[Federal Register Volume 70, Number 192 (Wednesday, October 5, 2005)]
[Rules and Regulations]
[Pages 58016-58054]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-19696]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 179


Munitions Response Site Prioritization Protocol

AGENCY: Department of Defense.

ACTION: Final rule.

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SUMMARY: The Department of Defense (hereinafter the Department) is 
promulgating the Munitions Response Site (MRS) Prioritization Protocol 
(MRSPP) (hereinafter referred to as the rule) as a rule. This rule 
implements the requirement established in section 311(b) of the 
National Defense Authorization Act for Fiscal Year 2002 for the 
Department to assign a relative priority for munitions responses to 
each location (hereinafter MRS) in the Department's inventory of 
defense sites known or suspected of containing unexploded ordnance 
(UXO), discarded military munitions (DMM), or munitions constituents 
(MC).

DATES: This rule is effective October 5, 2005.

FOR FURTHER INFORMATION CONTACT: If there are specific questions or to 
request an opportunity to review the docket for this rulemaking, please 
contact Ms. Patricia Ferrebee, Office of the Deputy Under Secretary of 
Defense (Installations & Environment) [ODUSD (I&E)], 703-571-9060. This 
final rule along with relevant background information is available on 
the World Wide Web at the Defense Environmental Network & Information 
eXchange Web site, https://www.denix.osd.mil/MMRP.

SUPPLEMENTARY INFORMATION: 

Preamble Outline

I. Authority
II. Background
III. Summary of Significant Changes to the Final Rule
IV. Response to Comments
    A. Applicability and Scope
    B. Definitions
    C. Policy
    D. Responsibilities
    E. Procedures
    1. Explosive Hazard Evaluation Module
    2. Chemical Warfare Materiel Hazard Evaluation Module
    3. Health Hazard Evaluation Module
    4. Determining the Munitions Response Site (MRS) Priority
    F. Sequencing
V. Administrative Requirements
    A. Regulatory Impact Analysis Pursuant to Executive Order 12866
    B. Regulatory Flexibility Act
    C. Unfunded Mandates
    D. Paperwork Reduction Act
    E. National Technology Transfer and Advancement Act
    F. Environmental Justice Requirements under Executive Order 
12898
    G. Federalism Considerations under Executive Order 13132

I. Authority

    This rule is being finalized under the authority of section 311(b) 
of the National Defense Authorization Act for Fiscal Year 2002, 
codified at section 2710(b) of title 10 of the U.S. Code [10 U.S.C. 
2710(b)].

II. Background

    The Department of Defense (hereinafter the Department) developed 
the rule in consultation with states and tribes, as required by 
statute. The Department published the proposed rule in the Federal 
Register as a proposed rule on August 22, 2003, at 68 FR 50900. A 
technical correction to the proposed rule was published on September 
10, 2003, at 68 FR 53430.
    The public comment period for the proposed rule ended November 19, 
2003. Sixteen commenters submitted comments on the proposed rule. The 
preamble to this final rule consists mainly of an explanation of the 
Department's responses to these comments. Therefore, both this preamble 
and the preamble to the proposed rule should be reviewed should a 
question arise as to the meaning or intent of the final rule. Unless 
directly contradicted or superseded by this preamble to the rule or by 
the rule, the preamble to the proposed rule reflects the Department's 
intent for the rule.
    The preamble to the final rule provides a discussion of each 
proposed rule section on which comments were received. Revisions to the 
proposed rule that are simply editorial or that do not

[[Page 58017]]

reflect substantive changes are not addressed in this preamble.
    In addition to the comments on the proposed rule, the Department 
received a number of comments that addressed topics outside the scope 
of the proposed rule. These topics included: The universe of sites that 
comprise the inventory, which is established by statute; funding for 
munitions responses; comments on data quality; a proposal for training 
to educate Department personnel, regulators, and/or stakeholders; and 
implementing guidance that the Department may develop for the rule. 
These comments are not addressed in this rule. All comments the 
Department received are presented in a ``Response to Comments'' 
document, which has been placed in the docket for this rulemaking.

III. Summary of Significant Changes to the Final Rule

    The Department made a number of changes to the proposed rule that 
are reflected in this final rule. Many of these revisions pertain to 
clarification of terms and definitions based on comments received, or 
changes to reflect new statutory definitions promulgated in the 
National Defense Authorization Act for 2004 and codified at 10 U.S.C. 
101.
    The most significant change to the proposed rule pertains to the 
module that evaluates the potential health hazards associated with MC. 
The Department modified this module in response to several comments. 
This module now has seven potential outcomes (i.e., A through G) rather 
than the three potential outcomes described in the proposed rule (i.e., 
high, medium, and low). A detailed explanation of this modification is 
provided in a following section of this preamble.
    The Department has also revised the proposed rule to clarify that 
current land owners may participate in application of the rule at 
Formerly Used Defense Sites (FUDS). Another change was to clarify that 
the quality assurance panel that reviews each priority will consist of 
only Department personnel.

IV. Response to Comments

    This section contains the Department's responses to the comments 
received on the proposed rule, organized by the structure of the 
proposed and final rules.

A. Section 179.2. Applicability and Scope

    Several commenters stated that the proposed rule should be 
published as Departmental guidance and not as a federal regulation. The 
Department, however, interpreted the language in the National Defense 
Authorization Act for 2002 as a term of art invoking the requirement 
for public comment provided in the Administrative Procedures Act. The 
Department is proceeding with publishing the final rule as a federal 
regulation.
    One commenter stated that sites containing chemical warfare 
materiel (CWM) should be included as potential MRSs. The Department 
observes that the proposed rule makes clear that, if CWM is present at 
a defense site [as defined in 10 U.S.C. 2710(e)] in the form of UXO, 
DMM, or MC, that site would be an MRS and would be included in the 
inventory, and that all MRSs in the inventory are addressed under the 
rule. The Department made no change to the rule to address this 
comment.
    Another comment stated that the Department had not clearly 
explained the scope of the exclusion for ``combat operations'' under 10 
U.S.C. 2710(d)(2). This exclusion exempts from the requirement for 
inclusion in the inventory and application of the rule all locations 
where ``the presence of military munitions'' resulted ``from combat 
operations.'' The Department has not modified the rule.
    A commenter requested that the Department change the Department's 
Control classification in the Status of Property data elements 
(proposed rule, Appendix A, Tables 5 and 15) to include land or water 
bodies owned, leased, or otherwise possessed by state military 
departments. The Department declined to make this change, as the 
Department does not have jurisdiction over properties owned, leased, or 
otherwise possessed by state military departments. Such locations are 
under state jurisdiction and would not be included in the 10 U.S.C. 
2710(a) inventory.

B. Section 179.3. Definitions

    This section of the preamble addresses comments on the definitions 
in section 179.3 of the proposed rule.
    The Department has modified definitions from the proposed rule or 
included certain new definitions to make this regulation consistent 
with terms and definitions promulgated by the National Defense 
Authorization Act for Fiscal Year 2004. These terms and definitions are 
codified at 10 U.S.C. 101. Affected terms are military munitions, 
operational range, range activities, and UXO.
    The Department has also added the term ``munitions and explosives 
of concern (MEC)'' to the final rule for consistency with new 
Department policy. MEC, which is intended to distinguish specific 
categories of military munitions that may pose unique explosives safety 
risks, means UXO, as defined in 10 U.S.C. 101(e)(5); discarded military 
munitions, as defined in 10 U.S.C. 2710(e)(2); or munitions 
constituents (e.g., TNT, RDX), as defined in 10 U.S.C. 2710(e)(3), 
present in high enough concentrations to pose an explosive hazard. As 
used in the rule, this term does not create any new category of 
materials covered under the proposed rule, nor does it exclude any 
category of materials covered under the proposed rule, and is adopted 
herein simply for consistency with terminology used elsewhere within 
the Department.
    In response to a comment, the term ``chemical warfare agents'' has 
been changed to ``chemical agents.'' The definition of ``chemical 
warfare agents'' has also been changed to read: ``Chemical agent means 
a chemical compound (to include experimental compounds) that, through 
its chemical properties produces lethal or other damaging effects on 
human beings, is intended for use in military operations to kill, 
seriously injure, or incapacitate persons through its physiological 
effects. Excluded are research, development, testing and evaluation 
(RDTE) solutions; riot control agents; chemical defoliants and 
herbicides; smoke and other obscuration materials; flame and incendiary 
materials; and industrial chemicals. This definition is adopted based 
on 50 U.S.C. 1521(j)(1) in which the term ``chemical agents and 
munitions'' means ``* * * an agent or munition that, through its 
chemical properties, produces lethal or other damaging effects on human 
beings, except that such term does not include riot control agents, 
chemical herbicides, smoke, and other obscuration materials.'' This 
change makes the terminology used in the final rule consistent with the 
existing statutory definition of ``chemical agent and munition'' in 50 
U.S.C. 1521(j)(1). The Department observes that chemical agents under 
50 U.S.C. 1521(j)(1) include the V- and G-series nerve agents; H-series 
(i.e., ``mustard'' agents) and L-series (i.e., lewisite) blister 
agents; and certain industrial chemicals, including hydrogen cyanide 
(AC), cyanogen chloride (CK), or carbonyl dichloride (called phosgene 
or CG), when contained in a military munition; and does not include 
riot control agents (e.g., w-chloroacetophenone [CN] and o-
chlorobenzylidenemalononitrile [CS] tear gas); chemical defoliants and 
herbicides; smoke and other obscuration materials; flame and incendiary 
materials; and industrial chemicals that

[[Page 58018]]

are not configured as a military munition.
    The definition of ``chemical warfare materiel (CWM)'' has changed 
to reflect the adoption of the term ``chemical agent'' discussed 
previously in this rule.
    One commenter stated that although the definition of ``military 
range'' includes buffer zones with restricted access and exclusionary 
areas, exclusionary zones at some former target bombing areas are not 
well defined. While the Department realizes this may be the case at 
some former military ranges, it believes site conditions and personnel 
experience will help ensure such areas are included and provide for 
reasonable application of the rule.
    A commenter requested a change to the definition of ``MRS,'' 
maintaining that portions of a munitions response area (MRA) may not be 
part of an MRS and, therefore, would not be evaluated using this rule. 
The Department would like to clarify that, depending on site-specific 
factors, an MRA may be designated a single MRS or may be subdivided for 
the purposes of evaluation into multiple MRSs. In each and every case, 
however, once all the MRSs comprising an MRA have been evaluated 
(whether the MRA consists of a single MRS or multiple MRSs), the total 
acreage encompassed by the MRA will have been evaluated using this 
rule. Through this disciplined and documented approach, the protocol 
will ensure that an MRA's entire acreage will be addressed.
    For example, in investigating a 1,000-acre MRA, the Department may 
identify five discrete locations (e.g., MRS 1 through 5) that 
constitute 1,000 acres that require evaluation. Formal decision 
documents will be prepared for all five MRSs that document the 
Department's evaluations for the entire 1000 acres. This will ensure 
that the entire MRA acreage will be evaluated using the protocol.
    One commenter requested adding to the end of the definition of 
``MRA'': `` * * * therefore, all property within a munitions response 
area is known to require a munitions response.'' The Department 
observes that the definition of ``MRA'' already states, ``An MRA is 
comprised of one or more munitions response sites'' and the definition 
of an ``MRS'' is ``* * * a discrete location within an MRA that is 
known to require a munitions response.'' Because an MRA must comprise 
at least one MRS, the Department does not believe the definition 
requires modification as suggested by the commenter.
    In response to another comment as to whether or not the acreage of 
an MRA includes water bodies, the Department observes that the acreage 
of an MRA may extend beyond the terrestrial boundary and include water 
bodies, such as lakes, ponds, streams, and coastal areas.
    One commenter requested adding CWM, in addition to UXO, DMM, and 
MC, to the definitions of several terms, including MRA and MRS, and at 
several locations in the tables (Appendix A) of the proposed rule. The 
Department points out that the definition of ``military munitions'' 
already includes CWM; therefore, all other terms that build on the 
military munitions definition, specifically UXO and DMM, already 
include CWM.

C. Section 179.4. Policy

    One commenter noted many positive attributes to the proposed rule. 
These included affirmative statements concerning the Department's 
active solicitation of participation by and inclusion of the states, 
the tribes, and stakeholders; identifying the need for a quality 
assurance panel to promote consistency in the application of the rule; 
straightforward recognition that the same level of information will not 
be available for all sites, and that for some sites, more information 
will be required in order to realistically apply the rule; and 
weighting factors, for the most part, are well explained and easy to 
understand. These comments did not require changing the proposed rule.
    One commenter stated that the team approach to prioritization was 
too broad and implies that several people from multiple agencies, 
community groups, or tribes will need to be involved in the application 
of the rule to a specific MRS. The Department continues to believe that 
it is important to receive input and feedback from such sources in 
assigning a relative priority for response activities to each MRS and 
has not amended the proposed rule to address this comment.
    The Department received a comment recommending that a state 
regulatory agency be designated to play a major role in the munitions 
response process, and if a state agency is unable to perform in this 
capacity, the U.S. Environmental Protection Agency (U.S. EPA) should do 
so. In such situations, involvement of U.S. EPA personnel is a matter 
for U.S. EPA to decide and not the Department; however, the Department 
notes that it will use a team approach for prioritization and 
encourages these agencies to participate.
    The Department received a comment soliciting clarification on 
whether stakeholders will have input on the ``no longer required'' 
determination. An MRS will have the ``no longer required'' 
determination assigned only after the Response Complete (RC) or Remedy-
in-Place (RIP) milestone is achieved. Stakeholders are afforded 
opportunities to participate and provide input throughout the munitions 
response process, to include prior to and following these milestones; 
however, stakeholders do not have a role in determining when an MRS has 
met the requirements for achieving these milestones.

D. Section 179.5. Responsibilities

    A comment was received regarding the term ``administrative 
control'' and whether this term referred to specific Component's 
ownership responsibilities. The Department would like to clarify that 
the phrase ``under their administrative control'' reflects the 
delegation of responsibilities for munitions responses within the 
Department. This responsibility does not require the Department to have 
a current real property interest at a particular MRS.
    The Department received several comments pertaining to 
prioritization at FUDS sites. One commenter asked for clarification of 
the phrase ``under the administrative control of,'' specifically 
pertaining to how the rule will apply at a FUDS. Under 10 U.S.C. 2701, 
the Department is required to ``carry out a program of environmental 
restoration * * * at each facility or site which was under the 
jurisdiction of the Secretary * * * at the time of actions leading to 
contamination.'' Therefore, under this requirement, the Department will 
apply the rule to an MRS at a FUDS if that MRS is included in the 10 
U.S.C. 2710(a) inventory. FUDS, however, are not considered under the 
Department's control for the purposes of the Status of Property data 
elements in Appendix A, Tables 5 and 15.
    Another commenter noted that for FUDS, the property owner should be 
involved with applying the rule to any MRS at the FUDS. The Department 
agrees and has modified section 179.5 to state: ``Ensure that EPA, 
other federal agencies (as appropriate or required), state regulatory 
agencies, tribal governments, local restoration advisory boards or 
technical review committees, local community stakeholders, and the 
current property owner (if the MRS is outside Departmental control) are 
offered opportunities to participate throughout the process of 
application of the rule and in making sequencing recommendations.''
    Several commenters stated concerns pertaining to MRSs that have 
already been evaluated using the Risk

[[Page 58019]]

Assessment Code (RAC). The Department wishes to clarify that all MRSs 
in the 10 U.S.C. 2710(a) inventory will be evaluated using the rule and 
the most current information available, irrespective of whether that 
MRS has been evaluated under the RAC framework.
    One commenter inquired whether a low prioritization score means 
``no further action.'' The Department would like to clarify this is not 
the case. Prioritization scores are the first tool when defining the 
need for a munitions response.
    One commenter asked the Department to add a definition of 
``evaluation pending'' to the rule and publish procedures and time 
frames that apply to evaluation pending sites. The Department's 
response is that evaluation pending status is given to an MRS only when 
there is insufficient information to complete the evaluation using the 
rule. As soon as sufficient data are available, the MRS will be 
evaluated. Although the Department is not specifying time frames for 
addressing the MRS in evaluation pending status as part of this 
regulation, the Department will be developing specific goals to drive 
program progress.
    A commenter asked for clarification as to when the rule will be 
applied at sites where the environmental restoration process is 
considered complete. The Department responds that, as stated in the 
proposed rule, an MRS no longer requires a priority when the Department 
has achieved the RC or RIP milestones. This means that a Component or 
another entity has conducted a munitions response, all objectives set 
out in the decision document for the MRS have been achieved, and no 
further action, except for long-term management and/or five-year 
reviews, is required.
    There were many comments pertaining to the quality assurance panel 
that will review prioritization decisions, especially inquiries about 
the panel's composition and authority. The Department wishes to clarify 
that the panel will comprise Component representatives trained in 
application of the rule who were not involved in the initial scoring of 
a specific MRS being reviewed. Stakeholders participate in application 
of the rule at an MRS, but will not be part of the quality assurance 
panel. The panel is an internal management and oversight function to 
ensure consistency of the rule's application. Components are, however, 
required to provide regulators and stakeholders the opportunity to 
comment on the quality assurance panel's rationale for any changes to 
the priority originally assigned.
    One commenter proposed that the circumstances under which the rule 
shall be reapplied include when a quality assurance panel recommends a 
priority change. In response, the Department states that the panel will 
not direct a Component to reapply the rule; rather, the panel's 
decision, when adopted, will supersede the original priority assigned. 
If the panel recommends a change that results in a different priority, 
the Component will report, in the inventory data submitted to the 
ODUSD(I&E), the rationale for this change. The Component will also 
provide this rationale to the appropriate regulatory agencies and 
involved stakeholders for comment before finalizing the change.
    Another commenter expressed support for the quality assurance panel 
in ensuring uniform application of the rule, but voiced concern this 
panel may not be effective if they must review all decisions before the 
prioritization can be finalized. According to the comment, initially it 
may be more productive to require that the panel review a percentage of 
the priority decisions to ensure they can review enough data to decide 
either to support or to change the priority assigned. The Department's 
response is that absent a review of each prioritization decision, it 
cannot be stated with authority that all decisions are in fact 
representative of site conditions and that the rule has been applied in 
a consistent manner. For this reason, at least initially, the 
Department is unwilling to consider a sampling-based approach to the 
work of the quality assurance panel.
    One commenter stated that the rule's emphasis on Management Action 
Plans (MAPs) may place a strain on already limited state resources, 
especially in those states that do not already have a MAP. The 
Department responds that MAPs have been a requirement for all sites 
addressed under the Defense Environmental Restoration Program (DERP) 
for many years. If a specific site is not addressed in a MAP, that 
matter should be referred to the appropriate Component's Deputy 
Assistant Secretary with responsibility for environmental matters. 
Should such a referral not result in action, the matter should then be 
referred to the ODUSD(I&E).
    Another commenter questioned how the MAPs for several MRSs would be 
integrated with the statewide MAP being developed in the FUDS program. 
The Department would like to clarify that the statewide MAP in the FUDS 
program collectively addresses all FUDS within a state, and that a MAP 
for each individual FUDS is also required.
    Several commenters noted that conditions at an MRS are subject to 
change and such changes should be reflected in the priority. The 
Department agrees and has designed the rule to be reapplied if any 
specific factor considered in the application of the rule changes and 
if that change has the potential to affect the priority assigned.
    There were several comments pertaining to sites where 
investigations were previously conducted. In response, the Department 
affirms that an appropriate munitions response is required for each 
MRS, and that an MRS reaches the ``no longer required'' evaluation only 
when the Department has conducted a munitions response, all objectives 
set out in the decision document for the MRS have been achieved, and no 
further action, except for long-term management and/or five-year 
reviews, is required.
    One commenter questioned the Department's reasons for rescoring 
sites based on a munitions response, arguing that the result will be to 
lower scores at the MRS without making progress toward completing all 
required munitions response activities. The commenter feels that 
partial munitions responses and continual rescoring is an inefficient 
approach to the program as a whole. The commenter suggests that once an 
MRS has received a score suitable to obtain funding, the score should 
not be lowered based on a munitions response that does not 
comprehensively and completely address the hazards present at the MRS. 
The Department disagrees, and notes that an annual reevaluation of the 
priority assigned to each MRS is statutorily mandated under 10 U.S.C. 
2710(c)(1).
    In response to a comment received on the certified letter the 
Department will send to states, territories, federal agencies, and 
tribal and local governments requesting their involvement in 
prioritization, the Department will send the letter to any known 
designee specified by the organization, or in the absence of such a 
designation, to the head of the organization.

E. Section 179.6. Procedures

    This section addresses comments received on section 179.6 of the 
proposed rule and on the classification tables in Appendix A.
    One commenter recommended that the Department revise the rule so 
that all data elements are consistent using a scale of zero to five; 
the Explosive Hazard Evaluation (EHE) module,

[[Page 58020]]

Chemical Warfare Materiel Hazard Evaluation (CHE) module, and Relative 
Risk Site Evaluation (RRSE) module be combined into one module; and the 
priority assigned to a site not be influenced by the type or source of 
the hazard that may be present at the site. The Department has not 
adopted such a change. Reducing the scale from seven to five, 
eliminating the modules, and not addressing the type and source of the 
hazard will not ensure that the priority given to an MRS adequately 
reflects the hazard posed by conditions at the MRS. The Department's 
objectives for the rule are: (1) ensuring that the priority 
sufficiently reflects actual conditions and potential hazards at the 
MRS, and (2) that the tool used be straightforward and easy to use. The 
current construct achieves those objectives.
    One commenter requested clarification as to the correct procedure 
when multiple classifications apply at a given MRS. The commenter 
questioned whether the scores are cumulative within the module or if 
only the highest value is used. The Department wishes to clarify that 
the one highest value within each data element is used. For example, if 
at a specific MRS both (1) hand grenades containing an explosive 
filler, which would be categorized as sensitive under Appendix A, 
Table, and would score 30, and (2) DMM, containing a high-explosive 
filler, that have not been damaged by burning or detonation, which 
would be categorized as high explosive (unused) under Appendix A, Table 
1, and would score 15 are present, the score (30 points) for the hand 
grenades containing an explosive filler would be selected.
    Numerous comments received address both the EHE and CHE modules, 
particularly pertaining to the accessibility and receptor factors of 
these modules. Where this is the case, the comment and response appear 
under the EHE module responses for simplicity, but pertain to both 
sections.
1. Section 179.6(a). Explosive Hazard Evaluation Module
    The Department received numerous comments on the Munitions Type 
data element (Appendix A, Table 1) and modified the rule to address 
many of the comments. For example, the Department modified two 
classifications within this data element to reflect the inherent 
difference between primary and secondary explosives. Explosives are 
classified as primary or secondary based on their susceptibility to 
initiation. Primary explosives, such as lead azide, are highly 
susceptible to initiation. Secondary explosives (e.g., TNT, RDX, HMX), 
which constitute the bulk of the explosives likely to be present at an 
MRS, are formulated to be far less susceptible to initiation. To 
address these differences, the Department added to the sensitive 
classification: ``Bulk primary explosives, or mixtures of these with 
environmental media such that the mixture poses an explosive hazard.'' 
The Department also revised the Bulk high explosives, pyrotechnics or 
propellant classification to exclude primary explosives: ``Bulk 
secondary explosives, pyrotechnic compositions, or propellant (not 
contained in a munition), or mixtures of these with environmental media 
such that the mixture poses an explosive hazard.''
    Also pertaining to the Munitions Type data element, another 
commenter noted that bulk high explosives mixed with environmental 
media can be reactive as well as explosive, and the hazard threshold of 
explosive is too high and should be lowered. The commenter suggested 
adding ``or reactive'' after ``that result in the mixture being 
explosive'' in the description of ``bulk high explosives'' and 
definitions for the terms ``reactive'' and ``explosive soil.'' The 
Department chose not to make these changes because the commenter did 
define ``reactive'' in this context, and the focus of the EHE module is 
explosive hazards.
    The Department also added an additional classification to the 
Munitions Type data element to reflect the lesser risk posed by 
pyrotechnics that are unused or undamaged. The Pyrotechnic (used or 
damaged) classification is assigned a score of 20 points, while the 
Pyrotechnic (not used or damaged) classification is assigned a score of 
10 points.
    The Department modified the text of the Propellant classification 
to be consistent with the other classifications, adding ``* * * that 
have been damaged by burning or detonation'' and ``* * * that are 
deteriorated to the point of instability'' to the criteria for 
propellants that are DMM. The Department also corrected the Practice 
classification pertaining to the criteria for DMM to read: ``* * * that 
have not been damaged by burning or detonation'' and ``* * * that have 
not deteriorated to the point of instability.'' The Department also 
provided greater detail in the definition of a ``practice munition.''
    One commenter stated that all practice munitions should be 
classified together and any MRS with practice munitions should receive 
a score of 15. The commenter's position is that many practice munitions 
with sensitive fuzes have miniscule amounts of explosives, while other 
practice munitions without sensitive fuzes have a much larger explosive 
or pyrotechnic spotting charge (e.g., practice bombs). Because practice 
bombs, which receive a score of 5, account for some of the most common 
and dangerous UXO and cause many serious injuries, the commenter feels 
that practice munitions without sensitive fuzes that have explosive or 
pyrotechnic spotting charges are not classified correctly. The 
Department agrees with the commenter that practice munitions with 
explosive or pyrotechnic charges do pose an explosive hazard. When 
developing the rule, the Department defined practice munitions as those 
munitions that contain inert filler. Practice munitions with explosive 
or pyrotechnic charges are classified separately under the same data 
element and are given a value.
    One commenter identified an inconsistency pertaining to the 
Munitions Type data element in that the definition of ``small arms 
ammunition'' category used the term ``evidence'' but did not specify 
whether this included ``historical evidence'' and ``physical 
evidence,'' as is the case for ``evidence of no munitions.'' The 
Department has revised the small arms ammunitions category within the 
Munitions Type data element to state: ``All used munitions or DMM that 
are categorized as small arms ammunition. [Physical evidence or 
historical evidence that no other types of munitions (e.g., grenades, 
sub-caliber training rockets, demolition charges) were used or are 
present on the MRS is required for selection of this category.]''
    Several commenters questioned the level of investigation required 
for assessing whether physical or historical evidence indicates that no 
UXO or DMM are present and suggested that specific investigation 
requirements should be developed for different sites. The Department 
has defined both historical evidence and physical evidence in the rule. 
The personnel applying the rule at an MRS will determine the 
appropriate level of evidence. The Department will not provide 
additional detail in the final rule, but may address this situation in 
implementing guidance or training materials.
    One commenter requested clarification on the applicability of the 
proposed rule to open burning/open detonation (OB/OD) units. The 
commenter expressed concern that the rule indicates that OB/OD sites 
are excluded because they were used or permitted for disposal of 
military munitions. The Department would like to clarify that OB/OD 
units are subject

[[Page 58021]]

to prioritization under the rule only when the unit meets the 
requirements for inclusion in the 10 U.S.C. 2710(a) inventory.
    One commenter suggested specifically including quality assurance 
test ranges within the EHE module Source of Hazard data element 
(Appendix A, Table 2) as they are not currently identified. To the 
extent that a quality assurance test range is a location that is known 
or suspected of containing UXO, DMM, or MC and is included in the 
inventory required under 10 U.S.C. 2710(a), the rule would be applied 
to that location. To the extent that such a quality assurance test 
range meets the criteria of Appendix A, Table 2 (i.e., it meets the 
test for being a ``former range''), it is already included.
    One commenter did not understand why a former munitions treatment 
area or unit would receive a lower score than a former military range 
given the unknown hazard posed by munitions that have been treated by 
OB/OD. The Department's response is that the higher value assigned to 
former military ranges reflects the fact that UXO are fuzed munitions 
that have been through their firing and arming cycle. In contrast, 
munitions treated in an OB/OD unit, while potentially damaged, are not 
normally fuzed and would most likely not complete their arming 
sequence. For this reason, UXO at a former military range is considered 
to pose a greater hazard than DMM at an OB/OD site.
    In response to a comment, the Department modified the Former 
industrial operating facilities classification within the Source of 
Munitions data element to include former munitions maintenance 
facilities.
    A commenter requested the definition of ``evidence of no 
munitions'' within the Munitions Type, Source of Hazard, and Location 
of Munitions (Appendix A, Tables 1, 2, and 3) data elements be changed 
to indicate that evidence shows that no UXO or DMM were ``ever''resent. 
The Department declines to make this change as the Department does not 
want to exclude sites from this classification where evidence indicates 
that munitions were at one time present but have since been removed, 
for example, as part of normal Department operation of a military range 
while the range was in use. This situation is different from UXO or DMM 
that are removed as part of a munitions response, as described in the 
next paragraph.
    Another commenter asked about UXO that is on the surface and has 
since been removed, and UXO that is emergent from year to year, such as 
through frost heave. If munitions were found on the surface of an MRS, 
the MRS would be classified as Confirmed Surface. If investigation 
confirms that there are only subsurface munitions present, and natural 
phenomena (e.g., frost heave or tidal action) occur on the MRS, the 
second-highest category--Confirmed subsurface, active--should be 
selected.
    In response to a comment, the Department clarified the definition 
of ``on the surface'' to mean above the soil layer. UXO found in the 
tundra of Alaska, for example, is considered ``on the surface'' for the 
purposes of the rule, as the tundra is above the soil layer.
    Several commenters stated that within the Information on the 
Location of Munitions and the Information on the Location of CWM data 
elements (Appendix A, Tables 3 and 13), no water depth is specified for 
the Subsurface, physical constraint category. The Department, however, 
would like to note that in these tables, a water depth of 120 feet was 
cited as a physical constraint.
    Several commenters asked the relevance for selecting 120 feet as 
the depth for constituting a subsurface physical constraint. The 
Department selected this depth because of the limited time (less than 
15 minutes) normally allowed to scuba divers at this depth, the 
considerable effort needed to dive to and below this depth, and the 
dangers associated with such deep dives to basic scuba divers.
    Also pertaining to Appendix A, Tables 3 and 13, a commenter 
requested that the Department use caution when evaluating activities 
that are ``likely to occur'' because land use and recreational 
activities can change in ways that no one can predict. The commenter 
also noted that similar caution is needed when evaluating physical 
constraints because some constraints are barriers only if they are both 
kept in place and maintained. The Department agrees with the commenter 
that conditions may change over time. To address changes that may occur 
over time, the rule requires reevaluation and rescoring if site 
conditions change.
    Pertaining to the Ease of Access data elements (Appendix A, Tables 
4 and 14), one commenter stated that the proposed rule was unclear if 
deep-water areas without any monitoring would be scored as a complete 
or incomplete barrier. The Department's response is that if a barrier 
such as deep water is present, it is evaluated as to its effectiveness 
in preventing access to all parts of the MRS. In the specific case 
described in the comment, deep-water areas not subject to surveillance 
would be scored as Barrier to MRS access is complete, but not 
monitored.
    One commenter stated that it is inequitable that the highest score 
under the Ease of Access data element (Appendix A, Tables 4 and 14) is 
a ``10,'' indicating all areas of the MRS are accessible, whereas the 
Information on Location of Munitions and Information on Location of CWM 
data elements (Appendix A, Tables 3 and 13) have a maximum score of 20, 
and a score of 10 represents only the suspected presence of UXO or DMM. 
The Department believes the current construct is appropriate because 
the Information on Location of Munitions and Information on Location of 
CWM data elements address access to the munition or CWM, while the Ease 
of Access data elements address access to the MRS.
    Some commenters noted that some terms, such as ``barrier,'' need 
further clarification to ensure all users apply the term consistently. 
For example, people may assess differently whether a security patrol is 
a partial barrier to the MRS or not a barrier at all. Additionally, 
perceptions of a barrier may vary, as ``deep or fast-moving water'' may 
be a challenge instead of a barrier to some people. The Department 
recognizes these commenters' points but believes the definition is 
sufficient for the purposes of prioritization. Final determination as 
to what features, either natural or man-made, are barriers should be 
based on site-specific knowledge and the judgment of the personnel 
applying the rule to a specific MRS. Additionally, the Component's 
quality assurance panels will ensure consistency in the final rule's 
application.
    One commenter stated that some data elements, specifically within 
the accessibility and receptor factors, within the various modules and 
among modules, are redundant and should be consolidated. The Department 
disagrees. Each data element provides important information on its own, 
bringing data from different perspectives together to best reflect 
actual site conditions.
    Several commenters expressed concern that the receptor factors of 
the EHE and CHE modules do not capture transient populations. The 
Department points out that two of the three data elements that address 
human receptors attempt to address population, regardless of whether it 
is permanent or transient. The Population Density data elements 
(Appendix A, Tables 6 and 16) focus on permanent population as based on 
U.S. Census Bureau data within a city, town, or county. The Population 
Near Hazard data elements (Appendix A, Tables 7 and 17) are based on 
any

[[Page 58022]]

inhabited structures, whether they are permanent or temporary, that are 
routinely occupied for any portion of a day. The Type of Activities/
Structures data elements (Appendix A, Tables 8 and 18) are also 
intended to address both permanent and transient populations. The 
Department is confident that, combined, these data elements 
sufficiently address both permanent and transient populations.
    A commenter questioned the relevance of the Population Density data 
element in scoring the EHE module because, per the comment, (1) this 
number is dependent upon and controlled by the Ease of Access data 
element, and (2) by including the Population Density element, the EHE 
module score unjustifiably and unnecessarily prioritizes higher those 
MRSs that are in more densely populated areas, even when potential 
access to the MRS is precluded by barriers. The Department disagrees 
because the Population Density data element considers both the on-site 
and off-site populations surrounding an MRS. While access is a 
prerequisite for an on-site population, the effects of an event (e.g., 
an explosion) at an MRS may affect populations that are not on site. 
This is one of the reasons that several of the elements in the receptor 
factor include a swath extending up to two miles from the perimeter of 
the MRS. The same commenter also believed the Types of Activities/
Structures data elements (Appendix A, Tables 8 and 18) can be 
reasonably measured via the Population Near Hazard data elements 
(Appendix A, Tables 7 and 17), noting that including the Types of 
Activities/Structures data elements only complicates the process and 
favors MRSs in higher population areas. The Department again disagrees. 
The Department included the Types of Activities/Structures data 
elements to account for the types of activities occurring on a site, 
and the potential for those activities to bring a receptor into contact 
with UXO or DMM. It was not developed to give undue weight to high-
population areas.
    One commenter did not agree that the two-mile criterion applied to 
evaluating the Population Near Hazard data element is reasonable or 
necessary for any MRS not having the potential to create a chemical 
agent hazard that could affect inhabitants within two miles of the 
boundary. Instead, distance criteria that more reasonably consider the 
risks from the actual or suspected types of explosive hazards should be 
used. The Department disagrees because the two-mile radius considers 
not only the size of the population that may come onto the MRS, but 
also the effects that an explosion on the MRS may have to areas off the 
MRS (e.g., blast overpressure, fragment throw). While this distance may 
be less than two miles, the two-mile distance was selected as a 
conservative measure.
    One commenter stated that the Population Near Hazard data elements 
should bear greater weight than the Population Density data elements 
because the greatest hazard is to the population closest to the MRS. 
The Department, however, notes that these data elements evaluate 
different aspects of population. The Population Density data elements 
are used to assess the number of persons that could possibly access the 
MRS, while the Population Near Hazard data elements focus on the 
population (through number of structures) within a two-mile range that 
could be impacted by an unintentional explosion or CA release. The data 
elements are complementary.
    Several commenters disagreed with the Department's use of inhabited 
structures to indicate population in the Population Near Hazard and 
Types of Activities/Structures data elements as, for example, ``people 
may engage in all sorts of activities despite the absence of structures 
in the vicinity, and many of these activities would put them at 
considerably greater risk from military munitions than populations that 
are, relatively speaking, protected within structures.'' The Department 
notes the concern, but believes the rule sufficiently accounts for 
these populations. The rule relies on several indicators to assess 
potentially exposed populations. The Types of Activities/Structures 
data elements address activities conducted on the MRS, and the number 
of permanent or temporary structures present. Parks and recreational 
areas, where hikers, campers, and tourists may be present, are 
specifically included in the Types of Activities/Structures elements.
    In response to one commenter's statement that UXO may be 
encountered through nonintrusive activities such as boating and 
fishing, the Department believes that such activities are accounted for 
in the Types of Activities/Structures data elements.
    Several commenters noted that Types of Activities/Structures data 
elements seem structured to give the greatest weight to activities and 
structures involving the most people, and that warehousing, industrial, 
agricultural, and forestry activities are weighted less. Some 
commenters are concerned because these areas experience high-density 
populations and activities that penetrate the ground surface during 
working hours. The Department recognizes the commenters' concerns but 
notes that, even though agricultural and forestry activities penetrate 
the ground surface, the exposed population is typically smaller than 
commercial, residential, or recreational areas. The Department is 
balancing activity intrusiveness with the potential population that 
could be exposed to a hazard. The rule does, however, require 
reevaluation if site conditions change.
    One commenter questioned how the scoring values among modules and 
within modules were selected. The commenter specifically noted that the 
numerical weighting assigned within and among data elements seemed 
arbitrary and unnecessarily complicated. Further, there is no rationale 
for applying a score of 30 (worst case score) to certain data elements 
and a value of only 5 (worst case score) to other data elements within 
the same module. The commenter cites the Population Near Hazard data 
element as an example. Within this data element, there are six 
classifications established based on the number of inhabited structures 
within a two-mile distance of an MRS. In this data element, 1-5 
inhabited structures receives a score of only 1, while 26 or more 
inhabited structures receives a score of 5. The commenter believes that 
the score should be the same, regardless of whether a single residence 
or 26 residences were on or near the MRS. The Department disagrees with 
the commenter that all situations should be scored the same because it 
impairs differentiation and thus prioritization, which is the purpose 
of this rule. The rule-making development effort involved a series of 
meetings over a year and a half, including substantial consultation 
with states, tribes, and other federal agencies. The Department also 
tested the developing model during this time to determine if the model 
outcomes were reasonable given what was known about the trial MRSs. The 
data elements and scores as presented in the proposed rule provided the 
most rational results and distribution among the sites.
    Many commenters believe that the definition of ``ecological 
resources'' (Appendix A, Tables 9 and 19) in the rule is too limited. 
The Department does not mean to imply that less sensitive ecological 
resources are not important. For the purposes of assigning a relative 
priority to each MRS, however, the Department believes that limiting 
this definition to the most sensitive habitats is appropriate so that 
these areas are elevated in priority.

[[Page 58023]]

    Similar to the comments for ecological resources, a commenter noted 
that the definition of ``cultural resources'' used in the EHE and CHE 
modules is too narrow and the list of statutes should not be limited. 
The Department believes this definition is appropriate for the purposes 
of assigning a relative priority to each MRS.
    One commenter stated that there may be only a few MRSs that score 
high enough to be included in the highest tier of the EHE module, and 
therefore, more sites will be distributed among the lower tiers. Based 
on the testing described in the proposed rule, the Department expects 
the universe of sites to be adequately distributed among the possible 
scores. The highest hazard sites are not expected to be the most 
numerous, nor are the lowest hazard sites expected to be the most 
numerous. The Department believes this construct is appropriate.
2. Section 179.6(b). Chemical Warfare Materiel Hazard Evaluation Module
    One commenter agreed with the Department that MRSs with known or 
suspected CWM are important and deserve special attention. The 
commenter did state, however, that the potential for public exposure 
should be an important consideration when ranking such MRSs. MRSs that 
have high potential for public exposures and risk should be ranked 
higher than an MRS with CWM that has minimal opportunity for public 
exposure. The Department addressed this concern during the development 
of the rule by including data elements to factor in population density 
and public exposure. Based on the data used in the rule, an MRS with 
known or suspected CWM does not always rank higher than a site without 
CWM.
    A commenter suggested that receptors under the CHE module should be 
weighted higher than those under the EHE module because CWM pose 
hazards associated with both the explosive impact and the dispersion of 
the chemical agents. The Department believes that the rule 
appropriately accounts for the special characteristics of CWM in the 
CWM Configuration and Sources of CWM data elements (Appendix A, Tables 
11 and 12).
    One commenter asked if all CWM is considered similar in the 
severity of its effects and regardless of concentration. The 
Department's response is that the rule does not consider the 
differences in the mechanism of action (e.g., neurotransmitter 
disruption) or the toxicological properties (e.g., Lethal Dose for 50 
percent of the exposed population [LD50]). The CWM Configuration and 
Sources of CWM data elements do address the differences in the hazards 
posed by CWM (e.g., CWM with an explosive burster scores higher than 
CWM without a burster).
    One commenter felt that classifying CWM mixed with UXO lower than 
CWM under the CWM Configuration data element does not make sense. The 
commenter stated that this implies that placing some conventional UXO 
at an MRS with known or suspected CWM can reduce the hazard at that 
site. To remedy the conflict, the commenter suggested deleting the 
category CWM mixed with UXO from Appendix A, Table 11 and treating all 
MRSs containing CWM UXO or damaged CWM DMM as the highest scoring 
hazard, irrespective of the presence of conventional munitions that are 
UXO or DMM. The Department, however, believes that explosively 
configured CWM, which are designed to achieve optimal dispersion of 
their chemical agent fill, that are UXO or that are damaged DMM should 
be assigned a higher score than undamaged CWM/DMM or CWM not configured 
as a munition that are mixed with conventional munitions that are UXO. 
The Department left this classification unchanged because the 
detonation of a conventional munition that both is a UXO and mixed with 
undamaged CWM/DMM or CWM not configured as a munition is less likely to 
result in a dispersal of any chemical agent present. The Department 
believes that the classifications assigned appropriately differentiate 
between the potential chemical agent hazards presented.
    One commenter questioned why production facilities; research, 
development, testing and evaluation facilities; training facilities; 
and storage or transfer points were identified as separate categories 
with different hazard scorings within the Sources of CWM data element 
(Appendix A, Table 12). According to the commenter, the only important 
issues are: (1) The type of CWM (i.e., it must be either UXO or DMM); 
(2) its condition (damaged or undamaged); and (3) the strength of 
evidence (known or suspected CWM contamination). The commenter 
recommended deleting all other categories. The Department does not 
believe that there are only three important issues and that the other 
categories are extraneous. The Department has identified those separate 
categories under the CWM Configuration and Sources of CWM data elements 
to enable it to evaluate all known and relevant data and to assign 
appropriate priorities.
    One commenter stated that the rule does not consider CWM that has 
been managed via OB/OD activities or via on-site disposal (e.g., 
burial). The Department disagrees, and observes that while not 
specifically described as OB/OD or burial sites, these sites have in 
common that any CWM present is DMM. The CWM Configuration data element 
(Appendix A, Table 11) specifically includes CWM that are DMM, and 
addresses those differently depending on whether or not the CWM has 
been damaged (irrespective of how that damage occurred). The Sources of 
CWM data element (Appendix A, Table 12) specifically considers DMM that 
are on the surface or in the subsurface, irrespective of how the CWM 
came to be there.
    One commenter stated that it is not clear whether CWM mixed with 
UXO includes or purposely excludes explosively configured CWM. The 
Department's response is that explosively configured CWM that is either 
UXO or damaged DMM receives a score of 30 in Table 11 of Appendix A. 
The CWM mixed with UXO is used for undamaged CWM that are DMM or that 
are not configured as a munition, and that are commingled with 
conventional munitions that are UXO. These score 25.
    One commenter questioned whether the receptor factor in the CHE 
module should be the same as for the EHE, given the impact of wind 
drift on populations if a chemical agent is released. Evaluation of 
factors such as dispersion by wind current is far more complex than is 
appropriate for a prioritization tool. Such factors may, however, be 
important during a munitions response and be important considerations 
in the evaluation of remedial alternatives. The Department believes 
that the current receptor construct is sufficient for assigning each 
MRS a relative priority.
3. Section 179.6(c). Health Hazard Evaluation (HHE) Module
    The Department received a number of comments on the Relative Risk 
Site Evaluation (RRSE) module, which is intended to evaluate the health 
hazards associated with MC and any incidental nonmunitions-related 
contaminants at an MRS. The Department has revised and renamed this 
module in response to the most significant comments received on the 
proposed rule. Several commenters noted that although the EHE and CHE 
module results seemed well balanced in terms of the distribution of 
outcomes, the RRSE module appeared to score too many sites as ``high,'' 
inappropriately skewing the overall priority assigned to the MRS.

[[Page 58024]]

Specifically, it was observed that having only three outcomes (i.e., 
high, medium, and low) as provided in the RRSE module can result in 
this one module being the dominating factor in the overall priority 
assignment. In response to this significant comment, the Department 
analyzed the construct of the module and revised it so that the outcome 
in the rule has seven possible answers, increasing the ability to 
differentiate among MRSs. Accordingly, the Department believes that the 
revised module better reflects the relative evaluation of explosive, 
CWM, and MC hazards potentially present at the site. The Department has 
also changed the name of the module to the Health Hazard Evaluation 
(HHE) Module to differentiate it from the three-outcome RRSE used in 
the Department's Installation Restoration program (IRP). The Department 
will apply the HHE only to MRSs subject to this rule. The HHE module is 
intended to evaluate health hazards associated with MC at an MRS, with 
only incidental nonmunitions-related contaminants addressed under the 
MMRP.
    The RRSE will continue to be applied to sites in the IRP category 
of the DERP.
    Within the revised framework, the data and the process by which the 
data are evaluated are the same as within the RRSE; however, the 
distinction between the previous and revised frameworks lies in the 
greater number of outcomes (i.e., seven versus three). Only MRSs with 
the maximum results for the three factors (i.e., Contaminant Hazard 
Factor (CHF), Receptor Factor, and Migration Pathway Factor) are 
assigned the highest priority (i.e., Category A). In other words, only 
those MRSs with significant MC-related health hazards, an identified 
receptor, and an evident migration pathway are assigned to Category A 
for the HHE module.
    Tables 1, 2, and 3 below illustrate the derivation of the seven 
categories of the HHE. Table 1, which reproduces Table 21 of Appendix 
A, provides the three potential outcomes for each of the factors in the 
HHE. Table 2, which reproduces Table 22 of Appendix A, illustrates the 
different possible combinations of the results. The frequency in this 
table denotes the number of times each combination is used. Table 3, 
which reproduces Table 23 of Appendix A, spreads the possible 
combinations across seven categories, permitting only the most and 
least hazardous combinations in the highest and lowest categories. The 
other combinations are spread across the five remaining categories in a 
bell curve based on frequency of the combination.

                                                               Table 1.--HHE Module Rating
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
                 Contaminant hazard factor           Receptor factor
                                                 Migration pathway factor
------------------------------------------------------------
Significant........................  High (H)..............  Identified............  High (H).............  Evident..............  High (H)
Moderate...........................  Middle (M)............  Potential.............  Middle (M)...........  Potential............  Middle (M)
Minimal............................  Low (L)...............  Limited...............  Low (L)..............  Confined.............  Low (L)
--------------------------------------------------------------------------------------------------------------------------------------------------------


                                                               Table 2.--HHE Module Rating
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                     Migration pathway
      Contaminant hazard factor             Receptor factor       --------------------------------------------------------------------------------------
                                                                             Evident                     Potential                     Confined
--------------------------------------------------------------------------------------------------------------------------------------------------------
Significant.........................  Identified.................  HHH                          HHM                          HHL
                                      Potential..................  HHM                          HMM                          HML
                                      Limited....................  HHL                          HML                          HLL
Moderate............................  Identified.................  HHM                          HMM                          HML
                                      Potential..................  HMM                          MMM                          MML
                                      Limited....................  HML                          MML                          MLL
Minimal.............................  Identified.................  HHL                          HML                          HLL
                                      Potential..................  HML                          MML                          MLL
                                      Limited....................  HLL                          MLL                          LLL
--------------------------------------------------------------------------------------------------------------------------------------------------------


                          Table 3.--HHE Module
------------------------------------------------------------------------
              Combination                Frequency        Category
------------------------------------------------------------------------
HHH....................................          1  A
HHM....................................          3  B
HHL....................................          3  C
HMM....................................          3  ....................
HML....................................          6  D
MMM....................................          1  ....................
HLL....................................          3  E
MML....................................          3  ....................
MLL....................................          3  F
LLL....................................          1  G
------------------------------------------------------------------------

    A commenter asked why the ecological receptors for surface water 
and sediment in the Receptor factor are limited to critical habitats 
``and other similar environments.'' The Department's response is that 
it chose to focus on locations of critical habitat as a means of 
delineating among ecological receptors. Almost all areas are habitat 
for some species, and considering all habitats equally provides no 
differentiating criteria. In response to the same commenter, the 
Department wishes to clarify that consumption of fish in contaminated 
waters is accounted for in the HHE.
    One commenter questioned the exclusion of an ecological endpoint 
during the evaluation of surface soils and requested that the 
Department consider groundwater as a minor receptor factor. The 
Department's response is that ecological receptors are not considered 
for evaluation of the surface soil since ecological standards are 
generally not available for the CHF calculation.
    Some comments were received requesting that the Department change 
the comparison value used for carcinogens from a 1 x 10-\4\ 
to a 1 x 10-\6\ value, which would make it consistent with 
some states' cleanup goals. This rule, however, is not using the 1 x 
10-\4\ value for cleanup; it is being used to assign a 
relative priority for action. The Department believes that 1 x 
10-\4\ is an appropriate value for prioritization. Further, 
changing the range will not change the relative ranking of any 
individual site, as all sites would shift equally if a different 
endpoint were used.
    One commenter stated that the Receptor Factor should not be limited 
to surface soil as receptors have the potential for exposure to 
subsurface soil during intrusive activities or after development where 
subsurface soils have been brought to the surface. The

[[Page 58025]]

Department responds that where subsurface soil is coming to the 
surface, or is exposed in a manner in which people can contact it 
(e.g., in an excavation), it is treated as surface soil.
    Another commenter stated the module appears to underestimate the 
risks posed by landfills. The Department points out the releases from 
landfills usually do not include UXO, DMM, or MC. It is more likely 
that a landfill would be addressed under the IRP category of the DERP 
and, as such, would not be evaluated under this rule.
    One commenter stated there is little detail describing the terms 
``identified,'' ``potential,'' and ``limited'' receptors. Until 
guidance specific to the HHE is developed, the Department suggests 
reviewing the Relative Risk Site Evaluation Primer (available at http://www.dtic.mil/envirodod) for detailed information on the use of this 
factor.
    A commenter remarked that the Receptor Factor for groundwater 
should consider individuals exposed inadvertently, such as construction 
workers conducting invasive activities, in addition to water supply 
exposure. The HHE was primarily developed to consider long-term chronic 
exposures, not short-term exposures, through water consumption because 
such exposures are the dominant case associated with groundwater 
contamination. Further, as part of prioritization, it would be 
difficult to determine if workers are being exposed in this way. 
Finally, this rule is not intended as a risk assessment nor will it 
take the place of a risk assessment, where unusual exposure scenarios 
can be properly considered.
    A few commenters were concerned as to whether or not CHF values are 
established for all constituents, and if not, how the Department would 
establish these values. The Department will initially adopt the current 
contaminant tables in the Relative Risk Site Evaluation Primer as a 
basis for the HHE. These values are updated every few years. The 
Department will also continue to work with U.S. EPA in its efforts to 
promulgate CHF values for MC and for other constituents.
    Several comments pertained to state involvement and concerns about 
data quality and consistency. The Department intends on developing 
guidance and conducting training to ensure consistency in 
implementation of the rule. Additionally, states will be involved in 
applying the rule, including the HHE module.
4. Section 179.6(d). Determining the MRS Priority
    The Department received several comments regarding how the module 
for MC is integrated into the overall priority matrix because the EHE 
and CHE modules have seven categories and the RRSE category has three. 
Some commenters believe that because there are too few RRSE categories, 
sites with high RRSE scores drive the priority unnecessarily too high. 
In response to this and other comments, the Department revised the RRSE 
module (now the HHE module) to provide a number of categories 
consistent with the other modules in the rule.
    One commenter remarked on the pros and cons of driving module 
scores into tiers versus discrete scores and on the Department's 
intentions. The Department's response is that the Department's intent 
was to assign relative priorities to each MRS, not to develop a one-N 
listing of priorities. If the latter had been the intent, the number of 
possible outcomes would have become unwieldy.
    One commenter maintained that the module with the lowest numerical 
priority value should not determine the MRS priority. The commenter's 
view is that this approach is intrinsically flawed because it fails to 
consider the cumulative risk posed by the two modules having a lesser 
priority ranking, even though those risks may be significant, and when 
combined, may be greater than that posed by the third module. The 
commenter suggested that all module priority scores be considered 
cumulatively in determining the priority for establishing which MRS 
presents the greatest overall hazard. The Department acknowledges the 
commenter's concern that there is a cumulative aspect to the hazards 
evaluated by each module. During the development of the rule, the 
Department considered using a cumulative total to assign the priority 
but was unable to define the mathematical relationship between the 
three modules in a manner that appeared rational or acceptable to the 
states, tribes, and others consulted during the development. Therefore, 
the Department's approach is to assign the priority based on the 
highest hazard posed by the conditions at the site.

F. Section 179.7. Sequencing

    Two commenters stated that although the factors to be considered in 
making sequencing decisions include the ``reasonably anticipated future 
land use,'' land use assumptions, even reasonable ones, may change and 
need to be reconsidered. The Department's response is that the rule is 
used to assign to each MRS a relative priority, given the associated 
risks. To the extent any specific factors considered in application of 
the rule change, and that change affects the priority assigned to an 
MRS, the annual reexamination of assigned priorities should identify 
and consider the change. As a rule, the Department will address those 
sites with the highest risk first. Sequencing decisions are, however, 
often driven by other factors. Although sequencing decisions may change 
as relative priorities change, once a sequencing decision is made and 
execution of the munitions response has begun, it is unlikely that a 
change in relative priority would affect the sequencing decision.
    One commenter noted that the proposed rule required the Department 
to report the results of sequencing; however, there is no mention of 
how the Department will make available all the results of the ranking. 
In response, the Department will compile the sequencing results and 
make them available to the public.

V. Administrative Requirements

A. Regulatory Impact Analysis Pursuant to Executive Order 12866

    Executive Order 12866 (58 FR 51735 [October 4, 1993]) requires each 
agency taking regulatory action to determine whether that action is 
``significant.'' The agency must submit any regulatory actions that 
qualify as ``significant'' to the Office of Management and Budget (OMB) 
for review, assess the costs and benefits anticipated as a result of 
the proposed action, and otherwise ensure that the action meets the 
requirements of the Executive Order. The Order defines ``significant 
regulatory action'' as one that is likely to result in a rule that may 
(1) have an annual effect on the economy of $100 million or more or 
adversely effect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or state, local, or tribal governments or 
communities; (2) create a serious inconsistency or otherwise interfere 
with an action taken or planned by another agency; (3) materially alter 
the budgetary impact of entitlements, grants, user fees, or loan 
programs or the rights and obligations of recipients thereof; or (4) 
raise novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in the Executive 
Order.
    The Department has determined that the rule is not a significant 
rule under Executive Order 12866 because it is not likely to result in 
a rule that will meet any of the four prerequisites.
    (1) The rule will not have an annual effect on the economy of $100 
million or more or adversely affect in a material

[[Page 58026]]

way the economy, a sector of the economy, productivity, competition, 
jobs, the environment, public health or safety, or state, local, or 
tribal governments or communities.
    The primary effect on the economy will be the necessity for state 
and/or local governments to conduct oversight of the environmental 
restoration activities. The Department previously determined that the 
rule does not place a burden in excess of $100 million each year on 
state, local, or tribal governments. The changes from the proposed rule 
do not significantly change the analysis conducted in support of the 
proposed rule, which showed that the effects on the economy as a whole, 
any particular sector of the economy, productivity, competition, or 
jobs are not significant. In addition, because the one impact that was 
identified, costs for state oversight are reimbursable through the 
Defense and State Memorandum of Agreement (DSMOA) program, the overall 
impact to any individual state is minimal.
    Similarly, the previous determination that the proposed rule does 
not have a direct adverse effect on the environment, public health, and 
safety remains unchanged by the final rule. Any adverse effects were 
either a result of the actions that caused the UXO, DMM, or MC to be 
present at the MRS (e.g., the site's use as a military range, treatment 
of waste military munitions at the site) , which predate the 
application of the rule, or are the result of the munitions response 
activities that are implemented after the application of the rule. In 
the latter case, munitions response activities are performed under the 
Comprehensive Environmental Response, Compensation, and Liability Act 
(CERCLA) and the National Oil and Hazardous Substances Pollution 
Contingency Plan (NCP), a process that fully considers the overall 
impacts to human health and the environment posed by UXO, DMM, or MC 
and the response to such.
    For these reasons, the Department has determined that the rule will 
not adversely affect, in a material way, the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or state, local, or tribal governments or 
communities.
    (2) The rule will not create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency.
    Implementation of the rule will not create a serious inconsistency 
or otherwise interfere with another agency's action because the 
Department has lead authority for administering the DERP under 10 
U.S.C. 2701(a)(1). The DERP statute delineates the responsibilities of 
the Department and authority of U.S. EPA to some extent. The Department 
is required by 10 U.S.C. 2701(a)(3) to consult with the U.S. EPA in its 
administration of the environmental restoration program. Further, 
Section 2701(c)(2) of the statute gives the Department the 
responsibility of conducting environmental restoration activities on 
all properties owned or leased by it, except those for which U.S. EPA 
has entered into a settlement with a potentially responsible party. The 
rule's ranking system will not interfere with the Hazard Ranking System 
(HRS) maintained by the U.S. EPA because each serves its own purpose. 
U.S. EPA uses the HRS to place uncontrolled waste sites on the National 
Priorities List (NPL). U.S. EPA does not use the HRS to determine the 
priority in funding U.S. EPA remedial response actions. The Department 
will use the rule to assign a relative priority to each MRS based on 
the risks posed at each MRS, relative to the risks posed at other MRSs, 
and may use the rule as a basis for determining which MRS will receive 
funding. The Department's use of the rule should not interfere with 
U.S. EPA's use of the HRS. The Department action may interfere with 
U.S. EPA action in a situation where U.S. EPA decides to pursue 
response action at an MRS that the Department has designated as a low 
priority. Where this occurs, the Department will cooperate, to the 
extent possible, with U.S. EPA and rely on existing interagency 
processes to reach agreement on MRS priorities and response actions. 
Based on the above reasoning, the Department has determined that there 
is minimal potential for inconsistencies or interference with action by 
any other agency.
    (3) The rule will not materially alter the budgetary impact of 
entitlements, grants, user fees, or loan programs or the rights and 
obligations of recipients thereof.
    The rule will not materially alter the budgetary impact of 
entitlements, grants, user fees, or loan programs, or the rights and 
obligations of recipients thereof because no entitlements, grants, user 
fees, or loan programs are invoked through prioritization of each MRS 
for response activities.
    (4) The rule will not raise novel legal or policy issues arising 
out of legal mandates, the President's priorities, or the principles 
set forth in the Executive Order.
    Finally, the rule does not raise novel legal or policy issues 
arising out of legal mandates, the President's priorities, or the 
principles set forth in the Executive Order. Congress has already 
established the requirement for environmental restoration of MRSs and 
for the Department's development of a method to assign each MRS a 
relative priority. The rule is merely a method for the Department to 
determine a relative priority of an MRS for response action. The 
Department has identified no novel legal or policy issues that this 
rule will create on either an MRS-specific basis or overall. Nor has 
the Department identified any novel legal or policy issues arising out 
of the President's priorities or principles set forth in the Regulatory 
Impact Analysis.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by 
the Small Business Regulatory Enforcement Fairness Act [SBREFA] of 
1996), requires that an agency conduct a regulatory flexibility 
analysis when publishing a notice of rulemaking for any proposed or 
final rule. The regulatory flexibility analysis determines the impact 
of the rule on small entities (i.e., small businesses, small 
organizations, and small governmental jurisdictions). SBREFA amended 
the Regulatory Flexibility Act to require federal agencies to state the 
factual basis for certifying that a rule will not have a significant 
economic impact on a substantial number of small entities.
    The Department hereby certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
The nature of the rule provides the factual basis for a determination 
that no regulatory flexibility analysis is required. The rule merely 
provides a procedure by which the Department may assign a relative 
priority to each MRS for response actions. No costs are directly 
imposed on small entities nor is any action directly required of small 
entities through this rule. Because the Department bears the financial 
responsibility for remediating MRSs, and the source of its funding is 
Congress, implementation of the rule will not directly affect small 
entities in a financial manner. For the foregoing reasons, the 
Department believes that the rule, if promulgated, would not have a 
significant economic impact on a substantial number of small entities.

C. Unfunded Mandates

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, requires federal agencies to assess the effects of their 
regulatory actions on state, local, and tribal

[[Page 58027]]

governments and the private sector. Section 202 of the UMRA requires 
that, prior to promulgating proposed and final rules with ``federal 
mandates'' that may result in expenditures by state, local, and tribal 
governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, the agency must prepare a written 
statement, including a cost-benefit analysis of the rule. Under Section 
205 of the UMRA, the Department must also identify and consider a 
reasonable number of regulatory alternatives to the rule and adopt the 
least costly, most cost-effective, or least burdensome alternative that 
achieves the objectives of the rule. Certain exceptions to Section 205 
exist. For example, when the requirements of Section 205 are 
inconsistent with applicable law, Section 205 does not apply. In 
addition, an agency may adopt an alternative other than the least 
costly, most cost-effective, or least burdensome in those cases where 
the agency publishes with the final rule an explanation of why such 
alternative was not adopted. Section 203 of the UMRA requires that the 
agency develop a small government agency plan before establishing any 
regulatory requirements that may significantly or uniquely affect small 
governments, including tribal governments. The small government agency 
plan must include procedures for notifying potentially affected small 
governments, providing officials of affected small governments with the 
opportunity for meaningful and timely input in the development of 
regulatory proposals with significant federal intergovernmental 
mandates, and informing, educating, and advising small governments on 
compliance with the regulatory requirements.
    The Department has determined that the rule does not contain a 
federal mandate that may result in expenditures of $100 million or more 
for state, local, and tribal governments in the aggregate, or by the 
private sector in any one year. The term ``federal mandate'' means any 
provision in statute or regulation or any federal court ruling that 
imposes ``an enforceable duty'' upon state, local, or tribal 
governments, and includes any condition of federal assistance or a duty 
arising from participation in a voluntary federal program that imposes 
such a duty. The rule does not contain a federal mandate because it 
imposes no enforceable duty upon state, tribal, or local governments. 
The Department is responsible for funding munitions responses and 
imposes no costs on other entities by prioritizing MRSs using the rule. 
The Department recognizes that the state, local, or tribal government 
may expend funds to conduct oversight of the response activities. The 
rule, however, does not require such oversight. To the degree such 
oversight is required, it is required by preexisting law on which the 
rule has no effect.

D. Paperwork Reduction Act

    The Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., 
prohibits a federal agency from conducting or sponsoring a collection 
of information that requires OMB approval, unless such approval has 
been obtained and the collection request displays a currently valid OMB 
control number. Nor is any person required to respond to an information 
collection request that has not complied with the PRA. The term 
``collection of information'' includes collection of information from 
ten or more persons. The Department has determined that the PRA does 
not apply to this rule because, although the Department will collect 
information on the MRS, it does not mandate that any person supply 
information. All information collected from persons will be voluntary, 
for example, through an interview. Therefore, the PRA does not apply to 
the rule.

E. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law 104-113, Section 12(d) (15 U.S.C. 272 
note), directs federal agencies to use technical standards developed by 
voluntary consensus standards bodies in its regulatory activities, 
except in those cases in which using such standards would be 
inconsistent with applicable law or otherwise impractical. ``Technical 
standards'' means performance-based or design-specific technical 
specifications and related management systems practices. Voluntary 
consensus means that the technical standards are developed or adopted 
by voluntary consensus standards organizations. In those cases in which 
a federal agency does not use voluntary consensus standards that are 
available and applicable, the agency must provide OMB with an 
explanation.
    The rule does not involve performance-based or design-specific 
technical specifications or related management systems practices. The 
values for relative risk used in the HHE module, to the extent they 
qualify as technical standards, were formed through consensus. The rule 
is therefore in compliance with the NTTAA.

F. Environmental Justice Requirements Under Executive Order 12898

    Under Executive Order 12898, ``Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations,'' a federal agency must, where practicable and 
appropriate, collect, maintain, and analyze information assessing and 
comparing environmental and human health risks borne by populations 
identified by race, national origin, or income. To the extent practical 
and appropriate, federal agencies must then use this information to 
determine whether their activities have disproportionately high and 
adverse human health or environmental effects on minority populations 
and low-income populations.
    The Department believes that implementation of the rule will 
address environmental justice concerns in several ways. First, the rule 
will address environmental justice by ensuring that prioritization is 
based primarily on risk to the human health and environment of all 
populations. The Department recognizes that prioritization of MRSs for 
response action could result in a low-priority designation for some 
MRSs located in low-income or minority neighborhoods. Under the risk-
based approach, such prioritization could only be viewed as 
environmental injustice if low-income and minority populations were 
disproportionately located near low-risk MRSs. However, should this be 
the case, the final rule would allow the Department to consider this 
fact in its sequencing decisions. Second, the Department has reserved a 
step in the rule for consideration of environmental justice concerns, 
having supplemented the risk-based prioritization decision with 
consideration of whether low-income or minority populations are near 
the MRS in question. Third, because the rule will provide the 
Department with an established method for choosing which MRSs to 
address first, it will ensure uniformity among decisions and eliminate 
the potential for intentional discrimination against low-income and 
minority populations. Finally, the Department's engagement with various 
stakeholders, most notably tribal governments, in developing the rule 
has helped to build consideration of environmental justice concerns 
into the rule.
    The Department plans to continue to study the environmental justice 
effects once the rule is implemented. Until that time, no data exist 
regarding whether low-income and minority populations live near high-
risk MRSs as opposed to low-risk MRSs. As such, there is

[[Page 58028]]

currently no way of determining whether generally focusing response 
efforts first at those MRSs that pose a relatively higher risk will in 
any way adversely affect these or any particular segment of the 
population. The Department decided to include environmental justice 
considerations in the body of the proposed rule as a precautionary 
measure, but will examine the effect of the rule on low-income and 
minority populations, once the Department has implemented it and has 
compiled data from which to draw.
    At this time, the Department believes that no action will directly 
result from the rule that will have a disproportionately high and 
adverse human health and environmental effect on any segment of the 
population. The Department will examine, however, the effects of 
implementation to ensure that no disproportionately high and adverse 
human health or environmental effect occurs.

G. Federalism Considerations Under Executive Order 13132

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), establishes certain requirements for federal agencies 
issuing regulations, legislative comments, proposed legislation, or 
other policy statements or actions that have ``federal implications.'' 
Under the Executive Order, any of these agency documents or actions 
have ``federal implications'' when they have ``substantial direct 
effects on the states, on the relationship between the national 
government and the states, or on the distribution of power and 
responsibilities among the various levels of government.'' Section 6 of 
the Executive Order prohibits any agency from issuing a regulation that 
has federal implications, imposes substantial direct compliance costs 
on state and local governments, and is not required by statute. Such a 
regulation may be issued only if the federal government provides the 
funds necessary to pay the direct compliance costs incurred by state 
and local governments, or the agency consults with state and local 
officials early in the process of developing the proposed regulation. 
Further, a federal agency may issue a regulation that has federalism 
implications and preempts state law only if the agency consults with 
state and local officials early in the process of developing the 
proposed regulation.
    The rule does not have federalism implications because it will not 
have substantial direct effects on the states, on the relationship 
between the national government and the states, or on the distribution 
of power and responsibilities among the various levels of government. 
The statute authorizing the Department's environmental restoration 
program, 10 U.S.C. 2701, clearly defines the role and responsibilities 
of the Department with respect to state and local governments. The role 
and primary responsibility of the Department is to implement an 
appropriate environmental restoration program at MRSs. The Department 
funds environmental restoration activities and does not directly affect 
the states in any manner. The only potential dispute regarding 
distribution of power may arise where the state attempts to require the 
Department to respond to an MRS under a state hazardous waste law, and 
the Department has not ranked the MRS as a high priority or allocated 
funding for environmental restoration of the MRS. Such a situation, 
however, would be dealt with per established legal principles regarding 
the relationship of states to the federal government. The rule does not 
alter this relationship. Additionally, it would not be appropriate for 
the rule to attempt to assign roles to the Department or any state 
because such assignment of roles is outside the scope of the statutory 
mandate. The rule does not impose direct compliance costs on state or 
local governments because the Department funds environmental 
restoration activities.
    Finally, development of a method for prioritizing action at MRSs 
was specifically required by statute. Therefore, the requirements of 
the Executive Order, Section 6, do not apply to the rule.

List of Subjects in 32 CFR Part 179

    Arms and munitions, Environmental protection, Government property, 
Military personnel.


0
Accordingly, 32 CFR part 179 is added to Chapter 1, Subchapter H to 
read as follows:

PART 179--MUNITIONS RESPONSE SITE PRIORITIZATION PROTOCOL (MRSPP)

Sec.
179.1. Purpose.
179.2. Applicability and scope.
179.3. Definitions.
179.4. Policy.
179.5. Responsibilities.
179.6. Procedures.
179.7. Sequencing.

Appendix A to Part 179--Tables of the Munitions Response Site 
Prioritization Protocol (MRSPP).

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


Sec.  179.1  Purpose.

    The Department of Defense (the Department) is adopting this 
Munitions Response Site Prioritization Protocol (MRSPP) (hereinafter 
referred to as the ``rule'') under the authority of 10 U.S.C. 2710(b). 
Provisions of 10 U.S.C. 2710(b) require that the Department assign to 
each defense site in the inventory required by 10 U.S.C. 2710(a) a 
relative priority for response activities based on the overall 
conditions at each location and taking into consideration various 
factors related to safety and environmental hazards.


Sec.  179.2  Applicability and scope.

    (a) This part applies to the Office of the Secretary of Defense, 
the Military Departments, the Defense Agencies and the Department Field 
Activities, and any other Department organizational entity or 
instrumentality established to perform a government function (hereafter 
referred to collectively as the ``Components'').
    (b) The rule in this part shall be applied at all locations:
    (1) That are, or were, owned by, leased to, or otherwise possessed 
or used by the Department, and
    (2) That are known to, or suspected of, containing unexploded 
ordnance (UXO), discarded military munitions (DMM), or munitions 
constituents (MC), and
    (3) That are included in the inventory established pursuant to 10 
U.S.C. 2710(a).
    (c) The rule in this part shall not be applied at the locations not 
included in the inventory required under 10 U.S.C. 2710(a). The 
locations not included in the inventory are:
    (1) Locations that are not, or were not, owned by, leased to, or 
otherwise possessed or used by the Department,
    (2) Locations neither known to contain, or suspected of containing, 
UXO, DMM, or MC,
    (3) Locations outside the United States,
    (4) Locations where the presence of military munitions results from 
combat operations,
    (5) Currently operating military munitions storage and 
manufacturing facilities,
    (6) Locations that are used for, or were permitted for, the 
treatment or disposal of military munitions, and
    (7) Operational ranges.


Sec.  173.3  Definitions.

    This part includes definitions for many terms that clarify its 
scope and applicability. Many of the terms relevant to this part are 
already defined, either in 10 U.S.C. 101, 10 U.S.C.

[[Page 58029]]

2710(e), or the Code of Federal Regulations. Where this is the case, 
the statutory and regulatory definitions are repeated here strictly for 
ease of reference. Citations to the U.S. Code or the Code of Federal 
Regulations are provided with the definition, as applicable. Unless 
used elsewhere in the U.S. Code or the Code of Federal Regulations, 
these terms are defined only for purposes of this part.
    Barrier means a natural obstacle or obstacles (e.g., difficult 
terrain, dense vegetation, deep or fast-moving water), a man-made 
obstacle or obstacles (e.g., fencing), and combinations of natural and 
man-made obstacles.
    Chemical agent (CA) means a chemical compound (to include 
experimental compounds) that, through its chemical properties produces 
lethal or other damaging effects on human beings, is intended for use 
in military operations to kill, seriously injure, or incapacitate 
persons through its physiological effects. Excluded are research, 
development, testing and evaluation (RDTE) solutions; riot control 
agents; chemical defoliants and herbicides; smoke and other obscuration 
materials; flame and incendiary materials; and industrial chemicals. 
(This definition is based on the definition of ``chemical agent and 
munition'' in 50 U.S.C. 1521(j)(1).)
    Chemical Agent (CA) Hazard is a condition where danger exists 
because CA is present in a concentration high enough to present 
potential unacceptable effects (e.g., death, injury, damage) to people, 
operational capability, or the environment.
    Chemical Warfare Materiel (CWM) means generally configured as a 
munition containing a chemical compound that is intended to kill, 
seriously injure, or incapacitate a person through its physiological 
effects. CWM includes V- and G-series nerve agents or H-series 
(mustard) and L-series (lewisite) blister agents in other-than-munition 
configurations; and certain industrial chemicals (e.g., hydrogen 
cyanide (AC), cyanogen chloride (CK), or carbonyl dichloride (called 
phosgene or CG)) configured as a military munition. Due to their 
hazards, prevalence, and military-unique application, chemical agent 
identification sets (CAIS) are also considered CWM. CWM does not 
include riot control devices; chemical defoliants and herbicides; 
industrial chemicals (e.g., AC, CK, or CG) not configured as a 
munition; smoke and other obscuration-producing items; flame and 
incendiary-producing items; or soil, water, debris, or other media 
contaminated with low concentrations of chemical agents where no CA 
hazards exist. For the purposes of this Protocol, CWM encompasses four 
subcategories of specific materials:
    (1) CWM, explosively configured are all munitions that contain a CA 
fill and any explosive component. Examples are M55 rockets with CA, the 
M23 VX mine, and the M360 105-mm GB artillery cartridge.
    (2) CWM, nonexplosively configured are all munitions that contain a 
CA fill, but that do not contain any explosive components. Examples are 
any chemical munition that does not contain explosive components and VX 
or mustard agent spray canisters.
    (3) CWM, bulk container are all non-munitions-configured containers 
of CA (e.g., a ton container) and CAIS K941, toxic gas set M-1 and 
K942, toxic gas set M-2/E11.
    (4) CAIS are military training aids containing small quantities of 
various CA and other chemicals. All forms of CAIS are scored the same 
in this rule, except CAIS K941, toxic gas set M-1; and CAIS K942, toxic 
gas set M-2/E11, which are considered forms of CWM, bulk container, due 
to the relatively large quantities of agent contained in those types of 
sets.
    Components means the Office of the Secretary of Defense, the 
Military Departments, the Defense Agencies, the Department Field 
Activities, and any other Department organizational entity or 
instrumentality established to perform a government function.
    Defense site means locations that are or were owned by, leased to, 
or otherwise possessed or used by the Department. The term does not 
include any operational range, operating storage or manufacturing 
facility, or facility that is used for or was permitted for the 
treatment or disposal of military munitions. (10 U.S.C. 2710(e)(1))
    Discarded military munitions (DMM) means military munitions that 
have been abandoned without proper disposal or removed from storage in 
a military magazine or other storage area for the purpose of disposal. 
The term does not include UXO, military munitions that are being held 
for future use or planned disposal, or military munitions that have 
been properly disposed of consistent with applicable environmental laws 
and regulations. (10 U.S.C. 2710(e)(2))
    Explosive hazard means a condition where danger exists because 
explosives are present that may react (e.g., detonate, deflagrate) in a 
mishap with potential unacceptable effects (e.g., death, injury, 
damage) to people, property, operational capability, or the 
environment.
    Military munitions means all ammunition products and components 
produced for or used by the armed forces for national defense and 
security, including ammunition products or components under the control 
of the Department of Defense, the Coast Guard, the Department of 
Energy, and the National Guard. The term includes confined gaseous, 
liquid, and solid propellants; explosives, pyrotechnics, chemical and 
riot control agents, smokes, and incendiaries, including bulk 
explosives and chemical warfare agents; chemical munitions, rockets, 
guided and ballistic missiles, bombs, warheads, mortar rounds, 
artillery ammunition, small arms ammunition, grenades, mines, 
torpedoes, depth charges, cluster munitions and dispensers, and 
demolition charges; and devices and components of any item thereof. The 
term does not include wholly inert items, improvised explosive devices, 
and nuclear weapons, nuclear devices, and nuclear components, other 
than nonnuclear components of nuclear devices that are managed under 
the nuclear weapons program of the Department of Energy after all 
required sanitization operations under the Atomic Energy Act of 1954 
(42 U.S.C. 2011 et seq.) have been completed. (10 U.S.C. 101(e)(4))
    Military range means designated land and water areas set aside, 
managed, and used to research, develop, test, and evaluate military 
munitions, other ordnance, or weapon systems, or to train military 
personnel in their use and handling. Ranges include firing lines and 
positions, maneuver areas, firing lanes, test pads, detonation pads, 
impact areas, and buffer zones with restricted access and exclusionary 
areas. (40 CFR 266.201)
    Munitions and explosives of concern distinguishes specific 
categories of military munitions that may pose unique explosives safety 
risks, such as UXO, as defined in 10 U.S.C. 101(e)(5); discarded 
military munitions, as defined in 10 U.S.C. 2710(e)(2); or munitions 
constituents (e.g., TNT, RDX), as defined in 10 U.S.C. 2710(e)(3), 
present in high enough concentrations to pose an explosive hazard.
    Munitions constituents means any materials originating from UXO, 
discarded military munitions, or other military munitions, including 
explosive and nonexplosive materials, and emission, degradation, or 
breakdown elements of such ordnance or munitions. (10 U.S.C. 
2710(e)(3))
    Munitions response means response actions, including investigation, 
removal actions, and remedial actions, to address the explosives 
safety, human

[[Page 58030]]

health, or environmental risks presented by UXO, discarded military 
munitions (DMM), or munitions constituents (MC), or to support a 
determination that no removal or remedial action is required.
    Munitions response area (MRA) means any area on a defense site that 
is known or suspected to contain UXO, DMM, or MC. Examples are former 
ranges and munitions burial areas. An MRA comprises one or more 
munitions response sites.
    Munitions response site (MRS) means a discrete location within an 
MRA that is known to require a munitions response.
    Operational range means a range that is under the jurisdiction, 
custody, or control of the Secretary of Defense and that is used for 
range activities, or although not currently being used for range 
activities, that is still considered by the Secretary to be a range and 
has not been put to a new use that is incompatible with range 
activities. (10 U.S.C. 101(e)(3))
    Range means a designated land or water area that is set aside, 
managed, and used for range activities of the Department of Defense. 
The term includes firing lines and positions, maneuver areas, firing 
lanes, test pads, detonation pads, impact areas, electronic scoring 
sites, buffer zones with restricted access, and exclusionary areas. The 
term also includes airspace areas designated for military use in 
accordance with regulations and procedures prescribed by the 
Administrator of the Federal Aviation Administration. (10 U.S.C. 
101(e)(1)(A) and (B))
    Range activities means research, development, testing, and 
evaluation of military munitions, other ordnance, and weapons systems; 
and the training of members of the armed forces in the use and handling 
of military munitions, other ordnance, and weapons systems. (10 U.S.C. 
101(3)(2))
    Unexploded ordnance (UXO) means military munitions that:
    (1) Have been primed, fuzed, armed, or otherwise prepared for 
action;
    (2) Have been fired, dropped, launched, projected, or placed in 
such a manner as to constitute a hazard to operations, installations, 
personnel, or material; and
    (3) Remain unexploded, whether by malfunction, design, or any other 
cause. (10 U.S.C. 101(e)(5))
    United States means, in a geographic sense, the states, 
territories, and possessions and associated navigable waters, 
contiguous zones, and ocean waters of which the natural resources are 
under the exclusive management authority of the United States. (10 
U.S.C. 2710(e)(10))


Sec.  179.4  Policy.

    (a) In assigning a relative priority for response activities, the 
Department generally considers those MRSs posing the greatest hazard as 
being the highest priority for action. The priority assigned should be 
based on the overall conditions at each MRS, taking into consideration 
various factors relating to safety and environmental hazard potential.
    (b) In addition to the priority assigned to an MRS, other 
considerations (e.g., availability of specific equipment, intended 
reuse, stakeholder interest) can affect the sequence in which munitions 
response actions at a specific MRS are funded.
    (c) It is Department policy to ensure that U.S. EPA, other federal 
agencies (as appropriate or required), state regulatory agencies, 
tribal governments, local restoration advisory boards or technical 
review committees, and local stakeholders are offered opportunities to 
participate in the application of the rule in this part and making 
sequencing recommendations.


Sec.  179.5  Responsibilities.

    Each Component shall:
    (a) Apply the rule in this part to each MRS under its 
administrative control when sufficient data are available to populate 
all the data elements within any or all of the three hazard evaluation 
modules that comprise the rule. Upon further delineation and 
characterization of an MRA into more than one MRS, Components shall 
reapply the rule to all MRSs within the MRA. In such cases where data 
are not sufficient to populate one or two of the hazard evaluation 
modules (e.g., there are no constituent sampling data for the Health 
Hazard Evaluation [HHE] module), Components will assign a priority 
based on the hazard evaluation modules evaluated and reapply the rule 
once sufficient data are available to apply the remaining hazard 
evaluation modules.
    (b) Ensure that the total acreage of each MRA is evaluated using 
this rule (i.e., ensure the all MRSs within the MRA are evaluated).
    (c) Ensure that EPA, other federal agencies (as appropriate or 
required), state regulatory agencies, tribal governments, local 
restoration advisory boards or technical review committees, local 
community stakeholders, and the current landowner (if the land is 
outside Department control) are offered opportunities as early as 
possible and throughout the process to participate in the application 
of the rule and making sequencing recommendations.
    (1) To ensure EPA, other federal agency, state regulatory agencies, 
tribal governments, and local government officials are aware of the 
opportunity to participate in the application of the rule, the 
Component organization responsible for implementing a munitions 
response at the MRS shall notify the heads of these organizations (or 
their designated point of contact), as appropriate, seeking their 
involvement prior to beginning prioritization. Records of the 
notification will be placed in the Administrative Record and 
Information Repository for the MRS.
    (2) Prior to beginning prioritization, the Component organization 
responsible for implementing a munitions response at the MRS shall 
publish an announcement in local community publications requesting 
information pertinent to prioritization or sequencing decisions to 
ensure the local community is aware of the opportunity to participate 
in the application of the rule.
    (d) Establish a quality assurance panel of Component personnel to 
review, initially, all MRS prioritization decisions. Once the 
Department determines that its Components are applying the rule in a 
consistent manner and the rule's application leads to decisions that 
are representative of site conditions, the Department may establish a 
sampling-based approach for its Components to use for such reviews. 
This panel reviewing the priority assigned to an MRS shall not include 
any participant involved in applying the rule to that MRS. If the panel 
recommends a change that results in a different priority, the Component 
shall report, in the inventory data submitted to the Office of the 
Deputy Under Secretary of Defense (Installations & Environment) 
(ODUSD[I&E]), the rationale for this change. The Component shall also 
provide this rationale to the appropriate regulatory agencies and 
involved stakeholders for comment before finalizing the change.
    (e) Following the panel review, submit the results of applying the 
rule along with the other inventory data that 10 U.S.C. 2710(c) 
requires be made publicly available, to the ODUSD(I&E). The ODUSD(I&E) 
shall publish this information in the report on environmental 
restoration activities for that fiscal year. If sequencing decisions 
result in action at an MRS with a lower MRS priority ahead of an MRS 
with a higher MRS priority, the Component shall provide specific 
justification to the ODUSD(I&E).
    (f) Document in a Management Action Plan (MAP) or its equivalent 
all aspects

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of the munitions responses required at all MRSs for which that MAP is 
applicable. Department guidance requires that MAP be developed and 
maintained at an installation (or Formerly Used Defense Site [FUDS] 
property) level and address each site at that installation or FUDS. For 
the FUDS program, a statewide MAP may also be developed.
    (g) Develop sequencing decisions at installations and FUDS with 
input from appropriate regulators and stakeholders (e.g., community 
members of an installation's restoration advisory board or technical 
review committee), and document this development in the MAP. Final 
sequencing may be impacted by Component program management 
considerations. If the sequencing of any MRS is changed from the 
sequencing reflected in the current MAP, the Component shall provide 
information to the appropriate regulators and stakeholders documenting 
the reasons for the sequencing change, and shall request their review 
and comment on that decision.
    (h) Ensure that information provided by regulators and stakeholders 
that may influence the priority assigned to an MRS or sequencing 
decision concerning an MRS is included in the Administrative Record and 
the Information Repository.
    (i) Review each MRS priority at least annually and update the 
priority as necessary to reflect new information. Reapplication of the 
rule is required under any of the following circumstances:
    (1) Upon completion of a response action that changes site 
conditions in a manner that could affect the evaluation under this 
rule.
    (2) To update or validate a previous evaluation at an MRS when new 
information is available.
    (3) To update or validate the priority assigned where that priority 
has been previously assigned based on evaluation of only one or two of 
the three hazard evaluation modules.
    (4) Upon further delineation and characterization of an MRA into 
MRSs.
    (5) To categorize any MRS previously classified as ``evaluation 
pending.''


Sec.  179.6  Procedures.

    The rule in this part comprises the following three hazard 
evaluation modules.
    (a) Explosive Hazard Evaluation (EHE) module.
    (1) The EHE module provides a single, consistent, Department-wide 
approach for the evaluation of explosive hazards. This module is used 
when there is a known or suspected presence of an explosive hazard. The 
EHE module is composed of three factors, each of which has two to four 
data elements that are intended to assess the specific conditions at an 
MRS. These factors are:
    (i) Explosive hazard, which has the data elements Munitions Type 
and Source of Hazard and constitutes 40 percent of the EHE module 
score. (See Appendix A to this part, Tables 1 and 2.)
    (ii) Accessibility, which has the data elements Location of 
Munitions, Ease of Access, and Status of Property and constitutes 40 
percent of the EHE module score. (See Appendix A, Tables 3, 4, and 5.)
    (iii) Receptors, which has the data elements Population Density, 
Population Near Hazard, Types of Activities/Structures, and Ecological 
and/or Cultural Resources and constitutes 20 percent of the EHE module 
score. (See Appendix A, Tables 6, 7, 8, and 9.)
    (2) Based on MRS-specific information, each data element is 
assigned a numeric score, and the sum of these score is the EHE module 
score. The EHE module score results in an MRS being placed into one of 
the following ratings. (See Appendix A, Table 10.)
    (i) EHE Rating A (Highest) is assigned to MRSs with an EHE module 
score from 92 to 100.
    (ii) EHE Rating B is assigned to MRSs with an EHE module score from 
82 to 91.
    (iii) EHE Rating C is assigned to MRSs with an EHE module score 
from 71 to 81.
    (iv) EHE Rating D is assigned to MRSs with an EHE module score from 
60 to 70.
    (v) EHE Rating E is assigned to MRSs with an EHE module score from 
48 to 59.
    (vi) EHE Rating F is assigned to MRSs with an EHE module score from 
38 to 47.
    (vii) EHE Rating G (Lowest) is assigned to MRSs with an EHE module 
score less than 38.
    (3) There are also three other possible outcomes for the EHE 
module:
    (i) Evaluation pending. This category is used when there are known 
or suspected UXO or DMM, but sufficient information is not available to 
populate the nine data elements of the EHE module.
    (ii) No longer required. This category is reserved for MRSs that no 
longer require an assigned priority because the Department has 
conducted a response, all objectives set out in the decision document 
for the MRS have been achieved, and no further action, except for long-
term management and recurring reviews, is required.
    (iii) No known or suspected explosive hazard. This category is 
reserved for MRSs that do not require evaluation under the EHE module.
    (4) The EHE module rating shall be considered with the CHE and HHE 
module ratings to determine the MRS priority.
    (5) MRSs lacking information for determining an EHE module rating 
shall be programmed for additional study and evaluated as soon as 
sufficient data are available. Until an EHE module rating is assessed, 
MRSs shall be rated as ``evaluation pending'' for the EHE module.
    (b) Chemical Warfare Materiel Hazard Evaluation (CHE) module. (1) 
The CHE module provides an evaluation of the chemical hazards 
associated with the physiological effects of CWM. The CHE module is 
used only when CWM are known or suspected of being present at an MRS. 
Like the EHE module, the CHE module has three factors, each of which 
has two to four data elements that are intended to assess the 
conditions at an MRS.
    (i) CWM hazard, which has the data elements CWM Configuration and 
Sources of CWM and constitutes 40 percent of the CHE score. (See 
Appendix A to this part, Tables 11 and 12.)
    (ii) Accessibility, which focuses on the potential for receptors to 
encounter the CWM known or suspected to be present on an MRS. This 
factor consists of three data elements, Location of CWM, Ease of 
Access, and Status of Property, and constitutes 40 percent of the CHE 
score. (See Appendix A, Tables 13, 14, and 15.)
    (iii) Receptor, which focuses on the human and ecological 
populations that may be impacted by the presence of CWM. It has the 
data elements Population Density, Population Near Hazard, Types of 
Activities/Structures, and Ecological and/or Cultural Resources and 
constitutes 20 percent of the CHE score. (See Appendix A, Tables 16, 
17, 18, and 19.)
    (2) Similar to the EHE module, each data element is assigned a 
numeric score, and the sum of these scores (i.e., the CHE module score) 
is used to determine the CHE rating. The CHE module score results in an 
MRS being placed into one of the following ratings. (See Appendix A, 
Table 20.)
    (i) CHE Rating A (Highest) is assigned to MRSs with a CHE score 
from 92 to 100.
    (ii) CHE Rating B is assigned to MRSs with a CHE score from 82 to 
91.

[[Page 58032]]

    (iii) CHE Rating C is assigned to MRSs with a CHE score from 71 to 
81.
    (iv) CHE Rating D is assigned to MRSs with a CHE score from 60 to 
70.
    (v) CHE Rating E is assigned to MRSs with a CHE score from 48 to 
59.
    (vi) CHE Rating F is assigned to MRSs with a CHE score from 38 to 
47.
    (vii) CHE Rating G (Lowest) is assigned to MRSs with a CHE score 
less than 38.
    (3) There are also three other potential outcomes for the CHE 
module:
    (i) Evaluation pending. This category is used when there are known 
or suspected CWM, but sufficient information is not available to 
populate the nine data elements of the CHE module.
    (ii) No longer required. This category is reserved for MRSs that no 
longer require an assigned priority because the Department has 
conducted a response, all objectives set out in the decision document 
for the MRS have been achieved, and no further action, except for long-
term management and recurring reviews, is required.
    (iii) No known or suspected CWM hazard. This category is reserved 
for MRSs that do not require evaluation under the CHE module.
    (4) The CHE rating shall be considered with the EHE module and HHE 
module ratings to determine the MRS priority.
    (5) MRSs lacking information for assessing a CHE module rating 
shall be programmed for additional study and evaluated as soon as 
sufficient data are available. Until a CHE module rating is assigned, 
the MRS shall be rated as ``evaluation pending'' for the CHE module.
    (c) Health Hazard Evaluation (HHE) module.
    (1) The HHE provides a consistent Department-wide approach for 
evaluating the relative risk to human health and the environment posed 
by MC. The HHE builds on the RRSE framework that is used in the 
Installation Restoration Program (IRP) and has been modified to address 
the unique requirements of MRSs. The HHE module shall be used for 
evaluating the potential hazards posed by MC and other chemical 
contaminants. The HHE module is intended to evaluate MC at sites. Any 
incidental nonmunitions-related contaminants may be addressed 
incidental to a munitions response under the MMRP.
    (2) The module has three factors:
    (i) Contamination Hazard Factor (CHF), which indicates MC, and any 
nonmunitions-related incidental contaminants present; this factor 
contributes a level of High (H), Middle (M), or Low (L) based on 
Significant, Moderate, or Minimal contaminants present, respectively. 
(See Appendix A to this part, Table 21.)
    (ii) Receptor Factor (RF), which indicates the receptors; this 
factor contributes a level of H, M, or L based on Identified, 
Potential, or Limited receptors, respectively. (See Appendix A, Table 
21.)
    (iii) Migration Pathway Factor (MPF), which indicates environmental 
migration pathways, and contributes a level of H, M, or L based on 
Evident, Potential or Confined pathways, respectively. (See Appendix A, 
Table 21.)
    (3) The H, M, and L levels for the CHF, RF, and MPF are combined in 
a matrix to obtain composite three-letter combination levels that 
integrate considerations of all three factors. (See Appendix A, Table 
22.)
    (4) The three-letter combination levels are organized by frequency, 
and the resulting frequencies result in seven HHE ratings. (See 
Appendix A, Table 23.)
    (i) HHE Rating A (Highest) is assigned to MRSs with an HHE 
combination level of high for all three factors.
    (ii) HHE Rating B is assigned to MRSs with a combination level of 
high for CHF and RF and medium for MPF (HHM).
    (iii) HHE Rating C is assigned to MRSs with a combination level of 
high for the CHF and RF and low for MPF (HHL), or high for CHF and 
medium for the RF and MPF (HMM).
    (iv) HHE Rating D is assigned to MRSs with a combination level of 
high for the CHF, medium for the RF, and low for the MPF (HML), or 
medium for all three factors (MMM).
    (v) HHE Rating E is assigned to MRSs with a combination level of 
high for the CHF and low for the RF and MPF (HLL), or medium for the 
CHF and RF and low for the MPF (MML).
    (vi) HHE Rating F is assigned to MRSs with a combination level of 
medium for the CHF and low for the RF and MPF (MLL).
    (vii) HHE Rating G (Lowest) is assigned to MRSs with a combination 
level of low for all three factors (LLL).
    (5) The HHE three-letter combinations are replaced by the seven HHE 
ratings. (See Appendix A, Table 24.)
    (6) There are also three other potential outcomes for the HHE 
module:
    (i) Evaluation pending. This category is used when there are known 
or suspected MC, and any incidental nonmunitions-related contaminants 
present, but sufficient information is not available to determine the 
HHE module rating.
    (ii) No longer required. This category is reserved for MRSs that no 
longer require an assigned MRS priority because the Department has 
conducted a response, all objectives set out in the decision document 
for the MRS have been achieved, and no further action, except for long-
term management and recurring reviews, is required.
    (iii) No known or suspected munitions constituent hazard. This 
rating is reserved for MRSs that do not require evaluation under the 
HHE module.
    (7) The HHE module rating shall be considered with the EHE and CHE 
module ratings to determine the MRS priority.
    (8) MRSs lacking information sufficient for assessing an HHE module 
rating shall be programmed for additional study and evaluated as soon 
as sufficient data are available. Until an HHR module rating is 
assigned, the MRS shall be classified as ``evaluation pending'' for the 
HHE module.
    (d) Determining the MRS priority. (1) An MRS priority is determined 
based on integrating the ratings from the EHE, CHE, and HHE modules. 
Until all three hazard evaluation modules have been evaluated, the MRS 
priority shall be based on the results of the modules completed.
    (2) Each MRS is assigned to one of eight MRS priorities based on 
the ratings of the three hazard evaluation modules, where Priority 1 
indicates the highest potential hazard and Priority 8 the lowest 
potential hazard. Under the rule in this part, only MRSs with CWM can 
be assigned to Priority 1 and no MRS with CWM can be assigned to 
Priority 8. (See Appendix A to this part, Table 25.)
    (3) An ``evaluation pending'' rating is used to indicate that an 
MRS requires further evaluation. This designation is only used when 
none of the three modules has a numerical rating (i.e., 1 through 8) 
and at least one module is rated ``evaluation pending.'' The Department 
shall develop program metrics focused on reducing the number of MRSs 
with a status of ``evaluating pending'' for any of the three modules. 
(See Appendix A, Table 25.)
    (4) A ``no longer required'' rating is used to indicate that an MRS 
no longer requires prioritization. The MRS will receive this rating 
when none of the three modules has a numerical (i.e., 1 through 8) or 
an ``evaluation pending'' designation, and at least one of the modules 
is rated ``no longer required.''
    (5) A rating of ``no known or suspected hazard'' is used to 
indicate that an MRS has no known or expected hazard. This designation 
is used only when the hazard evaluation modules are

[[Page 58033]]

rated as ``no known or suspected explosive hazard,'' ``no known or 
suspected CWM hazard,'' and ``no known or suspected MC hazard.'' (See 
Appendix A, Table 25.)


Sec.  179.7  Sequencing.

    (a) Sequencing considerations. The sequencing of MRSs for action 
shall be based primarily on the MRS priority determined through 
applying the rule in this part. Generally, an MRS that presents a 
greater relative risk to human health, safety, or the environment will 
be addressed before an MRS that presents a lesser relative risk. Other 
factors, however, may warrant consideration when determining the 
sequencing for specific MRSs. In evaluating other factors in sequencing 
decisions, the Department will consider a broad range of issues. These 
other, or risk-plus factors, do not influence or change the MRS 
priority, but may influence the sequencing for action. Examples of 
factors that the Department may consider are:
    (1) Concerns expressed by regulators or stakeholders.
    (2) Cultural and social factors.
    (3) Economic factors, including economic considerations pertaining 
to environmental justice issues, economies of scale, evaluation of 
total life cycle costs, and estimated valuations of long-term 
liabilities.
    (4) Findings of health, safety, or ecological risk assessments or 
evaluations based on MRS-specific data.
    (5) Reasonably anticipated future land use, especially when 
planning response actions, conducting evaluations of response 
alternatives, or establishing specific response action objectives.
    (6) A community's reuse requirements at Base Realignment and 
Closure (BRAC) installations.
    (7) Specialized considerations of tribal trust lands (held in trust 
by the United States for the benefit of any tribe or individual). The 
United States holds the legal title to the land and the tribe holds the 
beneficial interest.
    (8) Implementation and execution considerations (e.g., funding 
availability; the availability of the necessary equipment and people to 
implement a particular action; examination of alternatives to responses 
that entail significant capital investments, a lengthy period of 
operation, or costly maintenance; alternatives to removal or treatment 
of contamination when existing technology cannot achieve established 
standards [e.g., maximum contaminant levels]).
    (9) Mission-driven requirements.
    (10) The availability of appropriate technology (e.g., technology 
to detect, discriminate, recover, and destroy UXO).
    (11) Implementing standing commitments, including those in formal 
agreements with regulatory agencies, requirements for continuation of 
remedial action operations until response objectives are met, other 
long-term management activities, and program administration.
    (12) Established program goals and initiatives.
    (13) Short-term and long-term ecological effects and environmental 
impacts in general, including injuries to natural resources.
    (b) Procedures and documentation for sequencing decisions. (1) Each 
installation or FUDS is required to develop and maintain a Management 
Action Plan (MAP) or its equivalent. Sequencing decisions, which will 
be documented in the MAP at military installations and FUDS, shall be 
developed with input from appropriate regulators and stakeholders 
(e.g., community members of an installation's restoration advisory 
board or technical review committee). If the sequencing of an MRS is 
changed from the sequencing reflected in the current MAP, information 
documenting the reasons for the sequencing change will be provided for 
inclusion in the MAP. Notice of the change in the sequencing shall be 
provided to those regulators and stakeholders that provided input to 
the sequencing process.
    (2) In addition to the information on prioritization, the 
Components shall ensure that information provided by regulators and 
stakeholders that may influence the sequencing of an MRS is included in 
the Administrative Record and the Information Repository.
    (3) Components shall report the results of sequencing to ODUSD(I&E) 
(or successor organizations). ODUSD(I&E) shall compile the sequencing 
results reported by each Component and publish the sequencing in the 
report on environmental restoration activities for that fiscal year. If 
sequencing decisions result in action at an MRS with a lower MRS 
priority ahead of an MRS with a higher priority, specific justification 
shall be provided to the ODUSD(I&E).

Appendix A to Part 179--Tables of the Munitions Response Site 
Prioritization Protocol

    The tables in this Appendix are solely for use in implementing 
32 CFR part 179.

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    Dated: September 27, 2005.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 05-19696 Filed 10-4-05; 8:45 am]
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