[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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