring 

requirements, which will act to identify 

any nuisance species and allowing EPA 

to direct special studies and/or 

operational changes to address the issue 

if it arises. 

(11) Existence at or in Close Proximity 

to the Site of any Significant Natural or 

Cultural Feature of Historical 

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

No significant cultural features have 

been identified at, or in the vicinity of, 

the Sites. EPA coordinated with 

Oregon’s State Historic Preservation 

Officer and with Tribes in the vicinity 

of the Sites to identify any cultural 

features but none were identified. No 

shipwrecks were observed or 

documented within the Sites or their 

immediate vicinity. 

3. Response to Comments 

EPA received one indirect comment 

on the proposed rule. The commenter 

objected generally to any dumping in 

the ocean and criticized shipping 

companies for dumping rather than 

recycling. EPA’s action designates sites 

for the disposal of dredged material 

meeting the ocean dumping criteria for 

environmental acceptability in the 

ocean environment. No other material is 

allowed at these Sites. The Sites will not 

be available to users for any purpose 

other than the disposal of dredged 

material meeting the regulatory criteria 

for suitability. 

4. Environmental Statutory Review— 

National Environmental Policy Act 

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

Marine Mammal Protection Act 

(MMPA); Coastal Zone Management 

Act (CZMA); Endangered Species Act 

(ESA); National Historic Preservation 

Act (NHPA) 

(1) NEPA 

Section 102 of the National 

Environmental Policy Act of 1969, as 

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

4370f, requires that Federal agencies 

prepare an Environmental Impact 

Statement (EIS) for major federal actions 

significantly affecting the quality of the 

human environment. NEPA does not 

apply to EPA designations of ocean 

disposal sites under the MPRSA because 

the courts have exempted EPA’s actions 

under the MPRSA from the procedural 

requirements of NEPA through the 

functional equivalence doctrine. EPA 

has, by policy, determined that the 

preparation of non-EIS NEPA 

documents for certain EPA regulatory 

actions, including actions under the 

MPRSA, is appropriate. EPA’s ‘‘Notice 

of Policy and Procedures for Voluntary 

Preparation of NEPA Documents,’’ 

(Voluntary NEPA Policy), 63 FR 58045, 

(October 29, 1998), sets out both the 

policy and procedures EPA uses when 

preparing such environmental review 

documents. EPA’s primary voluntary 

NEPA document for designating the 

Sites is the final Umpqua River, Oregon 

Ocean Dredged Material Disposal Sites 

Evaluation Study and Environmental 

Assessment, April 2009 (EA), jointly 

prepared by EPA and the Corps. The 

final EA and its Technical Appendices, 

which are part of the docket for this 

action, provide the threshold 

environmental review for designation of 

the two Sites. The information from the 

final EA is used extensively, above, in 

the discussion of the ocean dumping 

criteria. 

(2) MSA and MMPA 

In the spring of 2008, EPA initiated 

consultation with the National Marine 

Fisheries Service (NMFS) concerning 

essential fish habitat and protected 

marine mammals. EPA prepared an 

essential fish habitat (EFH) assessment 

pursuant to Section 305(b), 16 U.S.C. 

1855(b)(2), of the Magnuson-Stevens 

Act, as amended (MSA), 16 U.S.C. 1801 

to 1891d. NMFS reviewed EPA’s EFH 

assessment and ESA Biological 

Assessment for purposes of the Marine 

Mammal Protection Act of 1972, as 

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

1389. 

With respect to marine mammals, 

NMFS found that all potential adverse 

effects to ESA-listed marine mammals 

are discountable or insignificant. Those 

findings are documented in Appendix 

B. Marine Mammal Determinations of 

the Biological Opinion issued by NMFS 

to EPA on March 20, 2009. With respect 

to EFH, NMFS found that disposal of 

dredge material, an indirect effect of 

EPA’s action to designate the two 

Umpqua River ODMD Sites, will affect 

suspended sediment levels over 

background and temporarily decrease 

food resources within the Sites during 

disposal events. However, these effects 

are not expected to functionally change 

or alter the habitat or habitat value of 

designated EFH at or in the vicinity of 

the Sites. NMFS concluded that safe 

passage of the EFH managed species 

will not be functionally changed by this 

action or by subsequent disposal at the 

Sites. These findings are documented in 

the Magnuson-Stevens Fishery 

Conservation and Management Act 

section of the NMFS Biological Opinion. 

NMFS included a ‘‘conservation 

recommendation’’ to develop a plan for 

monitoring fish interactions with the 

disposed dredged material at the Sites. 

EPA will respond in a separate written 

response to NMFS’ recommendation. 

(3) CZMA 

EPA initiated consultation with the 

State of Oregon on coastal zone 

management issues in June of 2008. EPA 

prepared a consistency determination 

for the Oregon Ocean and Coastal 

Management Program (OCMP) to meet 

the requirements of the Coastal Zone 

Management Act, as amended, (CZMA), 

16 U.S.C. 1451 to 1465, and submitted 

that determination formally to the 

Oregon Department of Land 

Conservation and Development (DLCD) 

for review on November 12, 2008. DLCD 

published an initial public notice on the 

consistency determination on November 

14, 2008, and in a notice on December 

10, 2008, extended the public comment 

period to January 2, 2009. DLCD 

received one comment letter from the 

Oregon Department of Fish and Wildlife 

(ODFW) expressing support for the 

designation of the Umpqua River Sites 

and supporting ocean disposal of 

dredged material as the best alternative. 

ODFW did express concern with 

potential impacts to habitat near the 

mouth of the Umpqua River and 

expressed support for ‘‘pinpoint 

dumping’’ over ‘‘uniform placement’’ of 

disposal material at the Sites. 

DLCD concurred on EPA’s 

determination of consistency with one 

condition. The condition calls for the 

final SMMP to assure that monitoring 

measures for the Umpqua River Sites are 

reasonably likely to identify significant 

unanticipated adverse affects on 

renewable marine resources, biological 

diversity of marine life and functional 

integrity of the marine ecosystem at the 

Sites, and further asks that the SMMP 

include adaptive management measures 

to avoid significant impairment of the 

Sites and significant decreases in 

abundance of commercial or 

recreationally caught species from direct 

or indirect effects on important or 

essential habitat at the Sites. The final 

SMMP for the Umpqua River Sites 

provides the assurances and adaptive 

management measures requested by 

DLCD. DLCD responded to the ODFW 

concern about impacts to habitat by 

including the condition, above, in its 

consistency concurrence. DLCD also 

noted that ‘‘pinpoint dumping’’ has 

been replaced with the disposal 

technique of ‘‘uniform placement.’’ 

DLCD suggested that future site 

designations include opportunities for 

EPA and ODFW to coordinate on issues. 


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(4) ESA 

EPA initiated informal consultation 

with NMFS and the U.S. Fish and 

Wildlife Service on its action to 

designate the Umpqua River ODMD 

Sites beginning in the spring of 2008. 

EPA prepared a Biological Assessment 

to assess the potential effects of 

designating the two Umpqua River Sites 

on aquatic and wildlife species to 

determine whether or not its action 

might adversely affect species listed as 

endangered or threatened and/or 

adversely modify or destroy their 

designated critical habitat. EPA found 

that its action would not be likely to 

adversely affect aquatic or wildlife 

species listed pursuant to the 

Endangered Species Act, as amended 

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

critical habitat of such species. EPA 

found that site designation does not 

have a direct impact on any of the 

identified ESA species but also found 

that indirect impacts associated with 

reasonably foreseeable future disposal 

activities had to be considered. These 

indirect impacts included a short-term 

increase in suspended solids and 

turbidity in the water column when 

dredged material was disposed at the 

new Sites and an accumulation of 

material on the ocean floor when 

material was disposed at the Sites. EPA 

concluded that while its action may 

affect ESA-listed species, the action 

would not be likely to adversely affect 

ESA-listed species or critical habitat. 

The U.S. Fish and Wildlife Service 

(USFWS) concurred with EPA’s finding 

that EPA’s action to designate the 

Umpqua River ODMD Sites would not 

likely adversely affect listed species or 

critical habitat. Consultation with the 

USFWS for this action was completed 

on July 25, 2008. 

The National Marine Fisheries Service 

(NMFS) did not concur with EPA’s 

NLAA finding and subsequently 

prepared a Biological Opinion (BO), 

issued March 20, 2009. NMFS 

concluded that EPA’s site designations 

are not likely to jeopardize the 

continued existence of Oregon Coast 

(OC) coho salmon or Southern Distinct 

Population Segment (DPS) green 

sturgeon and are not likely to destroy or 

adversely modify designated or 

proposed critical habitat. However, 

NMFS found that the indirect effects of 

designating the Umpqua River Sites 

related to the exposure fish could 

experience from the disposal of dredged 

material could have consequences for 

listed fish. Based on NMFS’ estimate of 

ensuing indirect effects of designating 

the Sites, NMFS estimated that injury 

and death of as many as 990 yearling OC 

coho salmon and a smaller number of 

small sub-adult southern DPS green 

sturgeon could occur. For Steller sea 

lions, blue whales, fin whales, 

humpback whales, Southern Resident 

killer whales, as described in Appendix 

B to the BO, NMFS concurred with 

EPA’s determination of NLAA. For 

Southern Oregon/Northern California 

Coasts (SONNC) coho salmon, as 

described in Appendix A to the BO, 

NMFS also concurred with EPA’s 

determination of NLAA. NMFS found 

no effect for four species of marine 

turtles, sperm whales, and sei whales 

because NMFS did not anticipate the 

species would be present in the action 

area. 

NMFS acknowledged in the BO that 

EPA’s action, designation of the 

Umpqua River Sites, does not authorize 

and will not itself result in disposal of 

dredged material. NMFS stated that it 

does not anticipate any take will be 

caused by the designation of the Sites 

and the adoption of the SMMP. 

Consequently, NMFS did not include an 

incidental take statement in the BO. 

Rather, NMFS stated that any further 

analysis of the effect of disposal of 

dredged material at the disposal sites 

and issuance of an incidental take 

statement with reasonable and prudent 

measures and non-discretionary terms 

and conditions to minimize take would 

be prepared when a disposal permit is 

requested by the action agency. NMFS 

did include a discretionary conservation 

recommendation in the BO seeking a 

study of fish interactions with disposed 

material. Such recommendations are 

purely advisory in nature. EPA 

appreciates that such a study could 

contribute to the scientific knowledge 

base but believes that NMFS, the expert 

Federal agency on fish behavior, would 

be better suited than EPA to carry out 

such a study. 

(5) NHPA 

EPA initiated consultation with the 

State of Oregon’s Historic Preservation 

Officer (SHPO) to address National 

Historic Preservation Act, as amended 

(NHPA), 16 U.S.C. 470 to 470a–2, which 

requires Federal agencies to take into 

account the effect of their actions on 

districts, sites, buildings, structures, or 

objects, included in, or eligible for 

inclusion in the National Register. EPA 

determined that no historic properties 

were affected, or would be affected, by 

designation of the Sites. EPA did not 

find any historic properties within the 

geographic area of the Sites. This 

determination was based on an 

extensive review of the National 

Register of Historic Districts in Oregon, 

the Oregon National Register list and an 

assessment of cultural resources near 

the Sites. Side scan sonar of the Sites 

did not reveal the presence of any 

shipwrecks or other cultural or historic 

properties. The SHPO responded to 

EPA’s determination on September 11, 

2008, without objection. The SHPO 

clarified on October 13, 2008, that the 

designation of the Sites did not require 

further archeological investigation. 

5. Action 

EPA designates the Umpqua River 

Sites as EPA-approved dredged material 

ocean disposal sites in this action. The 

monitoring and management 

requirements that will apply to these 

Sites are described in the final SMMP. 

EPA received one comment on the 

proposed rule from a commenter who 

objected to disposing of harmful 

material in the ocean. The Sites 

designated in this action are only 

available for the disposal of material 

deemed suitable for ocean disposal. The 

designation of ocean disposal sites for 

dredged material does not constitute or 

imply Corps or EPA approval of open 

water disposal of dredged material from 

any specific project. Before disposal of 

dredged material at either of the 

Umpqua River Sites may commence by 

any person, EPA and the Corps must 

evaluate the proposal according to the 

ocean dumping regulatory criteria (40 

CFR part 227) and authorize disposal. 

EPA independently evaluates proposed 

dumping in accordance with those 

criteria pursuant to 40 CFR part 225. 

EPA has the right to disapprove of the 

actual disposal of dredged material if 

EPA determines that environmental 

requirements under the MPRSA have 

not been met. 

6. Statutory and Executive Order 

Reviews 

This rule designates two ocean 

dredged material disposal sites pursuant 

to Section 102 of the MPRSA. This rule 

complies with applicable executive 

orders and statutory provisions as 

follows: 

(1) Executive Order 12866 

Under Executive Order 12866 (58 FR 

51735), the Agency must determine 

whether the regulatory action is 

‘‘significant,’’ and therefore subject to 

OMB review and the requirements of 

the Executive Order. The Executive 

Order defines ‘‘significant regulatory 

action’’ as one that is likely to result in 

a rule that may: (1) Have an annual 

effect on the economy of $100 million 

or more, or adversely affect in a material 

way, the economy, a sector of the 

economy, productivity, competition, 

jobs, the environment, public health or 


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safety, or State, local, or tribal 

governments or communities; (2) create 

a serious inconsistency or otherwise 

interfere with an action taken or 

planned by another agency; (3) 

materially alter the budgetary impact of 

entitlements, grants, user fees, or loan 

programs, or the rights and obligations 

of recipients thereof; or (4) raise novel 

legal or policy issues arising out of legal 

mandates, the President’s priorities, or 

the principles set forth in the Executive 

Order. EPA determined that this final 

rule is not a ‘‘significant regulatory 

action’’ under the terms of Executive 

Order 12866 and is therefore not subject 

to OMB review. 

(2) Paperwork Reduction Act 

This final 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. 

Burden means the total time, effort, or 

financial resources expended by persons 

to generate, maintain, retain, or disclose 

or provide information to or for a 

Federal agency. This includes the time 

needed to review instructions; develop, 

acquire, install, and utilize technology 

and systems for the purposes of 

collecting, validating, and verifying 

information, processing, and 

maintaining information, and disclosing 

and providing information; adjust the 

existing ways to comply with any 

previously applicable instructions and 

requirements; train personnel to be able 

to respond to a collection of 

information; search data sources; 

complete and review the collection of 

information; and transmit or otherwise 

disclose the information. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for EPA’s regulations in Title 

40 of the CFR are listed in 40 CFR Part 

9. 

(3) 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-forprofit enterprise which is independently 

owned and operated and is not 

dominant in its field. EPA determined 

that this final 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 rule, I certify that this action will 

not have a significant economic impact 

on a substantial number of small 

entities. 

(4) 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. 

(5) Executive Order 13132: Federalism 

Executive Order 13132, entitled 

‘‘Federalism’’ (64 FR 43255), 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 various levels of 

government.’’ This rule 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 rule. 

(6) Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This rule does not have tribal 

implications, as specified in Executive 

Order 13175 because the designation of 

the two ocean dredged material disposal 

Sites will not have a direct effect on 

Indian Tribes, on the relationship 

between the federal government and 

Indian Tribes, or on the distribution of 

power and responsibilities between the 

federal government and Indian tribes. 

Thus, Executive Order 13175 does not 

apply to this rule. Although Executive 

Order 13175 does not apply to this final 

rule, EPA consulted with tribal officials 

in the development of this rule, 

particularly as the rule relates to 

potential impacts to historic or cultural 

resources. 

(7) 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. The 

action concerns the designation of two 

ocean dredged material disposal Sites 

and only has the effect of providing 

designated locations to use for ocean 

disposal of dredged material pursuant to 

Section 102(c) of the MPRSA. 

(8) 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. 

(9) National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

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

directs EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 


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18656 Federal Register / Vol. 74, No. 78 / Friday, April 24, 2009 / Rules and Regulations 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus bodies. The 

NTTAA directs EPA to provide 

Congress, through OMB, explanations 

when the Agency decides not to use 

available and applicable voluntary 

consensus standards. This final action 

includes environmental monitoring and 

measurement as described in EPA’s 

final SMMP. EPA will not require the 

use of specific, prescribed analytic 

methods for monitoring and managing 

the designated Sites. The Agency plans 

to allow the use of any method, whether 

it constitutes a voluntary consensus 

standard or not, that meets the 

monitoring and measurement criteria 

discussed in the final SMMP. 

(10) 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 final 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. EPA 

has assessed the overall protectiveness 

of designating the disposal Sites against 

the criteria established pursuant to the 

MPRSA to ensure that any adverse 

impact to the environment will be 

mitigated to the greatest extent 

practicable. 

(11) 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 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 thirty days from the 

date of publication in the Federal 

Register. 

List of Subjects in 40 CFR Part 228 

Environmental protection, Water 

pollution control. 

Authority: This action is issued under the 

authority of Section 102 of the Marine 

Protection, Research, and Sanctuaries Act, as 

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

Dated: April 9, 2009. 

Michelle L. Pirzadeh, 

Acting Regional Administrator, Region 10. 

■ For the reasons set out in the 

preamble, chapter I, title 40 of the Code 

of Federal Regulations is amended as 

follows: 

PART 228—[AMENDED] 

■ 1. The authority citation for part 228 

continues to read as follows: 

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

■ 2. Section 228.15 is amended by 

adding paragraph (n)(7) to read as 

follows: 

§ 228.15 Dumping sites designated on a 

final basis. 

* * * * * 

(n) * * * 

(7) Umpqua River, OR—North and 

South Dredged Material Disposal Sites. 

(i) North Umpqua River Site. 

(A) Location: 43°41′23.09′′ N, 

124°14′20.28′′ W; 43°41′25.86′′ N, 

124°12′54.61′′ W; 43°40′43.62′′ N, 

124°14′17.85′′ W; 43°40′46.37′′ N, 

124°12′52.74′′ W. 

(B) Size: Approximately 1.92 

kilometers long and 1.22 kilometers 

wide, with a drop zone which is defined 

as a 500-foot setback inscribed within 

all sides of the site boundary, reducing 

the permissible disposal area to a zone 

5,300 feet long by 3,000 feet wide. 

(C) Depth: Ranges from approximately 

9 to 37 meters. 

(D) Primary Use: Dredged material. 

(E) Period of Use: Continuing Use. 

(F) Restrictions: (1) Disposal shall be 

limited to dredged material determined 

to be suitable for ocean disposal 

according to 40 CFR 227.13, from the 

Umpqua River navigation channel and 

adjacent areas; 

(2) Disposal shall be managed by the 

restrictions and requirements contained 

in the currently-approved Site 

Management and Monitoring Plan 

(SMMP); 

(3) Monitoring, as specified in the 

SMMP, is required. 

(ii) South Umpqua River Site. 

(A) Location: 43°39′32.31′′ N, 

124°14′35.60′′ W; 43°39′35.23′′ N, 

124°13′11.01′′ W; 43°38′53.08′′ N, 

124°14′32.94′′ W; 43°38′55.82′′ N, 

124°13′08.36′′ W. 

(B) Size: Approximately 1.92 

kilometers long and 1.22 kilometers 

wide, with a drop zone which is defined 

as a 500-foot setback inscribed within 

all sides of the site boundary, reducing 

the permissible disposal area to a zone 

5,300 feet long by 3,000 feet wide. 

(C) Depth: Ranges from approximately 

9 to 37 meters. 

(D) Primary Use: Dredged material. 

(E) Period of Use: Continuing Use. 

(F) Restrictions: (1) Disposal shall be 

limited to dredged material determined 

to be suitable for ocean disposal 

according to 40 CFR 227.13, from the 

Umpqua River navigation channel and 

adjacent areas; 

(2) Disposal shall be managed by the 

restrictions and requirements contained 

in the currently-approved Site 

Management and Monitoring Plan 

(SMMP); 

(3) Monitoring, as specified in the 

SMMP, is required. 

* * * * * 

[FR Doc. E9–9434 Filed 4–23–09; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Medicare & Medicaid 

Services 

42 CFR Parts 447 and 455 

[CMS–2198–F2] 

RIN–0938–AN09 

Medicaid Program; Disproportionate 

Share Hospital Payments; Correcting 

Amendment 

AGENCY: Centers for Medicare & 

Medicaid Services (CMS), HHS. 

ACTION: Final rule; correcting 

amendment. 

SUMMARY: This correcting amendment 

corrects a technical error in the 

regulations text in the final rule 

published in the Federal Register on 

December 19, 2008 (73 FR 77904) 

entitled, ‘‘Disproportionate Share 

Hospital Payments.’’ In that final rule, 

we set forth data elements necessary to 


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