[Federal Register Volume 66, Number 202 (Thursday, October 18, 2001)]
[Rules and Regulations]
[Pages 53044-53048]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-26265]
[[Page 53043]]
-----------------------------------------------------------------------
Part III
Environmental Protection Agency
-----------------------------------------------------------------------
40 CFR Part 9, 122, 123, 124, and 130
Effective Date of Revisions to the Water Quality Planning and
Management Regulation and Revisions to the National Pollutant Discharge
Elimination System Program in Support of Revisions to the Water Quality
Planning and Management Regulations; and Revision of the Date for State
Submission of the 2002 List of Impaired Waters; Final Rule
Federal Register / Vol. 66 , No. 202 / Thursday, October 18, 2001 /
Rules and Regulations
[[Page 53044]]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 9, 122, 123, 124, and 130
[WH-FRL-7086-1]
RIN 2040-AD79
Effective Date of Revisions to the Water Quality Planning and
Management Regulation and Revisions to the National Pollutant Discharge
Elimination System Program in Support of Revisions to the Water Quality
Planning and Management Regulations; and Revision of the Date for State
Submission of the 2002 List of Impaired Waters
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: Today's action establishes April 30, 2003 as the effective
date of the revisions to EPA's Total Maximum Daily Load (TMDL) and
National Pollutant Discharge Elimination System Program (NPDES)
regulations published in the Federal Register on July 13, 2000. The
July 2000 rule amends and clarifies existing regulations implementing
section 303(d) of the Clean Water Act (CWA), which requires States to
identify waters that are not meeting State water quality standards and
to establish pollutant budgets, called TMDLs, to restore the quality of
those waters. The rule also lays out specific time frames under which
EPA will assure that lists of waters not meeting water quality
standards (the 303(d) lists) and TMDLs are completed as scheduled, and
that necessary point and nonpoint source controls are implemented to
meet TMDLs.
In addition, today's action amends 40 CFR 130.7(d)(1), currently in
effect, to revise the date on which States are required to submit the
next list of impaired waters from April 1, 2002 to October 1, 2002.
This new date will provide States who wish to do so the time to
incorporate some or all of the recommendations suggested by EPA in a
forthcoming guidance entitled: 2002 Integrated Water Quality Monitoring
and Assessment Report Guidance, which is currently undergoing a final
review.
DATES: The July 2000 rule amending 40 CFR parts 9,122,123,124 and 130
published on July 13, 2000 at 65 FR 43586 is effective on April 30,
2003. The amendment to 40 CFR 130.7(d)(1) made by this rule is
effective November 19, 2001. This action is considered issued for
purposes of judicial review as of 1 p.m. Eastern Daylight Time, on
November 1, 2001 as provided in Sec. 23.2.
ADDRESSES: The complete administrative record for the final rule has
been established under docket number W-98-31-III TMDL, and includes
supporting documentation as well as printed, paper versions of
electronic comments. The docket is available for inspection from 9 a.m.
to 4 p.m. Eastern Time, Monday through Friday excluding legal holidays
at the Water Docket; EB 57; U.S. EPA; 401 M Street, SW., Washington, DC
20460. For access to docket materials, please call (202) 260-3027
between 9 a.m. and 4 p.m. An electronic version of this final rule will
be available via the Internet at: http://www.epa.gov/owow/tmdl/defer/
FOR FURTHER INFORMATION CONTACT: For information about today's final
rule, contact: Francoise M. Brasier, U.S. EPA Office or Wetlands,
Oceans and Watersheds (4503F), U.S. Environmental Protection Agency,
1200 Pennsylvania Avenue, NW., Washington, DC 20460, phone (202) 401-
4078.
SUPPLEMENTARY INFORMATION:
A. Authority
Clean Water Act sections 106, 205(g), 205(j), 208, 301, 302, 303,
305, 308, 319, 402, 501 502, and 603; 33 U.S.C. 1256, 1285(g), 1285(j),
1288, 1311, 1312, 1313, 1315, 1318, 1329, 1342, 1361, 1362, and 1373.
B. Entities Potentially Regulated by the Proposed Rule
Table of Potentially Regulated Entities
------------------------------------------------------------------------
Examples of potentially
Category regulated entities
------------------------------------------------------------------------
Governments............................ States, Territories and Tribes
with CWA responsibilities
------------------------------------------------------------------------
The table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities potentially regulated by this
action. This table lists the types of entities that EPA is now aware
could potentially be regulated by this action. Other types of entities
not listed in this table could also be regulated by this action. To
determine whether you may be regulated by this action, you should
carefully examine the applicability criteria in Sec. 130.20 of title 40
of the Code of Federal Regulations. If you have any questions regarding
the applicability of this action to you, consult the person listed in
the FOR FURTHER INFORMATION CONTACT section.
C. Explanation of Today's Action
I. Background
On August 9, 2001, EPA proposed to take two actions regarding the
TMDL program. First, EPA proposed to delay by 18 months the effective
date of a rule published in the Federal Register on July 13, 2000,
which amends existing regulations governing the TMDL program. The July
2000 rule generated considerable controversy, as expressed in letters,
testimony, public meetings, Congressional action, and litigation.
Congress prohibited EPA from implementing the final rule through a
spending prohibition attached to an FY2000 appropriations bill, which
prohibited EPA from using funds made available for FY2000 and FY2001
``to make a final determination on or implement'' the July 2000 TMDL
rule. Cognizant of this spending prohibition, in the preamble to the
July 2000 rule, EPA said that the July 2000 rule was not effective
``until 30 days after the date that Congress allows EPA to implement
this regulation'' and that EPA would publish notice of the effective
date in the Federal Register. Second, EPA proposed to revise its
currently effective regulations to postpone the date by which States
are required to submit the next section 303(d) list of impaired waters
from April 1, 2002 to October 1, 2002. This delay was intended to
provide time for EPA to issue guidance incorporating some of the
National Research Council's (NRC) recommendations regarding the
methodology used to develop the 303(d) lists and the content of these
lists.
Based on concerns expressed by many interested organizations and in
light of a recent report from the National Research Council (NRC),
entitled ``Assessing the TMDL Approach to Water Quality Management,''
which recommends changes to the TMDL program, EPA believes that it is
important at this time to re-consider some of the choices made in the
July 2000 rule, while continuing to operate the program under the 1985
TMDL regulations, as amended in 1992. A delay of the effective date
would allow the Agency to solicit and carefully consider suggestions on
how to structure the TMDL program to be effective and flexible and to
ensure that it leads to workable solutions that will meet the Clean
Water Act goals of restoring impaired waters. In addition, EPA believes
that its decision voluntarily to reconsider the July 2000 rule may
result in revisions to the rule that would resolve at least some of the
issues raised in pending litigation in the D.C. Circuit Court of
Appeals. Instead of
[[Page 53045]]
expending resources in lengthy litigation, EPA believes it can speed up
the process of putting in place a more workable program, while building
a foundation of trust among stakeholders in the basic process for
restoring impaired waters. Once this foundation is soundly built, it is
far more likely that diverse stakeholders will be able to agree on
plans for restoring water quality and far more likely that these
important plans will be implemented.
II. Response to Comments and Final Decisions
Effective Date of the Final Regulations
EPA received approximately 100 separate comment letters and 85
duplicate postcards regarding its proposal to delay the effective date
of the July 2000 rule. A majority of individual commenters supported
EPA's action noting the controversy generated by the rule, the issues
raised in recent lawsuits challenging the July 2000 rule, and the need
to reevaluate the flexibility, practicality and scope of the rule.
Other commenters, however, expressed concerns that postponing the
effective date of the July 2000 rule would significantly impede
progress towards cleaning up the nation's impaired waters. EPA does not
agree with these commenters that an 18-month delay of the effective
date of the July 2000 rule will significantly slow down the pace at
which impaired waters are restored. In recent years, EPA and the States
have made great strides in implementing the existing 303(d) program to
list impaired waters and develop and implement TMDLs. States have
substantially improved their TMDL programs while the Agency has
provided the States with significant increases in technical and
financial support to expand and strengthen all elements of their
programs. EPA and the States also are cooperatively undertaking
workshops around the country to present successful approaches to
developing and implementing TMDLs. Much of this progress is driven by
TMDL litigation. To date, environmental groups have filed legal actions
in 38 States. Over 20 of these lawsuits have resulted in court orders
or consent decrees under which EPA is required to establish TMDLs if
the State fails to do so pursuant to specific schedules. The pace of
TMDL establishment has increased greatly over the last few years with
almost twice as many TMDLs approved or established by EPA in 2001 as in
2000.
Current court orders and consent decrees require EPA to establish
(if the States do not) approximately 2000 TMDLs in the next 18 to 24
months. These requirements are in place independently of any separate
requirements in the July 2000 rule. Accordingly, EPA does not believe
that an 18-month delay in the July 2000 rule's effective date will in
any significant way slow the development of TMDLs.
Some commenters opposed to the delay of the effective date of the
July 2000 rule expressed concerns that TMDLs established during that
delay might not include implementation plans, which they see as an
essential component of the July 2000 rule. It is true that, absent a
requirement to include an implementation plan as part of a TMDL as
required by the July 2000 rule, States may not develop implementation
plans for all TMDLs. However, section 130.37 of the July 2000 rule
provided that EPA could approve a TMDL without an implementation plan
during a 9-month transition period following the effective date of the
July 2000 rule. Accordingly, for one half of the 18-month delay period,
implementation plans would not have been required for TMDL approval.
Moreover, EPA is working in other ways to ensure that management
measures reflecting load allocations in TMDLs are undertaken. For
example, EPA issued a guidance on September 13, 2001 entitled
``Supplemental Guidelines for the Award of Section 319 Nonpoint Source
Grants to States and Territories in FY 2002 and Subsequent Years''
available at http://www.epa.gov/owow/nps/Section319/fy2002.html, which
provides for a more concentrated focus on the implementation of TMDLs
related to nonpoint source pollution for FY 2003 and beyond. Finally,
even under the currently effective TMDL regulations, States may submit
and some, such as California, Virginia, Washington and Oregon, have
been submitting implementation plans along with TMDLs.
Some commenters who agreed that EPA should delay the effective date
of the rule suggested that EPA should do so for longer than 18 months.
EPA disagrees. EPA believes that 18 months should be a sufficient time
to reconsider the controversial elements of the July 2000 rule that
have already been the subject of significant comments and dialogue.
Other commenters who agreed with EPA also submitted comments regarding
the requirements which EPA should consider including in a new rule. EPA
will consider these recommendations as it reevaluates the July 2000
rule. Several commenters also suggested that EPA should provide the
public a detailed schedule for issuance of a new rule including
information on planned public outreach and the internal Agency decision
process. On October 9, 2001, EPA announced a series of outreach
meetings and has posted information regarding these meetings on the
internet. EPA also intends to post discussion guides and meeting
summaries on the internet. In addition, EPA will, to the best of its
ability, meet and share information with stakeholders as it develops
any revisions to the July 2000 rule.
EPA is committed to structuring a flexible, effective TMDL program
that States, Territories and authorized Tribes can support and
implement. EPA believes that, given its decision to reconsider the July
2000 rule and to do so in an expeditious manner, it would be
undesirable to have the July 2000 rule go into effect now for a
relatively short time. This is especially so given that the rule's
requirements would not be mandatory for another nine months (65 FR
43635). The Agency believes that by delaying the effective date of the
July 2000 rule until April 30, 2003, it will be better able to
reconsider the rule and address concerns expressed about it by a wide
range of stakeholders. The Agency hopes to be able to narrow the
differences among the diverse stakeholders interested in or are
affected by the TMDL rules such that a framework is established under
which TMDLs will actually be implemented in a timely and cost-effective
manner.
Therefore, after carefully considering all the comments received on
delaying the effective date of the July 2000 rule, EPA is promulgating
a final action today that establishes April 30, 2003 as the effective
date of the TMDL rule published in the Federal Register on July 13,
2000 (65 FR 43586). EPA believes that this delay of the effective date
is the minimum necessary for the Agency to be able to conduct a
meaningful consultation with the public, analyze recommendations of
various stakeholders, reconcile concerns about the scope, complexity,
and cost of the TMDL program, and structure a flexible yet effective
solution to meet Clean Water Act goals of restoring the nation's
impaired waters. During this delay, the program will continue to
operate under the 1985 TMDL regulations, as amended in 1992 at 40 CFR
part 130, and EPA and the States and Territories will continue to
develop TMDLs to work towards cleaning up the nation's waters and
meeting water quality standards.
[[Page 53046]]
Revisions to the Due Date of the Next List of Impaired Waters
EPA received approximately 60 separate comments and 85 duplicate
postcards regarding its proposal to revise the date on which States are
required to submit the next section 303(d) list of impaired waters from
April 1, 2002 to October 1, 2002. A substantial number of individual
commenters agreed with the Agency's proposal and its rationale.
However, several commenters disagreed. A few commenters stated that the
Agency should not allow any more time for States to develop the next
list. In their view, an April 2002 list already represents a two-year
delay because EPA had earlier eliminated the requirement for States to
submit a list to EPA on April 1, 2000. They also disagreed with EPA's
rationale that new guidance was needed before States should be required
to submit a new list. They argued any guidance issued at this time
would have to follow the current regulations and could not incorporate
some of the recommendations of the NRC. They, therefore, believed that
existing guidance was sufficient to produce the 2002 list. EPA agrees
that any guidance it issues at this point must be based on current
regulations and it is not EPA's intent to change these existing
regulations by guidance. However, EPA believes that within the context
of the current regulations, there is sufficient flexibility to issue
guidance that it believes could significantly improve some States'
lists. EPA has drafted a guidance entitled ``2002 Integrated Water
Quality Monitoring and Assessment Report Guidance'' which will be
released shortly. EPA believes that States should be given additional
time to review and incorporate some of the elements of the guidance in
their next list if they so wish. For that reason, EPA continues to
believe that a relatively brief 6-month delay of the 303(d) lists' due
date is warranted.
Some commenters believed that the Agency should postpone the next
303(d) list until after the new rule is in place. They argued that
development of a new rule would introduce substantial uncertainty while
the States are developing their listing methodologies and their next
lists pursuant to a rule and guidance that may be substantially changed
soon after the 2002 lists are submitted. EPA continues to believe,
however, that it is important for a new list to be produced in 2002.
EPA believes that it is important to update States' 1998 lists to
reflect current information to maintain the credibility of the TMDL
program. EPA is aware of concerns expressed by some point source
dischargers about the impact of being located on a listed stream. EPA
believes that its upcoming guidance should help ensure that the 2002
section 303(d) lists more accurately identify currently impaired waters
than earlier lists.
Some commenters stated their concerns that, if the 2002 list
deadline is moved to October, the report required under section 305(b)
of the CWA and the list required under section 303(d) would be due at
different times. These commenters asked that the Agency also delay the
date of the section 305(b) report. However, the due date of the section
305 (b) report is a statutory requirement and EPA cannot change it by
regulation or guidance. The Agency can take steps however, to ensure
that States that choose to submit a 305(b) report on October 1, 2002 do
not suffer any adverse consequences. EPA will review its agreements
with States regarding distribution of grants under section 106 of the
CWA to make sure that receipt of grant funds are not contingent upon
completion of a section 305 (b) report on April 1, 2002.
EPA received only one comment on its proposal to retain the April
1, 2002 listing requirement if a court order or consent decree or
commitment in a settlement agreement expressly requires EPA to take
action related to the State's 2002 list prior to October 1, 2002. When
EPA published the proposal, EPA stated that it believed that this
provision would only apply to the State of Georgia. The commenter
expressed concern that, notwithstanding a consent decree, it was
inequitable to require Georgia to meet the existing April 2002
deadline. The commenter noted that, if Georgia was required to submit
its 2002 list prior to issuance of EPA's 2002 listing guidance, parts
of the Georgia list may be invalidated.
EPA believes that the commenter's concerns can be addressed while
requiring Georgia to submit its 2002 list in April 2002. EPA continues
to believe that a State should be required to submit a 2002 list by
April 1, 2002, in order to enable EPA to meet a commitment embodied in
a court order, consent decree, or settlement agreement expressly
requiring EPA to take action related to the State's 2002 list prior to
October 1, 2002. Since this provision only applies to the State of
Georgia, EPA will work with Georgia to ensure that the list it submits
to EPA by April 1, 2002, meets the requirements of the Clean Water Act
and EPA's currently effective regulations. In addition, EPA anticipates
issuing guidance on the 2002 lists shortly so that Georgia will have
the benefit of that guidance at least several months before the date it
is required to submit its 2002 list. Finally, the listing guidance will
not and cannot impose any binding requirements on the States, separate
and apart from the statutory and regulatory requirements.
After careful review of all comments, EPA continues to believe that
briefly delaying the due date of the next section 303(d) list is an
appropriate step that will give the States that wish to do so time to
adopt some or all of the recommendations of EPA's new guidance. EPA is
aware that some States are well underway in their development of a 2002
section 303(d) list which they intended to submit on April 1, 2002. EPA
will review and approve or disapprove a State list within 30 days as
required by the CWA regardless of when it is submitted. EPA's decision
to approve or disapprove such a list will be based on the statutory
requirements at section 303(d) and EPA's regulations at 40 CFR 130.7.
III. Administrative Requirements
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, (October 4, 1993)), EPA
must determine whether the regulatory action is ``significant'' and
therefore subject to Office of Management and Budget (OMB) review and
the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or Tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Pursuant to the terms of Executive Order 12866, it has been
determined that this rule is not a ``significant regulatory action''
and as such, has not been submitted to OMB for review.
[[Page 53047]]
B. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any
rule that: (1) is determined to be ``economically significant'' as
defined under Executive Order 12866, and (2) concerns an environmental
health or safety risk that EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, the EPA must evaluate the environmental health or safety
effects of the planned rule on children, and explain why the planned
regulation is preferable to other potentially effective and reasonably
feasible alternatives considered by EPA. This rule is not subject to
Executive Order 13045 because it is not economically significant as
defined in Executive Order 12866.
C. Unfunded Mandates Reform Act (UMRA) of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, Tribal and local
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal Mandates'' that
may result in expenditures to State, local, and Tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including Tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
Today's rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for State, local, or Tribal
governments or the private sector. The rule imposes no enforceable duty
on any State, local or Tribal government or the private sector. Thus,
today's rule is not subject to the requirements of sections 202 and 205
of UMRA. For the same reason, EPA has also determined that this rule
contains no regulatory requirements that might significantly or
uniquely affect small governments. This action does not impose any
requirement on anyone. Thus, there are no costs associated with this
action . Therefore, today's rule is not subject to the requirements of
section 203 of UMRA.
D. Paperwork Reduction Act (PRA)
This action does not impose any new information collection burden
under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et
seq. This action does not impose any requirements on anyone and does
not voluntarily request information.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An Agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.
E. Regulatory Flexibility Act (RFA), as Amended by the Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et.
seq.
The RFA generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking under the Administrative Procedure Act or any other statute
unless the agency certifies that the rule will not have a significant
economic impact on a substantial number of small entities. Small
entities include small businesses, small organizations, and small
governmental jurisdictions. After considering the economic impacts of
today's rule on small entities, I certify that this action will not
have a significant economic impact on a substantial number of small
entities. This action does not impose any requirements on anyone,
including small entities.
F. National Technology Transfer and Advancement Act
As noted in the proposed rule, section 12(d) of the National
Technology Transfer and Advancement Act of 1995 (``NTTAA''), Public Law
No. 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use
voluntary consensus standards in its regulatory activities unless to do
so would be inconsistent with applicable law or otherwise impractical.
Voluntary consensus standards are technical standards (e.g., materials
specifications, test methods, sampling procedures, and business
practices) that are developed or adopted by voluntary consensus
standards bodies. The NTTAA directs EPA to provide Congress, through
OMB, explanations when the Agency decides not to use available and
applicable voluntary consensus standards. This rulemaking does not
impose any new technical standards.
G. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This rule does not have federalism implications. It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government as
specified in executive Order 13132. It merely delays
[[Page 53048]]
the effective date of the July 2000 rule and the due date of the April
2002 lists. Thus, Executive Order 13132 does not apply to this rule.
H. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by Tribal officials in the development of regulatory
policies that have tribal implications.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian Tribes, on
the relationship between the Federal government and the Indian Tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian Tribes.''
This rule establishes a relatively short delay in the effective
date of the July 2000 TMDL Rule and the due date of the April 1, 2002
lists. Because these delays are relatively brief (18 months and six
months, respectively) EPA does not believe this rule will have
``substantial direct effects'' on Tribes or the relationship or
distribution of power between Tribes and the Federal Government. As
discussed earlier in the preamble, during the 18-month period before
the July 2000 rule becomes effective, TMDLs will continue to be
developed pursuant to the regulations in effect at section 130.7.
Moreover, EPA does not believe that a 6-month delay in submission of
the 2000 lists will slow the pace of TMDL development given the number
of waters on existing lists and the many court orders and schedules
directing TMDL development. Thus, Executive Order 13175 does not apply
to this rule.
I. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). The July 2000 rule amending 40 CFR parts 9, 122, 123, 124 and
130 published on July 13, 2000 at 65 FR 43586 is effective on April 30,
2003. The amendment to 40 CFR 130.7(d)(1) is effective November 19,
2001.
J. Executive Order 12866--Plain Language Considerations
Executive Order 12866 requires each agency to write all rules in
plain language. EPA invited public comment in the proposed rule on how
to make this rule easier to understand including addressing concerns
regarding organization of material, clear presentation of technical
terms and concepts, and alternative formats to facilitate better
understanding of the Agency's action. The Agency received only one
comment on this issue requesting that the rule be clearly written. The
Agency has addressed this concern by reducing the amount of technical
jargon in this notice, by organizing the material in a straightforward,
understandable format, and by clearly discussing each of the
requirements of this rule. By doing so the Agency has met the plain
language requirements of Executive Order 12866.
K. Executive Order 13211: Energy Effects
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use'', 66 FR 28355 (May 22, 2001) because it is not a
significant regulatory action under Executive Order 12866.
List of Subjects
40 CFR Part 9
Reporting and recordkeeping requirements.
40 CFR Part 122
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous substances, Reporting and
recordkeeping requirements, Water pollution control.
40 CFR Part 123
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous substances, Indians-lands,
Intergovernmental relations, Penalties, Reporting and recordkeeping
requirements, Water pollution control.
40 CFR Part 124
Environmental protection, Administrative practice and procedure,
Hazardous substances, Indians-lands, Reporting and recordkeeping
requirements, Water pollution control, Water supply.
40 CFR Part 130
Environmental protection, Intergovernmental relations, Reporting
and recordkeeping requirements, Water pollution control.
Dated: October 12, 2001.
Christine T. Whitman,
Administrator.
PARTS 9, 122, 123, 124 AND 130--EFFECTIVE DATE AND REVISIONS
For the reasons stated in the preamble, EPA is establishing April
30, 2003 as the effective date of the amendments to 40 CFR parts 9,
122, 123, 124 and 130 published July 13, 2000 (65 FR 43586).
For the reasons stated in the preamble, EPA is amending 40 CFR part
130 as follows:
PART 130--WATER QUALITY PLANNING AND MANAGEMENT
1. The authority citation for part 130 continues to read as
follows:
Authority: 33 U.S.C. 1251 et seq.
2. Section 130.7, currently in effect, is amended by adding a new
sentence after the fourth sentence in paragraph (d)(1) to read as
follows:
Sec. 130.7 Total maximum daily loads (TMDL) and individual water
quality-based effluent limitations.
* * * * *
(d) * * * (1) * * * For the year 2002 submission, a State must
submit a list required under paragraph (b) of this section by October
1, 2002, unless a court order, consent decree or commitment in a
settlement agreement expressly requires EPA to take an action related
to that State's 2002 list prior to October 1, 2002, in which case, the
State must submit a list by April 1, 2002. * * *
* * * * *
[FR Doc. 01-26265 Filed 10-17-01; 8:45 am]
BILLING CODE 6560-50-P