58016 Federal Register / Vol. 70, No. 192 / Wednesday, October 5, 2005 / Rules and Regulations 

COMPANHIA TEXTIL KARSTEN, Calle 

Grande, 25–27, 67890 Lisbon, Portugal, 

PTKAR2527LIS 

HURON LANDMARK, 1840 Huron Road, 

Windsor, ON, Canada N9C 2L5; 

XOHURLAN1840WIN 

PART 141—ENTRY OF MERCHANDISE 

■ 5. The general authority citation for 

Part 141 and specific authority citation 

for § 114.113 continue to read as 

follows: 

Authority: 19 U.S.C. 66, 1448, 1624. 

* * * * * 

Section 141.113 also issued under 19 

U.S.C. 1499, 1623. 

§ 141.113 [Amended] 

■ 6. In § 141.113, paragraph (b) is 

amended by removing the words 

‘‘12.130 of this chapter’’ and by adding, 

in their place, the words ‘‘§ 102.21 or 

§ 102.22 of this chapter, as applicable,’’. 

PART 144—WAREHOUSE AND 

REWAREHOUSE ENTRIES AND 

WITHDRAWALS 

■ 7. The general authority citation for 

Part 144 continues to read as follows: 

Authority: 19 U.S.C. 66, 1484, 1557, 1559, 

1624. 

* * * * * 

§ 144.38 [Amended] 

■ 8. In § 144.38, paragraph (f)(1) is 

amended by removing the words 

‘‘§ 12.130 of this chapter’’ and by 

adding, in their place, the words 

‘‘§ 102.21 or § 102.22 of this chapter, as 

applicable’’. 

PART 146—FOREIGN TRADE ZONES 

■ 9. The authority citation for Part 146 

is revised to read as follows: 

Authority: 19 U.S.C. 66, 81a–81u, 1202 

(General Note 3(i), Harmonized Tariff 

Schedule of the United States), 1623, 1624. 

§ 146.63 [Amended] 

■ 10. In § 146.63, paragraph (d)(1) is 

amended by removing the words 

§ 12.130 of this chapter’’ and by adding, 

in their place, the words ‘‘§ 102.21 or 

§ 102.22 of this chapter, as applicable’’. 

PART 163—RECORDKEEPING 

■ 11. The authority citation for Part 163 

continues to read as follows: 

Authority: 5 U.S.C. 301; 19 U.S.C. 66, 

1484, 1508, 1510, 1624. 

■ 12. The Appendix to Part 163 is 

amended by removing under section IV 

the listing of ‘‘§ 12.130 Textiles and 

textile products Single country 

declaration Multiple country 

declaration VISA’’ and the listing of 

‘‘§ 12.132 NAFTA textile requirements’’, 

and by adding a new listing under 

section IV in numerical order to read as 

follows: 

Appendix to Part 163—Interim (a)(1)(A) 

List. 

* * * * * 

IV. * * * 

§ 102.25 NAFTA textile requirements 

* * * * * 

Robert C. Bonner, 

Commissioner of Customs and Border 

Protection. 

Approved: September 30, 2005. 

Timothy E. Skud, 

Deputy Assistant Secretary of the Treasury. 

[FR Doc. 05–19985 Filed 9–30–05; 2:38 pm] 

BILLING CODE 9110–06–P 

DEPARTMENT OF DEFENSE 

Office of the Secretary 

32 CFR Part 179 

Munitions Response Site Prioritization 

Protocol 

AGENCY: Department of Defense. 

ACTION: Final rule. 

SUMMARY: The Department of Defense 

(hereinafter the Department) is 

promulgating the Munitions Response 

Site (MRS) Prioritization Protocol 

(MRSPP) (hereinafter referred to as the 

rule) as a rule. This rule implements the 

requirement established in section 

311(b) of the National Defense 

Authorization Act for Fiscal Year 2002 

for the Department to assign a relative 

priority for munitions responses to each 

location (hereinafter MRS) in the 

Department’s inventory of defense sites 

known or suspected of containing 

unexploded ordnance (UXO), discarded 

military munitions (DMM), or 

munitions constituents (MC). 

DATES: This rule is effective October 5, 

2005. 

FOR FURTHER INFORMATION CONTACT: If 

there are specific questions or to request 

an opportunity to review the docket for 

this rulemaking, please contact Ms. 

Patricia Ferrebee, Office of the Deputy 

Under Secretary of Defense 

(Installations & Environment) [ODUSD 

(I&E)], 703–571–9060. This final rule 

along with relevant background 

information is available on the World 

Wide Web at the Defense Environmental 

Network & Information eXchange Web 

site, https://www.denix.osd.mil/MMRP. 

SUPPLEMENTARY INFORMATION: 

Preamble Outline 

I. Authority 

II. Background 

III. Summary of Significant Changes to the 

Final Rule 

IV. Response to Comments 

A. Applicability and Scope 

B. Definitions 

C. Policy 

D. Responsibilities 

E. Procedures 

1. Explosive Hazard Evaluation Module 

2. Chemical Warfare Materiel Hazard 

Evaluation Module 

3. Health Hazard Evaluation Module 

4. Determining the Munitions Response 

Site (MRS) Priority 

F. Sequencing 

V. Administrative Requirements 

A. Regulatory Impact Analysis Pursuant to 

Executive Order 12866 

B. Regulatory Flexibility Act 

C. Unfunded Mandates 

D. Paperwork Reduction Act 

E. National Technology Transfer and 

Advancement Act 

F. Environmental Justice Requirements 

under Executive Order 12898 

G. Federalism Considerations under 

Executive Order 13132 

I. Authority 

This rule is being finalized under the 

authority of section 311(b) of the 

National Defense Authorization Act for 

Fiscal Year 2002, codified at section 

2710(b) of title 10 of the U.S. Code [10 

U.S.C. 2710(b)]. 

II. Background 

The Department of Defense 

(hereinafter the Department) developed 

the rule in consultation with states and 

tribes, as required by statute. The 

Department published the proposed rule 

in the Federal Register as a proposed 

rule on August 22, 2003, at 68 FR 50900. 

A technical correction to the proposed 

rule was published on September 10, 

2003, at 68 FR 53430. 

The public comment period for the 

proposed rule ended November 19, 

2003. Sixteen commenters submitted 

comments on the proposed rule. The 

preamble to this final rule consists 

mainly of an explanation of the 

Department’s responses to these 

comments. Therefore, both this 

preamble and the preamble to the 

proposed rule should be reviewed 

should a question arise as to the 

meaning or intent of the final rule. 

Unless directly contradicted or 

superseded by this preamble to the rule 

or by the rule, the preamble to the 

proposed rule reflects the Department’s 

intent for the rule. 

The preamble to the final rule 

provides a discussion of each proposed 

rule section on which comments were 

received. Revisions to the proposed rule 

that are simply editorial or that do not 

Federal Register / Vol. 70, No. 192 / Wednesday, October 5, 2005 / Rules and Regulations 58017 

reflect substantive changes are not 

addressed in this preamble. 

In addition to the comments on the 

proposed rule, the Department received 

a number of comments that addressed 

topics outside the scope of the proposed 

rule. These topics included: The 

universe of sites that comprise the 

inventory, which is established by 

statute; funding for munitions 

responses; comments on data quality; a 

proposal for training to educate 

Department personnel, regulators, and/ 

or stakeholders; and implementing 

guidance that the Department may 

develop for the rule. These comments 

are not addressed in this rule. All 

comments the Department received are 

presented in a ‘‘Response to Comments’’

document, which has been placed in the 

docket for this rulemaking. 

III. Summary of Significant Changes to 

the Final Rule 

The Department made a number of 

changes to the proposed rule that are 

reflected in this final rule. Many of 

these revisions pertain to clarification of 

terms and definitions based on 

comments received, or changes to reflect 

new statutory definitions promulgated 

in the National Defense Authorization 

Act for 2004 and codified at 10 U.S.C. 

101. 

The most significant change to the 

proposed rule pertains to the module 

that evaluates the potential health 

hazards associated with MC. The 

Department modified this module in 

response to several comments. This 

module now has seven potential 

outcomes (i.e., A through G) rather than 

the three potential outcomes described 

in the proposed rule (i.e., high, medium, 

and low). A detailed explanation of this 

modification is provided in a following 

section of this preamble. 

The Department has also revised the 

proposed rule to clarify that current 

land owners may participate in 

application of the rule at Formerly Used 

Defense Sites (FUDS). Another change 

was to clarify that the quality assurance 

panel that reviews each priority will 

consist of only Department personnel. 

IV. Response to Comments 

This section contains the 

Department’s responses to the 

comments received on the proposed 

rule, organized by the structure of the 

proposed and final rules. 

A. Section 179.2. Applicability and 

Scope 

Several commenters stated that the 

proposed rule should be published as 

Departmental guidance and not as a 

federal regulation. The Department, 

however, interpreted the language in the 

National Defense Authorization Act for 

2002 as a term of art invoking the 

requirement for public comment 

provided in the Administrative 

Procedures Act. The Department is 

proceeding with publishing the final 

rule as a federal regulation. 

One commenter stated that sites 

containing chemical warfare materiel 

(CWM) should be included as potential 

MRSs. The Department observes that the 

proposed rule makes clear that, if CWM 

is present at a defense site [as defined 

in 10 U.S.C. 2710(e)] in the form of 

UXO, DMM, or MC, that site would be 

an MRS and would be included in the 

inventory, and that all MRSs in the 

inventory are addressed under the rule. 

The Department made no change to the 

rule to address this comment. 

Another comment stated that the 

Department had not clearly explained 

the scope of the exclusion for ‘‘combat 

operations’’ under 10 U.S.C. 2710(d)(2). 

This exclusion exempts from the 

requirement for inclusion in the 

inventory and application of the rule all 

locations where ‘‘the presence of 

military munitions’’ resulted ‘‘from 

combat operations.’’ The Department 

has not modified the rule. 

A commenter requested that the 

Department change the Department’s 

Control classification in the Status of 

Property data elements (proposed rule, 

Appendix A, Tables 5 and 15) to 

include land or water bodies owned, 

leased, or otherwise possessed by state 

military departments. The Department 

declined to make this change, as the 

Department does not have jurisdiction 

over properties owned, leased, or 

otherwise possessed by state military 

departments. Such locations are under 

state jurisdiction and would not be 

included in the 10 U.S.C. 2710(a) 

inventory. 

B. Section 179.3. Definitions 

This section of the preamble 

addresses comments on the definitions 

in section 179.3 of the proposed rule. 

The Department has modified 

definitions from the proposed rule or 

included certain new definitions to 

make this regulation consistent with 

terms and definitions promulgated by 

the National Defense Authorization Act 

for Fiscal Year 2004. These terms and 

definitions are codified at 10 U.S.C. 101. 

Affected terms are military munitions, 

operational range, range activities, and 

UXO. 

The Department has also added the 

term ‘‘munitions and explosives of 

concern (MEC)’’ to the final rule for 

consistency with new Department 

policy. MEC, which is intended to 

distinguish specific categories of 

military munitions that may pose 

unique explosives safety risks, means 

UXO, as defined in 10 U.S.C. 101(e)(5); 

discarded military munitions, as 

defined in 10 U.S.C. 2710(e)(2); or 

munitions constituents (e.g., TNT, 

RDX), as defined in 10 U.S.C. 2710(e)(3), 

present in high enough concentrations 

to pose an explosive hazard. As used in 

the rule, this term does not create any 

new category of materials covered under 

the proposed rule, nor does it exclude 

any category of materials covered under 

the proposed rule, and is adopted herein 

simply for consistency with terminology 

used elsewhere within the Department. 

In response to a comment, the term 

‘‘chemical warfare agents’’ has been 

changed to ‘‘chemical agents.’’ The 

definition of ‘‘chemical warfare agents’’

has also been changed to read: 

‘‘Chemical agent means a chemical 

compound (to include experimental 

compounds) that, through its chemical 

properties produces lethal or other 

damaging effects on human beings, is 

intended for use in military operations 

to kill, seriously injure, or incapacitate 

persons through its physiological 

effects. Excluded are research, 

development, testing and evaluation 

(RDTE) solutions; riot control agents; 

chemical defoliants and herbicides; 

smoke and other obscuration materials; 

flame and incendiary materials; and 

industrial chemicals. This definition is 

adopted based on 50 U.S.C. 1521(j)(1) in 

which the term ‘‘chemical agents and 

munitions’’ means ‘‘* * * an agent or 

munition that, through its chemical 

properties, produces lethal or other 

damaging effects on human beings, 

except that such term does not include 

riot control agents, chemical herbicides, 

smoke, and other obscuration 

materials.’’ This change makes the 

terminology used in the final rule 

consistent with the existing statutory 

definition of ‘‘chemical agent and 

munition’’ in 50 U.S.C. 1521(j)(1). The 

Department observes that chemical 

agents under 50 U.S.C. 1521(j)(1) 

include the V- and G-series nerve 

agents; H-series (i.e., ‘‘mustard’’ agents) 

and L-series (i.e., lewisite) blister agents; 

and certain industrial chemicals, 

including hydrogen cyanide (AC), 

cyanogen chloride (CK), or carbonyl 

dichloride (called phosgene or CG), 

when contained in a military munition; 

and does not include riot control agents 

(e.g., w-chloroacetophenone [CN] and ochlorobenzylidenemalononitrile [CS] 

tear gas); chemical defoliants and 

herbicides; smoke and other obscuration 

materials; flame and incendiary 

materials; and industrial chemicals that 

58018 Federal Register / Vol. 70, No. 192 / Wednesday, October 5, 2005 / Rules and Regulations 

are not configured as a military 

munition. 

The definition of ‘‘chemical warfare 

materiel (CWM)’’ has changed to reflect 

the adoption of the term ‘‘chemical 

agent’’ discussed previously in this rule. 

One commenter stated that although 

the definition of ‘‘military range’’

includes buffer zones with restricted 

access and exclusionary areas, 

exclusionary zones at some former 

target bombing areas are not well 

defined. While the Department realizes 

this may be the case at some former 

military ranges, it believes site 

conditions and personnel experience 

will help ensure such areas are included 

and provide for reasonable application 

of the rule. 

A commenter requested a change to 

the definition of ‘‘MRS,’’ maintaining 

that portions of a munitions response 

area (MRA) may not be part of an MRS 

and, therefore, would not be evaluated 

using this rule. The Department would 

like to clarify that, depending on sitespecific factors, an MRA may be 

designated a single MRS or may be 

subdivided for the purposes of 

evaluation into multiple MRSs. In each 

and every case, however, once all the 

MRSs comprising an MRA have been 

evaluated (whether the MRA consists of 

a single MRS or multiple MRSs), the 

total acreage encompassed by the MRA 

will have been evaluated using this rule. 

Through this disciplined and 

documented approach, the protocol will 

ensure that an MRA’s entire acreage will 

be addressed. 

For example, in investigating a 1,000- 

acre MRA, the Department may identify 

five discrete locations (e.g., MRS 1 

through 5) that constitute 1,000 acres 

that require evaluation. Formal decision 

documents will be prepared for all five 

MRSs that document the Department’s 

evaluations for the entire 1000 acres. 

This will ensure that the entire MRA 

acreage will be evaluated using the 

protocol. 

One commenter requested adding to 

the end of the definition of ‘‘MRA’’: 

‘‘ * * * therefore, all property within a 

munitions response area is known to 

require a munitions response.’’ The 

Department observes that the definition 

of ‘‘MRA’’ already states, ‘‘An MRA is 

comprised of one or more munitions 

response sites’’ and the definition of an 

‘‘MRS’’ is ‘‘* * * a discrete location 

within an MRA that is known to require 

a munitions response.’’ Because an 

MRA must comprise at least one MRS, 

the Department does not believe the 

definition requires modification as 

suggested by the commenter. 

In response to another comment as to 

whether or not the acreage of an MRA 

includes water bodies, the Department 

observes that the acreage of an MRA 

may extend beyond the terrestrial 

boundary and include water bodies, 

such as lakes, ponds, streams, and 

coastal areas. 

One commenter requested adding 

CWM, in addition to UXO, DMM, and 

MC, to the definitions of several terms, 

including MRA and MRS, and at several 

locations in the tables (Appendix A) of 

the proposed rule. The Department 

points out that the definition of 

‘‘military munitions’’ already includes 

CWM; therefore, all other terms that 

build on the military munitions 

definition, specifically UXO and DMM, 

already include CWM. 

C. Section 179.4. Policy 

One commenter noted many positive 

attributes to the proposed rule. These 

included affirmative statements 

concerning the Department’s active 

solicitation of participation by and 

inclusion of the states, the tribes, and 

stakeholders; identifying the need for a 

quality assurance panel to promote 

consistency in the application of the 

rule; straightforward recognition that 

the same level of information will not be 

available for all sites, and that for some 

sites, more information will be required 

in order to realistically apply the rule; 

and weighting factors, for the most part, 

are well explained and easy to 

understand. These comments did not 

require changing the proposed rule. 

One commenter stated that the team 

approach to prioritization was too broad 

and implies that several people from 

multiple agencies, community groups, 

or tribes will need to be involved in the 

application of the rule to a specific 

MRS. The Department continues to 

believe that it is important to receive 

input and feedback from such sources in 

assigning a relative priority for response 

activities to each MRS and has not 

amended the proposed rule to address 

this comment. 

The Department received a comment 

recommending that a state regulatory 

agency be designated to play a major 

role in the munitions response process, 

and if a state agency is unable to 

perform in this capacity, the U.S. 

Environmental Protection Agency (U.S. 

EPA) should do so. In such situations, 

involvement of U.S. EPA personnel is a 

matter for U.S. EPA to decide and not 

the Department; however, the 

Department notes that it will use a team 

approach for prioritization and 

encourages these agencies to participate. 

The Department received a comment 

soliciting clarification on whether 

stakeholders will have input on the ‘‘no 

longer required’’ determination. An 

MRS will have the ‘‘no longer required’’

determination assigned only after the 

Response Complete (RC) or Remedy-inPlace (RIP) milestone is achieved. 

Stakeholders are afforded opportunities 

to participate and provide input 

throughout the munitions response 

process, to include prior to and 

following these milestones; however, 

stakeholders do not have a role in 

determining when an MRS has met the 

requirements for achieving these 

milestones. 

D. Section 179.5. Responsibilities 

A comment was received regarding 

the term ‘‘administrative control’’ and 

whether this term referred to specific 

Component’s ownership 

responsibilities. The Department would 

like to clarify that the phrase ‘‘under 

their administrative control’’ reflects the 

delegation of responsibilities for 

munitions responses within the 

Department. This responsibility does 

not require the Department to have a 

current real property interest at a 

particular MRS. 

The Department received several 

comments pertaining to prioritization at 

FUDS sites. One commenter asked for 

clarification of the phrase ‘‘under the 

administrative control of,’’ specifically 

pertaining to how the rule will apply at 

a FUDS. Under 10 U.S.C. 2701, the 

Department is required to ‘‘carry out a 

program of environmental restoration 

* * * at each facility or site which was 

under the jurisdiction of the Secretary 

* * * at the time of actions leading to 

contamination.’’ Therefore, under this 

requirement, the Department will apply 

the rule to an MRS at a FUDS if that 

MRS is included in the 10 U.S.C. 

2710(a) inventory. FUDS, however, are 

not considered under the Department’s 

control for the purposes of the Status of 

Property data elements in Appendix A, 

Tables 5 and 15. 

Another commenter noted that for 

FUDS, the property owner should be 

involved with applying the rule to any 

MRS at the FUDS. The Department 

agrees and has modified section 179.5 to 

state: ‘‘Ensure that EPA, other federal 

agencies (as appropriate or required), 

state regulatory agencies, tribal 

governments, local restoration advisory 

boards or technical review committees, 

local community stakeholders, and the 

current property owner (if the MRS is 

outside Departmental control) are 

offered opportunities to participate 

throughout the process of application of 

the rule and in making sequencing 

recommendations.’’

Several commenters stated concerns 

pertaining to MRSs that have already 

been evaluated using the Risk 

Federal Register / Vol. 70, No. 192 / Wednesday, October 5, 2005 / Rules and Regulations 58019 

Assessment Code (RAC). The 

Department wishes to clarify that all 

MRSs in the 10 U.S.C. 2710(a) inventory 

will be evaluated using the rule and the 

most current information available, 

irrespective of whether that MRS has 

been evaluated under the RAC 

framework. 

One commenter inquired whether a 

low prioritization score means ‘‘no 

further action.’’ The Department would 

like to clarify this is not the case. 

Prioritization scores are the first tool 

when defining the need for a munitions 

response. 

One commenter asked the Department 

to add a definition of ‘‘evaluation 

pending’’ to the rule and publish 

procedures and time frames that apply 

to evaluation pending sites. The 

Department’s response is that evaluation 

pending status is given to an MRS only 

when there is insufficient information to 

complete the evaluation using the rule. 

As soon as sufficient data are available, 

the MRS will be evaluated. Although 

the Department is not specifying time 

frames for addressing the MRS in 

evaluation pending status as part of this 

regulation, the Department will be 

developing specific goals to drive 

program progress. 

A commenter asked for clarification 

as to when the rule will be applied at 

sites where the environmental 

restoration process is considered 

complete. The Department responds 

that, as stated in the proposed rule, an 

MRS no longer requires a priority when 

the Department has achieved the RC or 

RIP milestones. This means that a 

Component or another entity has 

conducted a munitions response, all 

objectives set out in the decision 

document for the MRS have been 

achieved, and no further action, except 

for long-term management and/or fiveyear reviews, is required. 

There were many comments 

pertaining to the quality assurance 

panel that will review prioritization 

decisions, especially inquiries about the 

panel’s composition and authority. The 

Department wishes to clarify that the 

panel will comprise Component 

representatives trained in application of 

the rule who were not involved in the 

initial scoring of a specific MRS being 

reviewed. Stakeholders participate in 

application of the rule at an MRS, but 

will not be part of the quality assurance 

panel. The panel is an internal 

management and oversight function to 

ensure consistency of the rule’s 

application. Components are, however, 

required to provide regulators and 

stakeholders the opportunity to 

comment on the quality assurance 

panel’s rationale for any changes to the 

priority originally assigned. 

One commenter proposed that the 

circumstances under which the rule 

shall be reapplied include when a 

quality assurance panel recommends a 

priority change. In response, the 

Department states that the panel will 

not direct a Component to reapply the 

rule; rather, the panel’s decision, when 

adopted, will supersede the original 

priority assigned. If the panel 

recommends a change that results in a 

different priority, the Component will 

report, in the inventory data submitted 

to the ODUSD(I&E), the rationale for this 

change. The Component will also 

provide this rationale to the appropriate 

regulatory agencies and involved 

stakeholders for comment before 

finalizing the change. 

Another commenter expressed 

support for the quality assurance panel 

in ensuring uniform application of the 

rule, but voiced concern this panel may 

not be effective if they must review all 

decisions before the prioritization can 

be finalized. According to the comment, 

initially it may be more productive to 

require that the panel review a 

percentage of the priority decisions to 

ensure they can review enough data to 

decide either to support or to change the 

priority assigned. The Department’s 

response is that absent a review of each 

prioritization decision, it cannot be 

stated with authority that all decisions 

are in fact representative of site 

conditions and that the rule has been 

applied in a consistent manner. For this 

reason, at least initially, the Department 

is unwilling to consider a samplingbased approach to the work of the 

quality assurance panel. 

One commenter stated that the rule’s 

emphasis on Management Action Plans 

(MAPs) may place a strain on already 

limited state resources, especially in 

those states that do not already have a 

MAP. The Department responds that 

MAPs have been a requirement for all 

sites addressed under the Defense 

Environmental Restoration Program 

(DERP) for many years. If a specific site 

is not addressed in a MAP, that matter 

should be referred to the appropriate 

Component’s Deputy Assistant 

Secretary with responsibility for 

environmental matters. Should such a 

referral not result in action, the matter 

should then be referred to the 

ODUSD(I&E). 

Another commenter questioned how 

the MAPs for several MRSs would be 

integrated with the statewide MAP 

being developed in the FUDS program. 

The Department would like to clarify 

that the statewide MAP in the FUDS 

program collectively addresses all FUDS 

within a state, and that a MAP for each 

individual FUDS is also required. 

Several commenters noted that 

conditions at an MRS are subject to 

change and such changes should be 

reflected in the priority. The 

Department agrees and has designed the 

rule to be reapplied if any specific factor 

considered in the application of the rule 

changes and if that change has the 

potential to affect the priority assigned. 

There were several comments 

pertaining to sites where investigations 

were previously conducted. In response, 

the Department affirms that an 

appropriate munitions response is 

required for each MRS, and that an MRS 

reaches the ‘‘no longer required’’

evaluation only when the Department 

has conducted a munitions response, all 

objectives set out in the decision 

document for the MRS have been 

achieved, and no further action, except 

for long-term management and/or fiveyear reviews, is required. 

One commenter questioned the 

Department’s reasons for rescoring sites 

based on a munitions response, arguing 

that the result will be to lower scores at 

the MRS without making progress 

toward completing all required 

munitions response activities. The 

commenter feels that partial munitions 

responses and continual rescoring is an 

inefficient approach to the program as a 

whole. The commenter suggests that 

once an MRS has received a score 

suitable to obtain funding, the score 

should not be lowered based on a 

munitions response that does not 

comprehensively and completely 

address the hazards present at the MRS. 

The Department disagrees, and notes 

that an annual reevaluation of the 

priority assigned to each MRS is 

statutorily mandated under 10 U.S.C. 

2710(c)(1). 

In response to a comment received on 

the certified letter the Department will 

send to states, territories, federal 

agencies, and tribal and local 

governments requesting their 

involvement in prioritization, the 

Department will send the letter to any 

known designee specified by the 

organization, or in the absence of such 

a designation, to the head of the 

organization. 

E. Section 179.6. Procedures 

This section addresses comments 

received on section 179.6 of the 

proposed rule and on the classification 

tables in Appendix A. 

One commenter recommended that 

the Department revise the rule so that 

all data elements are consistent using a 

scale of zero to five; the Explosive 

Hazard Evaluation (EHE) module, 

58020 Federal Register / Vol. 70, No. 192 / Wednesday, October 5, 2005 / Rules and Regulations 

Chemical Warfare Materiel Hazard 

Evaluation (CHE) module, and Relative 

Risk Site Evaluation (RRSE) module be 

combined into one module; and the 

priority assigned to a site not be 

influenced by the type or source of the 

hazard that may be present at the site. 

The Department has not adopted such a 

change. Reducing the scale from seven 

to five, eliminating the modules, and 

not addressing the type and source of 

the hazard will not ensure that the 

priority given to an MRS adequately 

reflects the hazard posed by conditions 

at the MRS. The Department’s objectives 

for the rule are: (1) ensuring that the 

priority sufficiently reflects actual 

conditions and potential hazards at the 

MRS, and (2) that the tool used be 

straightforward and easy to use. The 

current construct achieves those 

objectives. 

One commenter requested 

clarification as to the correct procedure 

when multiple classifications apply at a 

given MRS. The commenter questioned 

whether the scores are cumulative 

within the module or if only the highest 

value is used. The Department wishes to 

clarify that the one highest value within 

each data element is used. For example, 

if at a specific MRS both (1) hand 

grenades containing an explosive filler, 

which would be categorized as sensitive 

under Appendix A, Table, and would 

score 30, and (2) DMM, containing a 

high-explosive filler, that have not been 

damaged by burning or detonation, 

which would be categorized as high 

explosive (unused) under Appendix A, 

Table 1, and would score 15 are present, 

the score (30 points) for the hand 

grenades containing an explosive filler 

would be selected. 

Numerous comments received 

address both the EHE and CHE modules, 

particularly pertaining to the 

accessibility and receptor factors of 

these modules. Where this is the case, 

the comment and response appear 

under the EHE module responses for 

simplicity, but pertain to both sections. 

1. Section 179.6(a). Explosive Hazard 

Evaluation Module 

The Department received numerous 

comments on the Munitions Type data 

element (Appendix A, Table 1) and 

modified the rule to address many of the 

comments. For example, the Department 

modified two classifications within this 

data element to reflect the inherent 

difference between primary and 

secondary explosives. Explosives are 

classified as primary or secondary based 

on their susceptibility to initiation. 

Primary explosives, such as lead azide, 

are highly susceptible to initiation. 

Secondary explosives (e.g., TNT, RDX, 

HMX), which constitute the bulk of the 

explosives likely to be present at an 

MRS, are formulated to be far less 

susceptible to initiation. To address 

these differences, the Department added 

to the sensitive classification: ‘‘Bulk 

primary explosives, or mixtures of these 

with environmental media such that the 

mixture poses an explosive hazard.’’

The Department also revised the Bulk 

high explosives, pyrotechnics or 

propellant classification to exclude 

primary explosives: ‘‘Bulk secondary 

explosives, pyrotechnic compositions, 

or propellant (not contained in a 

munition), or mixtures of these with 

environmental media such that the 

mixture poses an explosive hazard.’’

Also pertaining to the Munitions Type 

data element, another commenter noted 

that bulk high explosives mixed with 

environmental media can be reactive as 

well as explosive, and the hazard 

threshold of explosive is too high and 

should be lowered. The commenter 

suggested adding ‘‘or reactive’’ after 

‘‘that result in the mixture being 

explosive’’ in the description of ‘‘bulk 

high explosives’’ and definitions for the 

terms ‘‘reactive’’ and ‘‘explosive soil.’’

The Department chose not to make these 

changes because the commenter did 

define ‘‘reactive’’ in this context, and 

the focus of the EHE module is 

explosive hazards. 

The Department also added an 

additional classification to the 

Munitions Type data element to reflect 

the lesser risk posed by pyrotechnics 

that are unused or undamaged. The 

Pyrotechnic (used or damaged) 

classification is assigned a score of 20 

points, while the Pyrotechnic (not used 

or damaged) classification is assigned a 

score of 10 points. 

The Department modified the text of 

the Propellant classification to be 

consistent with the other classifications, 

adding ‘‘* * * that have been damaged 

by burning or detonation’’ and ‘‘* * * 

that are deteriorated to the point of 

instability’’ to the criteria for 

propellants that are DMM. The 

Department also corrected the Practice 

classification pertaining to the criteria 

for DMM to read: ‘‘* * * that have not 

been damaged by burning or 

detonation’’ and ‘‘* * * that have not 

deteriorated to the point of instability.’’

The Department also provided greater 

detail in the definition of a ‘‘practice 

munition.’’

One commenter stated that all 

practice munitions should be classified 

together and any MRS with practice 

munitions should receive a score of 15. 

The commenter’s position is that many 

practice munitions with sensitive fuzes 

have miniscule amounts of explosives, 

while other practice munitions without 

sensitive fuzes have a much larger 

explosive or pyrotechnic spotting charge 

(e.g., practice bombs). Because practice 

bombs, which receive a score of 5, 

account for some of the most common 

and dangerous UXO and cause many 

serious injuries, the commenter feels 

that practice munitions without 

sensitive fuzes that have explosive or 

pyrotechnic spotting charges are not 

classified correctly. The Department 

agrees with the commenter that practice 

munitions with explosive or 

pyrotechnic charges do pose an 

explosive hazard. When developing the 

rule, the Department defined practice 

munitions as those munitions that 

contain inert filler. Practice munitions 

with explosive or pyrotechnic charges 

are classified separately under the same 

data element and are given a value. 

One commenter identified an 

inconsistency pertaining to the 

Munitions Type data element in that the 

definition of ‘‘small arms ammunition’’

category used the term ‘‘evidence’’ but 

did not specify whether this included 

‘‘historical evidence’’ and ‘‘physical 

evidence,’’ as is the case for ‘‘evidence 

of no munitions.’’ The Department has 

revised the small arms ammunitions 

category within the Munitions Type 

data element to state: ‘‘All used 

munitions or DMM that are categorized 

as small arms ammunition. [Physical 

evidence or historical evidence that no 

other types of munitions (e.g., grenades, 

sub-caliber training rockets, demolition 

charges) were used or are present on the 

MRS is required for selection of this 

category.]’’

Several commenters questioned the 

level of investigation required for 

assessing whether physical or historical 

evidence indicates that no UXO or 

DMM are present and suggested that 

specific investigation requirements 

should be developed for different sites. 

The Department has defined both 

historical evidence and physical 

evidence in the rule. The personnel 

applying the rule at an MRS will 

determine the appropriate level of 

evidence. The Department will not 

provide additional detail in the final 

rule, but may address this situation in 

implementing guidance or training 

materials. 

One commenter requested 

clarification on the applicability of the 

proposed rule to open burning/open 

detonation (OB/OD) units. The 

commenter expressed concern that the 

rule indicates that OB/OD sites are 

excluded because they were used or 

permitted for disposal of military 

munitions. The Department would like 

to clarify that OB/OD units are subject 

Federal Register / Vol. 70, No. 192 / Wednesday, October 5, 2005 / Rules and Regulations 58021 

to prioritization under the rule only 

when the unit meets the requirements 

for inclusion in the 10 U.S.C. 2710(a) 

inventory. 

One commenter suggested specifically 

including quality assurance test ranges 

within the EHE module Source of 

Hazard data element (Appendix A, 

Table 2) as they are not currently 

identified. To the extent that a quality 

assurance test range is a location that is 

known or suspected of containing UXO, 

DMM, or MC and is included in the 

inventory required under 10 U.S.C. 

2710(a), the rule would be applied to 

that location. To the extent that such a 

quality assurance test range meets the 

criteria of Appendix A, Table 2 (i.e., it 

meets the test for being a ‘‘former 

range’’), it is already included. 

One commenter did not understand 

why a former munitions treatment area 

or unit would receive a lower score than 

a former military range given the 

unknown hazard posed by munitions 

that have been treated by OB/OD. The 

Department’s response is that the higher 

value assigned to former military ranges 

reflects the fact that UXO are fuzed 

munitions that have been through their 

firing and arming cycle. In contrast, 

munitions treated in an OB/OD unit, 

while potentially damaged, are not 

normally fuzed and would most likely 

not complete their arming sequence. For 

this reason, UXO at a former military 

range is considered to pose a greater 

hazard than DMM at an OB/OD site. 

In response to a comment, the 

Department modified the Former 

industrial operating facilities 

classification within the Source of 

Munitions data element to include 

former munitions maintenance 

facilities. 

A commenter requested the definition 

of ‘‘evidence of no munitions’’ within 

the Munitions Type, Source of Hazard, 

and Location of Munitions (Appendix 

A, Tables 1, 2, and 3) data elements be 

changed to indicate that evidence shows 

that no UXO or DMM were 

‘‘ever’’resent. The Department declines 

to make this change as the Department 

does not want to exclude sites from this 

classification where evidence indicates 

that munitions were at one time present 

but have since been removed, for 

example, as part of normal Department 

operation of a military range while the 

range was in use. This situation is 

different from UXO or DMM that are 

removed as part of a munitions 

response, as described in the next 

paragraph. 

Another commenter asked about UXO 

that is on the surface and has since been 

removed, and UXO that is emergent 

from year to year, such as through frost 

heave. If munitions were found on the 

surface of an MRS, the MRS would be 

classified as Confirmed Surface. If 

investigation confirms that there are 

only subsurface munitions present, and 

natural phenomena (e.g., frost heave or 

tidal action) occur on the MRS, the 

second-highest category—Confirmed 

subsurface, active—should be selected. 

In response to a comment, the 

Department clarified the definition of 

‘‘on the surface’’ to mean above the soil 

layer. UXO found in the tundra of 

Alaska, for example, is considered ‘‘on 

the surface’’ for the purposes of the rule, 

as the tundra is above the soil layer. 

Several commenters stated that within 

the Information on the Location of 

Munitions and the Information on the 

Location of CWM data elements 

(Appendix A, Tables 3 and 13), no water 

depth is specified for the Subsurface, 

physical constraint category. The 

Department, however, would like to 

note that in these tables, a water depth 

of 120 feet was cited as a physical 

constraint. 

Several commenters asked the 

relevance for selecting 120 feet as the 

depth for constituting a subsurface 

physical constraint. The Department 

selected this depth because of the 

limited time (less than 15 minutes) 

normally allowed to scuba divers at this 

depth, the considerable effort needed to 

dive to and below this depth, and the 

dangers associated with such deep dives 

to basic scuba divers. 

Also pertaining to Appendix A, 

Tables 3 and 13, a commenter requested 

that the Department use caution when 

evaluating activities that are ‘‘likely to 

occur’’ because land use and 

recreational activities can change in 

ways that no one can predict. The 

commenter also noted that similar 

caution is needed when evaluating 

physical constraints because some 

constraints are barriers only if they are 

both kept in place and maintained. The 

Department agrees with the commenter 

that conditions may change over time. 

To address changes that may occur over 

time, the rule requires reevaluation and 

rescoring if site conditions change. 

Pertaining to the Ease of Access data 

elements (Appendix A, Tables 4 and 

14), one commenter stated that the 

proposed rule was unclear if deep-water 

areas without any monitoring would be 

scored as a complete or incomplete 

barrier. The Department’s response is 

that if a barrier such as deep water is 

present, it is evaluated as to its 

effectiveness in preventing access to all 

parts of the MRS. In the specific case 

described in the comment, deep-water 

areas not subject to surveillance would 

be scored as Barrier to MRS access is 

complete, but not monitored. 

One commenter stated that it is 

inequitable that the highest score under 

the Ease of Access data element 

(Appendix A, Tables 4 and 14) is a 

‘‘10,’’ indicating all areas of the MRS are 

accessible, whereas the Information on 

Location of Munitions and Information 

on Location of CWM data elements 

(Appendix A, Tables 3 and 13) have a 

maximum score of 20, and a score of 10 

represents only the suspected presence 

of UXO or DMM. The Department 

believes the current construct is 

appropriate because the Information on 

Location of Munitions and Information 

on Location of CWM data elements 

address access to the munition or CWM, 

while the Ease of Access data elements 

address access to the MRS. 

Some commenters noted that some 

terms, such as ‘‘barrier,’’ need further 

clarification to ensure all users apply 

the term consistently. For example, 

people may assess differently whether a 

security patrol is a partial barrier to the 

MRS or not a barrier at all. Additionally, 

perceptions of a barrier may vary, as 

‘‘deep or fast-moving water’’ may be a 

challenge instead of a barrier to some 

people. The Department recognizes 

these commenters’ points but believes 

the definition is sufficient for the 

purposes of prioritization. Final 

determination as to what features, either 

natural or man-made, are barriers 

should be based on site-specific 

knowledge and the judgment of the 

personnel applying the rule to a specific 

MRS. Additionally, the Component’s 

quality assurance panels will ensure 

consistency in the final rule’s 

application. 

One commenter stated that some data 

elements, specifically within the 

accessibility and receptor factors, within 

the various modules and among 

modules, are redundant and should be 

consolidated. The Department disagrees. 

Each data element provides important 

information on its own, bringing data 

from different perspectives together to 

best reflect actual site conditions. 

Several commenters expressed 

concern that the receptor factors of the 

EHE and CHE modules do not capture 

transient populations. The Department 

points out that two of the three data 

elements that address human receptors 

attempt to address population, 

regardless of whether it is permanent or 

transient. The Population Density data 

elements (Appendix A, Tables 6 and 16) 

focus on permanent population as based 

on U.S. Census Bureau data within a 

city, town, or county. The Population 

Near Hazard data elements (Appendix 

A, Tables 7 and 17) are based on any 

58022 Federal Register / Vol. 70, No. 192 / Wednesday, October 5, 2005 / Rules and Regulations 

inhabited structures, whether they are 

permanent or temporary, that are 

routinely occupied for any portion of a 

day. The Type of Activities/Structures 

data elements (Appendix A, Tables 8 

and 18) are also intended to address 

both permanent and transient 

populations. The Department is 

confident that, combined, these data 

elements sufficiently address both 

permanent and transient populations. 

A commenter questioned the 

relevance of the Population Density data 

element in scoring the EHE module 

because, per the comment, (1) this 

number is dependent upon and 

controlled by the Ease of Access data 

element, and (2) by including the 

Population Density element, the EHE 

module score unjustifiably and 

unnecessarily prioritizes higher those 

MRSs that are in more densely 

populated areas, even when potential 

access to the MRS is precluded by 

barriers. The Department disagrees 

because the Population Density data 

element considers both the on-site and 

off-site populations surrounding an 

MRS. While access is a prerequisite for 

an on-site population, the effects of an 

event (e.g., an explosion) at an MRS may 

affect populations that are not on site. 

This is one of the reasons that several 

of the elements in the receptor factor 

include a swath extending up to two 

miles from the perimeter of the MRS. 

The same commenter also believed the 

Types of Activities/Structures data 

elements (Appendix A, Tables 8 and 18) 

can be reasonably measured via the 

Population Near Hazard data elements 

(Appendix A, Tables 7 and 17), noting 

that including the Types of Activities/ 

Structures data elements only 

complicates the process and favors 

MRSs in higher population areas. The 

Department again disagrees. The 

Department included the Types of 

Activities/Structures data elements to 

account for the types of activities 

occurring on a site, and the potential for 

those activities to bring a receptor into 

contact with UXO or DMM. It was not 

developed to give undue weight to highpopulation areas. 

One commenter did not agree that the 

two-mile criterion applied to evaluating 

the Population Near Hazard data 

element is reasonable or necessary for 

any MRS not having the potential to 

create a chemical agent hazard that 

could affect inhabitants within two 

miles of the boundary. Instead, distance 

criteria that more reasonably consider 

the risks from the actual or suspected 

types of explosive hazards should be 

used. The Department disagrees because 

the two-mile radius considers not only 

the size of the population that may 

come onto the MRS, but also the effects 

that an explosion on the MRS may have 

to areas off the MRS (e.g., blast 

overpressure, fragment throw). While 

this distance may be less than two 

miles, the two-mile distance was 

selected as a conservative measure. 

One commenter stated that the 

Population Near Hazard data elements 

should bear greater weight than the 

Population Density data elements 

because the greatest hazard is to the 

population closest to the MRS. The 

Department, however, notes that these 

data elements evaluate different aspects 

of population. The Population Density 

data elements are used to assess the 

number of persons that could possibly 

access the MRS, while the Population 

Near Hazard data elements focus on the 

population (through number of 

structures) within a two-mile range that 

could be impacted by an unintentional 

explosion or CA release. The data 

elements are complementary. 

Several commenters disagreed with 

the Department’s use of inhabited 

structures to indicate population in the 

Population Near Hazard and Types of 

Activities/Structures data elements as, 

for example, ‘‘people may engage in all 

sorts of activities despite the absence of 

structures in the vicinity, and many of 

these activities would put them at 

considerably greater risk from military 

munitions than populations that are, 

relatively speaking, protected within 

structures.’’ The Department notes the 

concern, but believes the rule 

sufficiently accounts for these 

populations. The rule relies on several 

indicators to assess potentially exposed 

populations. The Types of Activities/ 

Structures data elements address 

activities conducted on the MRS, and 

the number of permanent or temporary 

structures present. Parks and 

recreational areas, where hikers, 

campers, and tourists may be present, 

are specifically included in the Types of 

Activities/Structures elements. 

In response to one commenter’s 

statement that UXO may be encountered 

through nonintrusive activities such as 

boating and fishing, the Department 

believes that such activities are 

accounted for in the Types of Activities/ 

Structures data elements. 

Several commenters noted that Types 

of Activities/Structures data elements 

seem structured to give the greatest 

weight to activities and structures 

involving the most people, and that 

warehousing, industrial, agricultural, 

and forestry activities are weighted less. 

Some commenters are concerned 

because these areas experience highdensity populations and activities that 

penetrate the ground surface during 

working hours. The Department 

recognizes the commenters’ concerns 

but notes that, even though agricultural 

and forestry activities penetrate the 

ground surface, the exposed population 

is typically smaller than commercial, 

residential, or recreational areas. The 

Department is balancing activity 

intrusiveness with the potential 

population that could be exposed to a 

hazard. The rule does, however, require 

reevaluation if site conditions change. 

One commenter questioned how the 

scoring values among modules and 

within modules were selected. The 

commenter specifically noted that the 

numerical weighting assigned within 

and among data elements seemed 

arbitrary and unnecessarily 

complicated. Further, there is no 

rationale for applying a score of 30 

(worst case score) to certain data 

elements and a value of only 5 (worst 

case score) to other data elements 

within the same module. The 

commenter cites the Population Near 

Hazard data element as an example. 

Within this data element, there are six 

classifications established based on the 

number of inhabited structures within a 

two-mile distance of an MRS. In this 

data element, 1–5 inhabited structures 

receives a score of only 1, while 26 or 

more inhabited structures receives a 

score of 5. The commenter believes that 

the score should be the same, regardless 

of whether a single residence or 26 

residences were on or near the MRS. 

The Department disagrees with the 

commenter that all situations should be 

scored the same because it impairs 

differentiation and thus prioritization, 

which is the purpose of this rule. The 

rule-making development effort 

involved a series of meetings over a year 

and a half, including substantial 

consultation with states, tribes, and 

other federal agencies. The Department 

also tested the developing model during 

this time to determine if the model 

outcomes were reasonable given what 

was known about the trial MRSs. The 

data elements and scores as presented in 

the proposed rule provided the most 

rational results and distribution among 

the sites. 

Many commenters believe that the 

definition of ‘‘ecological resources’’

(Appendix A, Tables 9 and 19) in the 

rule is too limited. The Department does 

not mean to imply that less sensitive 

ecological resources are not important. 

For the purposes of assigning a relative 

priority to each MRS, however, the 

Department believes that limiting this 

definition to the most sensitive habitats 

is appropriate so that these areas are 

elevated in priority. 

Federal Register / Vol. 70, No. 192 / Wednesday, October 5, 2005 / Rules and Regulations 58023 

Similar to the comments for 

ecological resources, a commenter noted 

that the definition of ‘‘cultural 

resources’’ used in the EHE and CHE 

modules is too narrow and the list of 

statutes should not be limited. The 

Department believes this definition is 

appropriate for the purposes of 

assigning a relative priority to each 

MRS. 

One commenter stated that there may 

be only a few MRSs that score high 

enough to be included in the highest tier 

of the EHE module, and therefore, more 

sites will be distributed among the 

lower tiers. Based on the testing 

described in the proposed rule, the 

Department expects the universe of sites 

to be adequately distributed among the 

possible scores. The highest hazard sites 

are not expected to be the most 

numerous, nor are the lowest hazard 

sites expected to be the most numerous. 

The Department believes this construct 

is appropriate. 

2. Section 179.6(b). Chemical Warfare 

Materiel Hazard Evaluation Module 

One commenter agreed with the 

Department that MRSs with known or 

suspected CWM are important and 

deserve special attention. The 

commenter did state, however, that the 

potential for public exposure should be 

an important consideration when 

ranking such MRSs. MRSs that have 

high potential for public exposures and 

risk should be ranked higher than an 

MRS with CWM that has minimal 

opportunity for public exposure. The 

Department addressed this concern 

during the development of the rule by 

including data elements to factor in 

population density and public exposure. 

Based on the data used in the rule, an 

MRS with known or suspected CWM 

does not always rank higher than a site 

without CWM. 

A commenter suggested that receptors 

under the CHE module should be 

weighted higher than those under the 

EHE module because CWM pose 

hazards associated with both the 

explosive impact and the dispersion of 

the chemical agents. The Department 

believes that the rule appropriately 

accounts for the special characteristics 

of CWM in the CWM Configuration and 

Sources of CWM data elements 

(Appendix A, Tables 11 and 12). 

One commenter asked if all CWM is 

considered similar in the severity of its 

effects and regardless of concentration. 

The Department’s response is that the 

rule does not consider the differences in 

the mechanism of action (e.g., 

neurotransmitter disruption) or the 

toxicological properties (e.g., Lethal 

Dose for 50 percent of the exposed 

population [LD50]). The CWM 

Configuration and Sources of CWM data 

elements do address the differences in 

the hazards posed by CWM (e.g., CWM 

with an explosive burster scores higher 

than CWM without a burster). 

One commenter felt that classifying 

CWM mixed with UXO lower than 

CWM under the CWM Configuration 

data element does not make sense. The 

commenter stated that this implies that 

placing some conventional UXO at an 

MRS with known or suspected CWM 

can reduce the hazard at that site. To 

remedy the conflict, the commenter 

suggested deleting the category CWM 

mixed with UXO from Appendix A, 

Table 11 and treating all MRSs 

containing CWM UXO or damaged 

CWM DMM as the highest scoring 

hazard, irrespective of the presence of 

conventional munitions that are UXO or 

DMM. The Department, however, 

believes that explosively configured 

CWM, which are designed to achieve 

optimal dispersion of their chemical 

agent fill, that are UXO or that are 

damaged DMM should be assigned a 

higher score than undamaged CWM/ 

DMM or CWM not configured as a 

munition that are mixed with 

conventional munitions that are UXO. 

The Department left this classification 

unchanged because the detonation of a 

conventional munition that both is a 

UXO and mixed with undamaged 

CWM/DMM or CWM not configured as 

a munition is less likely to result in a 

dispersal of any chemical agent present. 

The Department believes that the 

classifications assigned appropriately 

differentiate between the potential 

chemical agent hazards presented. 

One commenter questioned why 

production facilities; research, 

development, testing and evaluation 

facilities; training facilities; and storage 

or transfer points were identified as 

separate categories with different hazard 

scorings within the Sources of CWM 

data element (Appendix A, Table 12). 

According to the commenter, the only 

important issues are: (1) The type of 

CWM (i.e., it must be either UXO or 

DMM); (2) its condition (damaged or 

undamaged); and (3) the strength of 

evidence (known or suspected CWM 

contamination). The commenter 

recommended deleting all other 

categories. The Department does not 

believe that there are only three 

important issues and that the other 

categories are extraneous. The 

Department has identified those 

separate categories under the CWM 

Configuration and Sources of CWM data 

elements to enable it to evaluate all 

known and relevant data and to assign 

appropriate priorities. 

One commenter stated that the rule 

does not consider CWM that has been 

managed via OB/OD activities or via onsite disposal (e.g., burial). The 

Department disagrees, and observes that 

while not specifically described as OB/ 

OD or burial sites, these sites have in 

common that any CWM present is 

DMM. The CWM Configuration data 

element (Appendix A, Table 11) 

specifically includes CWM that are 

DMM, and addresses those differently 

depending on whether or not the CWM 

has been damaged (irrespective of how 

that damage occurred). The Sources of 

CWM data element (Appendix A, Table 

12) specifically considers DMM that are 

on the surface or in the subsurface, 

irrespective of how the CWM came to be 

there. 

One commenter stated that it is not 

clear whether CWM mixed with UXO 

includes or purposely excludes 

explosively configured CWM. The 

Department’s response is that 

explosively configured CWM that is 

either UXO or damaged DMM receives 

a score of 30 in Table 11 of Appendix 

A. The CWM mixed with UXO is used 

for undamaged CWM that are DMM or 

that are not configured as a munition, 

and that are commingled with 

conventional munitions that are UXO. 

These score 25. 

One commenter questioned whether 

the receptor factor in the CHE module 

should be the same as for the EHE, given 

the impact of wind drift on populations 

if a chemical agent is released. 

Evaluation of factors such as dispersion 

by wind current is far more complex 

than is appropriate for a prioritization 

tool. Such factors may, however, be 

important during a munitions response 

and be important considerations in the 

evaluation of remedial alternatives. The 

Department believes that the current 

receptor construct is sufficient for 

assigning each MRS a relative priority. 

3. Section 179.6(c). Health Hazard 

Evaluation (HHE) Module 

The Department received a number of 

comments on the Relative Risk Site 

Evaluation (RRSE) module, which is 

intended to evaluate the health hazards 

associated with MC and any incidental 

nonmunitions-related contaminants at 

an MRS. The Department has revised 

and renamed this module in response to 

the most significant comments received 

on the proposed rule. Several 

commenters noted that although the 

EHE and CHE module results seemed 

well balanced in terms of the 

distribution of outcomes, the RRSE 

module appeared to score too many 

sites as ‘‘high,’’ inappropriately skewing 

the overall priority assigned to the MRS. 

58024 Federal Register / Vol. 70, No. 192 / Wednesday, October 5, 2005 / Rules and Regulations 

Specifically, it was observed that having 

only three outcomes (i.e., high, medium, 

and low) as provided in the RRSE 

module can result in this one module 

being the dominating factor in the 

overall priority assignment. In response 

to this significant comment, the 

Department analyzed the construct of 

the module and revised it so that the 

outcome in the rule has seven possible 

answers, increasing the ability to 

differentiate among MRSs. Accordingly, 

the Department believes that the revised 

module better reflects the relative 

evaluation of explosive, CWM, and MC 

hazards potentially present at the site. 

The Department has also changed the 

name of the module to the Health 

Hazard Evaluation (HHE) Module to 

differentiate it from the three-outcome 

RRSE used in the Department’s 

Installation Restoration program (IRP). 

The Department will apply the HHE 

only to MRSs subject to this rule. The 

HHE module is intended to evaluate 

health hazards associated with MC at an 

MRS, with only incidental 

nonmunitions-related contaminants 

addressed under the MMRP. 

The RRSE will continue to be applied 

to sites in the IRP category of the DERP. 

Within the revised framework, the 

data and the process by which the data 

are evaluated are the same as within the 

RRSE; however, the distinction between 

the previous and revised frameworks 

lies in the greater number of outcomes 

(i.e., seven versus three). Only MRSs 

with the maximum results for the three 

factors (i.e., Contaminant Hazard Factor 

(CHF), Receptor Factor, and Migration 

Pathway Factor) are assigned the highest 

priority (i.e., Category A). In other 

words, only those MRSs with significant 

MC-related health hazards, an identified 

receptor, and an evident migration 

pathway are assigned to Category A for 

the HHE module. 

Tables 1, 2, and 3 below illustrate the 

derivation of the seven categories of the 

HHE. Table 1, which reproduces Table 

21 of Appendix A, provides the three 

potential outcomes for each of the 

factors in the HHE. Table 2, which 

reproduces Table 22 of Appendix A, 

illustrates the different possible 

combinations of the results. The 

frequency in this table denotes the 

number of times each combination is 

used. Table 3, which reproduces Table 

23 of Appendix A, spreads the possible 

combinations across seven categories, 

permitting only the most and least 

hazardous combinations in the highest 

and lowest categories. The other 

combinations are spread across the five 

remaining categories in a bell curve 

based on frequency of the combination. 

TABLE 1.—HHE MODULE RATING

Contaminant hazard factor Receptor factor Migration pathway factor 

Significant ................... High (H) .................... Identified ................... High (H) .................... Evident ...................... High (H) 

Moderate .................... Middle (M) ................. Potential .................... Middle (M) ................. Potential .................... Middle (M) 

Minimal ....................... Low (L) ...................... Limited ...................... Low (L) ...................... Confined .................... Low (L) 

TABLE 2.—HHE MODULE RATING

Contaminant hazard factor Receptor factor 

Migration pathway 

Evident Potential Confined 

Significant ............................................................................................. Identified ........... HHH HHM HHL 

Potential ........... HHM HMM HML 

Limited .............. HHL HML HLL 

Moderate .............................................................................................. Identified ........... HHM HMM HML 

Potential ........... HMM MMM MML 

Limited .............. HML MML MLL 

Minimal ................................................................................................. Identified ........... HHL HML HLL 

Potential ........... HML MML MLL 

Limited .............. HLL MLL LLL 

TABLE 3.—HHE MODULE

Combination Frequency Category 

HHH ............................ 1 A 

HHM ........................... 3 B 

HHL ............................ 3 C 

HMM ........................... 3 

HML ............................ 6 D 

MMM .......................... 1 

HLL ............................. 3 E 

MML ........................... 3 

MLL ............................ 3 F 

LLL ............................. 1 G 

A commenter asked why the 

ecological receptors for surface water 

and sediment in the Receptor factor are 

limited to critical habitats ‘‘and other 

similar environments.’’ The 

Department’s response is that it chose to 

focus on locations of critical habitat as 

a means of delineating among ecological 

receptors. Almost all areas are habitat 

for some species, and considering all 

habitats equally provides no 

differentiating criteria. In response to 

the same commenter, the Department 

wishes to clarify that consumption of 

fish in contaminated waters is 

accounted for in the HHE. 

One commenter questioned the 

exclusion of an ecological endpoint 

during the evaluation of surface soils 

and requested that the Department 

consider groundwater as a minor 

receptor factor. The Department’s 

response is that ecological receptors are 

not considered for evaluation of the 

surface soil since ecological standards 

are generally not available for the CHF 

calculation. 

Some comments were received 

requesting that the Department change 

the comparison value used for 

carcinogens from a 1 × 10¥4 to a 1 × 

10¥6 value, which would make it 

consistent with some states’ cleanup 

goals. This rule, however, is not using 

the 1 × 10¥4 value for cleanup; it is 

being used to assign a relative priority 

for action. The Department believes that 

1 × 10¥4 is an appropriate value for 

prioritization. Further, changing the 

range will not change the relative 

ranking of any individual site, as all 

sites would shift equally if a different 

endpoint were used. 

One commenter stated that the 

Receptor Factor should not be limited to 

surface soil as receptors have the 

potential for exposure to subsurface soil 

during intrusive activities or after 

development where subsurface soils 

have been brought to the surface. The 

Federal Register / Vol. 70, No. 192 / Wednesday, October 5, 2005 / Rules and Regulations 58025 

Department responds that where 

subsurface soil is coming to the surface, 

or is exposed in a manner in which 

people can contact it (e.g., in an 

excavation), it is treated as surface soil. 

Another commenter stated the 

module appears to underestimate the 

risks posed by landfills. The Department 

points out the releases from landfills 

usually do not include UXO, DMM, or 

MC. It is more likely that a landfill 

would be addressed under the IRP 

category of the DERP and, as such, 

would not be evaluated under this rule. 

One commenter stated there is little 

detail describing the terms ‘‘identified,’’

‘‘potential,’’ and ‘‘limited’’ receptors. 

Until guidance specific to the HHE is 

developed, the Department suggests 

reviewing the Relative Risk Site 

Evaluation Primer (available at http:// 

www.dtic.mil/envirodod) for detailed 

information on the use of this factor. 

A commenter remarked that the 

Receptor Factor for groundwater should 

consider individuals exposed 

inadvertently, such as construction 

workers conducting invasive activities, 

in addition to water supply exposure. 

The HHE was primarily developed to 

consider long-term chronic exposures, 

not short-term exposures, through water 

consumption because such exposures 

are the dominant case associated with 

groundwater contamination. Further, as 

part of prioritization, it would be 

difficult to determine if workers are 

being exposed in this way. Finally, this 

rule is not intended as a risk assessment 

nor will it take the place of a risk 

assessment, where unusual exposure 

scenarios can be properly considered. 

A few commenters were concerned as 

to whether or not CHF values are 

established for all constituents, and if 

not, how the Department would 

establish these values. The Department 

will initially adopt the current 

contaminant tables in the Relative Risk 

Site Evaluation Primer as a basis for the 

HHE. These values are updated every 

few years. The Department will also 

continue to work with U.S. EPA in its 

efforts to promulgate CHF values for MC 

and for other constituents. 

Several comments pertained to state 

involvement and concerns about data 

quality and consistency. The 

Department intends on developing 

guidance and conducting training to 

ensure consistency in implementation 

of the rule. Additionally, states will be 

involved in applying the rule, including 

the HHE module. 

4. Section 179.6(d). Determining the 

MRS Priority 

The Department received several 

comments regarding how the module for 

MC is integrated into the overall priority 

matrix because the EHE and CHE 

modules have seven categories and the 

RRSE category has three. Some 

commenters believe that because there 

are too few RRSE categories, sites with 

high RRSE scores drive the priority 

unnecessarily too high. In response to 

this and other comments, the 

Department revised the RRSE module 

(now the HHE module) to provide a 

number of categories consistent with the 

other modules in the rule. 

One commenter remarked on the pros 

and cons of driving module scores into 

tiers versus discrete scores and on the 

Department’s intentions. The 

Department’s response is that the 

Department’s intent was to assign 

relative priorities to each MRS, not to 

develop a one-N listing of priorities. If 

the latter had been the intent, the 

number of possible outcomes would 

have become unwieldy. 

One commenter maintained that the 

module with the lowest numerical 

priority value should not determine the 

MRS priority. The commenter’s view is 

that this approach is intrinsically flawed 

because it fails to consider the 

cumulative risk posed by the two 

modules having a lesser priority 

ranking, even though those risks may be 

significant, and when combined, may be 

greater than that posed by the third 

module. The commenter suggested that 

all module priority scores be considered 

cumulatively in determining the priority 

for establishing which MRS presents the 

greatest overall hazard. The Department 

acknowledges the commenter’s concern 

that there is a cumulative aspect to the 

hazards evaluated by each module. 

During the development of the rule, the 

Department considered using a 

cumulative total to assign the priority 

but was unable to define the 

mathematical relationship between the 

three modules in a manner that 

appeared rational or acceptable to the 

states, tribes, and others consulted 

during the development. Therefore, the 

Department’s approach is to assign the 

priority based on the highest hazard 

posed by the conditions at the site. 

F. Section 179.7. Sequencing 

Two commenters stated that although 

the factors to be considered in making 

sequencing decisions include the 

‘‘reasonably anticipated future land 

use,’’ land use assumptions, even 

reasonable ones, may change and need 

to be reconsidered. The Department’s 

response is that the rule is used to 

assign to each MRS a relative priority, 

given the associated risks. To the extent 

any specific factors considered in 

application of the rule change, and that 

change affects the priority assigned to 

an MRS, the annual reexamination of 

assigned priorities should identify and 

consider the change. As a rule, the 

Department will address those sites 

with the highest risk first. Sequencing 

decisions are, however, often driven by 

other factors. Although sequencing 

decisions may change as relative 

priorities change, once a sequencing 

decision is made and execution of the 

munitions response has begun, it is 

unlikely that a change in relative 

priority would affect the sequencing 

decision. 

One commenter noted that the 

proposed rule required the Department 

to report the results of sequencing; 

however, there is no mention of how the 

Department will make available all the 

results of the ranking. In response, the 

Department will compile the sequencing 

results and make them available to the 

public. 

V. Administrative Requirements 

A. Regulatory Impact Analysis Pursuant 

to Executive Order 12866 

Executive Order 12866 (58 FR 51735 

[October 4, 1993]) requires each agency 

taking regulatory action to determine 

whether that action is ‘‘significant.’’ The 

agency must submit any regulatory 

actions that qualify as ‘‘significant’’ to 

the Office of Management and Budget 

(OMB) for review, assess the costs and 

benefits anticipated as a result of the 

proposed action, and otherwise ensure 

that the action meets the requirements 

of the Executive Order. The Order 

defines ‘‘significant regulatory action’’

as one that is likely to result in a rule 

that may (1) have an annual effect on 

the economy of $100 million or more or 

adversely effect in a material way the 

economy, 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; or (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. 

The Department has determined that 

the rule is not a significant rule under 

Executive Order 12866 because it is not 

likely to result in a rule that will meet 

any of the four prerequisites. 

(1) The rule will not have an annual 

effect on the economy of $100 million 

or more or adversely affect in a material 

58026 Federal Register / Vol. 70, No. 192 / Wednesday, October 5, 2005 / Rules and Regulations 

way the economy, a sector of the 

economy, productivity, competition, 

jobs, the environment, public health or 

safety, or state, local, or tribal 

governments or communities. 

The primary effect on the economy 

will be the necessity for state and/or 

local governments to conduct oversight 

of the environmental restoration 

activities. The Department previously 

determined that the rule does not place 

a burden in excess of $100 million each 

year on state, local, or tribal 

governments. The changes from the 

proposed rule do not significantly 

change the analysis conducted in 

support of the proposed rule, which 

showed that the effects on the economy 

as a whole, any particular sector of the 

economy, productivity, competition, or 

jobs are not significant. In addition, 

because the one impact that was 

identified, costs for state oversight are 

reimbursable through the Defense and 

State Memorandum of Agreement 

(DSMOA) program, the overall impact to 

any individual state is minimal. 

Similarly, the previous determination 

that the proposed rule does not have a 

direct adverse effect on the 

environment, public health, and safety 

remains unchanged by the final rule. 

Any adverse effects were either a result 

of the actions that caused the UXO, 

DMM, or MC to be present at the MRS 

(e.g., the site’s use as a military range, 

treatment of waste military munitions at 

the site) , which predate the application 

of the rule, or are the result of the 

munitions response activities that are 

implemented after the application of the 

rule. In the latter case, munitions 

response activities are performed under 

the Comprehensive Environmental 

Response, Compensation, and Liability 

Act (CERCLA) and the National Oil and 

Hazardous Substances Pollution 

Contingency Plan (NCP), a process that 

fully considers the overall impacts to 

human health and the environment 

posed by UXO, DMM, or MC and the 

response to such. 

For these reasons, the Department has 

determined that the rule will not 

adversely affect, in a material way, the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

state, local, or tribal governments or 

communities. 

(2) The rule will not create a serious 

inconsistency or otherwise interfere 

with an action taken or planned by 

another agency. 

Implementation of the rule will not 

create a serious inconsistency or 

otherwise interfere with another 

agency’s action because the Department 

has lead authority for administering the 

DERP under 10 U.S.C. 2701(a)(1). The 

DERP statute delineates the 

responsibilities of the Department and 

authority of U.S. EPA to some extent. 

The Department is required by 10 U.S.C. 

2701(a)(3) to consult with the U.S. EPA 

in its administration of the 

environmental restoration program. 

Further, Section 2701(c)(2) of the statute 

gives the Department the responsibility 

of conducting environmental restoration 

activities on all properties owned or 

leased by it, except those for which U.S. 

EPA has entered into a settlement with 

a potentially responsible party. The 

rule’s ranking system will not interfere 

with the Hazard Ranking System (HRS) 

maintained by the U.S. EPA because 

each serves its own purpose. U.S. EPA 

uses the HRS to place uncontrolled 

waste sites on the National Priorities 

List (NPL). U.S. EPA does not use the 

HRS to determine the priority in 

funding U.S. EPA remedial response 

actions. The Department will use the 

rule to assign a relative priority to each 

MRS based on the risks posed at each 

MRS, relative to the risks posed at other 

MRSs, and may use the rule as a basis 

for determining which MRS will receive 

funding. The Department’s use of the 

rule should not interfere with U.S. 

EPA’s use of the HRS. The Department 

action may interfere with U.S. EPA 

action in a situation where U.S. EPA 

decides to pursue response action at an 

MRS that the Department has 

designated as a low priority. Where this 

occurs, the Department will cooperate, 

to the extent possible, with U.S. EPA 

and rely on existing interagency 

processes to reach agreement on MRS 

priorities and response actions. Based 

on the above reasoning, the Department 

has determined that there is minimal 

potential for inconsistencies or 

interference with action by any other 

agency. 

(3) The rule will not materially alter 

the budgetary impact of entitlements, 

grants, user fees, or loan programs or the 

rights and obligations of recipients 

thereof. 

The rule will not materially alter the 

budgetary impact of entitlements, 

grants, user fees, or loan programs, or 

the rights and obligations of recipients 

thereof because no entitlements, grants, 

user fees, or loan programs are invoked 

through prioritization of each MRS for 

response activities. 

(4) The rule will not raise novel legal 

or policy issues arising out of legal 

mandates, the President’s priorities, or 

the principles set forth in the Executive 

Order. 

Finally, the rule does not raise novel 

legal or policy issues arising out of legal 

mandates, the President’s priorities, or 

the principles set forth in the Executive 

Order. Congress has already established 

the requirement for environmental 

restoration of MRSs and for the 

Department’s development of a method 

to assign each MRS a relative priority. 

The rule is merely a method for the 

Department to determine a relative 

priority of an MRS for response action. 

The Department has identified no novel 

legal or policy issues that this rule will 

create on either an MRS-specific basis or 

overall. Nor has the Department 

identified any novel legal or policy 

issues arising out of the President’s 

priorities or principles set forth in the 

Regulatory Impact Analysis. 

B. Regulatory Flexibility Act 

The Regulatory Flexibility Act (5 

U.S.C. 601 et seq., as amended by the 

Small Business Regulatory Enforcement 

Fairness Act [SBREFA] of 1996), 

requires that an agency conduct a 

regulatory flexibility analysis when 

publishing a notice of rulemaking for 

any proposed or final rule. The 

regulatory flexibility analysis 

determines the impact of the rule on 

small entities (i.e., small businesses, 

small organizations, and small 

governmental jurisdictions). SBREFA 

amended the Regulatory Flexibility Act 

to require federal agencies to state the 

factual basis for certifying that a rule 

will not have a significant economic 

impact on a substantial number of small 

entities. 

The Department hereby certifies that 

the rule will not have a significant 

economic impact on a substantial 

number of small entities. The nature of 

the rule provides the factual basis for a 

determination that no regulatory 

flexibility analysis is required. The rule 

merely provides a procedure by which 

the Department may assign a relative 

priority to each MRS for response 

actions. No costs are directly imposed 

on small entities nor is any action 

directly required of small entities 

through this rule. Because the 

Department bears the financial 

responsibility for remediating MRSs, 

and the source of its funding is 

Congress, implementation of the rule 

will not directly affect small entities in 

a financial manner. For the foregoing 

reasons, the Department believes that 

the rule, if promulgated, would not have 

a significant economic impact on a 

substantial number of small entities. 

C. Unfunded Mandates 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), Public 

Law 104–4, requires federal agencies to 

assess the effects of their regulatory 

actions on state, local, and tribal 

Federal Register / Vol. 70, No. 192 / Wednesday, October 5, 2005 / Rules and Regulations 58027 

governments and the private sector. 

Section 202 of the UMRA requires that, 

prior to promulgating proposed and 

final rules with ‘‘federal mandates’’ that 

may result in expenditures by state, 

local, and tribal governments, in the 

aggregate, or by the private sector, of 

$100 million or more in any one year, 

the agency must prepare a written 

statement, including a cost-benefit 

analysis of the rule. Under Section 205 

of the UMRA, the Department must also 

identify and consider a reasonable 

number of regulatory alternatives to the 

rule and adopt the least costly, most 

cost-effective, or least burdensome 

alternative that achieves the objectives 

of the rule. Certain exceptions to 

Section 205 exist. For example, when 

the requirements of Section 205 are 

inconsistent with applicable law, 

Section 205 does not apply. In addition, 

an agency may adopt an alternative 

other than the least costly, most costeffective, or least burdensome in those 

cases where the agency publishes with 

the final rule an explanation of why 

such alternative was not adopted. 

Section 203 of the UMRA requires that 

the agency develop a small government 

agency plan before establishing any 

regulatory requirements that may 

significantly or uniquely affect small 

governments, including tribal 

governments. The small government 

agency plan must include procedures 

for notifying potentially affected small 

governments, providing officials of 

affected small governments with the 

opportunity for meaningful and timely 

input in the development of regulatory 

proposals with significant federal 

intergovernmental mandates, and 

informing, educating, and advising 

small governments on compliance with 

the regulatory requirements. 

The Department has determined that 

the rule does not contain a federal 

mandate that may result in expenditures 

of $100 million or more for state, local, 

and tribal governments in the aggregate, 

or by the private sector in any one year. 

The term ‘‘federal mandate’’ means any 

provision in statute or regulation or any 

federal court ruling that imposes ‘‘an 

enforceable duty’’ upon state, local, or 

tribal governments, and includes any 

condition of federal assistance or a duty 

arising from participation in a voluntary 

federal program that imposes such a 

duty. The rule does not contain a federal 

mandate because it imposes no 

enforceable duty upon state, tribal, or 

local governments. The Department is 

responsible for funding munitions 

responses and imposes no costs on other 

entities by prioritizing MRSs using the 

rule. The Department recognizes that 

the state, local, or tribal government 

may expend funds to conduct oversight 

of the response activities. The rule, 

however, does not require such 

oversight. To the degree such oversight 

is required, it is required by preexisting 

law on which the rule has no effect. 

D. Paperwork Reduction Act 

The Paperwork Reduction Act (PRA), 

44 U.S.C. 3501 et seq., prohibits a 

federal agency from conducting or 

sponsoring a collection of information 

that requires OMB approval, unless 

such approval has been obtained and 

the collection request displays a 

currently valid OMB control number. 

Nor is any person required to respond 

to an information collection request that 

has not complied with the PRA. The 

term ‘‘collection of information’’

includes collection of information from 

ten or more persons. The Department 

has determined that the PRA does not 

apply to this rule because, although the 

Department will collect information on 

the MRS, it does not mandate that any 

person supply information. All 

information collected from persons will 

be voluntary, for example, through an 

interview. Therefore, the PRA does not 

apply to the rule. 

E. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (NTTAA), Public Law 104–

113, Section 12(d) (15 U.S.C. 272 note), 

directs federal agencies to use technical 

standards developed by voluntary 

consensus standards bodies in its 

regulatory activities, except in those 

cases in which using such standards 

would be inconsistent with applicable 

law or otherwise impractical. 

‘‘Technical standards’’ means 

performance-based or design-specific 

technical specifications and related 

management systems practices. 

Voluntary consensus means that the 

technical standards are developed or 

adopted by voluntary consensus 

standards organizations. In those cases 

in which a federal agency does not use 

voluntary consensus standards that are 

available and applicable, the agency 

must provide OMB with an explanation. 

The rule does not involve 

performance-based or design-specific 

technical specifications or related 

management systems practices. The 

values for relative risk used in the HHE 

module, to the extent they qualify as 

technical standards, were formed 

through consensus. The rule is therefore 

in compliance with the NTTAA. 

F. Environmental Justice Requirements 

Under Executive Order 12898 

Under Executive Order 12898, 

‘‘Federal Actions to Address 

Environmental Justice in Minority 

Populations and Low-Income 

Populations,’’ a federal agency must, 

where practicable and appropriate, 

collect, maintain, and analyze 

information assessing and comparing 

environmental and human health risks 

borne by populations identified by race, 

national origin, or income. To the extent 

practical and appropriate, federal 

agencies must then use this information 

to determine whether their activities 

have disproportionately high and 

adverse human health or environmental 

effects on minority populations and 

low-income populations. 

The Department believes that 

implementation of the rule will address 

environmental justice concerns in 

several ways. First, the rule will address 

environmental justice by ensuring that 

prioritization is based primarily on risk 

to the human health and environment of 

all populations. The Department 

recognizes that prioritization of MRSs 

for response action could result in a 

low-priority designation for some MRSs 

located in low-income or minority 

neighborhoods. Under the risk-based 

approach, such prioritization could only 

be viewed as environmental injustice if 

low-income and minority populations 

were disproportionately located near 

low-risk MRSs. However, should this be 

the case, the final rule would allow the 

Department to consider this fact in its 

sequencing decisions. Second, the 

Department has reserved a step in the 

rule for consideration of environmental 

justice concerns, having supplemented 

the risk-based prioritization decision 

with consideration of whether lowincome or minority populations are near 

the MRS in question. Third, because the 

rule will provide the Department with 

an established method for choosing 

which MRSs to address first, it will 

ensure uniformity among decisions and 

eliminate the potential for intentional 

discrimination against low-income and 

minority populations. Finally, the 

Department’s engagement with various 

stakeholders, most notably tribal 

governments, in developing the rule has 

helped to build consideration of 

environmental justice concerns into the 

rule. 

The Department plans to continue to 

study the environmental justice effects 

once the rule is implemented. Until that 

time, no data exist regarding whether 

low-income and minority populations 

live near high-risk MRSs as opposed to 

low-risk MRSs. As such, there is 

58028 Federal Register / Vol. 70, No. 192 / Wednesday, October 5, 2005 / Rules and Regulations 

currently no way of determining 

whether generally focusing response 

efforts first at those MRSs that pose a 

relatively higher risk will in any way 

adversely affect these or any particular 

segment of the population. The 

Department decided to include 

environmental justice considerations in 

the body of the proposed rule as a 

precautionary measure, but will 

examine the effect of the rule on lowincome and minority populations, once 

the Department has implemented it and 

has compiled data from which to draw. 

At this time, the Department believes 

that no action will directly result from 

the rule that will have a 

disproportionately high and adverse 

human health and environmental effect 

on any segment of the population. The 

Department will examine, however, the 

effects of implementation to ensure that 

no disproportionately high and adverse 

human health or environmental effect 

occurs. 

G. Federalism Considerations Under 

Executive Order 13132 

Executive Order 13132, entitled 

‘‘Federalism’’ (64 FR 43255, August 10, 

1999), establishes certain requirements 

for federal agencies issuing regulations, 

legislative comments, proposed 

legislation, or other policy statements or 

actions that have ‘‘federal implications.’’

Under the Executive Order, any of these 

agency documents or actions have 

‘‘federal implications’’ when they 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.’’ Section 6 of the 

Executive Order prohibits any agency 

from issuing a regulation that has 

federal implications, imposes 

substantial direct compliance costs on 

state and local governments, and is not 

required by statute. Such a regulation 

may be issued only if the federal 

government provides the funds 

necessary to pay the direct compliance 

costs incurred by state and local 

governments, or the agency consults 

with state and local officials early in the 

process of developing the proposed 

regulation. Further, a federal agency 

may issue a regulation that has 

federalism implications and preempts 

state law only if the agency consults 

with state and local officials early in the 

process of developing the proposed 

regulation. 

The rule does not have federalism 

implications because 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. The statute 

authorizing the Department’s 

environmental restoration program, 10 

U.S.C. 2701, clearly defines the role and 

responsibilities of the Department with 

respect to state and local governments. 

The role and primary responsibility of 

the Department is to implement an 

appropriate environmental restoration 

program at MRSs. The Department 

funds environmental restoration 

activities and does not directly affect the 

states in any manner. The only potential 

dispute regarding distribution of power 

may arise where the state attempts to 

require the Department to respond to an 

MRS under a state hazardous waste law, 

and the Department has not ranked the 

MRS as a high priority or allocated 

funding for environmental restoration of 

the MRS. Such a situation, however, 

would be dealt with per established 

legal principles regarding the 

relationship of states to the federal 

government. The rule does not alter this 

relationship. Additionally, it would not 

be appropriate for the rule to attempt to 

assign roles to the Department or any 

state because such assignment of roles is 

outside the scope of the statutory 

mandate. The rule does not impose 

direct compliance costs on state or local 

governments because the Department 

funds environmental restoration 

activities. 

Finally, development of a method for 

prioritizing action at MRSs was 

specifically required by statute. 

Therefore, the requirements of the 

Executive Order, Section 6, do not apply 

to the rule. 

List of Subjects in 32 CFR Part 179 

Arms and munitions, Environmental 

protection, Government property, 

Military personnel. 

■ Accordingly, 32 CFR part 179 is 

added to Chapter 1, Subchapter H to 

read as follows: 

PART 179—MUNITIONS RESPONSE 

SITE PRIORITIZATION PROTOCOL 

(MRSPP) 

Sec. 

179.1. Purpose. 

179.2. Applicability and scope. 

179.3. Definitions. 

179.4. Policy. 

179.5. Responsibilities. 

179.6. Procedures. 

179.7. Sequencing. 

Appendix A to Part 179—Tables of the 

Munitions Response Site Prioritization 

Protocol (MRSPP). 

Authority: 10 U.S.C. 2710 et seq. 

§ 179.1 Purpose. 

The Department of Defense (the 

Department) is adopting this Munitions 

Response Site Prioritization Protocol 

(MRSPP) (hereinafter referred to as the 

‘‘rule’’) under the authority of 10 U.S.C. 

2710(b). Provisions of 10 U.S.C. 2710(b) 

require that the Department assign to 

each defense site in the inventory 

required by 10 U.S.C. 2710(a) a relative 

priority for response activities based on 

the overall conditions at each location 

and taking into consideration various 

factors related to safety and 

environmental hazards. 

§ 179.2 Applicability and scope. 

(a) This part applies to the Office of 

the Secretary of Defense, the Military 

Departments, the Defense Agencies and 

the Department Field Activities, and 

any other Department organizational 

entity or instrumentality established to 

perform a government function 

(hereafter referred to collectively as the 

‘‘Components’’). 

(b) The rule in this part shall be 

applied at all locations: 

(1) That are, or were, owned by, 

leased to, or otherwise possessed or 

used by the Department, and 

(2) That are known to, or suspected of, 

containing unexploded ordnance 

(UXO), discarded military munitions 

(DMM), or munitions constituents (MC), 

and 

(3) That are included in the inventory 

established pursuant to 10 U.S.C. 

2710(a). 

(c) The rule in this part shall not be 

applied at the locations not included in 

the inventory required under 10 U.S.C. 

2710(a). The locations not included in 

the inventory are: 

(1) Locations that are not, or were not, 

owned by, leased to, or otherwise 

possessed or used by the Department, 

(2) Locations neither known to 

contain, or suspected of containing, 

UXO, DMM, or MC, 

(3) Locations outside the United 

States, 

(4) Locations where the presence of 

military munitions results from combat 

operations, 

(5) Currently operating military 

munitions storage and manufacturing 

facilities, 

(6) Locations that are used for, or were 

permitted for, the treatment or disposal 

of military munitions, and 

(7) Operational ranges. 

§ 173.3 Definitions. 

This part includes definitions for 

many terms that clarify its scope and 

applicability. Many of the terms 

relevant to this part are already defined, 

either in 10 U.S.C. 101, 10 U.S.C. 

Federal Register / Vol. 70, No. 192 / Wednesday, October 5, 2005 / Rules and Regulations 58029 

2710(e), or the Code of Federal 

Regulations. Where this is the case, the 

statutory and regulatory definitions are 

repeated here strictly for ease of 

reference. Citations to the U.S. Code or 

the Code of Federal Regulations are 

provided with the definition, as 

applicable. Unless used elsewhere in 

the U.S. Code or the Code of Federal 

Regulations, these terms are defined 

only for purposes of this part. 

Barrier means a natural obstacle or 

obstacles (e.g., difficult terrain, dense 

vegetation, deep or fast-moving water), 

a man-made obstacle or obstacles (e.g., 

fencing), and combinations of natural 

and man-made obstacles. 

Chemical agent (CA) means a 

chemical compound (to include 

experimental compounds) that, through 

its chemical properties produces lethal 

or other damaging effects on human 

beings, is intended for use in military 

operations to kill, seriously injure, or 

incapacitate persons through its 

physiological effects. Excluded are 

research, development, testing and 

evaluation (RDTE) solutions; riot control 

agents; chemical defoliants and 

herbicides; smoke and other obscuration 

materials; flame and incendiary 

materials; and industrial chemicals. 

(This definition is based on the 

definition of ‘‘chemical agent and 

munition’’ in 50 U.S.C. 1521(j)(1).) 

Chemical Agent (CA) Hazard is a 

condition where danger exists because 

CA is present in a concentration high 

enough to present potential 

unacceptable effects (e.g., death, injury, 

damage) to people, operational 

capability, or the environment. 

Chemical Warfare Materiel (CWM) 

means generally configured as a 

munition containing a chemical 

compound that is intended to kill, 

seriously injure, or incapacitate a person 

through its physiological effects. CWM 

includes V- and G-series nerve agents or 

H-series (mustard) and L-series 

(lewisite) blister agents in other-thanmunition configurations; and certain 

industrial chemicals (e.g., hydrogen 

cyanide (AC), cyanogen chloride (CK), 

or carbonyl dichloride (called phosgene 

or CG)) configured as a military 

munition. Due to their hazards, 

prevalence, and military-unique 

application, chemical agent 

identification sets (CAIS) are also 

considered CWM. CWM does not 

include riot control devices; chemical 

defoliants and herbicides; industrial 

chemicals (e.g., AC, CK, or CG) not 

configured as a munition; smoke and 

other obscuration-producing items; 

flame and incendiary-producing items; 

or soil, water, debris, or other media 

contaminated with low concentrations 

of chemical agents where no CA hazards 

exist. For the purposes of this Protocol, 

CWM encompasses four subcategories of 

specific materials: 

(1) CWM, explosively configured are 

all munitions that contain a CA fill and 

any explosive component. Examples are 

M55 rockets with CA, the M23 VX mine, 

and the M360 105-mm GB artillery 

cartridge. 

(2) CWM, nonexplosively configured 

are all munitions that contain a CA fill, 

but that do not contain any explosive 

components. Examples are any chemical 

munition that does not contain 

explosive components and VX or 

mustard agent spray canisters. 

(3) CWM, bulk container are all nonmunitions-configured containers of CA 

(e.g., a ton container) and CAIS K941, 

toxic gas set M–1 and K942, toxic gas set 

M–2/E11. 

(4) CAIS are military training aids 

containing small quantities of various 

CA and other chemicals. All forms of 

CAIS are scored the same in this rule, 

except CAIS K941, toxic gas set M–1; 

and CAIS K942, toxic gas set M–2/E11, 

which are considered forms of CWM, 

bulk container, due to the relatively 

large quantities of agent contained in 

those types of sets. 

Components means the Office of the 

Secretary of Defense, the Military 

Departments, the Defense Agencies, the 

Department Field Activities, and any 

other Department organizational entity 

or instrumentality established to 

perform a government function. 

Defense site means locations that are 

or were owned by, leased to, or 

otherwise possessed or used by the 

Department. The term does not include 

any operational range, operating storage 

or manufacturing facility, or facility that 

is used for or was permitted for the 

treatment or disposal of military 

munitions. (10 U.S.C. 2710(e)(1)) 

Discarded military munitions (DMM) 

means military munitions that have 

been abandoned without proper 

disposal or removed from storage in a 

military magazine or other storage area 

for the purpose of disposal. The term 

does not include UXO, military 

munitions that are being held for future 

use or planned disposal, or military 

munitions that have been properly 

disposed of consistent with applicable 

environmental laws and regulations. (10 

U.S.C. 2710(e)(2)) 

Explosive hazard means a condition 

where danger exists because explosives 

are present that may react (e.g., 

detonate, deflagrate) in a mishap with 

potential unacceptable effects (e.g., 

death, injury, damage) to people, 

property, operational capability, or the 

environment. 

Military munitions means all 

ammunition products and components 

produced for or used by the armed 

forces for national defense and security, 

including ammunition products or 

components under the control of the 

Department of Defense, the Coast Guard, 

the Department of Energy, and the 

National Guard. The term includes 

confined gaseous, liquid, and solid 

propellants; explosives, pyrotechnics, 

chemical and riot control agents, 

smokes, and incendiaries, including 

bulk explosives and chemical warfare 

agents; chemical munitions, rockets, 

guided and ballistic missiles, bombs, 

warheads, mortar rounds, artillery 

ammunition, small arms ammunition, 

grenades, mines, torpedoes, depth 

charges, cluster munitions and 

dispensers, and demolition charges; and 

devices and components of any item 

thereof. The term does not include 

wholly inert items, improvised 

explosive devices, and nuclear 

weapons, nuclear devices, and nuclear 

components, other than nonnuclear 

components of nuclear devices that are 

managed under the nuclear weapons 

program of the Department of Energy 

after all required sanitization operations 

under the Atomic Energy Act of 1954 

(42 U.S.C. 2011 et seq.) have been 

completed. (10 U.S.C. 101(e)(4)) 

Military range means designated land 

and water areas set aside, managed, and 

used to research, develop, test, and 

evaluate military munitions, other 

ordnance, or weapon systems, or to train 

military personnel in their use and 

handling. Ranges include firing lines 

and positions, maneuver areas, firing 

lanes, test pads, detonation pads, impact 

areas, and buffer zones with restricted 

access and exclusionary areas. (40 CFR 

266.201) 

Munitions and explosives of concern 

distinguishes specific categories of 

military munitions that may pose 

unique explosives safety risks, such as 

UXO, as defined in 10 U.S.C. 101(e)(5); 

discarded military munitions, as 

defined in 10 U.S.C. 2710(e)(2); or 

munitions constituents (e.g., TNT, 

RDX), as defined in 10 U.S.C. 2710(e)(3), 

present in high enough concentrations 

to pose an explosive hazard. 

Munitions constituents means any 

materials originating from UXO, 

discarded military munitions, or other 

military munitions, including explosive 

and nonexplosive materials, and 

emission, degradation, or breakdown 

elements of such ordnance or 

munitions. (10 U.S.C. 2710(e)(3)) 

Munitions response means response 

actions, including investigation, 

removal actions, and remedial actions, 

to address the explosives safety, human 

58030 Federal Register / Vol. 70, No. 192 / Wednesday, October 5, 2005 / Rules and Regulations 

health, or environmental risks presented 

by UXO, discarded military munitions 

(DMM), or munitions constituents (MC), 

or to support a determination that no 

removal or remedial action is required. 

Munitions response area (MRA) 

means any area on a defense site that is 

known or suspected to contain UXO, 

DMM, or MC. Examples are former 

ranges and munitions burial areas. An 

MRA comprises one or more munitions 

response sites. 

Munitions response site (MRS) means 

a discrete location within an MRA that 

is known to require a munitions 

response. 

Operational range means a range that 

is under the jurisdiction, custody, or 

control of the Secretary of Defense and 

that is used for range activities, or 

although not currently being used for 

range activities, that is still considered 

by the Secretary to be a range and has 

not been put to a new use that is 

incompatible with range activities. (10 

U.S.C. 101(e)(3)) 

Range means a designated land or 

water area that is set aside, managed, 

and used for range activities of the 

Department of Defense. The term 

includes firing lines and positions, 

maneuver areas, firing lanes, test pads, 

detonation pads, impact areas, 

electronic scoring sites, buffer zones 

with restricted access, and exclusionary 

areas. The term also includes airspace 

areas designated for military use in 

accordance with regulations and 

procedures prescribed by the 

Administrator of the Federal Aviation 

Administration. (10 U.S.C. 101(e)(1)(A) 

and (B)) 

Range activities means research, 

development, testing, and evaluation of 

military munitions, other ordnance, and 

weapons systems; and the training of 

members of the armed forces in the use 

and handling of military munitions, 

other ordnance, and weapons systems. 

(10 U.S.C. 101(3)(2)) 

Unexploded ordnance (UXO) means 

military munitions that: 

(1) Have been primed, fuzed, armed, 

or otherwise prepared for action; 

(2) Have been fired, dropped, 

launched, projected, or placed in such 

a manner as to constitute a hazard to 

operations, installations, personnel, or 

material; and 

(3) Remain unexploded, whether by 

malfunction, design, or any other cause. 

(10 U.S.C. 101(e)(5)) 

United States means, in a geographic 

sense, the states, territories, and 

possessions and associated navigable 

waters, contiguous zones, and ocean 

waters of which the natural resources 

are under the exclusive management 

authority of the United States. (10 

U.S.C. 2710(e)(10)) 

§ 179.4 Policy. 

(a) In assigning a relative priority for 

response activities, the Department 

generally considers those MRSs posing 

the greatest hazard as being the highest 

priority for action. The priority assigned 

should be based on the overall 

conditions at each MRS, taking into 

consideration various factors relating to 

safety and environmental hazard 

potential. 

(b) In addition to the priority assigned 

to an MRS, other considerations (e.g., 

availability of specific equipment, 

intended reuse, stakeholder interest) can 

affect the sequence in which munitions 

response actions at a specific MRS are 

funded. 

(c) It is Department policy to ensure 

that U.S. EPA, other federal agencies (as 

appropriate or required), state regulatory 

agencies, tribal governments, local 

restoration advisory boards or technical 

review committees, and local 

stakeholders are offered opportunities to 

participate in the application of the rule 

in this part and making sequencing 

recommendations. 

§ 179.5 Responsibilities. 

Each Component shall: 

(a) Apply the rule in this part to each 

MRS under its administrative control 

when sufficient data are available to 

populate all the data elements within 

any or all of the three hazard evaluation 

modules that comprise the rule. Upon 

further delineation and characterization 

of an MRA into more than one MRS, 

Components shall reapply the rule to all 

MRSs within the MRA. In such cases 

where data are not sufficient to populate 

one or two of the hazard evaluation 

modules (e.g., there are no constituent 

sampling data for the Health Hazard 

Evaluation [HHE] module), Components 

will assign a priority based on the 

hazard evaluation modules evaluated 

and reapply the rule once sufficient data 

are available to apply the remaining 

hazard evaluation modules. 

(b) Ensure that the total acreage of 

each MRA is evaluated using this rule 

(i.e., ensure the all MRSs within the 

MRA are evaluated). 

(c) Ensure that EPA, other federal 

agencies (as appropriate or required), 

state regulatory agencies, tribal 

governments, local restoration advisory 

boards or technical review committees, 

local community stakeholders, and the 

current landowner (if the land is outside 

Department control) are offered 

opportunities as early as possible and 

throughout the process to participate in 

the application of the rule and making 

sequencing recommendations. 

(1) To ensure EPA, other federal 

agency, state regulatory agencies, tribal 

governments, and local government 

officials are aware of the opportunity to 

participate in the application of the rule, 

the Component organization responsible 

for implementing a munitions response 

at the MRS shall notify the heads of 

these organizations (or their designated 

point of contact), as appropriate, seeking 

their involvement prior to beginning 

prioritization. Records of the 

notification will be placed in the 

Administrative Record and Information 

Repository for the MRS. 

(2) Prior to beginning prioritization, 

the Component organization responsible 

for implementing a munitions response 

at the MRS shall publish an 

announcement in local community 

publications requesting information 

pertinent to prioritization or sequencing 

decisions to ensure the local community 

is aware of the opportunity to 

participate in the application of the rule. 

(d) Establish a quality assurance panel 

of Component personnel to review, 

initially, all MRS prioritization 

decisions. Once the Department 

determines that its Components are 

applying the rule in a consistent manner 

and the rule’s application leads to 

decisions that are representative of site 

conditions, the Department may 

establish a sampling-based approach for 

its Components to use for such reviews. 

This panel reviewing the priority 

assigned to an MRS shall not include 

any participant involved in applying the 

rule to that MRS. If the panel 

recommends a change that results in a 

different priority, the Component shall 

report, in the inventory data submitted 

to the Office of the Deputy Under 

Secretary of Defense (Installations & 

Environment) (ODUSD[I&E]), the 

rationale for this change. The 

Component shall also provide this 

rationale to the appropriate regulatory 

agencies and involved stakeholders for 

comment before finalizing the change. 

(e) Following the panel review, 

submit the results of applying the rule 

along with the other inventory data that 

10 U.S.C. 2710(c) requires be made 

publicly available, to the ODUSD(I&E). 

The ODUSD(I&E) shall publish this 

information in the report on 

environmental restoration activities for 

that fiscal year. If sequencing decisions 

result in action at an MRS with a lower 

MRS priority ahead of an MRS with a 

higher MRS priority, the Component 

shall provide specific justification to the 

ODUSD(I&E). 

(f) Document in a Management Action 

Plan (MAP) or its equivalent all aspects 

Federal Register / Vol. 70, No. 192 / Wednesday, October 5, 2005 / Rules and Regulations 58031 

of the munitions responses required at 

all MRSs for which that MAP is 

applicable. Department guidance 

requires that MAP be developed and 

maintained at an installation (or 

Formerly Used Defense Site [FUDS] 

property) level and address each site at 

that installation or FUDS. For the FUDS 

program, a statewide MAP may also be 

developed. 

(g) Develop sequencing decisions at 

installations and FUDS with input from 

appropriate regulators and stakeholders 

(e.g., community members of an 

installation’s restoration advisory board 

or technical review committee), and 

document this development in the 

MAP. Final sequencing may be 

impacted by Component program 

management considerations. If the 

sequencing of any MRS is changed from 

the sequencing reflected in the current 

MAP, the Component shall provide 

information to the appropriate 

regulators and stakeholders 

documenting the reasons for the 

sequencing change, and shall request 

their review and comment on that 

decision. 

(h) Ensure that information provided 

by regulators and stakeholders that may 

influence the priority assigned to an 

MRS or sequencing decision concerning 

an MRS is included in the 

Administrative Record and the 

Information Repository. 

(i) Review each MRS priority at least 

annually and update the priority as 

necessary to reflect new information. 

Reapplication of the rule is required 

under any of the following 

circumstances: 

(1) Upon completion of a response 

action that changes site conditions in a 

manner that could affect the evaluation 

under this rule. 

(2) To update or validate a previous 

evaluation at an MRS when new 

information is available. 

(3) To update or validate the priority 

assigned where that priority has been 

previously assigned based on evaluation 

of only one or two of the three hazard 

evaluation modules. 

(4) Upon further delineation and 

characterization of an MRA into MRSs. 

(5) To categorize any MRS previously 

classified as ‘‘evaluation pending.’’

§ 179.6 Procedures. 

The rule in this part comprises the 

following three hazard evaluation 

modules. 

(a) Explosive Hazard Evaluation (EHE) 

module. 

(1) The EHE module provides a single, 

consistent, Department-wide approach 

for the evaluation of explosive hazards. 

This module is used when there is a 

known or suspected presence of an 

explosive hazard. The EHE module is 

composed of three factors, each of 

which has two to four data elements 

that are intended to assess the specific 

conditions at an MRS. These factors are: 

(i) Explosive hazard, which has the 

data elements Munitions Type and 

Source of Hazard and constitutes 40 

percent of the EHE module score. (See 

Appendix A to this part, Tables 1 and 

2.) 

(ii) Accessibility, which has the data 

elements Location of Munitions, Ease of 

Access, and Status of Property and 

constitutes 40 percent of the EHE 

module score. (See Appendix A, Tables 

3, 4, and 5.) 

(iii) Receptors, which has the data 

elements Population Density, 

Population Near Hazard, Types of 

Activities/Structures, and Ecological 

and/or Cultural Resources and 

constitutes 20 percent of the EHE 

module score. (See Appendix A, Tables 

6, 7, 8, and 9.) 

(2) Based on MRS-specific 

information, each data element is 

assigned a numeric score, and the sum 

of these score is the EHE module score. 

The EHE module score results in an 

MRS being placed into one of the 

following ratings. (See Appendix A, 

Table 10.) 

(i) EHE Rating A (Highest) is assigned 

to MRSs with an EHE module score 

from 92 to 100. 

(ii) EHE Rating B is assigned to MRSs 

with an EHE module score from 82 to 

91. 

(iii) EHE Rating C is assigned to MRSs 

with an EHE module score from 71 to 

81. 

(iv) EHE Rating D is assigned to MRSs 

with an EHE module score from 60 to 

70. 

(v) EHE Rating E is assigned to MRSs 

with an EHE module score from 48 to 

59. 

(vi) EHE Rating F is assigned to MRSs 

with an EHE module score from 38 to 

47. 

(vii) EHE Rating G (Lowest) is 

assigned to MRSs with an EHE module 

score less than 38. 

(3) There are also three other possible 

outcomes for the EHE module: 

(i) Evaluation pending. This category 

is used when there are known or 

suspected UXO or DMM, but sufficient 

information is not available to populate 

the nine data elements of the EHE 

module. 

(ii) No longer required. This category 

is reserved for MRSs that no longer 

require an assigned priority because the 

Department has conducted a response, 

all objectives set out in the decision 

document for the MRS have been 

achieved, and no further action, except 

for long-term management and recurring 

reviews, is required. 

(iii) No known or suspected explosive 

hazard. This category is reserved for 

MRSs that do not require evaluation 

under the EHE module. 

(4) The EHE module rating shall be 

considered with the CHE and HHE 

module ratings to determine the MRS 

priority. 

(5) MRSs lacking information for 

determining an EHE module rating shall 

be programmed for additional study and 

evaluated as soon as sufficient data are 

available. Until an EHE module rating is 

assessed, MRSs shall be rated as 

‘‘evaluation pending’’ for the EHE 

module. 

(b) Chemical Warfare Materiel Hazard 

Evaluation (CHE) module. (1) The CHE 

module provides an evaluation of the 

chemical hazards associated with the 

physiological effects of CWM. The CHE 

module is used only when CWM are 

known or suspected of being present at 

an MRS. Like the EHE module, the CHE 

module has three factors, each of which 

has two to four data elements that are 

intended to assess the conditions at an 

MRS. 

(i) CWM hazard, which has the data 

elements CWM Configuration and 

Sources of CWM and constitutes 40 

percent of the CHE score. (See 

Appendix A to this part, Tables 11 and 

12.) 

(ii) Accessibility, which focuses on 

the potential for receptors to encounter 

the CWM known or suspected to be 

present on an MRS. This factor consists 

of three data elements, Location of 

CWM, Ease of Access, and Status of 

Property, and constitutes 40 percent of 

the CHE score. (See Appendix A, Tables 

13, 14, and 15.) 

(iii) Receptor, which focuses on the 

human and ecological populations that 

may be impacted by the presence of 

CWM. It has the data elements 

Population Density, Population Near 

Hazard, Types of Activities/Structures, 

and Ecological and/or Cultural 

Resources and constitutes 20 percent of 

the CHE score. (See Appendix A, Tables 

16, 17, 18, and 19.) 

(2) Similar to the EHE module, each 

data element is assigned a numeric 

score, and the sum of these scores (i.e., 

the CHE module score) is used to 

determine the CHE rating. The CHE 

module score results in an MRS being 

placed into one of the following ratings. 

(See Appendix A, Table 20.) 

(i) CHE Rating A (Highest) is assigned 

to MRSs with a CHE score from 92 to 

100. 

(ii) CHE Rating B is assigned to MRSs 

with a CHE score from 82 to 91. 

58032 Federal Register / Vol. 70, No. 192 / Wednesday, October 5, 2005 / Rules and Regulations 

(iii) CHE Rating C is assigned to MRSs 

with a CHE score from 71 to 81. 

(iv) CHE Rating D is assigned to MRSs 

with a CHE score from 60 to 70. 

(v) CHE Rating E is assigned to MRSs 

with a CHE score from 48 to 59. 

(vi) CHE Rating F is assigned to MRSs 

with a CHE score from 38 to 47. 

(vii) CHE Rating G (Lowest) is 

assigned to MRSs with a CHE score less 

than 38. 

(3) There are also three other potential 

outcomes for the CHE module: 

(i) Evaluation pending. This category 

is used when there are known or 

suspected CWM, but sufficient 

information is not available to populate 

the nine data elements of the CHE 

module. 

(ii) No longer required. This category 

is reserved for MRSs that no longer 

require an assigned priority because the 

Department has conducted a response, 

all objectives set out in the decision 

document for the MRS have been 

achieved, and no further action, except 

for long-term management and recurring 

reviews, is required. 

(iii) No known or suspected CWM 

hazard. This category is reserved for 

MRSs that do not require evaluation 

under the CHE module. 

(4) The CHE rating shall be 

considered with the EHE module and 

HHE module ratings to determine the 

MRS priority. 

(5) MRSs lacking information for 

assessing a CHE module rating shall be 

programmed for additional study and 

evaluated as soon as sufficient data are 

available. Until a CHE module rating is 

assigned, the MRS shall be rated as 

‘‘evaluation pending’’ for the CHE 

module. 

(c) Health Hazard Evaluation (HHE) 

module. 

(1) The HHE provides a consistent 

Department-wide approach for 

evaluating the relative risk to human 

health and the environment posed by 

MC. The HHE builds on the RRSE 

framework that is used in the 

Installation Restoration Program (IRP) 

and has been modified to address the 

unique requirements of MRSs. The HHE 

module shall be used for evaluating the 

potential hazards posed by MC and 

other chemical contaminants. The HHE 

module is intended to evaluate MC at 

sites. Any incidental nonmunitionsrelated contaminants may be addressed 

incidental to a munitions response 

under the MMRP. 

(2) The module has three factors: 

(i) Contamination Hazard Factor 

(CHF), which indicates MC, and any 

nonmunitions-related incidental 

contaminants present; this factor 

contributes a level of High (H), Middle 

(M), or Low (L) based on Significant, 

Moderate, or Minimal contaminants 

present, respectively. (See Appendix A 

to this part, Table 21.) 

(ii) Receptor Factor (RF), which 

indicates the receptors; this factor 

contributes a level of H, M, or L based 

on Identified, Potential, or Limited 

receptors, respectively. (See Appendix 

A, Table 21.) 

(iii) Migration Pathway Factor (MPF), 

which indicates environmental 

migration pathways, and contributes a 

level of H, M, or L based on Evident, 

Potential or Confined pathways, 

respectively. (See Appendix A, Table 

21.) 

(3) The H, M, and L levels for the 

CHF, RF, and MPF are combined in a 

matrix to obtain composite three-letter 

combination levels that integrate 

considerations of all three factors. (See 

Appendix A, Table 22.) 

(4) The three-letter combination levels 

are organized by frequency, and the 

resulting frequencies result in seven 

HHE ratings. (See Appendix A, Table 

23.) 

(i) HHE Rating A (Highest) is assigned 

to MRSs with an HHE combination level 

of high for all three factors. 

(ii) HHE Rating B is assigned to MRSs 

with a combination level of high for 

CHF and RF and medium for MPF 

(HHM). 

(iii) HHE Rating C is assigned to MRSs 

with a combination level of high for the 

CHF and RF and low for MPF (HHL), or 

high for CHF and medium for the RF 

and MPF (HMM). 

(iv) HHE Rating D is assigned to MRSs 

with a combination level of high for the 

CHF, medium for the RF, and low for 

the MPF (HML), or medium for all three 

factors (MMM). 

(v) HHE Rating E is assigned to MRSs 

with a combination level of high for the 

CHF and low for the RF and MPF (HLL), 

or medium for the CHF and RF and low 

for the MPF (MML). 

(vi) HHE Rating F is assigned to MRSs 

with a combination level of medium for 

the CHF and low for the RF and MPF 

(MLL). 

(vii) HHE Rating G (Lowest) is 

assigned to MRSs with a combination 

level of low for all three factors (LLL). 

(5) The HHE three-letter combinations 

are replaced by the seven HHE ratings. 

(See Appendix A, Table 24.) 

(6) There are also three other potential 

outcomes for the HHE module: 

(i) Evaluation pending. This category 

is used when there are known or 

suspected MC, and any incidental 

nonmunitions-related contaminants 

present, but sufficient information is not 

available to determine the HHE module 

rating. 

(ii) No longer required. This category 

is reserved for MRSs that no longer 

require an assigned MRS priority 

because the Department has conducted 

a response, all objectives set out in the 

decision document for the MRS have 

been achieved, and no further action, 

except for long-term management and 

recurring reviews, is required. 

(iii) No known or suspected munitions 

constituent hazard. This rating is 

reserved for MRSs that do not require 

evaluation under the HHE module. 

(7) The HHE module rating shall be 

considered with the EHE and CHE 

module ratings to determine the MRS 

priority. 

(8) MRSs lacking information 

sufficient for assessing an HHE module 

rating shall be programmed for 

additional study and evaluated as soon 

as sufficient data are available. Until an 

HHR module rating is assigned, the 

MRS shall be classified as ‘‘evaluation 

pending’’ for the HHE module. 

(d) Determining the MRS priority. (1) 

An MRS priority is determined based on 

integrating the ratings from the EHE, 

CHE, and HHE modules. Until all three 

hazard evaluation modules have been 

evaluated, the MRS priority shall be 

based on the results of the modules 

completed. 

(2) Each MRS is assigned to one of 

eight MRS priorities based on the 

ratings of the three hazard evaluation 

modules, where Priority 1 indicates the 

highest potential hazard and Priority 8 

the lowest potential hazard. Under the 

rule in this part, only MRSs with CWM 

can be assigned to Priority 1 and no 

MRS with CWM can be assigned to 

Priority 8. (See Appendix A to this part, 

Table 25.) 

(3) An ‘‘evaluation pending’’ rating is 

used to indicate that an MRS requires 

further evaluation. This designation is 

only used when none of the three 

modules has a numerical rating (i.e., 1 

through 8) and at least one module is 

rated ‘‘evaluation pending.’’ The 

Department shall develop program 

metrics focused on reducing the number 

of MRSs with a status of ‘‘evaluating 

pending’’ for any of the three modules. 

(See Appendix A, Table 25.) 

(4) A ‘‘no longer required’’ rating is 

used to indicate that an MRS no longer 

requires prioritization. The MRS will 

receive this rating when none of the 

three modules has a numerical (i.e., 1 

through 8) or an ‘‘evaluation pending’’

designation, and at least one of the 

modules is rated ‘‘no longer required.’’

(5) A rating of ‘‘no known or 

suspected hazard’’ is used to indicate 

that an MRS has no known or expected 

hazard. This designation is used only 

when the hazard evaluation modules are 

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rated as ‘‘no known or suspected 

explosive hazard,’’ ‘‘no known or 

suspected CWM hazard,’’ and ‘‘no 

known or suspected MC hazard.’’ (See 

Appendix A, Table 25.) 

§ 179.7 Sequencing. 

(a) Sequencing considerations. The 

sequencing of MRSs for action shall be 

based primarily on the MRS priority 

determined through applying the rule in 

this part. Generally, an MRS that 

presents a greater relative risk to human 

health, safety, or the environment will 

be addressed before an MRS that 

presents a lesser relative risk. Other 

factors, however, may warrant 

consideration when determining the 

sequencing for specific MRSs. In 

evaluating other factors in sequencing 

decisions, the Department will consider 

a broad range of issues. These other, or 

risk-plus factors, do not influence or 

change the MRS priority, but may 

influence the sequencing for action. 

Examples of factors that the Department 

may consider are: 

(1) Concerns expressed by regulators 

or stakeholders. 

(2) Cultural and social factors. 

(3) Economic factors, including 

economic considerations pertaining to 

environmental justice issues, economies 

of scale, evaluation of total life cycle 

costs, and estimated valuations of longterm liabilities. 

(4) Findings of health, safety, or 

ecological risk assessments or 

evaluations based on MRS-specific data. 

(5) Reasonably anticipated future land 

use, especially when planning response 

actions, conducting evaluations of 

response alternatives, or establishing 

specific response action objectives. 

(6) A community’s reuse requirements 

at Base Realignment and Closure 

(BRAC) installations. 

(7) Specialized considerations of 

tribal trust lands (held in trust by the 

United States for the benefit of any tribe 

or individual). The United States holds 

the legal title to the land and the tribe 

holds the beneficial interest. 

(8) Implementation and execution 

considerations (e.g., funding 

availability; the availability of the 

necessary equipment and people to 

implement a particular action; 

examination of alternatives to responses 

that entail significant capital 

investments, a lengthy period of 

operation, or costly maintenance; 

alternatives to removal or treatment of 

contamination when existing 

technology cannot achieve established 

standards [e.g., maximum contaminant 

levels]). 

(9) Mission-driven requirements. 

(10) The availability of appropriate 

technology (e.g., technology to detect, 

discriminate, recover, and destroy 

UXO). 

(11) Implementing standing 

commitments, including those in formal 

agreements with regulatory agencies, 

requirements for continuation of 

remedial action operations until 

response objectives are met, other longterm management activities, and 

program administration. 

(12) Established program goals and 

initiatives. 

(13) Short-term and long-term 

ecological effects and environmental 

impacts in general, including injuries to 

natural resources. 

(b) Procedures and documentation for 

sequencing decisions. (1) Each 

installation or FUDS is required to 

develop and maintain a Management 

Action Plan (MAP) or its equivalent. 

Sequencing decisions, which will be 

documented in the MAP at military 

installations and FUDS, shall be 

developed with input from appropriate 

regulators and stakeholders (e.g., 

community members of an installation’s 

restoration advisory board or technical 

review committee). If the sequencing of 

an MRS is changed from the sequencing 

reflected in the current MAP, 

information documenting the reasons 

for the sequencing change will be 

provided for inclusion in the MAP. 

Notice of the change in the sequencing 

shall be provided to those regulators 

and stakeholders that provided input to 

the sequencing process. 

(2) In addition to the information on 

prioritization, the Components shall 

ensure that information provided by 

regulators and stakeholders that may 

influence the sequencing of an MRS is 

included in the Administrative Record 

and the Information Repository. 

(3) Components shall report the 

results of sequencing to ODUSD(I&E) (or 

successor organizations). ODUSD(I&E) 

shall compile the sequencing results 

reported by each Component and 

publish the sequencing in the report on 

environmental restoration activities for 

that fiscal year. If sequencing decisions 

result in action at an MRS with a lower 

MRS priority ahead of an MRS with a 

higher priority, specific justification 

shall be provided to the ODUSD(I&E). 

Appendix A to Part 179—Tables of the 

Munitions Response Site Prioritization 

Protocol 

The tables in this Appendix are solely for 

use in implementing 32 CFR part 179. 

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Dated: September 27, 2005. 

L.M. Bynum, 

Alternate OSD Federal Register Liaison 

Officer, Department of Defense. 

[FR Doc. 05–19696 Filed 10–4–05; 8:45 am] 

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