        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 665
        [Docket No. 150615523-5705-01]
        RIN 0648-XD998
        Pacific Island Pelagic Fisheries; 2015 U.S. Territorial Longline Bigeye Tuna Catch Limits

          AGENCY:
          National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce.

          ACTION:
          Proposed specifications; request for comments.

          SUMMARY:
          NMFS proposes a 2015 limit of 2,000 metric tons (mt) of longline-caught bigeye tuna for each U.S. Pacific territory (American Samoa, Guam, and the Northern Mariana Islands). NMFS would allow each territory to allocate up to 1,000 mt each year to U.S. longline fishing vessels in a specified fishing agreement that meets established criteria. As an accountability measure, NMFS would monitor, attribute, and restrict (if necessary) catches of longline-caught bigeye tuna, including catches made under a specified fishing agreement. The proposed catch limits and accountability measures support the long-term sustainability of fishery resources of the U.S. Pacific Islands.

          DATES:
          NMFS must receive comments by September 8, 2015.

          ADDRESSES:
          You may submit comments on this document, identified by NOAA-NMFS-2015-0077, by either of the following methods:
          • Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to http://www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2015-0077, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.
          • Mail: Send written comments to Michael D. Tosatto, Regional Administrator, NMFS Pacific Islands Region (PIR), 1845 Wasp Blvd., Bldg. 176, Honolulu, HI 96818.

            Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible.

          NMFS prepared an environmental analysis that describes the potential impacts on the human environment that would result from the proposed catch limits and accountability measures. NMFS provided additional background information in the 2014 proposed and final specifications (79 FR 1354, January 8, 2014; 79 FR 64097, October 28, 2014). The environmental analysis is available at www.regulations.gov. The information contained in the environmental analysis is not repeated here.

          FOR FURTHER INFORMATION CONTACT:
          Jarad Makaiau, NMFS PIRO Sustainable Fisheries, 808-725-5176.

        SUPPLEMENTARY INFORMATION:
        NMFS proposes to specify a catch limit of 2,000 mt of longline-caught bigeye tuna for each U.S. participating Pacific territory in 2015. NMFS would also authorize each U.S. Pacific territory to allocate up to 1,000 mt of its 2,000 mt bigeye tuna limit to U.S. longline fishing vessels that are permitted to fish under the Fishery Ecosystem Plan for Pelagic Fisheries of the Western Pacific (FEP). Those vessels must be identified in a specified fishing agreement with the applicable territory. The Western Pacific Fishery Management Council recommended these specifications.

        NMFS will monitor catches of longline-caught bigeye tuna by the longline fisheries of each U.S Pacific territory, including catches made by U.S. longline vessels operating under specified fishing agreements. The criteria a specified fishing agreement must meet, and the process for attributing longline-caught bigeye tuna, will follow the procedures in 50 CFR 665.819 (Territorial catch and fishing effort limits). When NMFS projects a territorial catch or allocation limit will be reached, NMFS would, as an accountability measure, prohibit the catch and retention of longline-caught bigeye tuna by vessels in the applicable territory (if the territorial catch limit is projected to be reached), and/or vessels in a specified fishing agreement (if the allocation limit is projected to be reached). The proposed catch and allocation limits and accountability measures are identical to those that NMFS specified in 2014 (79 FR 64097, October 28, 2014). NMFS notes that there is a pending case in litigation—Conservation Council for Hawai'i, et al., v. NMFS (D. Hawaii)—that challenges the framework process for allocations from the territories to U.S. longline fishing vessels.

        NMFS will consider public comments on the proposed action and will announce the final specifications in the Federal Register. NMFS must receive any comments by the date provided in the DATES heading. NMFS may not consider any comments not postmarked or otherwise transmitted by that date. Regardless of the final specifications, all other management measures will continue to apply in the longline fishery.
        Classification
        Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator for Fisheries has determined that this proposed specification is consistent with the applicable FEPs, other provisions of the Magnuson-Stevens Act, and other applicable laws, subject to further consideration after public comment.
        Certification of Finding of No Significant Impact on Substantial Number of Small Entities
        The Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration that these proposed specifications, if adopted, would not have a significant economic impact on a substantial number of small entities. A description of the proposed action, why it is being considered, and the legal basis for it are contained in the preamble to this proposed specification.

        The proposed action would specify a 2015 limit of 2,000 metric tons (mt) (4,409,240 lb) of longline-caught bigeye tuna for each U.S. Pacific territory (American Samoa, Guam, and the Commonwealth of the Northern Mariana Islands (CNMI). Without this catch limit, these U.S. territories would not be subject to a limit because they, as Participating Territories to the Western and Central Pacific Fisheries Commission (WCPFC), do not have a bigeye tuna limit under international measures adopted by the WCPFC. NMFS would also allow each territory to allocate up to 1,000 mt (2,204,620 lb) of its 2,000 mt bigeye tuna limit each year to U.S. longline fishing vessels in a specified fishing agreement that meets established criteria set forth in 50 CFR 665.819. As an accountability measure, NMFS would monitor, attribute, and restrict (if necessary) catches of longline-caught bigeye tuna by vessels in the applicable U.S. territory (if the territorial catch limit is projected to be reached), or by vessels operating under the applicable specified fishing agreement (if the allocation limit is projected to be reached). The proposed catch limits and accountability measures supports fisheries development in the U.S. Pacific territories and the long-term sustainability of fishery resources of the U.S. Pacific Islands.
        This proposed action would directly apply to longline vessels federally permitted under the Fishery Ecosystem Plan for Pelagic Fisheries of the Western Pacific (Pelagic FEP), specifically Hawaii longline limited entry, American Samoa longline limited entry, and Western Pacific general longline permit holders. As of July 2015, 140 vessels possessed Hawaii longline limited entry permits (out of 164 total permits), 46 possessed American Samoa longline limited entry permits (out of 60 total permits), and no vessels held Western Pacific general longline permits.
        According to landings information provided in the environmental assessment prepared in support of this action and logbook information, Hawaii-based longline vessels landed approximately 25,791,000 lb of pelagic fish valued at $93,963,000 in 2012 and 27,053,000 lb of pelagic fish valued at $88,552,000 in 2013. With 129 vessels making either a deep- or shallow-set trip in 2012, and 135 vessels in 2013, the ex-vessel value of pelagic fish caught by Hawaii-based longline fisheries averaged about $728,000 and $656,000 per vessel in 2012 and 2013 respectively. In 2013, 22 American Samoa longline vessels turned in logbooks reporting the landing of 162,444 pelagic fish (approximately 6 million lb) valued at $6,772,386. Albacore made up the largest proportion of pelagic landings at 4,525,453 lb and bigeye tuna comprised of 187,954 lb. With 22 active longline vessels, the ex-vessel value of pelagic fish caught by the American Samoa longline fishery averaged about $307,836 per vessel in 2013. With regard to Guam and CNMI, no longline fishing has occurred since 2011.

        Based on available information, NMFS has determined that all vessels federally permitted under Pelagic FEP are small entities under the SBA definition of a small entity, i.e., they are engaged in the business of fish harvesting (NAICS Code: 114111), are independently owned or operated, are not dominant in their field of operation, and have annual gross receipts not in excess of $20.5 million. Even though this proposed action would apply to a substantial number of vessels, the implementation of this action would not result in significant adverse economic impact to individual vessels. The proposed action would potentially benefit Hawaii-based longline fishery participants by allowing them to fish under specified fishing agreements with a territory, which could extend fishing effort for bigeye tuna in the Western Pacific Ocean and provide more bigeye tuna for markets in Hawaii.
        Amendment 7 to the Pelagic FEP established a process by which NMFS could specify catch and/or effort limits for pelagic fisheries in American Samoa, Guam and CNMI, regardless of whether the WCPFC adopts a limit for those entities or not. Amendment 7 also allows NMFS to authorize the government of each territory to allocate a portion of their catch and/or effort limits through territorial fishing agreements. Specifically, bigeye tuna landed by vessels included in a fishing agreement are attributed to the U.S. territory to which the agreement applies, and not counted towards the U.S. bigeye tuna limit established by NMFS under a separate authority in 50 CFR part 300, subpart O.
        In 2014, through this process, the CNMI government entered into an agreement with Hawaii-based longline vessels that authorized vessels identified in the agreement to use up to 1,000 mt of the CNMI's 2,000 mt quota. In that year, NMFS projected that the 2014 U.S. bigeye tuna limit of 3,763 mt established in 50 CFR part 300, subpart O, and applicable to U.S. longline vessels would be reached in mid-November. In accordance with Federal regulations at 50 CFR 665.819, within seven days of the date that NMFS projected the fishery would reach the U.S. bigeye tuna limit, NMFS began attributing to CNMI the bigeye tuna catches made by longline vessels identified in the fishing agreement with CNMI.
        In accordance with Federal regulations at 50 CFR part 300, subpart O, vessels that possess both an American Samoa and Hawaii longline permit are not subject to the U.S bigeye tuna limit. Therefore, these vessels are allowed to retain bigeye tuna and land fish in Hawaii after the date NMFS projects the fishery would reach that limit. Further, catches of bigeye tuna made by such vessels are attributed to American Samoa, provided the fish was not caught in the U.S. EEZ around Hawaii. In 2014, all dual American Samoa/Hawaii longline permitted vessels were included in the fishing agreement with CNMI. Therefore, NMFS attributed bigeye catches by those vessels to the CNMI.
        The 2015 U.S. bigeye tuna catch limit established in 50 CFR 300, Subpart O is 3,502 mt, which is about 7% lower than the 2014 limit. With the lower limit for 2015, combined with apparent higher catch rates in 2015, NMFS forecasted that the fishery reached the limit on August 5, 2015 (80 FR 44883, July 28, 2015), far earlier than in previous years. Through this action, Hawaii-based longline vessels could potentially enter into one or more fishing agreements with participating territories. This would enhance the ability of these vessels to extend fishing effort in the Western and Central Pacific Ocean and provide more bigeye tuna for markets in Hawaii. Providing opportunity to land bigeye tuna in Hawaii in the last quarter of the year when market demand is high will result in positive economic benefits for fishery participants and net benefits to the nation. Allowing participating territories to enter into specified fishing agreements under this action, provides benefits to the territories by providing funds for territorial fisheries development projects. In terms of the impacts of reducing the limits of bigeye tuna catch by longline vessels based in the territories from an unlimited amount to 2,000 mt, this is not likely to adversely affect vessels based in the territories.
        Historical catch of bigeye tuna by the American Samoa longline fleet has been less than 2,000 mt, even including the catch of vessels based in American Samoa, catch by dual permitted vessels that land their catch in Hawaii, and catch attributed to American Samoa from U.S. vessels under specified fishing agreements (which occurred in 2011 and 2012). With regard to Guam and CNMI, no longline fishing has occurred since 2011.

        Under the proposed action, longline fisheries managed under the Pelagic FEP are not expected to expand substantially nor change the manner in which they are currently conducted, (i.e., area fished, number of vessels longline fishing, number of trips taken per year, number of hooks set per vessel during a trip, depth of hooks, or deployment techniques in setting longline gear), due to existing operational constraints in the fleet, the limited entry permit programs, and protected species mitigation requirements. The proposed rule does not duplicate, overlap, or conflict with other Federal rules and is not expected to have significant impact on small organizations or government jurisdictions. Furthermore, there would be little, if any, disproportionate adverse economic impacts from the proposed rule based on gear type, or relative vessel size. The proposed rule also will not place a substantial number of small entities, or any segment of small entities, at a significant competitive disadvantage to large entities.

        For the reasons above, NMFS does not expect the proposed action to have a significant economic impact on a substantial number of small entities. As such, an initial regulatory flexibility analysis is not required and none has been prepared.
        This action is exempt from review under the procedures of E.O. 12866 because this action contains no implementing regulations.

          Authority:
          16 U.S.C. 1801 et seq.

          Dated: August 18, 2015.
          Samuel D. Rauch III,
          Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

      [FR Doc. 2015-20778 Filed 8-21-15; 8:45 am]
       BILLING CODE 3510-22-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 635
        RIN 0648-BB29
        Atlantic Highly Migratory Species; 2006 Consolidated Highly Migratory Species Fishery Management Plan; Amendment 5

          AGENCY:
          National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

          ACTION:
          Notice of public hearings.

          SUMMARY:
          On November 26, 2012, NMFS published a proposed rule for Amendment 5 to the 2006 Consolidated Highly Migratory Species (HMS) Fishery Management Plan (FMP) in response to several shark stock assessments that were completed from 2009 to 2012. As described in the proposed rule, NMFS is proposing measures that would reduce fishing mortality and effort in order to rebuild overfished Atlantic shark species while ensuring that a limited sustainable shark fishery can be maintained consistent with our legal obligations and the 2006 Consolidated HMS FMP as amended. The proposed measures include changes to commercial quotas and species groups, the creation of several time/area closures, a change to an existing time/area closure, an increase in the recreational minimum size restrictions, and the establishment of recreational reporting for certain species of sharks. Comments received by NMFS will be considered in the development and finalization of Amendment 5 to the 2006 Consolidated HMS FMP. This notice announces the rescheduling of the Louisiana public hearing and the addition of two public hearings in Maryland and Texas.

          DATES:

          Written comments will be accepted until February 12, 2013. Public hearings, conference calls, and an HMS Advisory Panel meeting for the Amendment 5 proposed rule will be held from December 2012 to February 2013. See SUPPLEMENTARY INFORMATION for meeting dates, times, and locations.

          ADDRESSES:

          Additional and rescheduled public hearings will be held in Maryland, Texas, and Louisiana. See SUPPLEMENTARY INFORMATION for dates, times, and locations.
          You may submit comments on this document, identified by NOAA-NMFS-2012-0161, by any of the following methods:
          • Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to http://www.regulations.gov/#!documentDetail;D=NOAA-NMFS-2012-0161, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.
          • Mail: Submit written comments to Peter Cooper, SF1/NMFS/NOAA, Highly Migratory Species Management Division, 1315 East-West Highway, Silver Spring, MD 20910. Please mark the outside of the envelope “Comments on the Draft Amendment 5 to the 2006 Consolidated HMS FMP.”
          • Fax: 301-713-1917; Attn: Peter Cooper.

          Instructions: Comments must be submitted by one of the above methods to ensure that the comments are received, documented, and considered by NMFS. Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered. All comments received are a part of the public record and generally will be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.) submitted voluntarily by the sender will be publicly accessible. Do not submit confidential business information, or otherwise sensitive or protected information. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word or Excel, WordPerfect, or Adobe PDF file formats only.

          FOR FURTHER INFORMATION CONTACT:
          Peter Cooper, Guý DuBeck, Jennifer Cudney or Karyl Brewster-Geisz at 301-427-8503.

        SUPPLEMENTARY INFORMATION:

        The Atlantic shark fisheries are managed under the Magnuson-Stevens Act. Management of these species is described in the 2006 Consolidated HMS FMP and its amendments, which are implemented by regulations at 50 CFR part 635. Copies of the 2006 Consolidated HMS FMP and amendments are available from NMFS on request (see FOR FURTHER INFORMATION CONTACT).
        On November 26, 2012, NMFS published a proposed rule (77 FR 70552) for draft Amendment 5 to the 2006 Consolidated HMS FMP based on several shark stock assessments that were completed from 2009 to 2012. The assessments for Atlantic blacknose, dusky, and scalloped hammerhead sharks indicated that these species are overfished and experiencing overfishing. As described in the proposed rule, NMFS is proposing measures that would reduce fishing mortality and effort in order to rebuild overfished Atlantic shark species while ensuring that a limited sustainable shark fishery can be maintained consistent with our legal obligations and the 2006 Consolidated HMS FMP. The proposed measures include changes to commercial quotas and species groups, the creation of several time/area closures, a change to an existing time/area closure, an increase in the recreational minimum size restrictions, and the establishment of recreational reporting for certain species of sharks. Any comments received during the comment period will be considered in the development and finalization of Amendment 5 to the 2006 Consolidated HMS FMP.
        Request for Comments

        Public hearings in Florida (2), Louisiana, Massachusetts, New Jersey, and North Carolina were recently announced in the Federal Register to provide the opportunity for public comment on the measures described in the proposed rule and draft Amendment 5 (77 FR 73608; December 11, 2012). NMFS will also hold two public conference calls/webinars to provide individuals opportunities to submit public comment if they are unable to attend a public hearing. NMFS has rescheduled the public hearing in Louisiana due to a previously scheduled event in the New Orleans area, which may affect constituent traveling to the public hearing location. Also, NMFS announces two additional public hearings that will be held in Maryland and Texas. The Maryland public hearing will be held in conjunction with a state stakeholder meeting being held by the Maryland Department of Natural Resources on Draft Amendment 5.

          Table 1—Dates, Times and Locations of Upcoming Additional and Rescheduled Public Hearings.

            Venue
            Date/time
            Meeting locations
            Location contact information

            Public Hearing
            January 15, 20135 p.m.-8 p.m.

            Belle Chasse, LA
            Belle Chasse Auditorium, 8398 Hwy 23, Belle Chasse, LA 70037.

            Public Hearing
            January 30, 20135 p.m.-8 p.m.

            Ocean Pines, MD
            Ocean Pines Branch, Worcester County Library, 11107 Cathell Road, Ocean Pines, MD 21811, (410) 208-4014.

            Public Hearing
            February 7, 20135 p.m.-8 p.m.

            Houston, TX
            Clear Lake City-County Freeman Branch Library, 16616 Diana Lane, Houston, Texas 77062, 281-488-1906

        NMFS welcomes comments on any aspect of, or alternative considered, in the proposed rule. NMFS is specifically seeking comments on the administration of dusky shark bycatch caps program in select areas given limited additional observer program resources; the name of reconfigured groupings of sharks that would continue to be managed collectively in the reminder of what is currently the large coastal shark complex for quota monitoring purposes; suggestions for improving angler identification of shark species and reducing dusky shark mortality in the recreational fishery; and whether NMFS should permit the transit of closed areas if certain otherwise prohibited gear is properly stowed and inoperable.
        Public Hearing Code of Conduct
        The public is reminded that NMFS expects participants at public hearings and on phone conferences to conduct themselves appropriately. At the beginning of each meeting, a representative of NMFS will explain the ground rules (e.g., alcohol is prohibited from the meeting room; attendees will be called to give their comments in the order in which they registered to speak; each attendee will have an equal amount of time to speak; attendees may not interrupt one another; etc.). The NMFS representative will structure the meeting so that all attending members of the public will be able to comment, if they choose, regardless of the controversial nature of the subject(s). Attendees are expected to respect the ground rules, and those that do not will be asked to leave the meeting.

          Authority:
          16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq.

          Dated: December 27, 2012.
          Lindsay Fullenkamp,
          Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.

      [FR Doc. 2012-31629 Filed 12-28-12; 4:15 pm]
      BILLING CODE 3510-22-P


        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 300
        [EPA-HQ-SFUND-2007-0072, EPA-HQ-SFUND-2007-0074, EPA-HQ-SFUND-2007-0078, EPA-HQ-SFUND-2007-0079, EPA-HQ-SFUND-2007-0080; FRL-8283-6]
        RIN 2050-AD75
        National Priorities List, Proposed Rule No. 46

          AGENCY:
          Environmental Protection Agency.

          ACTION:
          Proposed rule.

          SUMMARY:
          The Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA” or “the Act”), as amended, requires that the National Oil and Hazardous Substances Pollution Contingency Plan (“NCP”) include a list of national priorities among the known releases or threatened releases of hazardous substances, pollutants, or contaminants throughout the United States. The National Priorities List (“NPL”) constitutes this list. The NPL is intended primarily to guide the Environmental Protection Agency (“EPA” or “the Agency”) in determining which sites warrant further investigation. These further investigations will allow EPA to assess the nature and extent of public health and environmental risks associated with the site and to determine what CERCLA-financed remedial action(s), if any, may be appropriate. This rule proposes to add five new sites to the NPL, all to the General Superfund Section.

          DATES:
          Comments regarding any of these proposed listings must be submitted (postmarked) on or before May 7, 2007.

          ADDRESSES:
          Identify the appropriate FDMS Docket Number from the table below.

        FDMS Docket Identification Numbers by Site:

            Site name
            City/state
            FDMS Docket ID No.

            Halaco Engineering Company
            Oxnard, CA
            EPA-HQ-SFUND-2007-0072

            Eagle Zinc Co Div T L Diamond
            Hillsboro, IL
            EPA-HQ-SFUND-2007-0074

            Eagle Picher Carefree Battery
            Socorro, NM
            EPA-HQ-SFUND-2007-0078

            Formosa Mine
            Douglas County, OR
            EPA-HQ-SFUND-2007-0079

            Five Points PCE Plume
            Woods Cross/Bountiful, UT
            EPA-HQ-SFUND-2007-0080

        Submit your comments, identified by the appropriate FDMS Docket number, by one of the following methods:
        • http://www.regulations.gov: Follow the online instructions for submitting comments.
        • E-mail: superfund.Docket@epa.gov.
        • Mail: Mail comments (no facsimiles or tapes) to Docket Coordinator, Headquarters; U.S. Environmental Protection Agency; CERCLA Docket Office; (Mail Code 5305T); 1200 Pennsylvania Avenue NW.; Washington, DC 20460.
        • Hand Delivery or Express Mail: Send comments (no facsimiles or tapes) to Docket Coordinator, Headquarters; U.S. Environmental Protection Agency; CERCLA Docket Office; 1301 Constitution Avenue; EPA West, Room 3340, Washington, DC 20004. Such deliveries are only accepted during the Docket's normal hours of operation (8:30 a.m. to 4:30 p.m., Monday through Friday excluding Federal holidays). Special arrangements should be made for deliveries of boxed information.

          Instructions: Direct your comments to the appropriate FDMS Docket number (see table above). EPA's policy is that all comments received will be included in the public Docket without change and may be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov website is an “anonymous access” system, that means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through http://www.regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public Docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional Docket addresses and further details on their contents, see section II, “Public Review/Public Comment,” of the SUPPLEMENTARY INFORMATION portion of this preamble.

          FOR FURTHER INFORMATION CONTACT:
          Terry Jeng, phone (703) 603-8852; State, Tribal and Site Identification Branch; Assessment and Remediation Division; Office of Superfund Remediation and Technology Innovation (Mail Code 5204P); U.S. Environmental Protection Agency; 1200 Pennsylvania Avenue NW.; Washington, DC 20460; or the Superfund Hotline, Phone (800) 424-9346 or (703) 412-9810 in the Washington, DC, metropolitan area.

        SUPPLEMENTARY INFORMATION:

          Table of Contents
          I. Background
          A. What Are CERCLA and SARA?
          B. What Is the NCP?
          C. What Is the National Priorities List (NPL)?
          D. How Are Sites Listed on the NPL?
          E. What Happens to Sites on the NPL?
          F. Does the NPL Define the Boundaries of Sites?
          G. How Are Sites Removed From the NPL?
          H. May EPA Delete Portions of Sites From the NPL as They Are Cleaned Up?
          I. What Is the Construction Completion List (CCL)?
          II. Public Review/Public Comment
          A. May I Review the Documents Relevant to This Proposed Rule?
          B. How Do I Access the Documents?
          C. What Documents Are Available for Public Review at the Headquarters Docket?
          D. What Documents Are Available for Public Review at the Regional Dockets?
          E. How Do I Submit My Comments?
          F. What Happens to My Comments?
          G. What Should I Consider When Preparing My Comments?
          H. May I Submit Comments After the Public Comment Period Is Over?
          I. May I View Public Comments Submitted by Others?
          J. May I Submit Comments Regarding Sites Not Currently Proposed to the NPL?
          III. Contents of This Proposed Rule
          A. Proposed Additions to the NPL
          IV. Statutory and Executive Order Reviews
          A. Executive Order 12866: Regulatory Planning and Review
          1. What Is Executive Order 12866?
          2. Is This Proposed Rule Subject to Executive Order 12866 Review?
          B. Paperwork Reduction Act
          1. What Is the Paperwork Reduction Act?
          2. Does the Paperwork Reduction Act Apply to This Proposed Rule?
          C. Regulatory Flexibility Act
          1. What Is the Regulatory Flexibility Act?
          2. How Has EPA Complied With the Regulatory Flexibility Act?
          D. Unfunded Mandates Reform Act
          1. What Is the Unfunded Mandates Reform Act (UMRA)?
          2. Does UMRA Apply to This Proposed Rule?
          E. Executive Order 13132: Federalism—What Is Executive Order 13132 and Is It Applicable to This Proposed Rule?
          F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments
          1. What Is Executive Order 13175?
          2. Does Executive Order 13175 Apply to This Proposed Rule?
          G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks
          1. What Is Executive Order 13045?
          2. Does Executive Order 13045 Apply to This Proposed Rule?
          H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Usage—Is This Rule Subject to Executive Order 13211?
          I. National Technology Transfer and Advancement Act
          1. What Is the National Technology Transfer and Advancement Act?
          2. Does the National Technology Transfer and Advancement Act Apply to This Proposed Rule?

        I. Background
        A. What Are CERCLA and SARA?

        In 1980, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9601-9675 (“CERCLA” or “the Act”), in response to the dangers of uncontrolled releases or threatened releases of hazardous substances, and releases or substantial threats of releases into the environment of any pollutant or contaminant that may present an imminent or substantial danger to the public health or welfare. CERCLA was amended on October 17, 1986, by the Superfund Amendments and Reauthorization Act (“SARA”), Public Law 99-499, 100 Stat. 1613 et seq.

        B. What Is the NCP?
        To implement CERCLA, EPA promulgated the revised National Oil and Hazardous Substances Pollution Contingency Plan (“NCP”), 40 CFR part 300, on July 16, 1982 (47 FR 31180), pursuant to CERCLA section 105 and Executive Order 12316 (46 FR 42237, August 20, 1981). The NCP sets guidelines and procedures for responding to releases and threatened releases of hazardous substances, or releases or substantial threats of releases into the environment of any pollutant or contaminant that may present an imminent or substantial danger to the public health or welfare. EPA has revised the NCP on several occasions. The most recent comprehensive revision was on March 8, 1990 (55 FR 8666).
        As required under section 105(a)(8)(A) of CERCLA, the NCP also includes “criteria for determining priorities among releases or threatened releases throughout the United States for the purpose of taking remedial action and, to the extent practicable, taking into account the potential urgency of such action, for the purpose of taking removal action.” “Removal” actions are defined broadly and include a wide range of actions taken to study, clean up, prevent or otherwise address releases and threatened releases of hazardous substances, pollutants or contaminants (42 U.S.C. 9601(23)).
        C. What Is the National Priorities List (NPL)?
        The NPL is a list of national priorities among the known or threatened releases of hazardous substances, pollutants, or contaminants throughout the United States. The list, which is appendix B of the NCP (40 CFR part 300), was required under section 105(a)(8)(B) of CERCLA, as amended by SARA. Section 105(a)(8)(B) defines the NPL as a list of “releases” and the highest priority “facilities” and requires that the NPL be revised at least annually. The NPL is intended primarily to guide EPA in determining which sites warrant further investigation to assess the nature and extent of public health and environmental risks associated with a release of hazardous substances, pollutants or contaminants. The NPL is only of limited significance, however, as it does not assign liability to any party or to the owner of any specific property. Also, placing a site on the NPL does not mean that any remedial or removal action necessarily need be taken.
        For purposes of listing, the NPL includes two sections, one of sites that are generally evaluated and cleaned up by EPA (the “General Superfund Section”), and one of sites that are owned or operated by other Federal agencies (the “Federal Facilities Section”). With respect to sites in the Federal Facilities Section, these sites are generally being addressed by other Federal agencies. Under Executive Order 12580 (52 FR 2923, January 29, 1987) and CERCLA section 120, each Federal agency is responsible for carrying out most response actions at facilities under its own jurisdiction, custody, or control, although EPA is responsible for preparing a Hazard Ranking System (HRS) score and determining whether the facility is placed on the NPL. At Federal Facilities Section sites, EPA's role is less extensive than at other sites.
        D. How Are Sites Listed on the NPL?

        There are three mechanisms for placing sites on the NPL for possible remedial action (see 40 CFR 300.425(c) of the NCP): (1) A site may be included on the NPL if it scores sufficiently high on the Hazard Ranking System (“HRS”), that EPA promulgated as appendix A of the NCP (40 CFR part 300). The HRS serves as a screening device to evaluate the relative potential of uncontrolled hazardous substances, pollutants or contaminants to pose a threat to human health or the environment. On December 14, 1990 (55 FR 51532), EPA promulgated revisions to the HRS partly in response to CERCLA section 105(c), added by SARA. The revised HRS evaluates four pathways: Ground water, surface water, soil exposure, and air. As a matter of Agency policy, those sites that score 28.50 or greater on the HRS are eligible for the NPL; (2) Pursuant to 42 U.S.C 9605(a)(8)(B), each State may designate a single site as its top priority to be listed on the NPL, without any HRS score. This provision of CERCLA requires that, to the extent practicable, the NPL include one facility designated by each State as the greatest danger to public health, welfare, or the environment among known facilities in the State. This mechanism for listing is set out in the NCP at 40 CFR 300.425(c)(2); (3) The third mechanism for listing, included in the NCP at 40 CFR 300.425(c)(3), allows certain sites to be listed without any HRS score, if all of the following conditions are met:
        • The Agency for Toxic Substances and Disease Registry (ATSDR) of the U.S. Public Health Service has issued a health advisory that recommends dissociation of individuals from the release.
        • EPA determines that the release poses a significant threat to public health.
        • EPA anticipates that it will be more cost-effective to use its remedial authority than to use its removal authority to respond to the release.

        EPA promulgated an original NPL of 406 sites on September 8, 1983 (48 FR 40658) and generally has updated it at least annually.
        E. What Happens to Sites on the NPL?
        A site may undergo remedial action financed by the Trust Fund established under CERCLA (commonly referred to as the “Superfund”) only after it is placed on the NPL, as provided in the NCP at 40 CFR 300.425(b)(1). (“Remedial actions” are those “consistent with permanent remedy, taken instead of or in addition to removal actions. * * *” 42 U.S.C. 9601(24).) However, under 40 CFR 300.425(b)(2) placing a site on the NPL “does not imply that monies will be expended.” EPA may pursue other appropriate authorities to respond to the releases, including enforcement action under CERCLA and other laws.
        F. Does the NPL Define the Boundaries of Sites?
        The NPL does not describe releases in precise geographical terms; it would be neither feasible nor consistent with the limited purpose of the NPL (to identify releases that are priorities for further evaluation), for it to do so. Indeed, the precise nature and extent of the site are typically not known at the time of listing.
        Although a CERCLA “facility” is broadly defined to include any area where a hazardous substance has “come to be located” (CERCLA section 101(9)), the listing process itself is not intended to define or reflect the boundaries of such facilities or releases. Of course, HRS data (if the HRS is used to list a site) upon which the NPL placement was based will, to some extent, describe the release(s) at issue. That is, the NPL site would include all releases evaluated as part of that HRS analysis.
        When a site is listed, the approach generally used to describe the relevant release(s) is to delineate a geographical area (usually the area within an installation or plant boundaries) and identify the site by reference to that area. However, the NPL site is not necessarily coextensive with the boundaries of the installation or plant, and the boundaries of the installation or plant are not necessarily the “boundaries” of the site. Rather, the site consists of all contaminated areas within the area used to identify the site, as well as any other location where that contamination has come to be located, or from where that contamination came.
        In other words, while geographic terms are often used to designate the site (e.g., the “Jones Co. plant site”) in terms of the property owned by a particular party, the site, properly understood, is not limited to that property (e.g., it may extend beyond the property due to contaminant migration), and conversely may not occupy the full extent of the property (e.g., where there are uncontaminated parts of the identified property, they may not be, strictly speaking, part of the “site”). The “site” is thus neither equal to, nor confined by, the boundaries of any specific property that may give the site its name, and the name itself should not be read to imply that this site is coextensive with the entire area within the property boundary of the installation or plant. In addition, the site name is merely used to help identify the geographic location of the contamination and is not meant to constitute any determination of liability at a site. For example, the name “Jones Co. plant site,” does not imply that the Jones company is responsible for the contamination located on the plant site.
        EPA regulations provide that the “nature and extent of the problem presented by the release” will be determined by a Remedial Investigation/Feasibility Study (“RI/FS”) as more information is developed on site contamination (40 CFR 300.5). During the RI/FS process, the release may be found to be larger or smaller than was originally thought, as more is learned about the source(s) and the migration of the contamination. However, the HRS inquiry focuses on an evaluation of the threat posed and therefore the boundaries of the release need not be exactly defined. Moreover, it generally is impossible to discover the full extent of where the contamination “has come to be located” before all necessary studies and remedial work are completed at a site. Indeed, the boundaries of the contamination can be expected to change over time. Thus, in most cases, it may be impossible to describe the boundaries of a release with absolute certainty.
        Further, as noted above, NPL listing does not assign liability to any party or to the owner of any specific property. Thus, if a party does not believe it is liable for releases on discrete parcels of property, it can submit supporting information to the Agency at any time after it receives notice it is a potentially responsible party.
        For these reasons, the NPL need not be amended as further research reveals more information about the location of the contamination or release.
        G. How Are Sites Removed From the NPL?
        EPA may delete sites from the NPL where no further response is appropriate under Superfund, as explained in the NCP at 40 CFR 300.425(e). This section also provides that EPA shall consult with states on proposed deletions and shall consider whether any of the following criteria have been met: (i) Responsible parties or other persons have implemented all appropriate response actions required; (ii) All appropriate Superfund-financed response has been implemented and no further response action is required; or (iii) The remedial investigation has shown the release poses no significant threat to public health or the environment, and taking of remedial measures is not appropriate.
        H. May EPA Delete Portions of Sites From the NPL as They Are Cleaned Up?

        In November 1995, EPA initiated a new policy to delete portions of NPL sites where cleanup is complete (60 FR 55465, November 1, 1995). Total site cleanup may take many years, while portions of the site may have been cleaned up and made available for productive use.

        I. What Is the Construction Completion List (CCL)?
        EPA also has developed an NPL construction completion list (“CCL”) to simplify its system of categorizing sites and to better communicate the successful completion of cleanup activities (58 FR 12142, March 2, 1993). Inclusion of a site on the CCL has no legal significance.

        Sites qualify for the CCL when: (1) Any necessary physical construction is complete, whether or not final cleanup levels or other requirements have been achieved; (2) EPA has determined that the response action should be limited to measures that do not involve construction (e.g., institutional controls); or (3) The site qualifies for deletion from the NPL. For the most up-to-date information on the CCL, see EPA's Internet site at http://www.epa.gov/superfund.

        II. Public Review/Public Comment
        A. May I Review the Documents Relevant to This Proposed Rule?

        Yes, documents that form the basis for EPA's evaluation and scoring of the sites in this rule are contained in public Dockets located both at EPA Headquarters in Washington, DC, in the Regional offices and by electronic access at http://www.regulations.gov (see instructions in the ADDRESSES section above).
        B. How Do I Access the Documents?
        You may view the documents, by appointment only, in the Headquarters or the Regional Dockets after the publication of this proposed rule. The hours of operation for the Headquarters Docket are from 8:30 a.m. to 4:30 p.m., Monday through Friday excluding Federal holidays. Please contact the Regional Dockets for hours.
        The following is the contact information for the EPA Headquarters Docket: Docket Coordinator, Headquarters; U.S. Environmental Protection Agency; CERCLA Docket Office; 1301 Constitution Avenue; EPA West, Room 3340, Washington, DC 20004; 202/566-1744. (Please note this is a visiting address only. Mail comments to EPA Headquarters as detailed at the beginning of this preamble.)

          The contact information for the Regional Dockets is as follows:

        Joan Berggren, Region 1 (CT, ME, MA, NH, RI, VT), U.S. EPA, Superfund Records and Information Center, Mailcode HSC, One Congress Street, Suite 1100, Boston, MA 02114-2023; 617/918-1417.
        Dennis Munhall, Region 2 (NJ, NY, PR, VI), U.S. EPA, 290 Broadway, New York, NY 10007-1866; 212/637-4343.
        Dawn Shellenberger (ASRC), Region 3 (DE, DC, MD, PA, VA, WV), U.S. EPA, Library, 1650 Arch Street, Mailcode 3PM52, Philadelphia, PA 19103; 215/814-5364.
        Debbie Jourdan, Region 4 (AL, FL, GA, KY, MS, NC, SC, TN), U.S. EPA, 61 Forsyth Street, SW., 9th floor, Atlanta, GA 30303; 404/562-8862.
        Janet Pfundheller, Region 5 (IL, IN, MI, MN, OH, WI), U.S. EPA, Records Center, Superfund Division SRC-7J, Metcalfe Federal Building, 77 West Jackson Boulevard, Chicago, IL 60604; 312/353-5821.
        Brenda Cook, Region 6 (AR, LA, NM, OK, TX), U.S. EPA, 1445 Ross Avenue, Mailcode 6SF-RA, Dallas, TX 75202-2733; 214/665-7436.
        Michelle Quick, Region 7 (IA, KS, MO, NE), U.S. EPA, 901 North 5th Street, Kansas City, KS 66101; 913/551-7335.
        Gwen Christiansen, Region 8 (CO, MT, ND, SD, UT, WY), U.S. EPA, 1595 Wynkoop Street, Mailcode 8EPR-B, Denver, CO 80202-1129; 303/312-6463.
        Dawn Richmond, Region 9 (AZ, CA, HI, NV, AS, GU), U.S. EPA, 75 Hawthorne Street, San Francisco, CA 94105; 415/972-3097.
        Ken Marcy, Region 10 (AK, ID, OR, WA), U.S. EPA, 1200 6th Avenue, Mail Stop ECL-115, Seattle, WA 98101; 206/553-2782.
        You may also request copies from EPA Headquarters or the Regional Dockets. An informal request, rather than a formal written request under the Freedom of Information Act, should be the ordinary procedure for obtaining copies of any of these documents.
        You may use the Docket at http://www.regulations.gov to access documents in the Headquarters Docket (see instructions included in the “Addresses” section above). Please note that there are differences between the Headquarters Docket and the Regional Dockets and those differences are outlined below.
        C. What Documents Are Available for Public Review at the Headquarters Docket?
        The Headquarters Docket for this rule contains the following for the sites proposed in this rule: HRS score sheets; Documentation Records describing the information used to compute the score; information for any sites affected by particular statutory requirements or EPA listing policies; and a list of documents referenced in the Documentation Record.
        D. What Documents Are Available for Public Review at the Regional Dockets?
        The Regional Dockets for this rule contain all of the information in the Headquarters Docket, plus, the actual reference documents containing the data principally relied upon and cited by EPA in calculating or evaluating the HRS score for the sites. These reference documents are available only in the Regional Dockets.
        E. How Do I Submit My Comments?
        Comments must be submitted to EPA Headquarters as detailed at the beginning of this preamble in the “Addresses” section. Please note that the mailing addresses differ according to method of delivery. There are two different addresses that depend on whether comments are sent by express mail or by postal mail.
        F. What Happens to My Comments?

        EPA considers all comments received during the comment period. Significant comments are typically addressed in a support document that EPA will publish concurrently with the Federal Register document if, and when, the site is listed on the NPL.
        G. What Should I Consider When Preparing My Comments?

        Comments that include complex or voluminous reports, or materials prepared for purposes other than HRS scoring, should point out the specific information that EPA should consider and how it affects individual HRS factor values or other listing criteria (Northside Sanitary Landfill v. Thomas, 849 F.2d 1516 (DC Cir. 1988)). EPA will not address voluminous comments that are not specifically cited by page number and referenced to the HRS or other listing criteria. EPA will not address comments unless they indicate which component of the HRS documentation record or what particular point in EPA's stated eligibility criteria is at issue.
        H. May I Submit Comments After the Public Comment Period Is Over?
        Generally, EPA will not respond to late comments. EPA can only guarantee that it will consider those comments postmarked by the close of the formal comment period. EPA has a policy of generally not delaying a final listing decision solely to accommodate consideration of late comments.
        I. May I View Public Comments Submitted by Others?

        During the comment period, comments are placed in the Headquarters Docket and are available to the public on an “as received” basis. A complete set of comments will be available for viewing in the Regional Dockets approximately one week after the formal comment period closes.

        All public comments, whether submitted electronically or in paper, will be made available for public viewing in the electronic public Docket at http://www.regulations.gov as EPA receives them and without change, unless the comment contains copyrighted material, Confidential Business Information (CBI), or other information whose disclosure is restricted by statute. Once in the public Dockets system, select “search,” then key in the appropriate Docket ID number.
        J. May I Submit Comments Regarding Sites Not Currently Proposed to the NPL?
        In certain instances, interested parties have written to EPA concerning sites that were not at that time proposed to the NPL. If those sites are later proposed to the NPL, parties should review their earlier concerns and, if still appropriate, resubmit those concerns for consideration during the formal comment period. Site-specific correspondence received prior to the period of formal proposal and comment will not generally be included in the Docket.
        III. Contents of This Proposed Rule
        A. Proposed Additions to the NPL
        In today's proposed rule, EPA is proposing to add five new sites to the NPL; all to the General Superfund Section of the NPL. All of the sites in this proposed rulemaking are being proposed based on HRS scores of 28.50 or above. The sites are presented in the table below.

            State
            Site name
            City/county

            CA
            Halaco Engineering Company
            Oxnard.

            IL
            Eagle Zinc Co Div T L Diamond
            Hillsboro.

            NM
            Eagle Picher Carefree Battery
            Socorro.

            OR
            Formosa Mine
            Douglas County.

            UT
            Five Points PCE Plume
            Woods Cross/Bountiful.

        IV. Statutory and Executive Order Reviews
        A. Executive Order 12866: Regulatory Planning and Review
        1. What Is Executive Order 12866?
        Under Executive Order 12866 (58 FR 51735 (October 4, 1993)), the Agency must determine whether a regulatory action is “significant” and therefore subject to Office of Management and Budget (OMB) review and 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 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) 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.
        2. Is This Proposed Rule Subject to Executive Order 12866 Review?
        No. The listing of sites on the NPL does not impose any obligations on any entities. The listing does not set standards or a regulatory regime and imposes no liability or costs. Any liability under CERCLA exists irrespective of whether a site is listed. It has been determined that this action is not a “significant regulatory action” under the terms of Executive Order 12866 and is therefore not subject to OMB review.
        B. Paperwork Reduction Act
        1. What Is the Paperwork Reduction Act?

        According to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., an agency may not conduct or sponsor, and a person is not required to respond to a collection of information that requires OMB approval under the PRA, unless it has been approved by OMB and displays a currently valid OMB control number. The OMB control numbers for EPA's regulations, after initial display in the preamble of the final rules, are listed in 40 CFR part 9.
        2. Does the Paperwork Reduction Act Apply to This Proposed Rule?

        This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. EPA has determined that the PRA does not apply because this rule does not contain any information collection requirements that require approval of the OMB.
        Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.
        An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.
        C. Regulatory Flexibility Act
        1. What Is the Regulatory Flexibility Act?
        Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996) whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small governmental jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities. SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities.

        2. How Has EPA Complied With the Regulatory Flexibility Act?
        This proposed rule listing sites on the NPL, if promulgated, would not impose any obligations on any group, including small entities. This proposed rule, if promulgated, also would establish no standards or requirements that any small entity must meet, and would impose no direct costs on any small entity. Whether an entity, small or otherwise, is liable for response costs for a release of hazardous substances depends on whether that entity is liable under CERCLA 107(a). Any such liability exists regardless of whether the site is listed on the NPL through this rulemaking. Thus, this proposed rule, if promulgated, would not impose any requirements on any small entities. For the foregoing reasons, I certify that this proposed rule, if promulgated, will not have a significant economic impact on a substantial number of small entities.
        D. Unfunded Mandates Reform Act
        1. What Is the Unfunded Mandates Reform Act (UMRA)?
        Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal Agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for 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. Before EPA promulgates a rule where a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.
        2. Does UMRA Apply to This Proposed Rule?
        No, EPA has determined that this 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. This rule will not impose any Federal intergovernmental mandate because it imposes no enforceable duty upon State, tribal or local governments. Listing a site on the NPL does not itself impose any costs. Listing does not mean that EPA necessarily will undertake remedial action. Nor does listing require any action by a private party or determine liability for response costs. Costs that arise out of site responses result from site-specific decisions regarding what actions to take, not directly from the act of listing a site on the NPL.
        For the same reasons, EPA also has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. In addition, as discussed above, the private sector is not expected to incur costs exceeding $100 million. EPA has fulfilled the requirement for analysis under the Unfunded Mandates Reform Act.
        E. Executive Order 13132: Federalism
        What Is Executive Order 13132 and Is It Applicable to This Proposed Rule?
        Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that 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.”
        Under section 6 of Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law, unless the Agency consults with State and local officials early in the process of developing the proposed regulation.
        This proposed rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.
        F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments
        1. What Is Executive Order 13175?
        Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”
        2. Does Executive Order 13175 Apply to This Proposed Rule?

        This proposed rule does not have tribal implications. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this proposed rule.

        G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks
        1. What Is Executive Order 13045?

          Executive Order 13045: “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.
        2. Does Executive Order 13045 Apply to This Proposed Rule?
        This proposed rule is not subject to Executive Order 13045 because it is not an economically significant rule as defined by Executive Order 12866, and because the Agency does not have reason to believe the environmental health or safety risks addressed by this proposed rule present a disproportionate risk to children.
        H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Usage
        Is this Rule Subject to Executive Order 13211?
        This rule is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.
        I. National Technology Transfer and Advancement Act
        1. What Is the 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 EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.
        2. Does the National Technology Transfer and Advancement Act Apply to This Proposed Rule?
        No. This proposed rulemaking does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.

          List of Subjects in 40 CFR Part 300
          Environmental protection, Air pollution control, Chemicals, Hazardous substances, Hazardous waste, Intergovernmental relations, Natural resources, Oil pollution, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply.

          Authority:
          33 U.S.C. 1321(c)(2); 42 U.S.C. 9601-9657; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR 2923, 3 CFR, 1987 Comp., p. 193.

          Dated: February 27, 2007.
          Susan Parker Bodine,
          Assistant Administrator, Office of Solid Waste and Emergency Response.

      [FR Doc. E7-3903 Filed 3-6-07; 8:45 am]
      BILLING CODE 6560-50-P