        DEPARTMENT OF HOMELAND SECURITY
        Coast Guard
        33 CFR Part 117
        [CGD13-05-040]
        RIN 1625-AA09
        Drawbridge Operation Regulations; Wishkah River, WA

          AGENCY:
          Coast Guard, DHS.

          ACTION:
          Notice of proposed rulemaking.

          SUMMARY:
          The Coast Guard proposes to temporarily modify the drawbridge operation regulations for the Heron Street Bridge across the Wishkah River, mile 0.2, at Aberdeen, Washington. The proposed temporary change will enable the bridge owner to delay and plan for openings of the bridge from February 2006 through March 2007. This will facilitate major structural and mechanical rehabilitation of the bridge.

          DATES:
          Comments and related material must reach the Coast Guard on or before February 3, 2006.

          ADDRESSES:
          You may mail comments and related material to Commander (dpw), 13th Coast Guard District, 915 Second Avenue, Seattle, WA 98174-1067 where the public docket for this rulemaking is maintained. Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, will become part of this docket and will be available for inspection or copying at the Waterways Management Branch between 7:30 a.m. and 4 p.m., Monday through Friday, except Federal holidays.

          FOR FURTHER INFORMATION CONTACT:
          Austin Pratt, Chief, Bridge Section, (206) 220-7282.

        SUPPLEMENTARY INFORMATION:
        Request for Comments
        We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking [CGD13-05-040], indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 81/2 by 11 inches, suitable for copying. If you would like to know they reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them.
        Public Meeting

        We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to the Aids to Navigation and Waterways Management Branch at the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register.
        Background and Purpose

        The proposed temporary rule would enable the Washington State Department of Transportation (WSDOT), the owner of the bridge, to rehabilitate the structure and manage interruptions to this refurbishment caused by draw openings. The 48-hour notice requirement proposed as a temporary requirement would enable the work to proceed while still providing operational capability. The work includes mechanical and electrical improvements, seismic retrofit, debris containment, replacement of all navigation lights and hydraulic locks for the swing span. This work will be done between February, 2006 and April, 2007. The replacement of the center bearing will require the bridge to be closed for 14 calendar days and will be authorized via a separate rulemaking. This portion of the project will require jacking the span in place to replace the pivot bearing, thereby immobilizing the draw.

        The Heron Street Bridge in the closed position provides 13 feet of vertical clearance above high water and 23 feet above the lowest tide level. Drawbridge openings are not frequent at this location, mostly for recreational and commercial fishing vessels, rarely for sailboats.
        From March 7, 2004, to August 10, 2005, the draw opened for vessels 41 times with most of these openings for single vessels. For the 12 months from March 2004 to March 2005 the draw opened 28 times for an average of little better than twice a month.
        Discussion of Proposed Rule
        The operating regulations currently in effect for the Heron Street Drawbridge are found at 33 CFR 117.1065. The regulations require at least one hour notice at all times for draw openings.
        One-hour notice is insufficient time for WSDOT and its contractors to restore the bridge to operational condition and to clear equipment from moving parts as needed to swing the span open. WSDOT would be able to restore the bridge to fully operational status within 48 hours. As most of the few vessels requiring openings appear to be commercial fishing boats that operate seasonally, the increased notice proposed would not seem an unreasonable burden to vessel operators.
        Regulatory Evaluation
        This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security.
        We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary.
        With regards to the proposed temporary changes, we reached this conclusion based on the fact that most vessels will be able to plan transits at least 48 hours in advance.
        Small Entities
        Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. 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.

        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.
        Assistance for Small Entities
        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 so that they can better evaluate its effects on them and participate in the rulemaking. 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 Austin Pratt, Chief, Bridge Section, at (206) 220-7282. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
        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).
        Federalism
        A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism.
        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 or more in any one year. Though this proposed rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
        Taking of Private Property
        This proposed rule would not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
        Civil Justice Reform
        This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
        Protection of Children
        We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
        Indian Tribal Governments
        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.
        Energy Effects
        We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of Information and Regulatory Affairs has not designated this as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
        Technical Standards

        The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.
        This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
        Environment
        We have analyzed this proposed rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this proposed rule is categorically excluded, under figure 2-1, paragraph (32)(e) of the Instruction, from further environmental documentation. There are no expected environmental consequences of the proposed action that would require further analysis and documentation.

          List of Subjects in 33 CFR Part 117
          Bridges.

        Regulations
        For the reasons discussed in the preamble, the Coast Guard proposes to temporarily 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(g); Department of Homeland Security Delegation No. 0170.1; section 117.255 also issued under the authority of Pub. L. 102-587, 106 Stat. 5039.

          2. From February 1, 2006 to April 1, 2007, amend § 117.1065 by revising paragraph (c) to read as follows:

            § 117.1065
            Wishkah River.

            (c) The draws of the Heron Street Bridge, mile 0.2, shall open on signal if at least 48 hours notice is provided. The draw of the Wishkah Street Bridge, mile 0.4, shall open on signal if at least one hour notice is provided. The opening signal for both bridges is one prolonged blast followed by two short blasts.

            Dated: November 23, 2005.
            R.R. Houck,
            Rear Admiral, U.S. Coast Guard, Commander, Thirteenth Coast Guard District.

      [FR Doc. 05-23637 Filed 12-2-05; 8:45 am]
      BILLING CODE 4910-15-P


        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 300
        [FRL-7490-4]
        National Priorities List for Uncontrolled Hazardous Waste Sites, Proposed Rule No. 39

          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 14 new sites to the NPL; all to the General Superfund Section of the NPL. (Please note that one of the sites is being reproposed to the NPL.)

          DATES:
          Comments regarding any of these proposed listings must be submitted (postmarked) on or before June 30, 2003.

          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-2003-0009. 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-2003-0009.

            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-2003-0009. 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-2003-0009 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 Emergency and Remedial Response (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
          C. Withdrawal of Site from Proposal to the 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
          C. 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 a 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 October 24, 2002 (67 FR 65315).
        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 April 1, 2003, the Agency has deleted 269 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 April 1, 2003, EPA has deleted 37 portions of 33 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 April 1, 2003, there are a total of 850 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 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.
        James R. Wade, Region 4 (AL, FL, GA, KY, MS, NC, SC, TN), U.S. EPA, 61 Forsyth Street, SW., 9th floor, Atlanta, GA 30303; 404/562-8121.
        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.
        David Williams, Region 8 (CO, MT, ND, SD, UT, WY), U.S. EPA, 999 18th Street, Suite 500, Mailcode 8EPR-SA, Denver, CO 80202-2466; 303/312-6757.
        Carolyn Douglas, Region 9 (AZ, CA, HI, NV, AS, GU), U.S. EPA, 75 Hawthorne Street, San Francisco, CA 94105; 415/972-3092.
        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-2003-0009. 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 14 new sites to the NPL; all to the General Superfund Section of the NPL. (Please note that the 68th Street Dump site in Maryland is being reproposed to the NPL. With this reproposal, EPA is withdrawing the January 19, 1999 (64 FR 2950), proposal of the site. Commenters will need to re-submit comments based on today's reproposal.) 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
        A final rule published elsewhere in today's Federal Register finalizes 7 sites to the NPL; resulting in an NPL of 1,237 final sites; 1,079 in the General Superfund Section and 158 in the Federal Facilities Section. With this proposal of 14 new sites, there are now 66 sites proposed and awaiting final agency action, 60 in the General Superfund Section and 6 in the Federal Facilities Section. Final and proposed sites now total 1,303. (These numbers reflect the status of sites as of April 1, 2003. Site deletions occurring after this date may affect these numbers at time of publication in the Federal Register.)
        C. Withdrawal of Site from Proposal to the NPL
        EPA is withdrawing its proposal to list the Triumph Mine Tailing Piles site on the NPL. The site, located in Triumph, Idaho, was proposed to the NPL on May 10, 1993 (58 FR 27507). Documentation requesting withdrawal of the site was submitted by the State and EPA Region 10 and is available in the Docket for today's proposed rule.
        EPA does not believe that further response under Superfund is appropriate at this time. All major sources of risk have been mitigated. All contaminated yards, gardens, roads, waste rock, tailings, and other soil areas have either been excavated and replaced with clean soil, or capped with clean soil and a vegetative cover. The State has indicated that it will enforce the consent order requiring ASARCO to address mine water discharge from the mine portal, and if those efforts fail, seek alternative sources to do the work. The State and community strongly support withdrawing the site from the proposed NPL, and EPA does not believe the mine water discharge warrants retaining the proposal to list the site on the NPL.
        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. 39, General Superfund Section

            State
            Site name
            City/county

            CA
            AMCO Chemical
            Oakland

            CO
            Captain Jack Mill
            Ward

            MD
            68th Street Dump
            Baltimore

            MO
            Madison County Mines
            Fredericktown

            MO
            Newton County Mine Tailings
            Newton County

            NC
            Ram Leather Care
            Charlotte

            NH
            Troy Mills Landfill
            Troy

            NJ
            Rolling Knolls Landfill
            Chatham Township

            NJ
            Standard Chlorine Chemical Company, Inc
            Kearny

            NJ
            White Swan Cleaners/Sun Cleaners Area Ground Water Contamination
            Wall Township

            OH
            Armco Inc, Hamilton Plant
            Hamilton

            OH
            Peters Cartridge Factory
            Kings Mills

            TX
            Conroe Creosoting Company
            Conroe

            TX
            Jones Road Ground Water Plume
            Harris County

          Number of sites proposed to General Superfund Section: 14.

          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: April 24, 2003.
          Barry Breen,
          Deputy Assistant Administrator, Office of Solid Waste and Emergency Response.

      [FR Doc. 03-10649 Filed 4-29-03; 8:45 am]
      BILLING CODE 6560-50-P


        DEPARTMENT OF HEALTH AND HUMAN SERVICES
        Centers for Medicare & Medicaid Services
        42 CFR Part 411
        [CMS-1720-NC]
        RIN 0938-AT64
        Medicare Program; Request for Information Regarding the Physician Self-Referral Law

          AGENCY:
          Centers for Medicare & Medicaid Services (CMS), HHS.

          ACTION:
          Request for information.

          SUMMARY:
          This request for information seeks input from the public on how to address any undue regulatory impact and burden of the physician self-referral law.

          DATES:

            Comment Date: To be assured consideration, comments must be received at one of the addresses provided below, no later than 5 p.m. on August 24, 2018.

          ADDRESSES:
          In commenting, refer to file code CMS-1720-NC. Because of staff and resource limitations, we cannot accept comments by facsimile (FAX) transmission.
          Comments, including mass comment submissions, must be submitted in one of the following three ways (please choose only one of the ways listed):
          1. Electronically. You may submit electronic comments on this regulation to http://www.regulations.gov. Follow the “Submit a comment” instructions.
          2. By regular mail. You may mail written comments to the following address ONLY: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-1720-NC, P.O. Box 8013, Baltimore, MD 21244-8013.
          Please allow sufficient time for mailed comments to be received before the close of the comment period.
          3. By express or overnight mail. You may send written comments to the following address ONLY: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-1720-NC, Mail Stop C4-26-05, 7500 Security Boulevard, Baltimore, MD 21244-1850.

          For information on viewing public comments, see the beginning of the SUPPLEMENTARY INFORMATION section.

          FOR FURTHER INFORMATION CONTACT:
          Lisa O. Wilson, (410) 786-8852.

        SUPPLEMENTARY INFORMATION:

          Inspection of Public Comments: All comments received before the close of the comment period are available for viewing by the public, including any personally identifiable or confidential business information that is included in a comment. We post all comments received before the close of the comment period on the following website as soon as possible after they have been received: http://www.regulations.gov. Follow the search instructions on that website to view public comments.
        I. Introduction
        The Department of Health and Human Services (HHS) is working to transform the healthcare system into one that pays for value. Care coordination is a key aspect of systems that deliver value. Removing unnecessary government obstacles to care coordination is a key priority for HHS. To help accelerate the transformation to a value-based system that includes care coordination, HHS has launched a Regulatory Sprint to Coordinated Care, led by the Deputy Secretary. This Regulatory Sprint is focused on identifying regulatory requirements or prohibitions that may act as barriers to coordinated care, assessing whether those regulatory provisions are unnecessary obstacles to coordinated care, and issuing guidance or revising regulations to address such obstacles and, as appropriate, encouraging and incentivizing coordinated care.
        The Centers for Medicare & Medicaid Services (CMS) has made facilitating coordinated care a top priority and seeks to identify ways in which its regulations may impose undue burdens on the healthcare industry and serve as obstacles to coordinated care and its efforts to deliver better value and care for patients. Through internal discussion and input from external stakeholders, CMS has identified some aspects of the physician self-referral law as a potential barrier to coordinated care. Addressing unnecessary obstacles to coordinated care, real or perceived, caused by the physician self-referral law is one of CMS's goals in this Regulatory Sprint. To inform our efforts to assess and address the impact and burden of the physician self-referral law, including whether and, if so, how it may prevent or inhibit care coordination, we welcome public comment on the physician self-referral law and, in particular, comment on the questions presented in this Request for Information (RFI).
        II. Background

        When enacted in 1989, the physician self-referral law (section 1877 of the Social Security Act), also known as the “Stark Law,” addressed the concern that health care decision making can be unduly influenced by a profit motive. When physicians have a financial incentive to refer patients for health care services, this incentive may affect utilization, patient choice, and competition. Overutilization may occur when items and services are ordered that would not have been ordered absent a profit motive. A patient's choice can be affected when he or she is steered to less convenient, lower quality, or more expensive providers of health care that are sharing profits with, or providing other remuneration to, the referring practitioner. Where referrals are controlled by those sharing profits or receiving other remuneration, the medical marketplace suffers since new competitors may have more difficulty generating business on superior quality, service, or price alone.

        By design, the physician self-referral law is intended to disconnect a physician's health care decision making from his or her financial interests in other health care providers and suppliers. Specifically, the law: (1) Prohibits a physician from making referrals for certain designated health services (DHS) payable by Medicare to an entity with which he or she (or an immediate family member) has a financial relationship (ownership or compensation), unless an exception applies; and (2) prohibits the entity from filing claims with Medicare (or billing another individual, entity, or third party payer) for those referred services. The prohibitions are absolute unless the physician's referral is permitted under an enumerated exception. The statute establishes a number of specific exceptions, and grants the Secretary the authority to create regulatory exceptions for financial relationships that do not pose a risk of program or patient abuse. For more information, please refer to the CMS physician self-referral website at https://www.cms.gov/Medicare/Fraud-and-Abuse/PhysicianSelfReferral/index.html?redirect=/PhysicianSelfReferral/.

        CMS is aware of the effect the physician self-referral law may have on parties participating or considering participation in integrated delivery models, alternative payment models, and arrangements to incent improvements in outcomes and reductions in cost. The President's Budget for fiscal year (FY) 2019 included a legislative proposal to establish a new exception to the physician self-referral law for arrangements that arise due to participation in alternative payment models. In addition to this legislative proposal, CMS has engaged stakeholders through comment solicitations in several recent rulemakings. In 2017, through the annual payment rules, CMS asked for comments on improvements that can be made to the health care delivery system that reduce unnecessary burdens for clinicians, other providers, and patients and their families. In response, commenters shared additional information regarding the barriers to participation in health care delivery and payment reform efforts, both public and private, as well as the burdens of compliance with the physician self-referral law and our regulations as they exist today. As a result of our review of these comments, and with a goal of reducing regulatory burden and dismantling barriers to value-based care transformation, while also protecting the integrity of the Medicare program, we are requesting additional information in this RFI. We are particularly interested in your thoughts on issues that include, but are not limited to, the structure of arrangements between parties that participate in alternative payment models or other novel financial arrangements, the need for revisions or additions to exceptions to the physician self-referral law, and terminology related to alternative payment models and the physician self-referral law. We look forward to receiving your input on this RFI.
        III. Request for Information
        We are requesting public input on the following areas:
        1. Please tell us about either existing or potential arrangements that involve DHS entities and referring physicians that participate in alternative payment models or other novel financial arrangements, whether or not such models and financial arrangements are sponsored by CMS. Please include a description of the alternative payment model(s) and novel financial arrangements if not sponsored by CMS. We recommend that you identify concerns regarding the applicability of existing exceptions to the physician self-referral law and/or the ability of the arrangements to satisfy the requirements of an existing exception, as well as the extent to which the physician self-referral law may be impacting commercial alternative payment models and novel financial arrangements. Please be specific regarding the terms of the arrangements with respect to the following:
        • The categories/types of parties (for example, the parties are a hospital and physician group with downstream payments to individual physicians in the group).
        • Which parties bear risk (and how and to what extent) under the arrangement (for example, per capita payments from a payor are paid to a hospital with downstream payments on a discounted fee schedule to individual physicians; a bundled payment from a payor for all hospital and physician services is split between a hospital and physicians based on a predetermined percentage; hospital-sponsored gainsharing program where participating physicians share in cost savings; physician incentive payments are available for achieving predetermined metrics; etc.).
        • The scope of the arrangement (for example, non-Medicare beneficiaries only, Medicare beneficiaries only, or all patients regardless of payor).
        • The timeframe of the arrangement (for example, ongoing or for a duration that aligns with a payor-specific initiative).
        • Items and services provided under the arrangement and by whom (for example, infrastructure, such as electronic health records technology; physician services; care coordination services; etc.).
        • How the arrangement furthers the purpose of the alternative payment model or novel financial arrangement.
        • Whether and, if so, how the arrangement mitigates the financial incentives for inappropriate self-referrals, and/or overutilization of items and services, and patient choice.
        2. What, if any, additional exceptions to the physician self-referral law are necessary to protect financial arrangements between DHS entities and referring physicians who participate in the same alternative payment model? Specifically—
        • What additional exceptions are necessary to protect accountable care organization models?
        • What additional exceptions are necessary to protect bundled payment models?
        • What additional exceptions are necessary to protect two-sided risk models in a FFS environment?
        • What additional exceptions are necessary to protect other payment models (please explain the nature and design of such models)?
        • How (if at all) should a new exception (or exceptions) protect individual DHS referrals (see 42 CFR 411.355), ownership or investment interests (see 42 CFR 411.356), or compensation arrangements (see 42 CFR 411.357)?

        3. What, if any, additional exceptions to the physician self-referral law are necessary to protect financial arrangements that involve integrating and coordinating care outside of an alternative payment model? Specifically, what types of financial arrangements and/or remuneration related to care integration and coordination should be protected and why? How (if at all) should a new exception (or exceptions) protect individual DHS referrals (see 42 CFR 411.355), ownership or investment interests (see 42 CFR 411.356), or compensation arrangements (see 42 CFR 411.357)?
        4. Please share your thoughts on the utility of the current exception at 42 CFR 411.357(n) for risk-sharing arrangements.
        5. Please share your thoughts on the utility of the special rule for compensation under a physician incentive plan within the exception at 42 CFR 411.357(d) for personal service arrangements.
        6. Please share your thoughts on possible approaches to address the application of the physician self-referral law to financial arrangements among participants in alternative payment models and other novel financial arrangements. Consider the following:
        • Would a single exception provide sufficient protection for all types of financial arrangements?
        • Would a multifaceted approach that amends existing exceptions and/or establishes new exceptions be preferable?
        • Would such a multifaceted approach sufficiently allow parties to identify and satisfy the requirements of one (or more) applicable exceptions in order to protect individual DHS referrals, ownership or investment interests, and/or compensation arrangements?
        7. In the context of health care delivery, payment reform, and the physician self-referral law, please share your thoughts on definitions for critical terminology such as—

        • Alternative payment model
        • Care coordination
        • Clinical integration
        • Financial integration
        • Risk
        • Risk-sharing
        • Physician incentive program
        • Gainsharing
        • Health plan
        • Health system
        • Integrated delivery system
        • Enrollee

        8. Please identify and suggest definitions for other terminology relevant to the comments requested in this RFI.
        9. Please share your thoughts on possible approaches to defining “commercial reasonableness” in the context of the exceptions to the physician self-referral law.
        10. Please share your thoughts on possible approaches to modifying the definition of “fair market value” consistent with the statute and in the context of the exceptions to the physician self-referral law.
        11. Please share your thoughts on when, in the context of the physician self-referral law, compensation should be considered to “take into account the volume or value of referrals” by a physician or “take into account other business generated” between parties to an arrangement. Please share with us, by way of example or otherwise, compensation formulas that do not take into account the volume or value of referrals by a physician or other business generated between parties.
        12. Please share your thoughts on when, in the context of alternative payment models and other novel financial arrangements, compensation should be considered to “take into account the volume or value of referrals” by a physician or “take into account other business generated” between parties to an arrangement. Please share with us, by way of example or otherwise, compensation formulas that do not take into account the volume or value of referrals by a physician or other business generated between parties.
        13. Please share your thoughts regarding whether and, if so, what barriers exist to qualifying as a “group practice” under the regulations at 42 CFR 411.352.
        14. Please share your thoughts on the application and utility of the current exception at 42 CFR 411.357(g) for remuneration unrelated to DHS. Specifically, how could CMS interpret this exception to cover a broader array of arrangements?
        15. Please identify any provisions, definitions, and/or exceptions in the regulations at 42 CFR 411.351 through 411.357 for which additional clarification would be useful.
        16. Please share your thoughts on the role of transparency in the context of the physician self-referral law. For example, if provided by the referring physician to a beneficiary, would transparency about physician's financial relationships, price transparency, or the availability of other data necessary for informed consumer purchasing (such as data about quality of services provided) reduce or eliminate the harms to the Medicare program and its beneficiaries that the physician self-referral law is intended to address?
        17. Please share your thoughts on whether and how CMS could design a model to test whether transparency safeguards other than those currently contained in the physician self-referral law could effectively address the impact of financial self-interest on physician medical decision-making.
        18. Please share your thoughts on the compliance costs for regulated entities.
        19. Please identify any recent studies assessing the positive or negative effects of the physician self-referral law on the healthcare industry. To the extent publicly available, please provide a copy of the study(ies).
        20. Please share your thoughts regarding whether CMS should measure the effectiveness of the physician self-referral law in preventing unnecessary utilization and other forms of program abuse relative to the cost burden on the regulated industry and, if so, how CMS could estimate this.
        Respondents are encouraged to provide complete but concise and organized responses, including any relevant data and specific examples. However, respondents are not required to address every issue or respond to every question discussed in this RFI to have their responses considered. In accordance with the implementing regulations of the Paperwork Reduction Act at 5 CFR 1320.3(h)(4), all responses will be considered provided they contain information CMS can use to identify and contact the commenter, if needed.

          Please note, this is a request for information only. As previously stated, respondents are encouraged to provide complete but concise responses. This RFI is issued solely for information and planning purposes; it does not constitute a Request for Proposal (RFP), application, proposal abstract, or quotation. This RFI does not commit the U.S. Government to contract for any supplies or services or make a grant award. Further, CMS is not seeking proposals through this RFI and will not accept unsolicited proposals. Respondents are advised that the U.S. Government will not pay for any information or administrative costs incurred in response to this RFI; all costs associated with responding to this RFI will be solely at the interested party's expense. Not responding to this RFI does not preclude participation in any future procurement, if conducted. It is the responsibility of the potential responders to monitor this RFI announcement for additional information pertaining to this request. Please note that CMS will not respond to questions about the policy issues raised in this RFI. CMS may or may not choose to contact individual responders. Such communications would only serve to further clarify written responses. Contractor support personnel may be used to review RFI responses.
        Responses to this RFI are not offers and cannot be accepted by the U.S. Government to form a binding contract or issue a grant. Information obtained as a result of this RFI may be used by the U.S. Government for program planning on a non-attribution basis. Respondents should not include any information that might be considered proprietary or confidential. This RFI should not be construed as a commitment or authorization to incur costs for which reimbursement would be required or sought. All submissions become U.S. Government property and will not be returned. CMS may publicly post the comments received, or a summary thereof.
        IV. Collection of Information Requirements

        This document does not impose information collection requirements, that is, reporting, recordkeeping or third-party disclosure requirements. However, section III. of this document does contain a general solicitation of comments in the form of a request for information. In accordance with the implementing regulations of the Paperwork Reduction Act of 1995 (PRA), specifically 5 CFR 1320.3(h)(4), this general solicitation is exempt from the PRA. Facts or opinions submitted in response to general solicitations of comments from the public, published in the Federal Register or other publications, regardless of the form or format thereof, provided that no person is required to supply specific information pertaining to the commenter, other than that necessary for self-identification, as a condition of the agency's full consideration, are not generally considered information collections and therefore not subject to the PRA. Consequently, there is no need for review by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
        IV. Response to Comments

        Because of the large number of public comments we normally receive on Federal Register documents, we are not able to acknowledge or respond to them individually. We will consider all comments we receive by the date and time specified in the DATES section of this preamble, and, if we proceed with a subsequent document, we may respond to the comments in the preamble to that document.

          Dated: June 19, 2018.
          Seema Verma,
          Administrator, Centers for Medicare & Medicaid Services.

      [FR Doc. 2018-13529 Filed 6-20-18; 4:15 pm]
       BILLING CODE 4120-01-P


        DEPARTMENT OF HOMELAND SECURITY
        Coast Guard
        33 CFR Part 165
        [Docket Number USCG-2017-0651]
        RIN 1625-AA00
        Safety Zone; Navy Underwater Detonation (UNDET) Exercise, Apra Outer Harbor, GU

          AGENCY:
          Coast Guard, DHS.

          ACTION:
          Notice of proposed rulemaking.

          SUMMARY:

          The Coast Guard proposes to establish two recurring safety zones for navigable waters of Apra Outer Harbor and Piti, Guam. The safety zones will encompass sites designated for U.S. Navy underwater detonation (UNDET) exercises. The Coast Guard believes this safety zone regulation is necessary to protect the public and exercise participants within the affected area from possible safety hazards associated with these exercises. These safety zones will impact a small designated area of navigable waters in Apra Harbor and Piti during periods of times, many of which are of short duration, on days requested by the Navy for UNDET exercises. With the exception of exercise participants, entry of vessels or persons into the zone is prohibited unless specifically authorized by the Captain of the Port Guam. We invite your comments on this proposed rulemaking.

          DATES:
          Comments and related material must be received by the Coast Guard on or before March 26, 2018. Requests for public meetings must be received by the Coast Guard on or before March 6, 2018.

          ADDRESSES:

          You may submit comments identified by docket number USCG-2017-0651 using the Federal eRulemaking Portal at http://www.regulations.gov. See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section for further instructions on submitting comments.

          FOR FURTHER INFORMATION CONTACT:

          If you have questions about this proposed rulemaking, call or email Petty Officer Robin Branch, Sector Guam, U.S. Coast Guard; telephone (671) 355-4835, email wwmguam@uscg.mil.

        SUPPLEMENTARY INFORMATION:

        I. Table of Abbreviations

          CFR Code of Federal Regulations
          COTP Captain of the Port
          DHS Department of Homeland Security
          FR Federal Register
          NPRM Notice of proposed rulemaking
          § Section
          U.S.C. United States Code

        II. Background, Purpose, and Legal Basis
        U.S. Navy UNDET exercises occur multiple times throughout the year to train and prepare personnel for operational missions. We have established safety zones for these Navy UNDETs in past years through a temporary final rulemaking for each exercise. For all subsequent exercises, we propose to establish recurring safety zones through this regulation to safeguard the public and exercise participants within the affected area from possible safety hazards associated with the exercises.
        The legal basis and authorities for this rule are found in 33 U.S.C. 1231. The purpose of these proposed safety zones is to protect the public and exercise participants from possible safety hazards associated with the exercises.
        III. Discussion of Proposed Rule
        The COTP proposes to establish these recurring safety zones for periods of time, many of which are of short duration, on days requested by the Navy for UNDET exercises. The safety zones will cover all navigable waters within a 700 yard radius above and below the surface for the Apra Outer Harbor site and a 700 yard radius above and below the surface for the Piti site. The duration of the safety zones are intended to protect personnel, vessels, and the marine environment in these navigable waters during the UNDET exercise. With the exception of exercise participants, no vessel or person will be permitted to enter the safety zones without obtaining permission from the COTP or a designated representative. The regulatory text we are proposing appears at the end of this document.
        IV. Regulatory Analysis
        We developed this proposed rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of 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 NPRM has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.
        This regulatory action determination is based on the size, location, and duration of the safety zones. Vessel traffic will be able to safely transit around these safety zones, which will impact a small designated area of waters off of Piti, Guam, and in Apra Outer Harbor for periods of time, many of which are of short duration, on days requested by the Navy for UNDET exercises. The UNDET exercises occur approximately 10 times a year, although additional exercises may be required based on Navy training needs. Moreover, the Coast Guard will issue Broadcast Notice to Mariners via VHF-FM marine channel 16 about the safety zones and the rule allows vessels to seek permission to enter the zone.
        B. Impact on Small Entities
        The Regulatory Flexibility Act of 1980, 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.
        While some owners or operators of vessels intending to transit the safety zones 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 not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
        D. Federalism and Indian Tribal Governments

        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 would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
        F. Environment

        We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination 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 involves two safety zones for periods of time, many of which are of short duration, on days requested by the Navy for UNDET exercises that would prohibit entry within a 700 yard radius above and below the surface for the Apra Outer Harbor site and a 700 yard radius above and below the surface for the Piti site. Normally such actions are categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A preliminary Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES. 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 eRulemaking 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 the docket, visit http://www.regulations.gov/privacyNotice.

        Documents mentioned in this NPRM as being available in the 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 165
          Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.

        For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:

          PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

        1. The authority citation for part 165 continues to read as follows:

          Authority:
          33 U.S.C. 1231; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.

        2. Add § 165.1402 to read as follows:

          § 165.1402
           Safety Zone; Navy Underwater Detonation (UNDET) Exercise, Apra Outer Harbor, GU.
          (a) Location. The following areas, within the Guam Captain of the Port (COTP) Zone (See 33 CFR 3.70-15), from the surface of the water to the ocean floor, are safety zones:
          (1) Apra Outer Harbor, Guam. All waters above and below the surface bounded by a circle with a 700 yard radius centered at 13 degrees 27 minutes 42 seconds North Latitude and 144 degrees 38 minutes 30 seconds East Longitude, (NAD 1983).
          (2) Piti, Guam. All waters above and below the surface bounded by a circle with a 700-yard radius centered at 13 degrees 29 minutes 03 seconds North Latitude and 144 degrees 40 minutes 03 seconds East Longitude, (NAD 1983).
          (b) Enforcement periods. This section will be enforced for designated periods of time, many of which are of short duration, on days requested by the Navy for purpose of UNDET exercises.
          (c) Regulations. The general regulations governing safety zones contained in 33 CFR 165.23 apply. With the exception of exercise participants, no vessels may enter or transit safety zones (a)(1) and no persons in the water may enter or transit safety zone (a)(2) unless authorized by the COTP or a designated representative thereof.
          (d) Enforcement. Any Coast Guard commissioned, warrant, or petty officer, and any other COTP representative permitted by law, may enforce these safety zones.

          Dated: December 11, 2017.
          Christopher M. Chase,
          Captain, U.S. Coast Guard, Captain of the Port, Guam.

      [FR Doc. 2018-02648 Filed 2-8-18; 8:45 am]
       BILLING CODE 9110-04-P