AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is taking final action to correct technical inaccuracies in its ocean dumping regulations that have been identified since the original publication. The EPA does not intend to alter the interpretation of existing rules or subsequent revisions, but merely to make ministerial corrections and updates to the Code of Federal Regulations (CFR).

DATES:

This rule is effective on August 1, 2019.

FOR FURTHER INFORMATION CONTACT:

Brittany Bennett, Oceans, Wetlands, and Communities Division, Freshwater and Marine Regulatory Branch (4504T), Environmental Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460; telephone number: 202-564-1896; fax number: 202-566-1546; email address: bennett.brittany@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Why is the EPA taking this action?

The EPA is publishing this rule to correct inaccurate text in the CFR that has been identified since the original publication. This action will prevent confusion regarding dumping at designated ocean dumping sites and ensure that the regulations contain the correct information. Specifically, the EPA intends to eliminate confusion regarding the applicable coordinate datum for ocean dumping sites, to correct formatting of coordinates for ocean dumping sites, to clarify the name of one ocean dumping site, to correctly specify the size of one ocean dumping site, to update several out-of-date addresses and names of EPA organizational units, and to correct a typographical error. In addition, the EPA is explaining the circumstances when email is an acceptable method for MPRSA reporting.

II. What is the EPA's authority for taking this action?

The EPA is taking this action to implement the Marine Protection, Research, and Sanctuaries Act (MPRSA) of 1972, as amended, sometimes referred to as the Ocean Dumping Act. The MPRSA section 108, 33 U.S.C. 1418, authorizes the EPA to issues such regulations to carry out its responsibilities conferred under the MPRSA. The MPRSA regulates the disposition of any material into ocean waters, unless expressly excluded under the MPRSA. Section 101 of the MPRSA (33 U.S.C. 1411) generally prohibits the transportation of any material for the purpose of dumping, except as authorized by a permit. Under the MPRSA, no permit may be issued for ocean dumping where such dumping will unreasonably degrade or endanger human health, welfare, or amenities, or the marine environment, ecological systems, or economic potentialities. Most material disposed of in the ocean today is dredged material (i.e., sediments) removed from the bottom of waterways to maintain navigation channels and berthing areas. Other materials that are currently disposed of in the ocean include fish wastes, human remains, marine mammal carcasses, ice piers in Antarctica, and vessels. Ocean dumping cannot occur except pursuant to a permit under the MPRSA and its implementing regulations.

Under the MPRSA, the EPA is responsible for establishing criteria for reviewing and evaluating permit applications and for designating ocean dumping sites. The EPA is the permitting authority for ocean dumping of all materials except dredged material. The U.S. Army Corps of Engineers (USACE) is the permitting authority for ocean dumping of dredged material. The USACE applies EPA's ocean dumping criteria to determine whether to authorize ocean disposal of dredged material under MPRSA permits (or, in the case of federal projects, under an administrative equivalent of a permit). The MPRSA permits for, and federal projects involving, ocean disposal of dredged material are subject to EPA review and concurrence. The EPA also is responsible for designating recommended ocean dumping sites for all types of materials, including dredged material.

The EPA's ocean dumping regulations at 40 CFR parts 220 through 228 establish criteria and procedures for ocean dumping permitting and designation and management of ocean disposal sites. The ocean dumping regulations at 40 CFR part 229 contain three general permits issued under the MPRSA.

The regulations also contain the locations and requirements for use of all EPA-designated ocean dumping sites by EPA Region (40 CFR 228.15). The regulations at 40 CFR 228.15(a)(3) note that all ocean dumping site coordinates in 40 CFR 228.15 are based upon North American Datum of 1927 (NAD27) unless specifically noted. Over time, however, as new ocean dumping sites were designated, the applicable datum for some sites had not been specifically noted even though the EPA had identified the site coordinates based on the newer, more accurate geodetic datum, North American Datum of 1983 (NAD83), which has since replaced the NAD27 datum for widespread use. This action revises the regulation to specify that the coordinate datum for all sites are based on NAD83 unless specifically noted as NAD27. This action also specifies the datum as NAD27 for those sites previously not specified as such, based on the EPA's confirmation that NAD27 were used. Additionally, this rule revises incorrect formatting of site coordinates at 40 CFR 228.15, including adding zero placeholders and correcting misplaced coordinate punctuation to correspond to the relevant North American Datum. None of these revisions reflect any substantive change to the location coordinates used by persons disposing dredged materials at the respective sites.

This action further clarifies the name of one ocean dumping site at 40 CFR 228.15(j)(21) from “Atchafalaya River and Bayous Chene, Boeuf, and Black, LA” to “Atchafalaya River and Bayous Chene, Boeuf, and Black, LA (ODMDS East),” to reflect the name commonly used to describe the site.

This action also revises an incorrectly specified size of one site at 40 CFR 228.15(l)(3)(ii), but does not enlarge the site nor change the previously designated coordinates. This change revises the previously incorrectly calculated site area from 6.5 square nautical miles (22 square kilometers) to its correct size, 7.85 square nautical miles (27 square kilometers).

Various portions of the ocean dumping regulations require notification of certain other federal agencies when specified actions are taken under the regulations. This rule updates the out-of-date addresses provided in the regulations for two of these agencies at 40 CFR parts 223, 224, and 229. These addresses have changed since the rule was promulgated in 1977. These changes do not alter application or interpretation of the rules, nor change the federal agencies to be notified.

Additionally, 40 CFR 222.6 and 223.4(d) reference three EPA divisions that no longer exist due to subsequent reorganizations within the EPA: The Water Programs Division, the Surveillance and Analysis Division, and the Enforcement Division. These changes do not alter operation of the rule, but instead describe the relevant underlying functions performed so that the regulation is no longer tied to the names of EPA organizational components.

The ocean dumping regulations specify that when emergency dumping occurs, the EPA Administrator, EPA Regional Administrator, or the nearest Coast Guard district be notified by radio, telephone, or telegraph. The rule updates 40 CFR 224.2(b) to allow notification of emergency dumping by email, in addition to radio, telephone, or telegraph. There are no other reporting obligations in the MPRSA regulations where the notification format is specified.

This rule corrects a typographical error in 40 CFR 222.12(a)(1), which describes procedures applicable to actions on ocean dumping permit applications under Section 102 of the MPRSA. The pre-existing text read “. . . When an appeal or motion to referred to the Administrator . . .” This action corrects the typographical error to instead read “. . . When an appeal or motion is referred to the Administrator. . .” The rule also corrects a typographical error in 40 CFR 228.6(b), which describes specific criteria for site selection under Section 102 of the MPRSA. The pre-existing text read “The results of a disposal site evaluation and/or designation study based on the criteria stated in paragraphs (b)(1) through (11) of this section . . .” This action corrects the typographical error to instead read “The results of a disposal site evaluation and/or designation study based on the criteria stated in paragraphs (a)(1) through (11) of this section . . .”

These changes act to correct the text of existing regulations to conform to the underlying support for the EPA's action and appropriate current practice, organization, or procedure. This rule will help to prevent confusion regarding ocean dumping at designated ocean dumping sites and ensure that the regulations contain the correct information.

III. Does this action apply to me?

Generally, ocean dumping sites and permits are used by persons seeking to dispose of dredged material or other materials in ocean waters. However, there are no regulated entities potentially affected by this action, because this action does not make any substantive changes to the EPA's ocean dumping regulations. This is a housekeeping measure intended only to eliminate confusion by specifying the applicable coordinate datum for ocean dumping sites, to correct formatting of coordinates for ocean dumping sites, to clarify the name of one ocean dumping site, to correctly specify the size of one ocean dumping site, to update several out-of-date addresses and names of EPA organizational units, and to correct a typographical error.

IV. Statutory and Executive Order Reviews

A. Administrative Procedure Act

Under the Administrative Procedure Act (APA), agencies generally are required to publish a notice of proposed rulemaking and provide an opportunity for the public to comment on any substantive rulemaking action. However, the APA provides exceptions from this requirement for the promulgation of agency rules of organization, procedure, or practice, and when an agency for good cause finds that notice and public procedure is unnecessary. See 5 U.S.C. 553(b)(A) and 5 U.S.C. 553(b)(B).

The EPA finds that this action, in part, constitutes a rule of organization, procedure, or practice that is excepted from notice and public comment. This action updates the regulations to identify the successor EPA divisions or offices referenced at 40 CFR 222.6 and 223.4(d). In addition, the rule specifies email as an acceptable form of MPRSA reporting. Neither of these changes alters operation of the underlying rule.

Further, the APA provides an exception from the requirement to publish a notice of proposed rulemaking and opportunity for public comment when the agency for good cause finds (and incorporates the finding and a brief statement of reasons in the rules issued) that a notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest. See 5 U.S.C. 553(b)(B).

The EPA finds good cause to publish a final rule without prior notice and comment because notice and public procedure is unnecessary. This action does not alter the jurisdiction or authority of the EPA or the entities regulated under the MPRSA. This final rule does not modify any location, size, or limitations of designated ocean disposal sites, nor does it change any procedures described by the regulations. The revisions are technical corrections that do not substantively change the EPA's ocean dumping regulations nor application or operation of the regulations. This action is non-significant because it does not involve any new science, economics, or novel legal or policy issues. The EPA does not anticipate any costs or burdens associated with this action. This rule does not establish any new requirements, mandates, or procedures. This is a housekeeping measure intended only to eliminate confusion by specifying the applicable coordinate datum for ocean dumping sites, to correct formatting of coordinates for ocean dumping sites, to clarify the name of one ocean dumping site, to correctly specify the size of one ocean dumping site, to update several out-of-date addresses and names of EPA organizational units, and to correct a typographical error.

B. Paperwork Reduction Act (PRA)

This action does not impose any new information collection burden under the provisions of the PRA (44 U.S.C. 3501 et seq.), (burden is defined at 5 CFR 1320.3(b)), because it merely corrects the published regulatory text, as explained above. It does not establish or modify any information reporting or recordkeeping requirements, and therefore is not subject to the requirements of the Paperwork Reduction Act.

C. Other Statutes and Executive Orders

This rule does not establish any new requirements, mandates, or procedures. As explained previously, this final action merely specifies the applicable coordinate datum for ocean dumping sites, corrects formatting of coordinates for ocean dumping sites, clarifies the name of one ocean dumping site, specifies the size of one ocean dumping site, updates several out-of-date addresses and names of EPA organizational units, and corrects a typographical error. This rule is a housekeeping measure and does not result in any additional or new regulatory requirements. Accordingly, it has been determined that this action is not a “significant regulatory action” under Executive Order 12866 (58 FR 51735, October 4, 1993), and therefore was not submitted to the Office of Management and Budget (OMB) for review. In addition, this action does not contain any unfunded mandate, as described in the Unfunded Mandates Reform Act (UMRA), 2 U.S.C. 1531-1538 and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local, or tribal governments or the private sector. This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government as specified by Executive Order 13132 (64 FR 43255, August 4, 1999). This action does not have tribal implications as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). Thus, Executive Order 13175 does not apply to this action. The EPA believes that this action is not subject to Executive Order 12898 (59 FR 7629, February 16, 1994), because it does not establish an environmental health or safety standard, as it is a correction to a previously promulgated regulatory action and does not have any impact on human health or the environment. This action is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866. Because this action is not subject to notice-and-comment requirements under the APA or any other statute, and because it does not impose any new requirements on small entities, this action is not subject to the Regulatory Flexibility Act (RFA, 5 U.S.C. 601-612). The RFA applies to rules subject to notice and comment rulemaking requirements under the APA, 5 U.S.C. 553. The EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk. This rule does not involve technical standards and is therefore not subject to the National Technology Transfer and Advancement Act of 1995, Public Law 104-113, section 12(d) (15 U.S.C. 272 note).

This action is subject to the Congressional Review Act (CRA) (5 U.S.C. 801-808), and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. The CRA allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and comment rulemaking procedures are impracticable, unnecessary or contrary to the public interest (5 U.S.C. 808(2)). The EPA has made a good cause finding for this rule as discussed in Section IV.A. in this preamble, including the basis for that finding.

List of Subjects

40 CFR Part 222

• Environmental protection
• Administrative practice and procedure
• Water pollution control

40 CFR Part 223

• Environmental protection
• Administrative practice and procedure
• Water pollution control

40 CFR Part 224

• Environmental protection
• Reporting and recordkeeping requirements
• Water pollution control

40 CFR Part 228

• Environmental protection
• Water pollution control

40 CFR Part 229

• Environmental protection
• Vessels
• Water pollution control

For the reasons set forth in the preamble, 40 CFR parts 222, 223, 224, 228, and 229 is amended as follows:

PART 222—ACTION ON OCEAN DUMPING PERMIT APPLICATIONS UNDER SECTION 102 OF THE ACT

1. The authority citation for 40 CFR part 222 continues to read as follows:

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

2. Amend § 222.3 by revising paragraph (h) to read as follows:

3. Revise § 222.6 to read as follows:

4. Amend § 222.12 by revising the last sentence of paragraph (a)(1) to read as follows:

PART 223—CONTENTS OF PERMITS; REVISION, REVOCATION OR LIMITATION OF OCEAN DUMPING PERMITS UNDER SECTION 104(d) OF THE ACT

5. The authority citation for 40 CFR part 223 continues to read as follows:

Authority: Secs. 102, 104, 107, 108, Marine Protection Research, and Sanctuaries Act of 1972, as amended (33 U.S.C. 1412, 1414, 1417, 1418).

6. Amend § 223.4 by revising paragraph (d) to read as follows:

PART 224—RECORDS AND REPORTS REQUIRED OF OCEAN DUMPING PERMITTEES UNDER SECTION 102 OF THE ACT

7. The authority citation for 40 CFR part 224 continues to read as follows:

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

8. Amend § 224.2 by revising paragraph (b) to read as follows:

PART 228—CRITERIA FOR THE MANAGEMENT OF DISPOSAL SITES FOR OCEAN DUMPING

9. The authority citation for 40 CFR part 228 continues to read as follows:

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

10. Amend § 228.6 by revising the first sentence of paragraph (b) to read as follows:

11. Amend § 228.15 by:

a. Revising paragraphs (a)(3), (d)(1)(i), (d)(2)(i), (d)(3)(i), (d)(4)(i), (d)(5)(i), (d)(7)(i), (d)(8)(i), (d)(9)(i), (d)(10)(i), (d)(11)(i), (d)(12)(i), (d)(13)(i), (d)(14)(i), (h)(1)(i), (h)(2)(i), (h)(3)(i), (h)(6)(i), (h)(7)(i), (h)(8)(i), (h)(11)(i) and (vi), (h)(12)(i), (h)(14)(i), and (h)(15)(i);

b. Removing the undesignated paragraph following paragraph (h)(15)(i);

c. Revising paragraphs (h)(16)(i), (h)(17)(i), and (h)(19)(i);

d. Removing the undesignated paragraph following paragraph (h)(19)(i);

e. Revising paragraphs (h)(20)(i), (j)(3)(i), (j)(5)(i), (j)(6)(i), (j)(7)(i), (j)(8)(i), (j)(9)(i), (j)(10)(i), (j)(11)(i), (j)(12)(i), (j)(13)(i), (j)(14)(i), (j)(15)(i), (j)(16)(i), (j)(17)(i), (j)(18)(i), (j)(19)(i), (j)(20)(i), (j)(21) introductory text, (j)(21)(i), (l)(3)(ii), (l)(4)(i), (m)(1)(i), (n)(2)(i), (n)(4)(i), and (n)(5)(i);

d. Removing the undesignated paragraph following paragraph (n)(5)(i);

e. Revising paragraphs (n)(11)(i), (n)(12)(i), and (n)(13)(i).

The revisions read as follows:

PART 229—GENERAL PERMITS

11. The authority citation for 40 CFR part 229 continues to read as follows

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

12. Amend § 229.3 by revising paragraph (a)(9) and adding a reserved paragraph (b) to read as follows: