Federal Register / Vol. 82, No. 183 / Friday, September 22, 2017 / Proposed Rules 44369 

802(f)(1)(D). Decisions of the Register are binding as 

precedent upon the Judges in proceedings 

subsequent to the Register’s opinion. Id. 

4The Joint Sports Claimants (JSC) consists of 

Major League Baseball, the National Basketball 

Association, the National Football League, the 

National Hockey League, and the Women’s National 

Basketball Association. 

5MLS asserted without evidence that it made 

‘‘attempts to join the JSC ‘‘on a formal basis,’’ but 

that it had ‘‘not yet been recognized as a JSC 

member.’’ MLS Comment at 2. 

6See Notice of Participant Groups . . . and 

Scheduling Order, Consolidated Proceeding No. 14– 

CRB–0010–CD (2010–13) (Nov. 25, 2015), Ex. A. By 

its terms, this order limited application of the 

agreed participant groups to the proceeding in 

which it was adopted. The Judges nonetheless 

consider the categories informative for purposes of 

determining distribution in the present proceeding. 

opinion, the Register concluded that 

‘‘nothing in the statute limits the 

[Judges] from considering comments 

filed by non-participants if those 

nonparticipant commenters argue that 

the proposed provisions are contrary to 

statutory law.’’ Id. According to the 

Register’s Opinion, which is binding 

precedent for the Judges, the Judges may 

decline to adopt portions of the agreed 

regulations that would be ‘‘contrary to 

the provisions of the applicable 

license(s) or otherwise contrary to 

statutory law.’’ Id. 

The Judges received two comments on 

the proposed rules before the June 

deadline. Joint Sports Claimants (JSC),4

participants and the proponents of the 

settlement, supported adoption of the 

final rule and offered a correction of a 

misstated cross reference within the 

rule. 

Major League Soccer, L.L.C. (MLS) 

also commented. In the present 

proceeding, MLS did not file a Petition 

to Participate; thus MLS is a not a 

participant.5 Nonetheless, MLS states 

that it would be ‘‘[a]ffected by these 

proposed rules and their terms.’’ MLS 

Comment at 2. MLS contends that, even 

though it is not a participant in this 

proceeding, it clearly meets the [Judges’] 

description of ‘Joint Sports Claimants’ 6

in that MLS owns copyrights in ‘‘live 

telecasts of professional teams’ sports 

broadcasts by U.S. and Canadian 

television stations. . . .’’ Id. As MLS 

asserted in its comment, the definition 

of ‘‘eligible professional sports event’’ 

‘‘unfairly excludes MLS, and any other 

[unnamed] eligible, professional league 

that broadcasts live team sports.’’ Id. at 

3. In its comment, MLS contends that its 

omission results in unfair treatment. Id. 

at 2, 4. 

According to MLS, ‘‘[s]ince JSC are 

representatives for, and custodians of 

the funds of, all programs falling within 

that agreed [Joint Sports Claimants] 

category, [JSC] should represent the 

interests of the entire category, not only 

those it deems members. The benefits of 

the regulation should apply to a [sic] 

who fall into the Joint Sports Claimants 

category.’’ Id. at 3. 

Although MLS generally states that 

adoption of the proposal would be 

unfair or inequitable to MLS and certain 

other omitted professional leagues that 

broadcast live team sports, MLS does 

not expressly contend that the proposal 

is ‘‘contrary to the provisions of the 

applicable license(s) or otherwise 

contrary to statutory law,’’ which, under 

the Register’s Opinion, would permit 

the Judges to decline to adopt portions 

of the agreed regulations. In the interests 

of developing a more complete record to 

support the Judges’ decision, however, 

the Judges seek further comment 

specifically addressing the issue of 

whether they must adopt the rules as 

contained in the settlement agreement 

and published for comment in May 

2017, consistent with Section 

801(b)(7)(A) of the Copyright Act, or 

whether any provision in the proposed 

rules is contrary to the provisions of the 

applicable license(s) or otherwise 

contrary to statutory law. 

The Judges hereby solicit Reply 

Comments limited to legal analysis of 

the issue as the Judges express it. Any 

party in interest may file Reply 

Comments addressing the issue the 

Judges present in this Notice. 

Commenters that believe any provision 

of the proposed rules is contrary to the 

provisions of the applicable license(s) or 

otherwise contrary to statutory law 

should specify the provision or 

provisions in question, explain why the 

provision(s) is contrary to the applicable 

license or applicable statutory law, and 

provide supporting legal analysis. Reply 

commenters should focus particular 

attention on whether any entities not 

expressly addressed in the proposal 

would nonetheless be bound by the 

rates and terms of the proposal or 

otherwise affected by the proposed rules 

and how, if at all, the affect should 

dictate action by the Judges. If any 

entities other than those expressly 

included in the proposed provisions are 

bound by the proposal, are the Judges 

effectively adopting a zero sports 

surcharge rate with respect to those 

entities? If so, what factors justify the 

different rates for the entities that would 

have a zero rate from those that would 

receive the proposed sports surcharge 

rate? 

Any commenter may thereafter file 

Surreply Comments addressing 

specifically the legal analysis of a party 

or parties filing Reply Comments. 

Dated: September 18, 2017. 

Suzanne M. Barnett, 

Chief U.S. Copyright Royalty Judge. 

[FR Doc. 2017–20190 Filed 9–21–17; 8:45 am] 

BILLING CODE 1410–72–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 228 

[EPA–R01–OW–2017–0528; FRL–9967–82– 

Region 1] 

Ocean Disposal; Temporary 

Modification of an Ocean Dredged 

Material Disposal Site in 

Massachusetts Bay 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve a 

temporary modification of the currentlydesignated Massachusetts Bay Dredged 

Material Disposal Site (MBDS) pursuant 

to the Marine Protection, Research, and 

Sanctuaries Act, as amended (MPRSA). 

The purpose of this temporary site 

modification is to allow for the 

environmental restoration of a particular 

area adjacent to the currently-designated 

MBDS (Potential Restoration Area) by 

temporarily expanding the boundaries 

of the existing MBDS. The temporary 

expansion is a circular area that 

contains the Potential Restoration Area, 

which includes most of the historic 

Industrial Waste Site (IWS). Decades 

ago, the IWS was used for the disposal 

of barrels containing industrial, 

chemical and radioactive waste, as well 

as for the disposal of munitions, 

ordnance, construction equipment, and 

contaminated dredged material. The 

proposed modification of the disposal 

site boundary will enable the U.S. Army 

Corps of Engineers (USACE) to place 

suitable dredged material from Boston 

Harbor generated during the Deep Draft 

Navigation Project at the Potential 

Restoration Area in order to cover the 

barrels and other wastes disposed there 

in the past. The Deep Draft Navigation 

Project includes maintenance dredging 

in the inner harbor, which includes the 

expansion of a confined aquatic 

disposal (CAD) cell and will generate 

approximately 1 million cubic yards 

(cy) of dredged material, as well as 

improvement dredging of the main ship 

channel, which will generate 

approximately 11 million cy of dredged 

material. The existing MBDS will 

continue to be used for disposal of other 

dredging projects as usual. The 

expansion area would be permanently 

44370 Federal Register / Vol. 82, No. 183 / Friday, September 22, 2017 / Proposed Rules 

closed upon completion of the Boston 

Harbor maintenance and improvement 

projects, while the existing MBDS will 

remain open for the disposal of suitable 

dredged material. Like the MBDS, 

however, the expansion would be 

subject to ongoing monitoring and 

management to ensure continued 

protection of the marine environment. 

DATES: Comments must be received on 

or before October 23, 2017. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R01– 

OW–2017–0528, at https://

www.regulations.gov. Follow the online 

instructions for submitting comments. 

Once submitted, comments cannot be 

edited or removed from Regulations.gov. 

The EPA may publish any comment 

received to its public docket. Do not 

submit electronically any information 

you consider to be Confidential 

Business Information (CBI) or other 

information whose disclosure is 

restricted by statute. Multimedia 

submissions (audio, video, etc.) must be 

accompanied by a written comment. 

The written comment is considered the 

official comment and should include 

discussion of all points you wish to 

make. The EPA will generally not 

consider comments or comment 

contents located outside of the primary 

submission (i.e., on the web, cloud, or 

other file sharing system). For 

additional submission methods, the full 

EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

https://www2.epa.gov/dockets/ 

commenting-epa-dockets. 

Docket: Publically available docket 

materials are available either 

electronically at regulations.gov or on 

the EPA Region 1 Ocean Dumping Web 

page at https://www.epa.gov/oceandumping/managing-ocean-dumpingepa-region-1. They are also available in 

hard copy during normal business hours 

at the EPA Region 1 Library, 5 Post 

Office Square, Boston, MA 02109. 

The supporting document for this site 

modification is the Draft Environmental 

Assessment on the Expansion of the 

Massachusetts Bay Ocean Dredged 

Material Disposal Site (ODMDS), 

September 2017, which was prepared by 

EPA. 

FOR FURTHER INFORMATION CONTACT: 

Alicia Grimaldi, U.S. Environmental 

Protection Agency, Region 1, 5 Post 

Office Square, Suite 100, Mail Code: 

OEP 6–1, Boston, MA 02109; 

telephone—(617) 918–1806; fax—(617) 

918–0806; email address— 

grimaldi.alicia@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Potentially Affected Persons 

The expansion of the MBDS is a 

temporary modification made in order 

to improve environmental conditions at 

the Potential Restoration Area by 

allowing suitable dredged material from 

the USACE Boston Harbor maintenance 

and improvement projects only to be 

placed over wastes dumped in the past 

at the historic IWS. Therefore, the 

persons potentially affected by this 

action would be limited to the USACE, 

who are responsible for the Boston 

Harbor Deep Draft Navigation Project 

and the disposal of dredged material 

into ocean waters under MPRSA. The 

existing MBDS will continue to be used 

for the disposal of dredged material 

suitable for ocean disposal pursuant to 

the MPRSA. 

II. Background 

A. History of Disposal Sites in 

Massachusetts Bay 

The IWS is a disposal site in 

Massachusetts Bay approximately 20 

nautical miles (nmi) east of Boston that 

was used in the past for disposal of a 

variety of wastes that would not be 

permitted for disposal today. The IWS is 

a circular cite with a center of 42°25.7′ 

N., 70°35.0′ W. and a radius of 1 nmi. 

It is believed that disposal of derelict 

vessels, construction debris, commercial 

waste, and dredged material at the area 

may have begun as early as the early 

1900s. There are records dating back to 

the 1940s for the disposal of radioactive, 

chemical and hospital waste, ordnance, 

munitions, etc. Use of the IWS was 

discontinued in 1977 and the site was 

officially de-designated in 1990 (55 FR 

3688). From 1977 through 1993, there 

was an Interim Massachusetts Bay 

Disposal Site for dredged material 

disposal with a center 1 nmi east of the 

IWS at 42°25.7′ N., 70°34.0′ W. and a 

radius of 1 nmi. In 1993, the existing 

MBDS was designated by EPA with a 

center at 42°25.1′ N., 70°35.0′ W. and a 

radius of 1 nmi, an area of 3.14 nmi2, 

and depth ranges from 82 to 92 m. The 

MBDS overlaps the IWS to the south, 

but avoids the known densest 

concentration of barrels, also known as 

the barrel field. The MBDS is used 

solely for the disposal of dredged 

material, primarily from Boston Harbor. 

The USACE will begin the Boston 

Harbor maintenance and improvement 

dredging projects in the fall of 2017. The 

project is expected to generate 

approximately 12 million cubic yards of 

dredged material consisting primarily of 

Boston blue clay. EPA and USACE are 

proposing to use this dredged material 

beneficially by covering the area in and 

around the historic IWS barrel field. 

This will be accomplished utilizing a 

method of disposal developed and 

tested by the USACE, which is designed 

to prevent direct impact of sediment 

onto waste containers, which could 

potentially break them or cause the 

resuspension of potentially 

contaminated sediment on the seafloor. 

Before any entity can dispose of 

dredged material at the MBDS, EPA and 

the USACE must evaluate the project 

according to the ocean dumping 

regulatory criteria (40 CFR 227) and 

determine whether to authorize the 

disposal. EPA independently evaluates 

proposed disposal projects and has the 

right to restrict and/or reject the 

disposal of dredged material if it 

determines that the environmental 

protection requirements under the 

MPRSA have not been met. This 

proposed modification to the MBDS site 

boundaries does not constitute an 

approval by EPA or USACE for open 

water disposal of dredged material from 

any specific project. 

B. Location and Configuration of 

Modified Ocean Dredged Material 

Disposal Site 

EPA proposes the temporary 

expansion of the MBDS boundaries to 

include the Potential Restoration Area, 

which encompasses the IWS barrel 

field. The expansion will be temporary, 

opening upon the effective date of the 

Final Rule and closing upon completion 

of the Boston Harbor maintenance and 

improvement dredging projects. The 

temporarily expanded site will consist 

of two overlapping circles: 

• Center 1—42°25.1′ N., 70°35.0′ W., 1 

nautical mile radius (existing MBDS) 

• Center 2—42°26.417′ N., 70°35.373′ 

W., 0.75 nautical mile radius 

(temporary expansion) 

The area of the temporarily modified 

MBDS is 4.60 nmi2 and the western 

edge is approximately 19 nmi east of 

Boston. Water depths at the modified 

site range from 70 to 91m. Like the 

existing MBDS, the modified MBDS will 

not overlap, and is not expected to 

impact, the Stellwagen Bank National 

Marine Sanctuary (SBNMS). 

C. Management and Monitoring of the 

Site 

Under the proposal, there would be 

two distinct areas of the modified 

MBDS: The existing MBDS and the 

temporary expansion. The existing 

MBDS will continue to be utilized as a 

dredged material disposal site for those 

projects generating dredged material 

suitable for open water disposal under 

the MPRSA. The temporary expansion 

will solely be used for the disposal of 

Federal Register / Vol. 82, No. 183 / Friday, September 22, 2017 / Proposed Rules 44371 

suitable material generated during the 

Boston Harbor maintenance and 

improvement dredging projects. 

Disposal of dredged material in both the 

existing MBDS and temporary 

expansion would be required to abide 

by the Site Management and Monitoring 

Plan (SMMP) for the MBDS. The SMMP 

includes management and monitoring 

requirements to ensure that the any 

dredged material placed at the sites is 

suitable for ocean disposal and that the 

adverse impacts of disposal, if any, are 

addressed to the maximum extent 

practicable. The SMMP for the MBDS 

includes restrictions on time-of-year for 

disposal and disposal vessel speeds, 

requirements for the presence of a 

marine mammal observer for each 

disposal event, and other guidelines to 

minimize any potential conflicts with 

threatened or endangered species. 

D. MPRSA Criteria 

EPA has assessed the proposed 

temporary modification to the MBDS 

according to the criteria of the MPRSA, 

with particular emphasis on the general 

and specific regulatory criteria of 40 

CFR 228.5 and 228.6, to determine 

whether the proposed site modification 

satisfied those criteria. The Draft 

Environmental Assessment of the 

Expansion of the Massachusetts Bay 

Ocean Dredged Material Disposal Site 

(ODMDS) provides an extensive 

evaluation of the site selection criteria 

and other related factors considered in 

deciding to propose the modification of 

the MBDS. 

1. General Criteria (40 CFR 228.5) 

(a) The dumping of materials into the 

ocean will be permitted only at sites or 

in areas selected to minimize the 

interference of disposal activities with 

other activities in the marine 

environment, particularly avoiding 

areas of existing fisheries or 

shellfisheries, and regions of heavy 

commercial or recreational navigation. 

Since it’s designation in 1993, 

disposal at the MBDS has not interfered 

with other activities in the marine 

environment. It is anticipated that this 

will also be the case for the temporarily 

modified MBDS. The IWS has been 

closed by the National Oceanic and 

Atmospheric Administration’s (NOAA) 

National Marine Fisheries Service 

(NMFS) since 1980 to the harvesting of 

surf clams and ocean quahogs. There is 

also a warning from NOAA and the 

Food and Drug Administration (FDA) on 

all nautical charts against harvesting 

fish and shellfish in the area. The 

expanded MBDS area has low 

recreational boater density and does not 

overlap with the shipping lanes into and 

out of Boston Harbor. 

(b) Locations and boundaries of 

disposal sites will be so chosen that 

temporary perturbations in water 

quality or other environmental 

conditions during initial mixing caused 

by disposal operations anywhere within 

the site can be expected to be reduced 

to normal ambient seawater levels or to 

undetectable contaminant 

concentrations or effects before reaching 

any beach, shoreline, marine sanctuary, 

or known geographically limited fishery 

or shellfishery. 

The modified MBDS will be used only 

for dredged material suitable for ocean 

disposal under the MPRSA. USACE also 

models disposal projects to evaluate 

their potential to violate water quality 

standards. The nearest shoreline to the 

modified MBDS is approximately 8 nmi 

to the north. The prevailing current is 

not expected to transport dredged 

material to surrounding beaches or 

shores. Temporary changes caused by 

the physical movement of sediment 

through the water column will be 

reduced to ambient conditions before 

reaching any environmentally sensitive 

area. SBNMS is immediately east of the 

site, but a steep bathymetric rise 

between the two features provides 

containment of dredged material in the 

deeper area containing the modified 

MBDS, known as Stellwagen Basin. 

There are no known geographicallylimited fisheries or shellfisheries in the 

project area. 

(d) The sizes of ocean disposal sites 

will be limited in order to localize for 

identification and control any 

immediate adverse impacts and permit 

the implementation of effective 

monitoring and surveillance programs 

to prevent adverse long-range impacts. 

The size, configuration, and location of 

any disposal site will be determined as 

a part of the disposal site evaluation or 

designation study. 

The size and configuration of the 

temporarily modified MBDS is 

specifically designed to allow for the 

IWS barrel field to be covered by 

suitable dredged material generated 

during the USACE Boston Harbor 

maintenance and improvement projects. 

The MBDS area has been monitored 

under the USACE Disposal Area 

Monitoring System (DAMOS) program 

since the late 1970s. Monitoring will 

continue at the MBDS and temporary 

expansion to prevent adverse long-range 

impacts. 

(e) EPA will, wherever feasible, 

designate ocean dumping sites beyond 

the edge of the continental shelf and 

other such sites that have been 

historically used. 

The continental shelf is over 220 nmi 

east of Boston. Therefore, transporting 

material to, and performing long-term 

monitoring at, a site located off the 

continental shelf is not economically or 

operationally feasible. The project area 

has been used for ocean disposal since 

at least the early 1900s. 

2. Specific Criteria (40 CFR 228.6(a)) 

(1) Geographical position, depth of 

water, bottom topography and distance 

from coast. 

The temporarily expanded MBDS is 

located in an area of Massachusetts Bay 

known as Stellwagen Basin and is 

approximately 8 nmi from the nearest 

coastline in Gloucester, MA. The depth 

of the temporarily expanded site ranges 

from 70–91 meters. The seafloor in the 

area is primarily flat and primarily 

made up of silt and clay. There are two 

glacial knolls included within the 

boundaries of the temporary expansion, 

both roughly 20 m high. These knolls 

are not included in the Potential 

Restoration Area and, therefore, no 

disposal will take place on them. 

(2) Location in relation to breeding, 

spawning, nursery, feeding, or passage 

areas of living resources in adult or 

juvenile phases. 

The MBDS area contains Essential 

Fish Habitat (EFH) for various fish 

species, and certain threatened and 

endangered species of whale and sea 

turtle have been sighted in the vicinity 

of the MBDS. Furthermore, the entirety 

of Massachusetts Bay, and most of the 

larger Gulf of Maine, are designated as 

a critical foraging habitat for the North 

Atlantic Right Whale by NMFS. At the 

same time, NMFS has previously 

determined that dredged material 

disposal at the MBDS would not impact 

any of these species and restrictions are 

in place to ensure their safety, including 

vessel speed and disposal time-of-year 

limitations and the requirement that 

marine mammal observers accompany 

the USACE on vessels during disposal 

operations. Furthermore, any risk of 

contaminants entering the food web is 

expected to be minimized by the 

covering of the IWS barrel field. 

(3) Location in relation to beaches 

and other amenity areas. 

The closest beach to the temporarily 

expanded MBDS is 10 nmi away. The 

SBNMS is just east of the MBDS. Past 

dredged material disposal has not 

impacted the SBNMS and no impact to 

the SBNMS is expected with the 

temporary expansion of the MBDS. 

(4) Types and quantities of wastes 

proposed to be disposed of, and 

proposed methods of release, including 

methods of packing the waste, if any. 

44372 Federal Register / Vol. 82, No. 183 / Friday, September 22, 2017 / Proposed Rules 

The MBDS is only to be used for the 

disposal of dredged material that is 

suitable for ocean disposal under the 

MPRSA. The temporary expansion of 

the MBDS will only be used for suitable 

dredged material generated during the 

USACE Boston Harbor maintenance and 

navigation projects. Disposal within the 

temporary expansion will utilize a 

berm-building technique devised by the 

USACE in order to minimize the risk of 

barrel breakage or resuspension of 

potentially contaminated seafloor 

sediment. 

(5) Feasibility of surveillance and 

monitoring. 

The MBDS is monitored through the 

DAMOS program under the guidance of 

the SMMP. Disposal is also monitored 

through the National Dredging Quality 

Management Program to confirm 

accurate placement of dredged material. 

The area of temporary expansion will be 

included in the monitoring of the MBDS 

under the DAMOS program from the 

time of first disposal for as long as 

MBDS monitoring continues. 

(6) Dispersal, horizontal transport and 

vertical mixing characteristics of the 

area, including prevailing current 

direction and velocity, if any. 

Current velocities range from 0–30 

cm/s in the MBDS area. Currents are 

influenced by tides in a rotational 

manner, but net water movement is to 

the southeast. Regional dredged material 

is primarily made up of fine sand, silt, 

and clay. Dredged material generated 

during the USACE Boston Harbor 

maintenance and improvement projects 

is primarily Boston blue clay, which is 

cohesive and, therefore, settles rapidly. 

Minimal horizontal mixing or vertical 

stratification of dredged material occurs, 

resulting in low suspended sediment 

concentrations. Previous modeling of 

initial disposal indicates no adverse 

impacts in the water column or 

violations of water quality criteria. 

Previous studies have demonstrated the 

relative immobility of dredged material 

at the MBDS. Storms with the potential 

to cause sediment resuspension are rare 

in Massachusetts Bay. 

(7) Existence and effects of current 

and previous discharges and dumping 

in the area (including cumulative 

effects). 

Beginning in the early 1900s, the 

historic IWS was used for the disposal 

of industrial, chemical, medical, lowlevel radioactive, and other hazardous 

wastes, in addition to contaminated 

dredged material, construction debris, 

derelict vessels, etc. An Interim MBDS 

was designated in 1977 for the disposal 

of dredged material and it was closed in 

1993, which is when the existing MBDS 

was designated. Studies and monitoring 

of the area have shown no significant 

impacts on water quality, sediment 

quality, or marine resources. More 

information regarding the effects of 

disposal in the area can be found in the 

Draft Environmental Assessment on the 

Expansion of the Massachusetts Bay 

Ocean Dredged Material Disposal Site. 

The berm-building disposal technique 

designed by USACE is intended to limit 

the resuspension of potentially 

contaminated seafloor sediment or 

hazardous materials in the area. 

Furthermore, placing dredged material 

generated during the USACE Boston 

Harbor maintenance and improvement 

projects on top of potentially 

contaminated materials dumped at the 

IWS in the past will isolate these 

potential contaminants under a 

protective layer of suitable sediments, 

consisting primarily of clay. 

(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. 

Extensive shipping, fishing, 

recreational, and scientific research 

activities take place in Massachusetts 

Bay throughout the year. Dredged 

material disposal operations at the 

MBDS have not interfered with these 

activities and the temporary expansion 

of the MBDS would also not interfere 

with these activities. Due to the 

hazardous nature of material historically 

disposed in the IWS, a warning to 

fishermen against fishing and 

shellfishing in the area is already 

included on all nautical charts and the 

area is closed for the harvesting of ocean 

quahogs and surf clams. Therefore, 

disposal operations in the area would 

not interfere with any existing fishing 

activity. 

(9) The existing water quality and 

ecology of the site as determined by 

available data or by trend assessment or 

baseline surveys. 

Monitoring at the disposal area has 

taken place since the late 1970s under 

the DAMOS program. Surveys at the 

MBDS have detected no significant 

differences in water quality or biological 

characteristics in the disposal site and 

adjacent reference areas. A Baseline 

Seafloor Assessment Survey for the 

Proposed Expansion of the MBDS was 

completed by the USACE in 

anticipation of this project and it is 

available on the USACE DAMOS site at 

http://www.nae.usace.army.mil/ 

Missions/Disposal-Area-MonitoringSystem-DAMOS/. 

(10) Potentiality for the development 

or recruitment of nuisance species in 

the disposal site. 

There are no known components of 

dredged material or consequences of its 

disposal that would attract or result in 

the recruitment or development of 

nuisance species at the expanded 

MBDS. Nuisance species have not been 

detected in any survey of the area. 

(11) Existence at or in close proximity 

to the site of any significant natural or 

cultural features of historical 

importance. 

There are two known shipwrecks 

within the boundaries of the existing 

MBDS: A Coast Guard vessel and a 55- 

foot fishing boat. Both were 

intentionally sunk in 1981 and are not 

considered to be historically significant. 

Additional shipwrecks have been 

revealed in the area during subsequent 

surveys, although there are no identified 

shipwrecks within the Potential 

Restoration Area. Disposal operations 

have avoided and will continue to avoid 

any shipwrecks in the project area by 

implementing a fifty-meter buffer 

around known shipwrecks within 

which no disposal will occur. 

III. Environmental Statutory Review 

A. National Environmental Policy Act 

(NEPA) 

Section 102 of the National 

Environmental Policy Act of 1969, as 

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

4370f, requires Federal agencies to 

prepare an Environmental Impact 

Statement (EIS) for major federal actions 

significantly affecting the quality of the 

human environment. NEPA does not 

apply to EPA designations of ocean 

disposal sites under the MPRSA because 

EPA’s actions under the MPRSA are 

exempt from the procedural 

requirements of NEPA through the 

functional equivalence doctrine. 

Nevertheless, as a matter of policy, EPA 

undertakes a NEPA review for certain of 

its regulatory actions, including the 

designation of dredged material disposal 

sites under Section 102 of the MPRSA. 

The EPA’s ‘‘Notice of Policy and 

Procedures for Voluntary Preparation of 

NEPA Documents’’ (Voluntary NEPA 

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

sets out both the policy and procedures 

the EPA uses when preparing such 

environmental review documents. 

The EPA’s primary voluntary NEPA 

document addressing the proposed 

temporary expansion of the MBDS is the 

Draft Environmental Assessment on the 

Expansion of the Massachusetts Bay 

Ocean Dredged Material Disposal Site 

(ODMDS) [September 2017] (Draft EA), 

prepared by EPA in cooperation with 

USACE. Anyone desiring a copy of the 

Draft EA may obtain one using the 

methods provided above in the Docket 

Federal Register / Vol. 82, No. 183 / Friday, September 22, 2017 / Proposed Rules 44373 

section. The comment period for the 

Draft EA runs concurrently with the 

comment period for this Proposed Rule. 

The Draft EA provides the threshold 

environmental review for the temporary 

modification of the MBDS. Information 

from the Draft EA is used in the above 

discussion of the ocean dumping 

criteria. 

The proposed action discussed in the 

Draft EA is the temporary modification 

of the MBDS. The purpose of this 

proposed action is to physically isolate 

potentially contaminated material 

dumped at the IWS in the past by 

placing suitable dredged material 

generated during the USACE’s Boston 

Harbor maintenance and navigation 

projects. By covering much or all of the 

barrel field in and around the historic 

IWS, environmental conditions at the 

site will be improved. 

USACE and EPA will continue to 

evaluate all federal dredged material 

disposal projects in the MBDS pursuant 

to the EPA criteria set forth in the Ocean 

Dumping Regulations (40 CFR 220–229) 

and the USACE regulations (33 CFR 

209.129 and 335–338). After compliance 

with regulations is determined, USACE 

issues MPRSA permits to applicants for 

the transport of dredged material 

intended for disposal. Under Section 

103(c) of the MPRSA, EPA can 

disapprove or add conditions to a 

project proposing the ocean disposal of 

dredged material if, in its judgement, 

the relevant regulatory criteria would 

not be met. 

The following alternatives were 

considered, but eliminated from 

detailed evaluation, in the Draft EA: 

1. Geographic Alternative 2: Expansion 

Into Historic IWS 

This Geographic Alternative would 

have expanded the MBDS only to the 

legal boundaries of the historic IWS. 

The modified site would consist of two 

overlapping circles, both with a radius 

of 1 nmi centered at 42°25.1′ N., 

70°35.0′ W. (MBDS) and 42°25.7′ N., 

70°35.0′ W. (IWS). This Alternative 

would have increased the size of the 

MBDS from 3.14 nmi2 to 4.13 nmi2. The 

western boundary of the modified site 

would have been only 0.02 nmi from the 

SBNMS. It also would not have 

included a large portion of the barrel 

field located just north of its boundaries, 

leaving part of the Potential Restoration 

Area with its waste barrels and 

potentially contaminated sediment 

exposed on the seafloor. As a result, 

EPA rejected this alternative. 

2. Temporal Alternative 2: Expansion 

for Three Years 

This Temporal Alternative would 

have limited the expansion of the MBDS 

to a three-year period, opening with the 

publication of the Final Rule for the site 

modification and closing exactly three 

years later. The Boston Harbor Deep 

Draft Navigation Project is contingent on 

the availability of funding, various 

approvals, technical planning, weather, 

etc., making it difficult to estimate the 

duration of the project. This uncertainty 

could lead to delays in the maintenance 

and improvement dredging and cause 

the MBDS expansion to close before the 

dredging project is complete. This could 

leave a portion of the Potential 

Restoration Area uncovered. The 

remaining dredged material would be 

disposed in the existing MBDS instead 

of being used beneficially. For these 

reasons, EPA rejected this option. 

3. Temporal Alternative 3: Permanent 

Expansion 

This Temporal Alternative would 

permanently expand the boundaries of 

the MBDS. The dredged material from 

the Boston Harbor maintenance and 

navigation projects would be disposed 

in the expansion, covering the Potential 

Restoration Area. Once that disposal is 

complete, the expansion could be used 

in the future for dredged material 

generated in other projects. Careful 

planning to ensure dredged material is 

not disposed directly onto waste 

containers or potentially contaminated 

seafloor sediment is necessary. In order 

to limit this risk, it would be preferable 

to cease disposal in the expansion after 

the restoration project in the event that 

individual barrels remain exposed. In 

addition, EPA site selection criteria 

favor minimizing the size of disposal 

sites, in general. See 40 CFR 228.5(d). 

Therefore, once the potentially 

contaminated materials are covered, 

EPA favors changing MBDS site 

boundaries back to their earlier 

configuration. 

4. No Action Alternative 

Under the No Action Alternative, the 

dredged material generated during the 

Boston Harbor maintenance and 

improvement projects would not be 

used beneficially to cover the barrel 

field in and around the historic IWS. It 

would, instead, continue to be disposed 

in the existing MBDS in multiple 

mounds. 

5. Preferred Alternative 

The Preferred Geographic and 

Temporal Alternative would expand the 

boundaries of the MBDS for the entire 

duration of the Boston Harbor Deep 

Draft Navigation Project. This temporary 

expansion consists of two overlapping 

circles: 42°25.1′ N., 70°35.0′ W. with a 

1 nautical mile radius (MBDS) and 

42°26.417′ N., 70°35.373′ W. with a 0.75 

nautical mile radius (expansion). This 

area contains the entirety of the 

Potential Restoration Area, which 

means that the barrel field can be 

covered. Keeping the expansion open 

only during the Boston Harbor 

maintenance and improvement projects 

ensures that all of the suitable dredged 

material can be used beneficially over 

the Potential Restoration Area and the 

area will not be subject to future 

disposal with the potential to disturb 

potentially contaminated areas outside 

the Potential Restoration Area. For these 

reasons, a site restriction is being put in 

place directing that the expansion only 

be used for the disposal of suitable 

dredged material from the Boston 

Harbor Deep Draft Navigation Project 

using the berm-building technique 

designed by the Corps and will 

automatically close upon the 

completion of that Project. 

The Draft EA presents the information 

needed to evaluate the suitability of the 

proposed modification and is based on 

a series of disposal site environmental 

studies. The environmental studies and 

final designation were and are being 

conducted in accordance with the 

requirements of MPRSA, the Ocean 

Dumping Regulations, and other 

applicable Federal environmental 

legislation. 

B. Magnuson-Stevens Fishery 

Conservation & Management Act (MSA) 

EPA has integrated the EFH 

assessment into the Draft EA, pursuant 

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

of the Magnuson-Stevens Act, as 

amended (MSA), 16 U.S.C. 1801–1891d. 

EPA is coordinating with NMFS to 

ensure compliance with EFH provisions 

and will attempt to incorporate any 

conservation recommendations from 

NMFS. 

C. Coastal Zone Management Act 

(CZMA) 

EPA has determined that the 

proposed modification of the MBDS is 

consistent to the maximum extent 

practicable with the enforceable policies 

of the Massachusetts coastal 

management program and has submitted 

this determination to the State for 

review in accordance with the CZMA. 

D. Endangered Species Act (ESA) 

The Endangered Species Act, as 

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

requires Federal agencies to consult 

with NMFS and the Fish & Wildlife 

44374 Federal Register / Vol. 82, No. 183 / Friday, September 22, 2017 / Proposed Rules 

Service (FWS) to ensure that any action 

authorized, funded, or carried out by the 

Federal agency is not likely to 

jeopardize the continued existence of 

any endangered species or threatened 

species or result in the destruction or 

adverse modification of any critical 

habitat. The EPA incorporated an 

assessment of the potential effects of 

temporarily modifying the MBDS on 

aquatic and wildlife species, including 

any species listed under the ESA, into 

the Draft EA, and EPA has submitted 

that document to NMFS and FWS. EPA 

concluded that the proposed action 

would not affect any threatened or 

endangered species, nor would it 

adversely modify any designated critical 

habitat. EPA is coordinating with NMFS 

and FWS to ensure compliance with the 

ESA. 

E. National Historic Preservation Act 

(NHPA) 

The National Historic Preservation 

Act, as amended (NHPA), 16 U.S.C. 470 

to 470a–2, 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 of Historical Places. EPA is 

coordinating with the Massachusetts 

State Historic Preservation Officer 

(SHPO) to ensure compliance with 

NHPA. 

IV. Statutory and Executive Order 

Reviews 

This rulemaking proposes the 

modification of an ODMDS pursuant to 

Section 102 of the MPRSA. This 

proposed action complies with 

applicable Executive Orders and 

statutory provisions as follows: 

A. Executive Order 12866: Regulatory 

Planning and Review; Executive Order 

13563: Improving Regulation and 

Regulatory Review 

This proposed action is not a 

‘‘significant regulatory action’’ under 

the terms of Executive Order 12866 (58 

FR 51735, October 3, 1993) and is, 

therefore, not subject to review under 

Executive Orders 12866 and 13563 (76 

FR 3821, January 21, 2011). 

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. This 

proposed site modification does not 

require persons to obtain, maintain, 

retain, report, or publically disclose 

information to or for a Federal agency. 

C. Regulatory Flexibility Act 

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 

(businesses, organizations, or 

jurisdictions). EPA has determined that 

this proposed action will not have a 

significant economic impact on small 

entities. 

D. Unfunded Mandates Reform Act 

This proposed action contains no 

Federal mandates under the provisions 

of Title II of the Unfunded Mandates 

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

1531 to 1538, for State, local, or tribal 

governments or the private sector. This 

action imposes no new enforceable duty 

on any State, local or tribal governments 

or the private sector. Therefore, this 

action is not subject to the requirements 

of sections 202 or 205 of the UMRA. 

This action is also not subject to the 

requirements of section 203 of the 

UMRA because it contains no regulatory 

requirements that might significantly or 

uniquely affect small government 

entities. Those entities are already 

subject to existing permitting 

requirements for the disposal of dredged 

material in ocean waters. 

E. Executive Order 13132: Federalism 

This proposed action does not have 

federalism implications. It does not 

have substantial direct effects on the 

States, on the relationship between the 

national government and the States, or 

on the distribution of power and 

responsibilities among various levels of 

government, as specified in Executive 

Order 13132. Thus, Executive Order 

13132 does not apply to this action. In 

the spirit of Executive Order 13132, and 

consistent with EPA policy to promote 

communications between the EPA and 

State and local governments, EPA has 

coordinated with, and specifically 

solicited comments from, State and 

local officials with regard to this 

proposed action. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This proposed action does not have 

tribal implications, as specified in 

Executive Order 13175. The 

modification of the MBDS 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 & 

Safety Risks 

This action is not subject to Executive 

Order 13045 because it is not 

economically significant as defined in 

Executive Order 12866 and because the 

EPA does not believe the environmental 

health or safety risks addressed by this 

action present a disproportionate risk to 

children. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This proposed action is not subject to 

Executive Order 13211 (66 FR 28355) 

because it is not a ‘‘significant 

regulatory action’’ as defined under 

Executive Order 12866. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

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

the EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards that 

are developed or adopted by voluntary 

consensus bodies. The NTTAA directs 

the EPA to provide Congress, through 

OMB, explanations when the Agency 

decides not to use available and 

applicable voluntary consensus 

standards. This proposed action 

includes environmental monitoring and 

measurement as described in the MBDS 

SMMP. The EPA will not require the 

use of specific, prescribed analytic 

methods for monitoring and managing 

the MBDS. EPA 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 

SMMP. 

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 

Federal Register / Vol. 82, No. 183 / Friday, September 22, 2017 / Proposed Rules 44375 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. The 

EPA determined that this proposed rule 

will not have disproportionately high 

and adverse human health or 

environmental effects on minority or 

low-income populations. This action is 

expected to be protective of human 

health because the potential 

contaminants within the Potential 

Restoration Area will be isolated under 

a protective layer of sediment. This 

should help prevent any accidental 

recovery of barrels by fishermen and 

prevent contaminants from the historic 

disposal from entering the food web. 

The EPA has assessed the overall 

protectiveness of modifying the MBDS 

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. Indeed, no adverse impacts 

are expected. The proposed action is 

expected to improve environmental 

conditions in Massachusetts Bay by 

enabling contaminated material dumped 

at the IWS in the past to be covered with 

suitable dredged material so as to isolate 

the former from the environment. 

K. Executive Order 13158: Marine 

Protected Areas 

Executive Order 13158 (65 FR 34909, 

May 31, 2000) requires EPA to 

‘‘expeditiously propose new sciencebased regulations, as necessary, to 

ensure appropriate levels of protection 

for the marine environment.’’ EPA may 

take action to enhance or expand 

protection of existing marine protected 

areas and to establish or recommend, as 

appropriate, new marine protected 

areas. The purpose of the Executive 

Order is to protect the significant 

natural and cultural resources with the 

marine environment, which includes, 

‘‘those areas of coastal and ocean 

waters, the Great Lakes and their 

connecting waters, and submerged lands 

thereunder, over which the United 

States exercises jurisdiction, consistent 

with international law.’’ 

EPA anticipates that the proposed 

action will afford additional protection 

to the waters of Massachusetts Bay and 

organisms that inhabit them. By 

covering the barrel field and 

surrounding seafloor sediment of the 

historic IWS, potential contaminants 

should be prevented from entering the 

water column or food web in 

Massachusetts Bay. 

L. Executive Order 13547: Stewardship 

of the Ocean, Our Coasts, and the Great 

Lakes 

Section 6(a)(i) of Executive Order 

13547, (75 FR 43023, July 19, 2010) 

requires, among other things, EPA and 

certain other agencies ‘‘. . . to the 

fullest extent consistent with applicable 

law [to] . . . take such action as 

necessary to implement the policy set 

forth in section 2 of this order and the 

stewardship principles and national 

priority objectives as set forth in the 

Final Recommendations and subsequent 

guidance from the Council.’’ The 

policies in section 2 of Executive Order 

13547 include, among other things, the 

following: ‘‘. . . it is the policy of the 

United States to: (i) Protect, maintain, 

and restore the health and biological 

diversity of ocean, coastal, and Great 

Lakes ecosystems and resources; [and] 

(ii) improve the resiliency of ocean, 

coastal, and Great Lakes ecosystems, 

communities, and economies. . . . ’’ As 

with Executive Order 13158 (Marine 

Protected Areas), the overall purpose of 

the Executive Order is to promote 

protection of ocean and coastal 

environmental resources. 

EPA anticipates that the proposed 

action will afford additional protection 

to the waters of Massachusetts Bay and 

organisms that inhabit them. By 

covering the barrel field and 

surrounding seafloor sediment of the 

historic IWS, potential contaminants 

should be prevented from entering the 

water column or food web in 

Massachusetts Bay. 

M. Executive Order 13771 Reducing 

Regulation and Controlling Regulatory 

Costs 

This proposed action would not be a 

‘‘significant regulatory action’’ under 

the terms of Executive Order 12866 (58 

FR 51735, October 3, 1993) and is, 

therefore, not subject to review under 

Executive Order 13771. See OMB, 

‘‘Guidance Implementing Executive 

Order 13771, Titled ‘‘Reducing 

Regulation and Controlling Regulatory 

Costs’’ (M–17–21) (April 5, 2017), p. 3 

(‘‘An ‘EO 13771 Regulatory Action’ is: 

(i) A significant regulatory action as 

defined in section 3(f) of EO 12866 that 

has been finalized and that imposes 

total costs greater than zero . . . .’’). 

List of Subjects in 40 CFR Part 228 

Environmental protection, Water 

pollution control. 

Dated: September 6, 2017. 

Deborah A. Szaro, 

Acting Regional Administrator, EPA Region 

1. 

For the reasons stated in the 

preamble, title 40, Chapter I, of the Code 

of Federal Regulations is proposed to be 

amended 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. 

■ 2. Amend § 228.15 by revising 

paragraphs (b)(2)(i),)(ii), (iii), and (vi) to 

read as follows: 

§ 228.15 Dumping sites designated on a 

final basis. 

* * * * * 

(b) * * * 

(2) * * * 

(i) Location: Two overlapping circles: 

Center of existing MBDS: 42°25.1′ N., 

70°35.0′ W., 1 nautical mile radius; 

Center of temporary expansion: 

42°26.417′ N., 70°35.373′ W., 0.75 

nautical mile radius (NAD 1983). 

(ii) Size: 4.60 sq. nautical miles. 

(iii) Depth: Range from 70 to 91 

meters. 

* * * * * 

(vi) Restriction: Disposal shall be 

limited to dredged material which meets 

the requirements of the MPRSA and its 

accompanying regulations. Disposaland-capping is prohibited at the MBDS 

until its efficacy can be effectively 

demonstrated. The temporary expansion 

of the MBDS shall be used solely for the 

disposal of suitable dredged material 

generated during the Boston Harbor 

Deep Draft Navigation Project using the 

berm-building method devised and 

tested by the U.S. Army Corps of 

Engineers. The temporary expansion 

will automatically close upon 

completion of the Boston Harbor Deep 

Draft Navigation Project. 

* * * * * 

[FR Doc. 2017–20326 Filed 9–21–17; 8:45 am] 

BILLING CODE 6560–50–P