[Federal Register Volume 59, Number 97 (Friday, May 20, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-12215]
[[Page Unknown]]
[Federal Register: May 20, 1994]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 227
[FRL-4886-6]
Clarification of Suspended Particulate Phase Bioaccumulation
Testing Requirements for Material Dumped in Ocean Waters
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA today is issuing a proposed rule interpreting and
clarifying the ocean dumping regulations. The proposal clarifies
provisions of the regulations related to bioaccumulation testing of the
suspended particulate phase of material proposed to be dumped. The
proposal would make clear that for the suspended phase of the material,
it is unnecessary to perform bioaccumulation testing. This proposal
applies to the suspended phase only and does not affect other testing
requirements contained in the regulations. EPA believes that
bioaccumulation testing of the suspended particulate phase is
inappropriate, and has not interpreted or applied its regulations to
require such testing. EPA is proposing to amend the regulations to
remove any possible ambiguity. By separate notice published elsewhere
in today's Federal Register, EPA also is publishing an interim final
rule which is effective date of publication.
DATES: Written comments on this proposed rule will be accepted until 30
days after May 20, 1994.
ADDRESSES: Send written comments on this proposed rule to the Ocean
Dumping Proposed Rule Comment Clerk; Water Docket, MC-4101,
Environmental Protection Agency, 401 M Street, SW., Washington, DC
20460. Commenters are requested to submit any references cited in their
comments. Commenters are also requested to submit an original and three
copies of their written comments and enclosures. Commenters who want
receipt of their comments acknowledged should include a self-addressed,
stamped envelope. No facsimiles (faxes) will be accepted.
A copy of the supporting information for this notice is available
for review at EPA's Water Docket, room L-102, 401 M Street, Washington,
DC 20460. For access to the docket materials, call 202/260-3027,
between 9 a.m. and 3:30 p.m. for an appointment.
FOR FURTHER INFORMATION CONTACT: John Lishman, Chief, Marine Pollution
Control Branch, Oceans and Coastal Protection Division, 401 M Street
SW., Washington, DC.
SUPPLEMENTARY INFORMATION: In the final rule section of today's Federal
Register, EPA has issued an interim final rule, which is effective
immediately, to clarify that the ocean dumping regulations issued by
EPA under Title I of the Marine Protection, Research, and Sanctuaries
Act, 33 U.S.C. 1401 et seq. (MPRSA) should not be interpreted to
require suspended particulate phase bioaccumulation testing. Readers
should refer to the preamble to that interim final rule for further
information on the MPRSA statutory scheme and other pertinent
background information.
EPA is proposing today to revise the ocean dumping regulations by
adding a footnote to 40 CFR 227.6(c)(2) and 227.27(b) which reads:
(1) This provision shall not be interpreted as requiring
bioaccumulation testing of the suspended particulate phase of dumped
materials.
EPA is today requesting comment on this proposed revision to the
regulations.
The Agency is also requesting comment on a second option to
accomplish the same regulatory result, which is to amend the first
sentence of 40 CFR 227.6(c)(2) by deleting the words ``including
bioaccumulation'', and to amend the third sentence of Sec. 227.6(c)(2)
by deleting the words ``either'' and ``or to bioaccumulation''.
Further, this option would amend 40 CFR 227.27(b) by inserting between
the first and second sentence thereof the following additional
sentence:
Suspended particulate phase bioaccumulation testing is not
required.
EPA also requests comment on other rulemaking options that would
clarify that bioaccumulation testing of the suspended particulate phase
is not required.
Although EPA does not interpret its regulations to require
suspended phase bioaccumulation testing, the Agency believes it is
prudent to amend the regulations to assure that there is no ambiguity
on this issue. Today's proposal would make these changes by amending
Sec. 227.6(c)(2) and Sec. 227.27(b)(2) of the regulations, consistent
with the Agency's interpretation of the existing regulations and its
long-standing practice, to clarify that suspended particulate phase
bioaccumulation testing is not required.
Suspended particulate phase bioaccumulation testing is
inappropriate for three principal reasons. First, exposure to the
suspended particulate phase in the environment does not provide
sufficient time for bioaccumulation; second, bioaccumulation testing of
marine organisms in the solid phase already provides a worst case
indication of the bioaccumulation potential of the suspended phase so
that separate suspended phase testing would be unnecessary in any
event; and third, no reliable tests are available for bioaccumulation
in the suspended particulate phase of dumped materials. Further
discussion of these points and the basis for this proposal are
contained in the preamble accompanying the interim final rule for
dumped materials, which appears elsewhere in today's Federal Register.
Readers should refer to that preamble for further details.
Compliance With Other Laws and Executive Orders
A. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to lead to a rule that may:
(1) Have an annual effect on the economy of $100 million or more,
or adversely and materially effecting a sector of the economy,
productivity, competition, jobs, the environment, public health or
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;
(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.
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866, and is
therefore not subject to OMB review.
B. Paperwork Reduction Act
The Paperwork Reduction Act, 44 U.S.C. 3501 et seq., is intended to
minimize the reporting and record-keeping burden on the regulated
community, as well as to minimize the cost of Federal information
collection and dissemination. In general, the Act requires that
information requests and record-keeping requirements affecting ten or
more non-Federal respondents be approved by the Office of Management
and Budget. Since today's proposal would not establish or modify any
information or record-keeping requirements, it is not subject to the
requirements of the Paperwork Reduction Act.
C. Flexibility Act
Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq.,
EPA must prepare a Regulatory Flexibility Analysis for regulations
having a significant impact on a substantial number of small entities.
The RFA recognizes three kinds of small entities, and defines them as
follows:
(1) Small governmental jurisdications--any government of a district
with a population of less than 50,000.
(2) Small business--any business which is independently owned and
operated and not dominant in its field, as defined by Small Business
Administration regulations under the Small Business Act.
(3) Small organization--any not-for-profit enterprise that is
independently owned and operated and not dominant in its field.
As discussed above in the discussion of Executive Order 12866, the
changes being proposed do not impose economic burdens. Accordingly, EPA
has determined that today's proposal would not have a significant
impact on a substantial number of small entities, and that a Regulatory
Flexibility Analysis therefore is unnecessary.
List of Subjects in 40 CFR Part 227
Environmental protection, Water pollution control.
Dated: May 13, 1994.
Carol M. Browner,
Administrator, Environmental Protection Agency.
[FR Doc. 94-12215 Filed 5-19-94; 8:45 am]
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