        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        RIN 1018-AU80
        Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Arenaria ursina (Bear Valley Sandwort), Castilleja cinerea (Ash-gray Indian Paintbrush), and Eriogonum kennedyi var. austromontanum (Southern Mountain Wild-buckwheat)

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Proposed rule; reopening of comment period, notice of availability of draft economic analysis, and amended Required Determinations.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the comment period on the proposed designation of critical habitat for Arenaria ursina, Castilleja cinerea, and Eriogonum
            kennedyi var. austromontanum under the Endangered Species Act of 1973, as amended (Act). We also announce the availability of the draft economic analysis for the proposed critical habitat designation and an amended Required Determinations section of the proposal. The draft economic analysis forecasts future costs associated with conservation efforts for the three listed plants in the areas proposed for designation to be $1.95 million (undiscounted) over the next 20 years. The present value of these impacts, applying a 3 percent discount rate, is $1.45 million ($0.10 million annualized); or $1.03 million, using a discount rate of 7 percent ($0.10 million annualized). The amended Required Determinations section provides our determination concerning compliance with applicable statutes and Executive Orders that we deferred until the information from the draft economic analysis of this proposal was available. We are reopening the comment period to allow all interested parties to comment simultaneously on the proposed rule, the associated draft economic analysis, and the amended Required Determinations section.

          DATES:
          We will accept public comments until September 13, 2007.

          ADDRESSES:
          Written comments and materials may be submitted to us by any one of the following methods:
          (1) E-mail: Please submit electronic comments to fw8cfwocomments@fws.gov. Include “pebble plains plants” in the subject line. Please see the Public Comments Solicited section under SUPPLEMENTARY INFORMATION.
          (2) Facsimile: You may send your comments to 760-431-5901.
          (3) U.S. mail or hand-delivery: You may submit written comments and information to Jim Bartel, Field Supervisor, Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Road, Carlsbad, CA 92011.
          (4) Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

          FOR FURTHER INFORMATION CONTACT:

          Jim Bartel, Field Supervisor, Carlsbad Fish and Wildlife Office, at the address listed in ADDRESSES (telephone: 760-431-9440). Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.

        SUPPLEMENTARY INFORMATION:
        Public Comments Solicited

        We will accept written comments and information during this reopened comment period. We solicit comments on the proposed critical habitat designation for Arenaria
          ursina (Bear Valley sandwort), Castilleja
          cinerea (Ash-gray Indian paintbrush), and Eriogonum
          kennedyi var. austromontanum (southern mountain wild-buckwheat) (also collectively referred to herein as three pebble plains plants), published in the Federal Register on November 22, 2006 (71 FR 67712), and on our draft economic analysis of the proposed designation. We will consider information and recommendations from all interested parties. We are particularly interested in comments concerning:

        (1) The reasons why habitat should or should not be designated as critical habitat under section 4 of the Act (16 U.S.C. 1531 et seq.), including whether the benefit of designation will outweigh threats to these species caused by designation, such that designation of critical habitat is prudent;
        (2) Specific information on the amount and distribution of Arenaria
          ursina, Castilleja
          cinerea, and Eriogonum
          kennedyi var. austromontanum habitat, and what areas that were occupied at the time of listing that contain features essential for the conservation of the species should be included in the designation and why, and what areas that were not occupied at the time of listing are essential to the conservation of the species and why;
        (3) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat;

        (4) Information on the extent to which any State and local environmental protection measures referred to in the draft economic analysis may have been adopted largely as a result of the listing of Arenaria
          ursina, Castilleja
          cinerea, and Eriogonum
          kennedyi var. austromontanum;
        (5) Information on whether the draft economic analysis identifies all State and local costs attributable to the proposed critical habitat designation, and information on any costs that have been inadvertently overlooked;
        (6) Information on whether the draft economic analysis makes appropriate assumptions regarding current practices and likely regulatory changes imposed as a result of the designation of critical habitat;

        (7) Information on whether the draft economic analysis correctly assesses the effect on regional costs associated with any land use controls that may derive from the designation of critical habitat;

        (8) Information on areas that could potentially be disproportionately impacted by designation of critical habitat for Arenaria
          ursina, Castilleja
          cinerea, or Eriogonum
          kennedyi var. austromontanum;
        (9) Any foreseeable economic, national security, or other potential impacts resulting from the proposed designation of critical habitat, and in particular, any impacts on small entities; and the benefits of including or excluding areas that exhibit these impacts;
        (10) Information on whether the draft economic analysis appropriately identifies all costs that could result from the designation;
        (11) Information on whether our approach to critical habitat designation could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concern and comments;
        (12) Economic data on the incremental effects that would result from designating any particular area as critical habitat; and
        (13) Information on whether there are any quantifiable economic benefits that could result from the designation.
        Pursuant to section 4(b)(2) of the Act, an area may be excluded from critical habitat if it is determined that the benefits of such exclusion outweigh the benefits of including a particular area as critical habitat, unless the failure to designate such area as critical habitat will result in the extinction of the species. We may exclude an area from designated critical habitat based on economic impacts, national security, or any other relevant impact.

        All previous comments and information submitted during the initial comment period from November 22, 2006, to January 22, 2007, for the proposed rule (71 FR 67712) need not be resubmitted. If you wish to comment, you may submit your comments and materials concerning the draft economic analysis and the proposed rule by any one of several methods (see ADDRESSES). Our final designation of critical habitat will take into consideration all comments and any additional information we have received during both comment periods. On the basis of public comment on this analysis, the critical habitat proposal, and the final economic analysis, we may, during the development of our final determination, find that areas proposed are not essential, are appropriate for exclusion under section 4(b)(2) of the Act, or are not appropriate for exclusion.

        If submitting comments electronically, please also include “Attn: pebble plains plants” and your name and return address in your e-mail message. If you do not receive a confirmation from the system that we have received your e-mail message, please contact the person listed under FOR FURTHER INFORMATION CONTACT.
        Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

        You may obtain copies of the proposed rule and draft economic analysis by mail from the Carlsbad Fish and Wildlife Office (see ADDRESSES) or by visiting our website at http://www.fws.gov/carlsbad/SBMP.htm.
        Background

        On September 13, 2004, the Center for Biological Diversity and the California Native Plant Society filed a joint lawsuit challenging the Service's failure to designate critical habitat for six California plant species, including Arenaria
          ursina, Castilleja
          cinerea, and Eriogonum
          kennedyi var. austromontanum (Center for Biological Diversity, et al. v. Norton, No. ED CV-04-1150 RT (SGLx)). In an April 14, 2005, settlement agreement, the Service agreed to submit to the Federal Register a proposed rule to designate critical habitat, if prudent, on or before November 9, 2006, and a final rule by November 9, 2007.

        On November 4, 2006, a proposed rule to designate critical habitat for A. ursina, C. cinerea, and E. k. var. austromontanum was signed; it was published on November 22, 2006 (71 FR 67712). The proposal includes approximately 1,511 acres (ac) (611 hectares (ha)) of land in San Bernardino County, California.
        Critical habitat is defined in section 3 of the Act as the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features essential to the conservation of the species and that may require special management considerations or protection, and specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. If the proposed rule is made final, section 7 of the Act will prohibit destruction or adverse modification of critical habitat by any activity funded, authorized, or carried out by any Federal agency. Federal agencies proposing actions affecting areas designated as critical habitat must consult with us on the effects of their proposed actions, pursuant to section 7(a)(2) of the Act.
        Draft Economic Analysis

        Section 4(b)(2) of the Act requires that we designate or revise critical habitat based upon the best scientific and commercial data available, after taking into consideration the economic impact, impact on national security, or any other relevant impact of specifying any particular area as critical habitat. We have prepared a draft economic analysis based on the November 22, 2006, proposed rule to designate critical habitat for Arenaria
          ursina, Castilleja
          cinerea, and Eriogonum
          kennedyi var. austromontanum (71 FR 67712).
        The draft economic analysis is intended to quantify the economic impacts of all potential conservation efforts for the three pebble plains plants; some of these costs will likely be incurred regardless of whether critical habitat is designated. According to the draft economic analysis, activities associated with the conservation of the three listed pebble plains plants are likely to primarily impact unauthorized off-highway vehicle use, control of invasive, nonnative plants, and dispersed recreation. The draft economic analysis forecasts future costs associated with conservation efforts for the three pebble plains plants in the areas proposed for designation to be $1.95 million (undiscounted) over the next 20 years. The present value of these impacts, applying a 3 percent discount rate, is $1.45 million ($0.10 million annualized); or $1.03 million, using a discount rate of 7 percent ($0.10 million annualized). The analysis quantifies economic impacts associated with the conservation efforts on each affected entity—typically landowners or managers—associated with the following: (1) vehicle use off designated routes; (2) the presence of nonnative plant species; and (3) dispersed recreation activities.

        The draft economic analysis considers the potential economic effects of actions relating to the conservation of Arenaria
          ursina, Castilleja
          cinerea, and Eriogonum
          kennedyi var. austromontanum, including costs associated with sections 4, 7, and 10 of the Act, and including those attributable to the designation of critical habitat. It further considers the economic effects of protective measures taken as a result of other Federal, State, and local laws that aid habitat conservation for A. ursina, C. cinerea, and E. k. var. austromontanum in areas containing features essential to the conservation of the species. The draft analysis considers both economic efficiency and distributional effects. In the case of habitat conservation, efficiency effects generally reflect the “opportunity costs” associated with the commitment of resources to comply with habitat protection measures (such as lost economic opportunities associated with restrictions on land use).

        This analysis also addresses how potential economic impacts are likely to be distributed, including an assessment of any local or regional impacts of habitat conservation and the potential effects of conservation activities on small entities and the energy industry. This information can be used by decision-makers to assess whether the effects of the designation might unduly burden a particular group or economic sector. Finally, this draft analysis looks retrospectively at costs that have been incurred since the date Arenaria
          ursina, Castilleja
          cinerea, and Eriogonum
          kennedyi var. austromontanum were listed as threatened (63 FR 49006; September 14, 1998), and considers those costs that may occur in the 20 years following the designation of critical habitat.
        As stated earlier, we solicit data and comments from the public on this draft economic analysis, as well as on all aspects of the proposal. We may revise the proposal or its supporting documents to incorporate or address new information received during the comment period. In particular, we may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area as critical habitat, provided such exclusion will not result in the extinction of the species.
        Required Determinations—Amended
        In our November 22, 2006, proposed rule (71 FR 67712), we indicated that we would defer our determination of compliance with several statutes and Executive Orders until the information concerning potential economic impacts of the designation and potential effects on landowners and stakeholders was available in the draft economic analysis. Those data are now available for our use in making these determinations. In this notice we are affirming the information contained in the proposed rule concerning Executive Order (E.O.) 13132; E.O. 12988, the Paperwork Reduction Act; and the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments (59 FR 22951). Based on the information made available to us in the draft economic analysis, we are amending our Required Determinations, as provided below, concerning E.O. 12866 and the Regulatory Flexibility Act, E.O. 13211, E.O. 12630, and the Unfunded Mandates Reform Act.
        Regulatory Planning and Review

        In accordance with E.O. 12866, this document is a significant rule because it may raise novel legal and policy issues. Based on our draft economic analysis of the proposed designation of critical habitat for Arenaria
          ursina, Castilleja
          cinerea, or Eriogonum
          kennedyi var. austromontanum, costs related to conservation activities for these species pursuant to sections 4, 7, and 10 of the Act are estimated to be approximately $1.95 million (undiscounted) over the next 20 years. The present value of these impacts, applying a 3 percent discount rate, is $1.45 million ($0.10 million annualized); or $1.03 million, using a discount rate of 7 percent ($0.10 million annualized). Therefore, based on our draft economic analysis, we do not anticipate that the proposed designation of critical habitat for A. ursina, C. cinerea, and E. k. var. austromontanum would result in an annual effect on the economy of $100 million or more or affect the economy in a material way. Due to the necessary timeline for publication in the Federal Register, the Office of Management and Budget (OMB) has not formally reviewed the proposed rule or accompanying economic analysis.
        Further, E.O. 12866 directs Federal agencies promulgating regulations to evaluate regulatory alternatives (OMB Circular A-4, September 17, 2003). Pursuant to Circular A-4, once it has determined that the Federal regulatory action is appropriate, the agency will then need to consider alternative regulatory approaches. Since the determination of critical habitat is a statutory requirement pursuant to the Act, we must then evaluate alternative regulatory approaches, where feasible, when promulgating a designation of critical habitat.
        In developing our designations of critical habitat, we consider economic impacts, impacts to national security, and other relevant impacts pursuant to section 4(b)(2) of the Act. Based on the discretion allowable under this provision, we may exclude any particular area from the designation of critical habitat providing that the benefits of such exclusion outweigh the benefits of specifying the area as critical habitat and that such exclusion would not result in the extinction of the species. As such, we believe that the evaluation of the inclusion or exclusion of particular areas, or combination thereof, in a designation constitutes our regulatory alternative analysis.
        Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
        Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), as amended by the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 802(2)) (SBREFA), 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 (small businesses, small organizations, and small government 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. Based upon our draft economic analysis of the proposed designation, we provide our analysis for determining whether the proposed rule would result in a significant economic impact on a substantial number of small entities. Based on comments received, this determination is subject to revision as part of the final rulemaking.

        According to the Small Business Administration (SBA), small entities include small organizations, such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term significant economic impact is meant to apply to a typical small business firm's business operations.

        To determine if the proposed designation of critical habitat for Arenaria ursina, Castilleja cinerea, and Eriogonum kennedyi var. austromontanum would affect a substantial number of small entities, we considered the number of small entities affected within particular types of economic activities (such as residential development and dispersed recreation activities). We considered each industry or category individually to determine if certification is appropriate. In estimating the numbers of small entities potentially affected, we also considered whether their activities have any Federal involvement; some kinds of activities are unlikely to have any Federal involvement and thus will not be affected by the designation of critical habitat. Designation of critical habitat only affects activities conducted, funded, permitted, or authorized by Federal agencies; non-Federal activities are not affected by the designation.
        If this proposed critical habitat designation is made final, Federal agencies must consult with us under section 7 of the Act if their activities may affect designated critical habitat. Consultations to avoid the destruction or adverse modification of critical habitat would be incorporated into the existing consultation process.

        In our draft economic analysis of the proposed critical habitat designation, we evaluated the potential economic effects on small business entities resulting from conservation actions related to the listing of Arenaria ursina, Castilleja cinerea, or Eriogonum kennedyi var. austromontanum and proposed designation of its critical habitat. The analysis is based on the estimated impacts associated with the proposed rulemaking as described in Chapters 2 through 4 of the analysis and evaluates the potential for economic impacts related to three categories: unauthorized vehicle activities; invasive, nonnative plant species management; and dispersed recreation activities.
        The U.S. Forest Service (USFS), the California Department of Fish and Game, and the Boy Scouts of America are not considered small entities by the Small Business Administration. They do not meet the criteria because the first two entities are governments serving more than 50,000 people, and the Boy Scouts of America is a civic or social organization having annual receipts greater than $6.5 million. The private landowners are unlikely to be business entities. Accordingly, the small business analysis contained in Appendix A of the economic analysis focuses on economic impacts of controlling unauthorized off-highway vehicles and nonnative plant species on land owned by The Wildlands Conservancy.
        The Wildlands Conservancy (TWC) is a nonprofit, public benefit organization. It was unaware of the presence of the three listed species and their habitat on its land and, to date, has not undertaken actions specific to the conservation of the plants. Potential impacts to TWC of managing unauthorized off-road vehicle use and controlling invasive, nonnative plant species are based on cost-per-acre estimates from the USFS. Annualized impacts to TWC at a 3 percent discount rate are expected to be $4,504. However, since only one entity meeting the definition of a small business owns land within the area proposed as critical habitat, we do not anticipate that this regulation, if finalized as proposed, will result in a significant impact to a substantial number of small business entities. Please refer to our draft economic analysis of the proposed critical habitat designation for a more detailed discussion of potential economic impacts.
        In summary, we have considered whether this proposed rule would result in a significant economic effect on a substantial number of small entities. For the above reasons and based on currently available information, we certify that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities. Therefore, an initial regulatory flexibility analysis is not required.
        Executive Order 13211 - Energy Supply, Distribution, and Use

        On May 18, 2001, the President issued E.O. 13211 on regulations that significantly affect energy supply, distribution, and use. E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This proposed designation of critical habitat for Arenaria ursina, Castilleja cinerea, and Eriogonum
          kennedyi var. austromontanum is considered a significant regulatory action under E.O. 12866 due to its potentially raising novel legal and policy issues. OMB has provided guidance for implementing this Executive Order that outlines nine outcomes that may constitute “a significant adverse effect” when compared without the regulatory action under consideration. The draft economic analysis finds that none of these criteria are relevant to this analysis. Thus, based on the information in the draft economic analysis, energy-related impacts associated with A. ursina, C. cinerea, and E. k. var. austromontanum conservation activities within proposed critical habitat are not expected. As such, the proposed designation of critical habitat is not expected to significantly affect energy supplies, distribution, or use and a Statement of Energy Effects is not required.
        Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
        In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501), the Service makes the following findings:
        (a) This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or Tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments,” with two exceptions. It excludes “a condition of federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and Tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding” and the State, local, or tribal governments “lack authority” to adjust accordingly. (At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement.) “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance; or (ii) a duty arising from participation in a voluntary Federal program.”

        The designation of critical habitat does not impose a legally binding duty on non-Federal government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. Non-Federal entities that receive Federal funding, assistance, permits, or otherwise require approval or authorization from a Federal agency for an action may be indirectly impacted by the designation of critical habitat. However, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above on to State governments.
        (b) We do not believe that this rule will significantly or uniquely affect small governments. As discussed in the draft economic analysis, the majority (92 percent) of the lands proposed as critical habitat are federally owned by the USFS, which does not qualify as a small government. Of the remaining eight percent, seven percent is privately owned land and one percent is State land. Consequently, we do not believe that critical habitat designation would significantly or uniquely affect small government entities. As such, a Small Government Agency Plan is not required.
        Executive Order 12630 - Takings

        In accordance with E.O. 12630 (“Government Actions and Interference with Constitutionally Protected Private Property Rights”), we have analyzed the potential takings implications of proposing critical habitat for Arenaria ursina, Castilleja cinerea, and Eriogonum kennedyi var. austromontanum in a takings implications assessment. The takings implications assessment concludes that this proposed designation of critical habitat for the three listed pebble plains plants does not pose significant takings implications.
        Author
        The primary author of this notice is the Carlsbad Fish and Wildlife Office.

          Authority:

          The authority for this action is the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.).

          Dated: August 3, 2007.

          Todd Willens,

          Acting Assistant Secretary for Fish and Wildlife and Parks.

      [FR Doc. E7-15765 Filed 8-13-07; 8:45 am]
      Billing Code: 4310-55-S


        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 300
        [FRL-7632-9]
        National Priorities List for Uncontrolled Hazardous Waste Sites, Proposed Rule No. 40

          AGENCY:
          Environmental Protection Agency.

          ACTION:
          Proposed rule.

          SUMMARY:
          The Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA” or “the Act”), 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 proposed rule proposes to add 11 new sites to the NPL; all to the General Superfund Section of the NPL.

          DATES:
          Comments regarding any of these proposed listings must be submitted (postmarked) on or before May 7, 2004.

          ADDRESSES:
          By electronic access: Go directly to EPA Dockets at http://www.epa.gov/edocket and follow the online instructions for submitting comments. Once in the system, select “search”, and then key Docket ID No. SFUND-2004-0004. The system is an “anonymous access” system, which means EPA will not know your identity, e-mail address, or other contact information unless you provide it in the body of your comment.

            By Postal Mail: Mail original and three copies of 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, Attention Docket ID No. SFUND-2004-0004.

            By Express Mail or Courier: Send original and three copies of comments (no facsimiles or tapes) to Docket Coordinator, Headquarters; U.S. Environmental Protection Agency; CERCLA Docket Office; 1301 Constitution Avenue; EPA West, Room B102, Washington, DC 20004, Attention Docket ID No. SFUND-2004-0004. 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).

            By E-Mail: Comments in ASCII format only may be mailed directly to superfund.docket@epa.gov. Cite the Docket ID No. SFUND-2004-0004 in your electronic file. Please note that EPA's e-mail system automatically captures your e-mail address and is included as part of the comment that is placed in the public dockets, and made available in EPA's electronic public docket.

          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:
          Yolanda Singer, phone (703) 603-8835, State, Tribal and Site Identification Center, Office of Superfund Remediation and Technology Innovation (Mail Code 5204G); 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. How Are Site Boundaries Defined?
          G. How Are Sites Removed From the NPL?
          H. Can Portions of Sites Be Deleted From the NPL as They Are Cleaned Up?
          I. What is the Construction Completion List (CCL)?
          II. Public Review/Public Comment
          A. Can 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. Can I Submit Comments After the Public Comment Period Is Over?
          I. Can I View Public Comments Submitted by Others?
          J. Can I Submit Comments Regarding Sites Not Currently Proposed to the NPL?
          III. Contents of This Proposed Rule
          A. Proposed Additions to the NPL
          B. Status of NPL
          IV. Executive Order 12866
          A. What is Executive Order 12866?
          B. Is This Proposed Rule Subject to Executive Order 12866 Review?
          V. Unfunded Mandates
          A. What is the Unfunded Mandates Reform Act (UMRA)?
          B. Does UMRA Apply to This Proposed Rule?
          VI. Effect on Small Businesses
          A. What is the Regulatory Flexibility Act?
          B. How Has EPA Complied with the Regulatory Flexibility Act (RFA)?
          VII. National Technology Transfer and Advancement Act
          A. What is the National Technology Transfer and Advancement Act?
          B. Does the National Technology Transfer and Advancement Act Apply to This Proposed Rule?
          VIII. Executive Order 12898
          A. What is Executive Order 12898?
          B. Does Executive Order 12898 Apply to This Proposed Rule?
          IX. Executive Order 13045
          A. What is Executive Order 13045?
          B. Does Executive Order 13045 Apply to This Proposed Rule?
          X. Paperwork Reduction Act
          A. What is the Paperwork Reduction Act?
          B. Does the Paperwork Reduction Act Apply to This Proposed Rule?
          XI. Executive Orders on Federalism
          What Are The Executive Orders on Federalism and Are They Applicable to This Proposed Rule?
          XII. Executive Order 13084
          What is Executive Order 13084 and Is It Applicable to This Proposed Rule?
          XIII. Executive Order 13175
          A. What is Executive Order 13175?
          B. Does Executive Order 13175 Apply to This Proposed Rule?
          XIV. Executive Order 13211
          A. What is Executive Order 13211?
          B. Is This Rule Subject to Executive Order 13211?

        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 of hazardous substances. 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, pollutants, or contaminants under CERCLA. 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 (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. 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. Neither does placing a site on the NPL mean that any remedial or removal action necessarily need be taken. See Report of the Senate Committee on Environment and Public Works, Senate Rep. No. 96-848, 96th Cong., 2d Sess. 60 (1980), 48 FR 40659 (September 8, 1983).
        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 an HRS score and determining whether the facility is placed on the NPL. EPA generally is not the lead agency at Federal Facilities Section sites, and its role at such sites is accordingly 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”), which 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 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) Each State may designate a single site as its top priority to be listed on the NPL, regardless of the HRS score. This mechanism, provided by the NCP at 40 CFR 300.425(c)(2) requires that, to the extent practicable, the NPL include within the 100 highest priorities, one facility designated by each State representing the greatest danger to public health, welfare, or the environment among known facilities in the State (see 42 U.S.C. 9605(a)(8)(B)); (3) The third mechanism for listing, included in the NCP at 40 CFR 300.425(c)(3), allows certain sites to be listed regardless of their 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). The NPL has been expanded since then, most recently on September 29, 2003 (68 FR 55875).
        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 remedy the releases, including enforcement action under CERCLA and other laws.
        F. How Are Site Boundaries Defined?
        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.
        Although a CERCLA “facility” is broadly defined to include any area where a hazardous substance release 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. As a legal matter, the site is not coextensive with that area, and the boundaries of the installation or plant are not 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 to which contamination from that area has come to be located, or from which 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. The precise nature and extent of the site are typically not known at the time of listing. Also, the site name is merely used to help identify the geographic location of the contamination. For example, the “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, this inquiry focuses on an evaluation of the threat posed; 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, supporting information can be submitted to the Agency at any time after a party 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. As of February 25, 2004, the Agency has deleted 278 sites from the NPL.
        H. Can Portions of Sites Be Deleted 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 available for productive use. As of February 25, 2004, EPA has deleted 43 portions of 37 sites.
        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.

        As of February 25, 2004, there are a total of 892 sites on the CCL. 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. Can 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 and in the Regional offices.
        B. How Do I Access the Documents?
        You may view the documents, by appointment only, in the Headquarters or the Regional dockets after the appearance 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 B102, Washington, DC 20004, 202/566-0276. (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:
        Ellen Culhane, 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; 617/918-1225.
        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.
        John Wright, Region 4 (AL, FL, GA, KY, MS, NC, SC, TN), U.S. EPA, 61 Forsyth Street, SW, 9th floor, Atlanta, GA 30303; 404/562-8123.
        Janet Pfundheller, Region 5 (IL, IN, MI, MN, OH, WI), U.S. EPA, Records Center, Superfund Division SMR-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.
        Debra Ehlert, Region 8 (CO, MT, ND, SD, UT, WY), U.S. EPA, 999 18th Street, Suite 500, Mailcode 8EPR-SA, Denver, CO 80202-2466; 303/312-6108.
        Jere Johnson, Region 9 (AZ, CA, HI, NV, AS, GU), U.S. EPA, 75 Hawthorne Street, San Francisco, CA 94105; 415/972-3094.
        Tara Martich, Region 10 (AK, ID, OR, WA), U.S. EPA, 1200 6th Avenue, Mail Stop ECL-110, Seattle, WA 98101; 206/553-0039.
        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 also access this Federal Register document electronically through the EPA Internet under the “Federal Register” listings at http://www.epa.gov/fedrgstr. You may use EPA Dockets at http://www.epa.gov/edocket to access the index listing of the contents of the Headquarters docket, and to access those documents in the Headquarters docket. Once in the system, select “search”, then key in the Docket ID No. SFUND-2004-0004. 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: HRS score sheets for the proposed sites; a Documentation Record for the sites 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 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 will be 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 (D.C. 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. Can 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 not delaying a final listing decision solely to accommodate consideration of late comments.
        I. Can 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 EPA's electronic public docket 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. For additional information about EPA's electronic public docket, visit EPA Dockets online at http://www.epa.gov/edocket or see the May 31, 2002 Federal Register (67 FR 38102).
        J. Can I Submit Comments Regarding Sites Not Currently Proposed to the NPL?
        In certain instances, interested parties have written to EPA concerning sites which 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
        With today's proposed rule, EPA is proposing to add 11 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 Table 1 which follows this preamble.
        B. Status of NPL

        With this proposal of 11 new sites, there are now 65 sites proposed and awaiting final agency action, 59 in the General Superfund Section and 6 in the Federal Facilities Section. There are currently 1,240 final sites, 1,082 in the General Superfund Section and 158 in the Federal Facilities Section. Final and proposed sites now total 1,305. (These numbers reflect the status of sites as of February 25, 2004. Site deletions occurring after this date may affect these numbers at time of publication in the Federal Register.)
        IV. Executive Order 12866
        A. 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 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.
        B. 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.
        V. Unfunded Mandates
        A. 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 for which 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.
        B. 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.
        VI. Effect on Small Businesses
        A. 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.
        B. How Has EPA Complied With the Regulatory Flexibility Act (RFA)?
        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.
        VII. National Technology Transfer and Advancement Act
        A. 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.
        B. 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.
        VIII. Executive Order 12898
        A. What Is Executive Order 12898?
        Under Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations,” as well as through EPA's April 1995, “Environmental Justice Strategy, OSWER Environmental Justice Task Force Action Agenda Report,” and National Environmental Justice Advisory Council, EPA has undertaken to incorporate environmental justice into its policies and programs. EPA is committed to addressing environmental justice concerns, and is assuming a leadership role in environmental justice initiatives to enhance environmental quality for all residents of the United States. The Agency's goals are to ensure that no segment of the population, regardless of race, color, national origin, or income, bears disproportionately high and adverse human health and environmental effects as a result of EPA's policies, programs, and activities, and all people live in clean and sustainable communities.
        B. Does Executive Order 12898 Apply to This Proposed Rule?
        No. While this rule proposes to revise the NPL, no action will result from this proposal that will have disproportionately high and adverse human health and environmental effects on any segment of the population.
        IX. Executive Order 13045
        A. 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.
        B. 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.
        X. Paperwork Reduction Act
        A. 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. The information collection requirements related to this action have already been approved by OMB pursuant to the PRA under OMB control number 2070-0012 (EPA ICR No. 574).
        B. Does the Paperwork Reduction Act Apply to This Proposed Rule?
        No. 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.
        XI. Executive Orders on Federalism
        What Are The Executive Orders on Federalism and Are They 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.
        XII. Executive Order 13084
        What Is Executive Order 13084 and Is It Applicable to This Proposed Rule?
        Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments, or EPA consults with those governments. If EPA complies by consulting, Executive Order 13084 requires EPA to provide to the Office of Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected officials and other representatives of Indian tribal governments “to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.”
        This proposed rule does not significantly or uniquely affect the communities of Indian tribal governments because it does not significantly or uniquely affect their communities. The addition of sites to the NPL will not impose any substantial direct compliance costs on Tribes. While Tribes may incur costs from participating in the investigations and cleanup decisions, those costs are not compliance costs. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this proposed rule.
        XIII. Executive Order 13175
        A. 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.”
        B. 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.
        XIV. Executive Order 13211
        A. What Is Executive Order 13211?

        Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)), requires EPA to prepare and submit a Statement of Energy Effects to the Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget, for certain actions identified as “significant energy actions.” Section 4(b) of Executive Order 13211 defines “significant energy actions” as “any action by an agency (normally published in the Federal Register) that promulgates or is expected to lead to the promulgation of a final rule or regulation, including notices of inquiry, advance notices of proposed rulemaking, and notices of proposed rulemaking: (1)(i) That is a significant regulatory action under Executive Order 12866 or any successor order, and (ii) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (2) that is designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action.”
        B. Is This Rule Subject to Executive Order 13211?

        This proposed rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not a significant regulatory action under Executive Order 12866. (See discussion of Executive Order 12866 above.)

          Table 1.—National Priorities List Proposed Rule No. 40, General Superfund Section

            State
            Site name
            City/county

            IN
            Jacobsville Neighborhood Soil Contamination
            Evansville.

            LA
            Devil's Swamp—Ewell Property
            Scotlandville.

            MO
            Annapolis Lead Mine
            Annapolis.

            MS
            Picayune Wood Treating
            Picayune.

            NM
            Grants Chlorinated Solvents Plume
            Grants.

            NY
            Diaz Chemical Corporation
            Holley.

            NY
            Peninsula Boulevard Ground Water Plume
            Hewlett.

            PA
            Ryeland Road Arsenic
            Heidelberg Township.

            PR
            Cidra Ground Water Contamination
            Cidra.

            VT
            Pike Hill Copper Mine
            Corinth.

            WV
            Ravenswood PCE Ground Water Plume
            Ravenswood.

          Number of Sites Proposed to General Superfund Section: 11.

          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: March 1, 2004.
          Marianne Lamont Horinko,
          Assistant Administrator, Office of Solid Waste and Emergency Response.

      [FR Doc. 04-5109 Filed 3-5-04; 8:45 am]
      BILLING CODE 6560-50-P