        DEPARTMENT OF HOMELAND SECURITY
        Coast Guard
        33 CFR Part 117
        [Docket No. USCG-2020-0603]
        RIN 1625-AA09
        Drawbridge Operation Regulation; Hackensack River, Jersey City, NJ

          AGENCY:
          Coast Guard, DHS.

          ACTION:
          Notice of proposed rulemaking.

          SUMMARY:
          The Coast Guard is proposing to modify the operating schedules that govern the new Route 7 Bridge, mile 3.1, crossing the Hackensack River, at Jersey City, NJ. The bridge owner, the New Jersey Department of Transportation (NJDOT), submitted a request to allow the bridge to require four hours advance notice for bridge openings. It is expected that this change to the regulations will create efficiency in drawbridge operations and better serve the needs of the community while continuing to meet the reasonable needs of navigation.

          DATES:
          Comments and related material must reach the Coast Guard on or before January 19, 2021.

          ADDRESSES:

           You may submit comments identified by docket number USCG-2020-0603 using the Federal eRulemaking Portal at http://www.regulations.gov.

          See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section below for instructions on submitting comments.

          FOR FURTHER INFORMATION CONTACT:

          If you have questions on this proposed rule, call or email Judy Leung-Yee, Project Officer, First Coast Guard District; telephone 212-514-4336, email Judy.K.Leung-Yee@uscg.mil.

        SUPPLEMENTARY INFORMATION:
        I. Table of Abbreviations

          CFR Code of Federal Regulations
          NJDOT New Jersey Department of Transportation
          DHS Department of Homeland Security
          FR Federal Register
          OMB Office of Management and Budget
          NPRM Notice of Proposed Rulemaking (Advance, Supplemental)
          § Section
          U.S.C. United States Code

        II. Background, Purpose and Legal Basis
        The new Route 7 Bridge at mile 3.1 over the Hackensack River at Jersey City, New Jersey, is currently under construction and will have a vertical clearance of 70 feet at mean high water in the closed position and 135 feet at mean high water in the open position. Horizontal clearance is approximately 158 feet. The existing Route 7 Bridge over the Hackensack River has a vertical clearance of 35 feet at mean high water in the closed position and 135 feet at mean high water in the open position. Horizontal clearance is approximately 158 feet.
        The waterway users include recreational and commercial vessels including tugboat/barge combinations.
        The existing regulation, 33 CFR 117.723(k) published under Federal Register 85 FR 8747, effective April 19, 2020, requires the existing bridge open on signal; except that, from 11 p.m. to 7 a.m., the draw shall open on signal if at least two hours advance notice is given by calling the number posted at the bridge.
        In August of 2020, the owner of the bridge, NJDOT, requested a change to the drawbridge operation regulations to the new bridge anticipating lower volume of bridge openings given that the new bridge vertical clearance in the closed position will be double the clearance of the existing bridge.
        Under this proposed rule the new draw would open on signal if at least four hours advance notice is given by calling the number posted at the bridge. This rule change will allow for more efficient and economic operation of the bridge while meeting the reasonable needs of navigation. The Coast Guard is proposing this rulemaking under authority in 33 U.S.C. 499.
        NJDOT reached out to the maritime stakeholders with the requested change proposed and received no objections.
        III. Discussion of Proposed Rule

        The bridge logs show that the Route 7 Bridge had 16 openings in 2018, 10 openings in 2019, and 6 openings in 2020 (through 6/19/2020). The Coast Guard proposes to permanently modify the operating regulation.

        The proposed rule would allow that the new Route 7 Bridge shall open on signal if at least four hours advance notice is given by calling the number posted at the bridge. Both new and current bridges will operate under the existing operating schedule until the original bridge is demolished/removed at which point this proposed rule will take effect.
        It is the Coast Guard's opinion that the proposed rule meets reasonable needs of marine traffic.
        IV. Regulatory Analyses
        We developed this proposed rule after considering numerous statutes and Executive Orders related to rulemaking. Below we summarize our analyses based on these statutes and Executive Orders and we discuss First Amendment rights of protestors.
        A. Regulatory Planning and Review
        Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the Office of Management and Budget (OMB) has not reviewed the NPRM and pursuant to OMB guidance, it is exempt from the requirements of Executive Order 13771.
        The Coast Guard believes this rule is not a significant regulatory action. The bridge will still open for all vessel traffic after a four-hour advance notice is given. The vertical clearance under the bridge in the closed position is relatively high enough to accommodate most vessel traffic. We believe that this proposed change to the drawbridge operation regulations at 33 CFR 117.723 will meet the reasonable needs of navigation.
        B. Impact on Small Entities
        The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.
        The new Route 7 Bridge provides 70 feet of vertical clearance at mean high water that should accommodate most of the present vessel traffic except deep draft vessels. The new bridge will open on signal for any vessel when a four hour advance notice is given. While some owners or operators of vessels intending to transit the bridge may be small entities, for the reasons stated in section IV.A, above, this proposed rule would not have a significant economic impact on any vessel owner or operator.

        If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

        Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT, section. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.
        C. Collection of Information
        This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).
        D. Federalism and Indian Tribal Government
        A rule has implications for federalism under Executive Order 13132, (Federalism), if it has a substantial direct effect 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. We have analyzed this proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

        Also, this proposed rule does not have tribal implications under Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments) because it would not have a substantial direct effect on one or more Indian tribes, 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. If you believe this proposed rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.
        E. Unfunded Mandates Reform Act
        The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule will not result in such an expenditure, we do discuss the effects of this proposed rule elsewhere in this preamble.
        F. Environment
        We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01, Rev.1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f). The Coast Guard has determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule promulgates the operating regulations or procedures for drawbridges. Normally, such actions are categorically excluded from further review, under paragraph L49, of Chapter 3, Table 3-1 of the U.S. Coast Guard Environmental Planning Implementation Procedures.
        Neither a Record of Environmental Consideration nor a Memorandum for the Record are required for this rule. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.
        G. Protest Activities

        The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

        V. Public Participation and Request for Comments
        We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

        We encourage you to submit comments through the Federal e-Rulemaking Portal at http://www.regulations.gov. If your material cannot be submitted using http://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

        We accept anonymous comments. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided. For more about privacy and submissions in response to this document, see DHS's eRulemaking System of Records notice (85 FR 14226, March 11, 2020).

        Documents mentioned in this NPRM as being available in this docket and all public comments, will be in our online docket at http://www.regulations.gov and can be viewed by following that website's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.

          List of Subjects in 33 CFR Part 117
          Bridges.

        For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 117 as follows:

          PART 117—DRAWBRIDGE OPERATION REGULATIONS

        1. The authority citation for part 117 continues to read as follows:

          Authority:
           33 U.S.C. 499; 33 CFR 1.05-1; and Department of Homeland Security Delegation No. 0170.1.

        2. Revise § 117.723, paragraph (k) to read as follows:

          § 117.723
           Hackensack River.

          (k) The draw of the Route 7 Bridge, mile 3.1, at Jersey City, shall open on signal if at least four hours advance notice is given by calling the number posted at the bridge.

          Dated: November 12, 2020.
          T.G. Allan, Jr.,
          Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.

      [FR Doc. 2020-25396 Filed 11-18-20; 8:45 am]
      BILLING CODE 9110-04-P


        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 300
        [EPA-HQ-SFUND-2009-0588; FRL-8961-4]
        RIN 2050-AD75
        National Priorities List, Proposed Rule

          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 the Newtown Creek site in Brooklyn/Queens, New York, to the General Superfund Section of the NPL.

          DATES:
          Comments regarding this proposed listing must be submitted (postmarked) on or before November 23, 2009.

          ADDRESSES:
          Submit your comments, identified by docket number EPA-HQ-SFUND-2009-0588, 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, NW., EPA West, Room 3334, 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).

            Instructions: Direct your comments to docket number EPA-HQ-SFUND-2009-0588. 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 Web site 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, e-mail: jeng.terry@epa.gov, Site Assessment and Remedy Decisions 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)?
          J. What Is the Sitewide Ready for Anticipated Use Measure?
          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 Region 2 Docket?
          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 Addition 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
          1. What Is Executive Order 13132
          2. Is Executive Order 13132 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?
          J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations
          1. What Is Executive Order 12898?
          2. Does Executive Order 12898 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. 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.
        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 HRS, which EPA promulgated as appendix A of the NCP (40 CFR part 300). The HRS serves as a screening tool 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 Remedial Investigation (“RI”) “is a process undertaken * * * to determine the nature and extent of the problem presented by the release” as more information is developed on site contamination, and which is generally performed in an interactive fashion with the Feasibility Study (“FS”) (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 known 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/cleanup/ccl.htm.

        J. What Is the Sitewide Ready for Anticipated Use Measure?

        The Sitewide Ready for Anticipated Use measure (formerly called Sitewide Ready-for-Reuse) represents important Superfund accomplishments and the measure reflects the high priority EPA places on considering anticipated future land use as part of our remedy selection process. See Guidance for Implementing the Sitewide Ready-for-Reuse Measure, May 24, 2006, OSWER 9365.0-36. This measure applies to final and deleted sites where construction is complete, all cleanup goals have been achieved, and all institutional or other controls are in place. EPA has been successful on many occasions in carrying out remedial actions that ensure protectiveness of human health and the environment, including current and future land users, in a manner that allows contaminated properties to be restored to environmental and economic vitality while ensuring protectiveness for current and future land users. For further information, please go to http://www.epa.gov/superfund/programs/recycle/tools/index.html.

        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 site in this rule are contained in public dockets located both at EPA Headquarters in Washington, DC, in the Region 2 office 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 Region 2 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 Region 2 docket 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 NW.; EPA West, Room 3334, 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 2 docket is as follows: Dennis Munhall, Region 2 (NJ, NY, PR, VI), U.S. EPA, 290 Broadway, New York, NY 10007-1866; 212/637-4343.
        You may also request copies from EPA Headquarters or the Region 2 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. Please note that due to the difficulty of reproducing oversized maps, oversized maps may only be viewed in-person; however, EPA dockets are not equipped to either copy and mail out such maps or scan them and send them out electronically.
        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 site proposed in this rule: HRS score sheets; Documentation Record describing the information used to compute the score; and a list of documents referenced in the Documentation Record.
        D. What Documents Are Available for Public Review at the Region 2 Docket?
        The Region 2 docket for this rule contains 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 site. These reference documents are available only in the Region 2 docket.
        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 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 Region 2 docket 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 Addition to the NPL
        In today's proposed rule, EPA is proposing to add the Newtown Creek site in Brooklyn/Queens, New York, to the General Superfund section of the NPL. This site is being proposed based on an HRS score of 28.50 or above.
        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 a site 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?
        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 the private sector in any one year. Proposing a site on the NPL does not itself impose any costs. Proposal does not mean that EPA necessarily will undertake remedial action. Nor does proposal 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 proposing a site to be placed on the NPL. Thus, this rule is not subject to the requirements of section 202 and 205 of UMRA.
        This rule is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. As is mentioned above, site proposal does not impose any costs and would not require any action of a small government.
        E. Executive Order 13132: Federalism
        1. What Is Executive Order 13132?
        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.”
        2. Is Executive Order 13132 Applicable to This Proposed Rule?
        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, because it does not contain any requirements applicable to States or other levels of government. Thus, the requirements of the Executive Order do not apply to this proposed rule.
        EPA believes, however, that this proposed rule may be of significant interest to State governments. In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA therefore consulted with State officials and/or representatives of State governments early in the process of developing the rule to permit them to have meaningful and timely input into its development. The site included in this proposed rule was referred to EPA by the State for listing. EPA received a letter of support from the State official who was delegated the authority by the Governor to speak on his behalf regarding NPL listing decisions.
        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 action does not have Tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). Proposing a site to the NPL does not impose any costs on a Tribe or require a Tribe to take remedial action. 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 action is not a “significant energy action” as defined in Executive Order 13211 (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. Further, we have concluded that this rule is not likely to have any adverse energy impacts because proposing a site to the NPL does not require an entity to conduct any action that would require energy use, let alone that which would significantly affect energy supply, distribution, or usage. Thus, Executive Order 13175 does not apply to this action.
        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.
        J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations
        1. What Is Executive Order 12898?
        Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.
        2. Does Executive Order 12898 Apply to This Rule?
        EPA has determined that this proposed rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. As this rule does not impose any enforceable duty upon State, Tribal or local governments, this rule will neither increase nor decrease environmental protection.

          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: September 17, 2009.
          Barry N. Breen,
          Principal Deputy Assistant Administrator, Office of Solid Waste and Emergency Response.

      [FR Doc. E9-22935 Filed 9-22-09; 8:45 am]
      BILLING CODE 6560-50-P


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        [Docket No. FWS-R4-ES-2010-0024; MO 92210-0-0009-B4]
        RIN 1018-AW89
        Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Mississippi Gopher Frog

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Proposed rule; reopening of comment period, availability of draft economic analysis, and amended required determinations.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service (Service), announce the availability of the draft economic analysis (DEA) for the June 3, 2010, proposed designation of critical habitat for the Mississippi gopher frog (Rana sevosa) [= Rana capito sevosa] under the Endangered Species Act of 1973, as amended (Act). We also announce the reopening of the comment period and an amended required determinations section of the proposal. We are reopening the comment period for an additional 30 days to allow all interested parties an opportunity to comment simultaneously on the proposed critical habitat designation, the associated DEA, and the amended required determinations section. Comments previously submitted need not be resubmitted and will be fully considered in preparation of the final rule.

          DATES:
          We will consider public comments received on or before January 13, 2011. Comments must be received by 11:59 p.m. Eastern Time on the closing date. Any comments that we receive after the closing date may not be considered in the final decision on this action.

          ADDRESSES:
          You may submit comments by one of the following methods:

            • Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments to Docket No. FWS-R4-ES-2010-0024.

            • U.S. mail or hand-delivery: Public Comments Processing, Attn: FWS-R4-ES-2010-0024; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, VA 22203.
          We will post all comments on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see the Public Comments section below for more information).

          FOR FURTHER INFORMATION CONTACT:
          Stephen Ricks, Field Supervisor, Mississippi Fish and Wildlife Office, 6578 Dogwood View Parkway, Jackson, MS 39213; by telephone (601-321-1122); or by facsimile (601-965-4340). 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

        We will accept written comments and information during this reopened comment period on our proposed designation of critical habitat for the Mississippi gopher frog that was published in the Federal Register on June 3, 2010 (75 FR 31387), the DEA of the proposed designation of critical habitat for the Mississippi gopher frog, and the amended required determinations provided in this document. We will consider information and recommendations from all interested parties. We are particularly interested in comments concerning:

        (1) The reasons why we should or should not designate areas as “critical habitat” under section 4 of the Act (16 U.S.C. 1531 et seq.), including whether there are threats to the Mississippi gopher frog from human activity, the degree of which can be expected to increase due to the designation, and whether that increase in threat outweighs the benefit of designation, such that the designation of critical habitat is prudent.
        (2) Specific information on:
        (a) The amount and distribution of Mississippi gopher frog habitat;
        (b) What areas occupied by the species at the time of listing that contain features essential for the conservation of the species we should include in the designation and why;
        (c) Special management considerations or protection for the physical and biological features essential to Mississippi gopher frog conservation that have been identified in the proposed rule that may be needed, including managing for the potential effects of climate change; and
        (d) What areas not occupied by the species at the time of listing are essential to the conservation of the species and why.
        (3) Specific information on the Mississippi gopher frog and the physical and biological features essential to the conservation of the species.
        (4) Any information on the biological or ecological requirements of the species.
        (5) Land-use designations and current or planned activities in the subject areas and their possible impacts on the species and the proposed critical habitat.
        (6) Any foreseeable economic, national security, or other relevant impacts that may result from designating any area that may be included in the final designation. We are particularly interested in any impacts on small entities and the benefits of including or excluding areas from the proposed designation that are subject to these impacts.
        (7) Whether the benefits of excluding any particular area from critical habitat outweigh the benefits of including that area as critical habitat under section 4(b)(2) of the Act, after considering the potential impacts and benefits of the proposed critical habitat designation.
        (8) Information on the extent to which the description of economic impacts in the DEA is complete and accurate.
        (9) The likelihood of adverse social reactions to the designation of critical habitat, as discussed in the DEA, and how the consequences of such reactions, if likely to occur, would relate to the conservation and regulatory benefits of the proposed critical habitat designation.

        (10) The appropriateness of the taxonomic name change of the Mississippi gopher frog from Rana capito sevosa to Rana sevosa.

        (11) Whether our approach to designating critical habitat could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concerns and comments.
        If you submitted comments or information on the proposed rule (75 FR 31387) during the initial comment period from June 3, 2010, to August 2, 2010, please do not resubmit them. We will incorporate them into the public record as part of this comment period, and we will fully consider them in the preparation of our final determination. Our final determination concerning revised critical habitat will take into consideration all written comments and any additional information we receive during both comment periods. On the basis of public comments, 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.

        You may submit your comments and materials concerning the proposed rule or DEA by one of the methods listed in the ADDRESSES section. We will not consider comments sent by e-mail or fax or to an address not listed in the ADDRESSES section.
        If you submit a comment via http://www.regulations.gov, your entire comment—including your personal identifying information—will be posted on the Web site. We will post all hard copy comments on http://www.regulations.gov as well. If you submit a hard copy comment that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. Please include sufficient information with your comments to allow us to verify any scientific or commercial information you include.

        Comments and materials we receive, as well as supporting documentation used in preparing the proposed rule and DEA, will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Mississippi Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT). You may obtain copies of the proposed rule and the DEA on the Internet at http://www.regulations.gov at Docket Number FWS-R4-ES-2010-0024 or by mail from the Mississippi Field Office (see FOR FURTHER INFORMATION CONTACT section).
        Background

        It is our intent to discuss only those topics directly relevant to the designation of critical habitat for Mississippi gopher frog in this document. For more information on previous Federal actions concerning the Mississippi gopher frog, refer to the proposed designation of critical habitat published in the Federal Register on June 3, 2010 (75 FR 31387). For more information on the Mississippi gopher frog or its habitat, refer to the final listing rule published in the Federal Register on December 4, 2001 (66 FR 62993), which is available online at http://www.regulations.gov (at Docket Number FWS-R4-ES-2010-0024) or from the Mississippi Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

        On June 3, 2010, we published a proposed rule to designate critical habitat for the Mississippi gopher frog (75 FR 31387). We proposed to designate as critical habitat a total of 792 hectares (1,957 acres) in 11 units within Forrest, Harrison, Jackson, and Perry Counties, Mississippi. That proposal had a 30-day comment period, ending August 2, 2010. We will submit for publication in the Federal Register a final critical habitat designation on or before May 30, 2011.
        Section 3 of the Act defines critical habitat 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 critical habitat are required to consult with us on the effects of their proposed actions, under section 7(a)(2) of the Act.
        Consideration of Impacts Under Section 4(b)(2) of the Act

        Section 4(b)(2) of the Act requires that we designate or revise critical habitat based upon the best scientific 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 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.
        When considering the benefits of inclusion for an area, we consider the additional regulatory benefits that area would receive from the protection from adverse modification or destruction as a result of actions with a Federal nexus (activities conducted, funded, permitted, or authorized by Federal agencies), the educational benefits of mapping areas containing essential features that aid in the recovery of the listed species, and any benefits that may result from designation due to State or Federal laws that may apply to critical habitat.
        When considering the benefits of exclusion, we consider, among other things, whether exclusion of a specific area is likely to result in conservation; the continuation, strengthening, or encouragement of partnerships; or implementation of a management plan. In the case of Mississippi gopher frog, the benefits of critical habitat include public awareness of the presence of the Mississippi gopher frog and the importance of habitat protection, and, where a Federal nexus exists, increased habitat protection for Mississippi gopher frog due to protection from adverse modification or destruction of critical habitat. In practice, situations with a Federal nexus exist primarily on Federal lands or for projects undertaken by Federal agencies.

        We have not proposed to exclude any areas from critical habitat. However, the final decision on whether to exclude any areas will be based on the best scientific data available at the time of the final designation, including information obtained during the comment period and information about the economic impact of designation. Accordingly, we have prepared a draft economic analysis concerning the proposed critical habitat designation (DEA), which is available for review and comment (see ADDRESSES section).
        Draft Economic Analysis

        The purpose of the DEA is to identify and analyze the potential economic impacts associated with the proposed critical habitat designation for the Mississippi gopher frog that we published in the Federal Register on June 3, 2010 (75 FR 31387). The DEA separates conservation measures into two distinct categories according to “without critical habitat” and “with critical habitat” scenarios. The “without critical habitat” scenario represents the baseline for the analysis, considering protections otherwise afforded to the gopher frog (e.g., under the Federal listing and other Federal, State, and local regulations). The “with critical habitat” scenario describes the incremental impacts specifically due to designation of critical habitat for the species. In other words, these incremental conservation measures and associated economic impacts would not occur but for the designation. Conservation measures implemented under the baseline (without critical habitat) scenario are described qualitatively within the DEA, but economic impacts associated with these measures are not quantified. Economic impacts are only quantified for conservation measures implemented specifically due to the designation of critical habitat (i.e., incremental impacts).
        The DEA describes economic impacts associated with designation of critical habitat for the Mississippi gopher frog based on the following categories: (1) Costs associated with economic activities, including development and forestry; (2) costs associated with military activities; and (3) costs associated with active species management. The DEA provides estimated costs of the foreseeable potential economic impacts of the proposed critical habitat designation for the Mississippi gopher frog over the next 20 years, which was determined to be the appropriate period for analysis because limited planning information is available for most activities to forecast activity levels for projects beyond a 20-year timeframe. These incremental costs are the costs we may consider in the final designation of critical habitat when evaluating the benefits of excluding particular areas under section 4(b)(2) of the Act. For a further description of the methodology of the analysis, see Chapter 2 (“Framework for the Analysis”) of the DEA.
        The DEA estimates the incremental impacts of conservation activities for the Mississippi gopher frog to be $102,000 over the next 20 years ($9,610 in annualized impacts, assuming a 7 percent discount rate). All of these impacts stem from the administrative cost of addressing adverse modification of critical habitat during section 7 consultations. Parties involved in section 7 consultations include the Service, the action agency, and in some cases, a private entity involved in the project or land use activity. Incremental impacts stemming from additional gopher frog conservation measures requested by the Service during section 7 consultation are not expected in occupied areas because project modifications that may be needed to minimize impacts to the species would coincidentally minimize impacts to critical habitat. In unoccupied areas, project modifications resulting from consultation would be considered incremental impacts of the critical habitat designation.
        The DEA also discusses the potential economic benefits associated with the designation of critical habitat. However, because the Service believes that the direct benefits of the designation are best expressed in biological terms, this analysis does not quantify or monetize benefits; only a qualitative discussion of economic benefits is provided.
        As we stated earlier, we are soliciting data and comments from the public on the DEA, as well as all aspects of the proposed rule and our amended required determinations. We may revise the proposed rule or supporting documents to incorporate or address information we receive during the public 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, provided the exclusion will not result in the extinction of this species.
        Required Determinations—Amended

        In our June 3, 2010, proposed rule (75 FR 31387), 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 became available in the DEA. We have now made use of the DEA data in making these determinations. In this document, we affirm the information in our proposed rule concerning Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O. 12630 (Takings), E.O. 13132 (Federalism), E.O. 12988 (Civil Justice Reform), E.O. 13211 (Energy, Supply, Distribution, and Use), the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), the National Environmental Policy Act (42 U.S.C. 4321 et seq.), and the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951). However, based on the DEA data, we are amending our required determinations concerning the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

        Regulatory Flexibility Act

        Under the Regulatory Flexibility Act, as amended by the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 802(2)), 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 government jurisdictions), as described below. 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 on our DEA 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 we receive, we may revise this determination as part of a final rulemaking.
        According to the Small Business Administration, 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 the Mississippi gopher frog would affect a substantial number of small entities, we considered the number of small entities affected within particular types of economic activities, such as timber operations, and residential and commercial development along with the accompanying infrastructure associated with such projects including road, storm water drainage, bridge and culvert construction and maintenance. In order to determine whether it is appropriate for our agency to certify that this rule would not have a significant economic impact on a substantial number of small entities, we considered each industry or category individually. In estimating the numbers of small entities potentially affected, we also considered whether their activities have any Federal involvement. Critical habitat designation will not affect activities that do not have any Federal involvement; designation of critical habitat only affects activities conducted, funded, permitted, or authorized by Federal agencies. In areas where the Mississippi gopher frog is present, Federal agencies already are required to consult with us under section 7 of the Act on activities they fund, permit, or implement that may affect the species, due to the endangered status of the species. If we finalize this proposed critical habitat designation, consultations to avoid the destruction or adverse modification of critical habitat would be incorporated into the existing consultation process.
        In the DEA, we evaluated the potential economic effects on small entities resulting from implementation of conservation actions related to the proposed designation of critical habitat for the Mississippi gopher frog. As discussed in the DEA, the Service and any Federal action agency are the only entities with direct compliance costs associated with the proposed critical habitat designation. These Federal agencies are not considered small business entities under the Regulatory Flexibility Act. As a consequence, this rule will not result in a significant impact on small entities. Please refer to the DEA of the proposed critical habitat designation for a more detailed discussion of potential impacts.
        In summary, we have considered whether the proposed designation would result in a significant economic impact on a substantial number of small entities. Information for this analysis was gathered from the Small Business Administration, stakeholders, and the Service. For the reasons discussed above, and based on currently available information, we certify that if promulgated, the proposed designation would not have a significant economic impact on a substantial number of small business entities. Therefore, an initial regulatory flexibility analysis is not required.
        Authors
        The primary authors of this notice are the staff members of the Mississippi Fish and Wildlife Office, Southeast Region, U.S. Fish and Wildlife Service.
        Authority

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

          Dated: December 6, 2010.
          Will Shafroth,
          Acting Assistant Secretary for Fish and Wildlife and Parks.

      [FR Doc. 2010-31227 Filed 12-13-10; 8:45 am]
      BILLING CODE 4310-55-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 622
        [I.D. 030105D]
        RIN 0648-AS53
        Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Coastal Migratory Pelagic Resources of the Gulf of Mexico and Atlantic; Amendment 15

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

          ACTION:
          Notice of availability of Amendment 15 to the Fishery Management Plan for the Coastal Migratory Pelagic Resources of the Gulf of Mexico and Atlantic (FMP); request for comments.

          SUMMARY:
          NMFS announces that the Gulf of Mexico and South Atlantic Fishery Management Councils (Councils) have submitted Amendment 15 to the FMP for review, approval, and implementation by NMFS.  Amendment 15 would establish a limited access system for the commercial fishery for Gulf and Atlantic group king mackerel, and change the fishing year for Atlantic migratory groups of king and Spanish mackerel to March 1 through February 28-29.  The intended effect of Amendment 15 is to support the Council's efforts to achieve optimum yield in the fishery, and provide social and economic benefits associated with maintaining stability in the fishery.

          DATES:
          Written comments must be received no later than 5 p.m., eastern time, on May 6, 2005.

          ADDRESSES:
          You may submit comments by any of the following methods:
          • E-mail: 0648-AS53.NOA@noaa.gov.  Include in the subject line the following document identifier:   0648-AS53-NOA.
          • Federal e-Rulemaking Portal: http://www.regulations.gov.  Follow the instructions for submitting comments.
          • Mail:   Steve Branstetter, Southeast Regional Office, NMFS, 9721 Executive Center Drive N., St. Petersburg, FL  33702.
          • Fax:   From March 7, 2005 through March 17, 2005, 727-570-5583.  From March 22, 2005 through May 6, 2005, 727-824-5308.  Comments cannot be received via fax from March 18 through March 21, 2005.

          Copies of Amendment 15, which includes an Environmental Assessment, a Regulatory Impact Review (RIR), and an Initial Regulatory Flexibility Analysis (IRFA), are available from the Gulf of Mexico Fishery Management Council, 3018 North U.S. Highway 301, Suite 1000, Tampa, FL  33619-2272; email: gulfcouncil@gulfcouncil.org; or from the South Atlantic Fishery Management Council, Southpark Building, One Southpark Circle, Suite 306, Charleston, SC  29407-4699; telephone:   843-571-4366; fax:   843-769-4520; e-mail: safmc@noaa.gov.

          FOR FURTHER INFORMATION CONTACT:
          Dr. Steve Branstetter, 727-570-5305; fax 727-570-5583; e-mail:  steve.branstetter@noaa.gov.

        SUPPLEMENTARY INFORMATION:
        The fishery for coastal migratory pelagic fish (king mackerel, Spanish mackerel, cero, cobia, little tunny, and, in the Gulf of Mexico only, dolphin and bluefish) is managed under the FMP.  The FMP was prepared by the Councils and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

        The Magnuson-Stevens Act requires each Regional Fishery Management Council to submit any fishery management plan or amendment to NMFS for review and approval, disapproval, or partial approval.  The Magnuson-Stevens Act also requires that NMFS, upon receiving a plan or amendment, publish an announcement in the Federal Register notifying the public that the plan or amendment is available for review and comment.
        Amendment 15, if implemented, would establish a limited access system for the commercial fishery for Gulf and Atlantic group king mackerel.  A commercial king mackerel vessel permit moratorium was established by Amendment 8 to the FMP in March 1998, and Amendment 12 extended the expiration date of the moratorium through October 15, 2005, or until the moratorium could be replaced with a license limitation, limited access, and/or individual fishing quota (IFQ) or individual transferable quota (ITQ) system, whichever occurred earlier.  The intended effect of the moratorium was to prevent increases in effort, to possibly reduce the number of permittees in the king mackerel fishery, and to stabilize the economic performance of current participants, while protecting king mackerel from overfishing.  The existing restricted number of fishery participants, especially in the Gulf of Mexico, has demonstrated the capability of harvesting their total allowable catch (TAC) well in advance of the end of the various fishing seasons.  Allowing the fishery to revert to open access would probably hasten these closures.  The proposed limited access system would maintain the existing restricted access to the fishery for an indefinite period, with the intent to provide continued social and economic stability to the king mackerel fishery.

        Amendment 15 contains a second action, which, if implemented, would change the fishing year for Atlantic migratory groups of king and Spanish mackerel to March 1 through February 28-29.  The current fishing year for Atlantic migratory groups of both king and Spanish mackerel extends from April 1 through March 31.  Under the existing fishing year, the commercial quota for Atlantic group king mackerel has only been met three times.  However, should TAC need to be reduced in the future, there is a potential for the commercial quota to be met, and the fishery would be closed by the end of the season (i.e., in March).  A March closure could adversely affect the social and economic stability of South Atlantic fisheries due to other commercial closures for alternative target species during that same month.  For example, the red porgy fishery is closed January through April, and the gag and black grouper fishery is closed in March and April.  By changing the opening date of the season to March 1, the Councils reduce the possibility of multiple commercial fishery closures at the same time.

        A proposed rule that would implement measures outlined in Amendment 15 has been received from the Council.  In accordance with the Magnuson-Stevens Act, NMFS is evaluating the proposed rule to determine whether it is consistent with the FMP, the Magnuson-Stevens Act, and other applicable law.  If that determination is affirmative, NMFS will publish the proposed rule in the Federal Register for public review and comment.
        Comments received by May 6, 2005, whether specifically directed to the FMP or the proposed rule, will be considered by NMFS in its decision to approve, disapprove, or partially approve the amendment.  Comments received after that date will not be considered by NMFS in this decision.  All comments received by NMFS on the amendment or the proposed rule during their respective comment periods will be addressed in the final rule.

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

          Dated: March 2, 2005.
          Alan D. Risenhoover,
          Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.

      [FR Doc. 05-4377 Filed 3-4-05; 8:45 am]
      BILLING CODE 3510-22-S