16612 Federal Register / Vol. 78, No. 52 / Monday, March 18, 2013 / Rules and Regulations 

so that it accurately reflects the 

amendments carried out. 

DATES: Effective March 18, 2013. 

FOR FURTHER INFORMATION CONTACT: G. 

Richard Gold, Attorney, Office of the 

General Counsel, Federal Trade 

Commission, 600 Pennsylvania Avenue 

NW., Washington, DC 20580, (202) 326– 

3355. 

SUPPLEMENTARY INFORMATION: An 

amendatory instruction in our final rule 

entitled ‘‘Freedom of Information Act’’ 

published February 28, 2013 (78 FR 

13472) erroneously included a 

paragraph that was not affected. In the 

amendments to § 4.9 of the 

Commission’s Rules of Practice, 

instruction 2 included paragraph (b)(9) 

in its revisions. That paragraph was not 

revised by the rule. Therefore, we issue 

the following correction to the February 

28 final rule: 

■ 1. In the Federal Register of Thursday, 

February 28, 2013, in FR Doc. 2013– 

04479, on page 13474, in the first 

column, amendatory instruction 2 is 

correctly revised to read as follows: ‘‘2. 

Amend § 4.9 by revising paragraphs 

(a)(3), (a)(4)(i), (a)(4)(iii), (b)(3)(iii), 

(b)(10)(xiv) and (xv), and by adding 

(b)(10)(xvi) to read as follows:’’ 

Richard C. Donohue, 

Acting Secretary. 

[FR Doc. 2013–05619 Filed 3–15–13; 8:45 am] 

BILLING CODE 6750–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 300 

[EPA–HQ–SFUND–2012–0738; FRL–9791–4] 

National Oil and Hazardous 

Substances Pollution Contingency 

Plan; Revision To Increase Public 

Availability of the Administrative 

Record File 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The EPA is taking final action 

on an amendment that was withdrawn 

in a January 22, 2013, Federal Register 

withdrawal notice. The amendment that 

is the subject of today’s final rule adds 

language to the National Oil and 

Hazardous Substances Pollution 

Contingency Plan (NCP) to broaden the 

technology, to include computer 

telecommunications or other electronic 

means, that the lead agency is permitted 

to use to make the administrative record 

file available to the public. 

DATES: This final rule is effective on 

April 17, 2013. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–SFUND–2012–0738. All 

documents in the docket are listed in 

the www.regulations.gov index. 

Although listed in the index, some 

information is not publicly available, 

e.g., CBI or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically in 

www.regulations.gov or in hard copy at 

the Superfund Docket (Docket ID No. 

EPA–HQ–SFUND–2012–0738). This 

Docket Facility is open from 8:30 a.m. 

to 4:30 p.m., Monday through Friday, 

excluding legal holidays. The 

Superfund Docket telephone number is 

(202) 566–0276. EPA Docket Center 

(EPA/DC), EPA West, Room 3334, 1301 

Constitution Ave. NW., Washington, 

DC. 

FOR FURTHER INFORMATION CONTACT: 

Melissa Dreyfus at (703) 603–8792 

(dreyfus.melissa@epa.gov), U.S. 

Environmental Protection Agency, 1200 

Pennsylvania Avenue NW., Washington, 

DC 20460–0002, Mail Code 5204P. 

SUPPLEMENTARY INFORMATION: 

I. Why is EPA publishing this final 

rule? 

On November 7, 2012, EPA published 

in the Federal Register a Direct Final 

rule entitled National Oil and 

Hazardous Substances Pollution 

Contingency Plan; Revision to Increase 

Public Availability of the Administrative 

Record File (77 FR 66729) (hereafter the 

Direct Final rule). This Direct Final rule 

added language to 40 CFR 300.805(c) of 

the NCP to broaden the technology, to 

include computer telecommunications 

or other electronic means, that the lead 

agency is permitted to use to make the 

administrative record file available to 

the public. At the same time, EPA also 

published a parallel Proposed rule (77 

FR 66783) that requested comment on 

the same change to the NCP. We stated 

in that Direct Final rule that if we 

received adverse comment on the 

amendment by December 7, 2012, the 

affected amendment would not take 

effect and we would publish a timely 

withdrawal in the Federal Register of 

the amendment. We received one 

adverse comment and as a result 

withdrew the amendment on January 

22, 2013 (78 FR 4333). EPA is 

publishing today’s Final rule to address 

the adverse comment received on the 

amendment listed above and to finalize 

this amendment. 

II. Background 

A. What does this amendment do? 

In the November 7, 2012, Direct Final 

rule, 40 CFR 300.805(c)—‘‘Location of 

the Administrative Record File’’ in 

Subpart I—‘‘Administrative Record for 

Selection of Response Action’’ of the 

National Oil and Hazardous Substances 

Pollution Contingency Plan, was revised 

to acknowledge advancements in 

technologies used to manage and 

convey information to the public. 

Specifically, this revision to the NCP 

added language to broaden the 

technology, to include computer 

telecommunications or other electronic 

means, that the lead agency is permitted 

to use to make the administrative record 

file available to the public regarding 

documents that form the basis for the 

selection of a response action. This 

amendment to the NCP does not limit 

the lead agency’s ability to make the 

administrative record file available to 

the public in traditional forms such as 

paper and microform. Based on the 

preferences of the community and the 

lead agency’s assessment of the sitespecific situation, the lead agency will 

determine whether to provide: (1) 

Traditional forms (e.g. paper copies; 

microform) (2) electronic resources, or 

(3) both traditional forms and electronic 

resources. The lead agency should 

assess the capacity and resources of the 

public to utilize and maintain an 

electronic- or computer 

telecommunications-based repository to 

make a decision on which approach 

suits a specific site. 

B. What comment did EPA receive and 

how is it addressed? 

While three comments were 

submitted in a timely manner, only one 

of them is considered to be substantive. 

This comment, submitted anonymously, 

stated that ‘‘This modification to the 

current methods of conveying 

information to the general public is 

prudent and likely to increase public 

awareness of activities relating to the 

National Contingency Plan.’’ However, 

the commenter was ‘‘* * * curious as to 

how the ‘preferences of the community 

and the lead agency’s assessment of the 

site-specific situation’ will be 

determined.’’, as ‘‘Within any single 

community, there is probably going to 

be a range of capabilities and 

preferences regarding the delivery of a 

record file.’’ The commenter went on to 

explain ‘‘In determining community 

preference, the Agency should be 

cautious, again, of allowing the 


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Federal Register / Vol. 78, No. 52 / Monday, March 18, 2013 / Rules and Regulations 16613 

1U.S. Environmental Protection Agency. 2011. 

Superfund Community Involvement Toolkit. 

Community Involvement Plans. Available online: 

http://www.epa.gov/superfund/community/pdfs/ 

toolkit/ciplans.pdf. 

2U.S. Environmental Protection Agency. 2011. 

Superfund Community Involvement Toolkit. 

Community Interviews. Available online at http:// 

www.epa.gov/superfund/community/pdfs/toolkit/ 

5cominterv.pdf. 

3Further information on Section 508 is available 

online: http://www.section508.gov. 

overrepresentation of special interests, 

for these interests may attempt to 

project a community preference for 

traditional microform files so that 

public participation does not increase. 

But, as the Proposed rule explains, the 

lead agency will be free to determine 

that both electronic and traditional 

microform information be available, 

which, when faced with competing 

views, is best for effectuating the 

purpose of this necessary and wise 

amendment.’’ 

In response to this comment, EPA 

agrees that the amendment being 

promulgated today is a useful and 

important change that will give the lead 

agency the ability to serve the 

information needs of a broader 

population. In the Direct Final rule (and 

parallel Proposed rule), EPA explained 

that the lead agency should assess the 

capacity and resources of the public to 

utilize and maintain an electronic- or 

computer telecommunications-based 

repository to make a decision on which 

approach suits a specific site. Based on 

the preferences of the community and 

the lead agency’s assessment of the sitespecific situation, the lead agency will 

determine whether to provide: (1) 

Traditional forms (e.g. paper copies; 

microform) (2) electronic resources, or 

(3) both traditional forms and electronic 

resources. 

Further, EPA agrees with the 

commenter’s remark that ‘‘In 

determining community preference, the 

Agency should be cautious, again, of 

allowing the overrepresentation of 

special interests, for these interests may 

attempt to project a community 

preference for traditional microform 

files so that public participation does 

not increase.’’ Community preferences 

and access to technological resources 

may be gleaned through community 

interviews conducted as part of the 

planning for the Community 

Involvement Plan (CIP) at a site.1 A CIP 

is a site-specific strategy to enable 

meaningful community involvement 

throughout the Superfund cleanup 

process. Consistent with the NCP 

[300.415(n)(3)(ii); 300.415(n)(4)(i); and 

300.430(c)(2)(ii)(A–C)], the lead agency 

prepares a Community Involvement 

Plan (formerly called a Community 

Relations Plan) ‘‘* * * based on the 

community interviews and other 

relevant information, specifying the 

community relations activities that the 

lead agency expects to undertake during 

the remedial response.’’ In addition, 

consistent with the NCP [40 CFR 

300.415(n)(3)(i); 40 CFR 300.415(n)(4)(i); 

and 300.430(c)(2)(i)] the lead agency 

conducts ‘‘interviews with local 

officials, community residents, public 

interest groups, or other interested or 

affected parties, as appropriate, to solicit 

their concerns and information needs, 

and to learn how and when citizens 

would like to be involved in the 

Superfund process.’’ 

EPA generally recommends that 

interviews be conducted with at least 25 

community members, though a complex 

site may warrant 100 or more 

interviewees, and a small or remote site 

might warrant less than 25 

interviewees.2 Conducting community 

interviews typically is a particularly 

effective way to gather information 

about community needs, questions, and 

concerns, as well as expectations and 

unique needs or cultural behaviors, 

customs, and values. Community 

interviews also give the lead agency the 

opportunity to hear the preferences of 

community members that may have 

otherwise hesitated to share during a 

public meeting or availability session. 

The information and insights gained 

from community interviews will help 

the lead agency to assess the capacity 

and resources of the community to 

utilize and maintain an electronic- or 

computer telecommunications-based 

repository, and to make a decision on 

which approach suits a specific site and 

best encourages the community’s 

participation. 

In addition, in accordance with 

Section 508 of the Rehabilitation Act of 

1973, as amended, the lead agency is 

responsible for ensuring that all 

electronic and information technology is 

accessible to persons with disabilities. 

This typically involves procuring, 

creating, maintaining and using 

electronic and information technology, 

including, Web sites, software, 

hardware, video and multimedia, and 

telecommunications, that is Section 508 

compliant,3 as well as incorporating 

other techniques to ensure accessibility. 

Thus, the amendment being 

promulgated today is a useful and 

important change that will give the lead 

agency the ability to serve the 

information needs of a broader 

population, while maintaining the 

ability to provide the administrative 

record file to the public as: (1) 

Traditional forms (e.g. paper copies; 

microform) (2) electronic resources, or 

(3) both traditional forms and electronic 

resources. EPA is today promulgating 

the change to add language to 40 CFR 

300.805(c) as was proposed. 

III. Statutory and Executive Order 

Reviews 

As explained above, this rule takes 

final action on an amendment for which 

we received adverse comment in 

response to our November 7, 2012, 

National Oil and Hazardous Substances 

Pollution Contingency Plan; Revision to 

Increase Public Availability of the 

Administrative Record File Direct Final 

rule (and parallel Proposed rule). 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993) and Executive 

Order 13563 (76 FR 3821, January 21, 

2011), this action is not a ‘‘significant 

regulatory action’’ and is therefore not 

subject to OMB review. This action 

merely adds language to 40 CFR 

300.805(c) of the NCP to broaden the 

technology, to include computer 

telecommunications or other electronic 

means, that the lead agency is permitted 

to use to make the administrative record 

file available to the public. This action 

will enable the lead agency to serve the 

information needs of a broader 

population while maintaining the 

ability to provide traditional means of 

public access, such as paper copies and 

microform, to the administrative record 

file. This action does not impose any 

requirements on any entity, including 

small entities. Therefore, pursuant to 

the Regulatory Flexibility Act (5 U.S.C. 

601 et seq.), after considering the 

economic impacts of this action on 

small entities, I certify that this action 

will not have a significant economic 

impact on a substantial number of small 

entities. This action does not contain 

any unfunded mandates or significantly 

or uniquely affect small governments as 

described in Sections 202 and 205 of the 

Unfunded Mandates Reform Act of 1999 

(UMRA) (Pub. L. 104–4). This action 

does not create new binding legal 

requirements that substantially and 

directly affect Tribes under Executive 

Order 13175 (63 FR 67249, November 9, 

2000). This action does not have 

significant Federalism implications 

under Executive Order 13132 (64 FR 

43255, August 10, 1999). Because this 

action has been exempted from review 

under Executive Order 12866, this final 

rule is not subject to Executive Order 

13211, entitled Actions Concerning 

Regulations That Significantly Affect 

Energy Supply, Distribution, or Use (66 

FR 28355, May 22, 2001) or Executive 

Order 13045, entitled Protection of 

Children from Environmental Health 

Risks and Safety Risks (62 FR 19885, 


pmangrum on DSK3VPTVN1PROD with RULES
16614 Federal Register / Vol. 78, No. 52 / Monday, March 18, 2013 / Rules and Regulations 

April 23, 1997). This action does not 

contain any information collections 

subject to OMB approval under the 

Paperwork Reduction Act (PRA), 44 

U.S.C. 3501 et seq., nor does it require 

any special considerations under 

Executive Order 12898, entitled Federal 

Actions to Address Environmental 

Justice in Minority Populations and 

Low-Income Populations (59 FR 7629, 

February 16, 1994). This action does not 

involve technical standards; thus, the 

requirements of Section 12(d) of the 

National Technology Transfer and 

Advancement Act of 1995 (15 U.S.C. 

272) do not apply. The Congressional 

Review Act, 5 U.S.C. 801 et seq., 

generally provides that before certain 

actions may take effect, the agency 

promulgating the action must submit a 

report, which includes a copy of the 

action, to each House of the Congress 

and to the Comptroller General of the 

United States. Because this action does 

not contain legally binding 

requirements, it is not subject to the 

Congressional Review Act. 

List of Subjects in 40 CFR Part 300 

Environmental protection, Air 

pollution control, Chemicals, Hazardous 

substances, Hazardous waste, 

Intergovernmental relations, Penalties, 

Reporting and recordkeeping 

requirements, Superfund, Water 

pollution control, Water supply. 

Dated: March 11, 2013. 

Mathy Stanislaus, 

Assistant Administrator, Office of Solid Waste 

and Emergency Response. 

For the reasons set out above, title 40, 

chapter I of the Code of Federal 

Regulations is amended as follows: 

PART 300—NATIONAL OIL AND 

HAZARDOUS SUBSTANCES 

POLLUTION CONTINGENCY PLAN 

■ 1. The authority citation for part 300 

continues to read as follows: 

Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C. 

9601–9657; E.O. 12777, 56 FR 54757, 3 CFR, 

1991 Comp., p.351; E.O. 12580, 52 FR 2923, 

3 CFR, 1987 Comp., p.193. 

■ 2. Section 300.805 is amended by 

revising paragraph (c) to read as follows: 

§ 300.805 Location of the administrative 

record file. 

* * * * * 

(c) The lead agency may make the 

administrative record file available to 

the public in microform, computer 

telecommunications, or other electronic 

means. 

[FR Doc. 2013–06189 Filed 3–15–13; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Medicare & Medicaid 

Services 

42 CFR Parts 405, 411, 412, 419, 424, 

and 489 

[CMS–1455–NR] 

Medicare Program; Medicare Hospital 

Insurance (Part A) and Medicare 

Supplementary Medical Insurance 

(Part B) 

AGENCY: Centers for Medicare & 

Medicaid Services (CMS), HHS. 

ACTION: Notice of CMS ruling. 

SUMMARY: This notice announces a CMS 

Ruling that establishes a policy that 

revises the current policy on Part B 

billing following the denial of a Part A 

inpatient hospital claim by a Medicare 

review contractor on the basis that the 

inpatient admission was determined not 

reasonable and necessary. This revised 

policy is intended as an interim 

measure until CMS can finalize a policy 

to address the issues raised by the 

Administrative Law Judge and Medicare 

Appeals Council decisions going 

forward. To that end, elsewhere in this 

issue of the Federal Register, we 

published a proposed rule entitled, 

‘‘Medicare Program; Part B Inpatient 

Billing in Hospitals,’’ to propose a 

permanent policy that would apply on 

a prospective basis. 

DATES: The CMS ruling announced in 

this notice is effective on March 13, 

2013. 

FOR FURTHER INFORMATION CONTACT: Ann 

Marshall, (410) 786–3059, for issues 

related to payment of Part B inpatient 

and Part B outpatient services. 

David Danek, (617) 565–2682, for 

issues related to general appeals policy. 

If you have a question about a 

pending appeal, please contact the 

entity (that is, Medicare contractor, 

Qualified Independent Contractor (QIC), 

Administrative Law Judge (ALJ) or the 

Appeals Council) where your appeal is 

pending. For those cases that were 

remanded from an ALJ to a QIC, HHS’ 

Office of Medicare Hearings and 

Appeals (OMHA) will post further 

information on its public Web site at 

www.hhs.gov/omha. The contact names 

listed will not have any information 

about specific, pending appeals. 

SUPPLEMENTARY INFORMATION: The CMS 

Administrator signed Ruling CMS– 

1455–R on March 13, 2013. This CMS 

Ruling, as well as other CMS Rulings are 

available at http://www.cms.gov/ 

Regulations-and-Guidance/Guidance/ 

Rulings/index.html. For the readers’ 

convenience, the text of the CMS Ruling 

1455–R is set forth in the Appendix to 

this notice of CMS ruling: 

(Catalog of Federal Domestic Assistance 

Program No. 93.773, Medicare—Hospital 

Insurance; and Program No. 93.774, 

Medicare—Supplementary Medical 

Insurance Program) 

Dated: March 13, 2013. 

Marilyn Tavenner, 

Acting Administrator, Centers for Medicare 

& Medicaid Services. 

Note: The following appendix will not 

appear in the Code of Federal Regulations. 

Appendix 

CMS Rulings 

Department of Health and Human Services 

Centers for Medicare & Medicaid Services 

Ruling No.: CMS–1455–R. 

Date: March 13, 2013. 

Centers for Medicare & Medicaid Services 

(CMS) Rulings are decisions of the 

Administrator of CMS that serve as 

precedential final opinions, orders and 

statements of policy and interpretation. They 

provide clarification and interpretation of 

complex provisions of the law or regulations 

relating to Medicare, Medicaid, Utilization 

and Quality Control Peer Review, private 

health insurance, and related matters. They 

are published under the authority of the 

Administrator. 

CMS Rulings are binding on all CMS 

components, Part A and Part B Medicare 

Administrative Contractors (MACs), 

Qualified Independent Contractors (QICs), 

the Provider Reimbursement Review Board, 

the Medicare Geographic Classification 

Review Board, and on the Medicare Appeals 

Council and Administrative Law Judges 

(ALJs) who hear Medicare appeals. Rulings 

promote consistency in interpretation of 

policy and adjudication of disputes. 

In light of numerous recent Medicare 

Appeals Council and ALJ decisions on a 

recurrent Medicare payment issue and in 

association with this Ruling, CMS is 

concurrently issuing a proposed rule, entitled 

‘‘Medicare Program; Part B Billing in 

Hospitals’’ addressing the policy of billing 

under Medicare Part B following a denial of 

a Medicare Part A hospital inpatient claim by 

a Medicare review contractor for the reason 

that an inpatient admission was not 

reasonable and necessary under section 

1862(a)(1)(A) of the Social Security Act (the 

Act). This Ruling is effective as of the 

issuance date, and addresses the treatment of 

such claims and associated appeals until the 

effective date of the final regulations for the 

proposed rule entitled, ‘‘Medicare Program; 

Part B Billing in Hospitals’’. 

Medicare Program 

Medicare Hospital Insurance (Part A) and 

Medicare Supplementary Medical Insurance 

(Part B). 


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