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

We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to Commander Thirteenth Coast Guard District (oan) at the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register.

The City of Seattle proposes to replace the aged operating and drive systems of the bascule drawspan of the Ballard Bridge across the Lake Washington Ship Canal, mile 1.1, at Seattle, Washington. To minimize interference with navigation, only one leaf will be temporarily disabled at a time. The disabled draw leaf will be powered by a winch system that will not perform at the usual speed for this drawbridge. In order to avoid lengthy inoperative periods, the bridge owner proposes three daily periods during which the draw will open fully for vessels unable to safely pass through one-half of the span. With five hours notice, both leaves of the draw would open at 5 a.m., 12:30 p.m., and 8 p.m. on any day of the week. During the project, single-leaf openings would be available according to the operating schedule currently in effect. This rulemaking would provide that both draw leaves need not be opened for the passage of vessels, including vessels engaged in towing operations, from 7 a.m. to 9 a.m. and from 4 p.m. to 6 p.m. Monday through Friday, except federal holidays, for any vessel under 1000 gross tons.

The Coast Guard proposes that double-leaf openings be required only three times daily after no less than five hours notice for a requested opening. These three scheduled openings would be at 5 a.m., 12:30 p.m., and 8 p.m. Single-leaf openings would be available whenever openings are currently required by the normal operating regulations of the bridge. Unless a vessel is 1000 gross tons or over, it need not receive an opening of the Ballard Bridge from 7 a.m. to 9 a.m. and 4 p.m. to 6 p.m., Monday through Friday (federal holidays excepted). With a single leaf open the Ballard Bridge provides 62.5 feet of horizontal clearance (125 feet with both leaves open) with unrestricted vertical clearance. In the closed position, the drawbridge provides 45 feet of vertical clearance above the mean regulated lake level (Lake Washington). Shorter periods of single-span opening operations have been authorized in the past. The majority of vessels on the related reach of the waterway can safely pass through a single-leaf draw opening.

This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not significant under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979).

We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary. This conclusion is based on the fact that most vessels will be able to pass the bridge with little change from normal operations and that all vessels can be accommodated three times a day.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. Some vessel owners might be temporarily inconvenienced by the change, if effected, but the delay should not be significant, especially after vessel operators learn of the change and can therefore plan their trips on the canal accordingly.

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

This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

We have analyzed this proposed rule under Executive Order 13132 and have determined that this rule does not have implications for federalism under that Order.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal Government's having first provided the funds to pay those costs. This proposed rule would not impose an unfunded mandate.

This proposed rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children.

We considered the environmental impact of this proposed rule and concluded that, under figure 2-1, paragraph (32)(e) of Commandant Instruction M16475.lC, this proposed rule is categorically excluded from further environmental documentation because promulgation of drawbridge regulations have been found not to have a significant effect on the environment. A “Categorical Exclusion Determination” is available in the docket where indicated under ADDRESSES.

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

For further information regarding the recodifications to Maryland's general opacity regulations and the procedures by which a source may apply for and be granted an alternative visible emission standard, please see the information provided in the direct final action, with the same title, located in the “Rules and Regulations” section of this Federal Register publication.

The contents of today's preamble are listed in the following outline:

On January 16, 1981, as part of its final and interim final regulations implementing section 3001 of RCRA, EPA published an amended list of hazardous wastes from non-specific and specific sources. This list has been amended several times, and is published in 40 CFR 261.31 and 261.32. These wastes are listed as hazardous because they exhibit one or more of the characteristics of hazardous wastes identified in Subpart C of part 261 (i.e., ignitability, corrosivity, reactivity, and toxicity) or meet the criteria for listing contained in section 261.11(a)(2) or (a)(3).

Individual waste streams may vary, however, depending on raw materials, industrial processes, and other factors. Thus, while a waste that is described in these regulations generally is hazardous, a specific waste from an individual facility meeting the listing description may not be. For this reason, sections 260.20 and 260.22 provide an exclusion procedure, allowing persons to demonstrate that a specific waste from a particular generating facility 1 should not be regulated as a hazardous waste.

To have their wastes excluded, petitioners must show, first, that wastes generated at their facilities do not meet any of the criteria for which the wastes were listed. See section 260.22(a) and the background documents for the listed wastes. Second, the Administrator must determine, where he/she has a reasonable basis to believe that factors (including additional constituents) other than those for which the waste was listed could cause the waste to be a hazardous waste, that such factors do not warrant retaining the waste as a hazardous waste. Accordingly, a petitioner also must demonstrate that the waste does not exhibit any of the hazardous waste characteristics (i.e., ignitability, reactivity, corrosivity, and toxicity), and must present sufficient information for the EPA to determine whether the waste contains any other toxicants at hazardous levels. See section 260.22(a), 42 U.S.C. 6921(f), and the background documents for the listed wastes. Although wastes which are “delisted” (i.e., excluded) have been evaluated to determine whether or not they exhibit any of the characteristics of hazardous waste, generators remain obligated under RCRA to determine whether or not their wastes continue to be nonhazardous based on the hazardous waste characteristics (i.e., characteristics which may be promulgated subsequent to a delisting decision.)

In addition, residues from the treatment, storage, or disposal of listed hazardous wastes and mixtures containing listed hazardous wastes are also considered hazardous wastes. See sections 261.3(a)(2)(iv) and (c)(2)(i), referred to as the “mixture” and “derived-from” rules, respectively. Such wastes are also eligible for exclusion and remain hazardous wastes until excluded. On December 6, 1991, the U.S. Court of Appeals for the District of Columbia vacated the “mixture/derived-from” rules and remanded them to the EPA on procedural grounds. Shell Oil Co. v. EPA, 950 F.2d 741 (D.C. Cir. 1991). On March 3, 1992, EPA reinstated the mixture and derived-from rules, and solicited comments on other ways to regulate waste mixtures and residues (57 FR 7628). These rules became final on October 30, 1992, 57 FR 49278), and should be consulted for more information regarding waste mixtures and solid wastes derived from treatment, storage, or disposal of a hazardous waste. The mixture and derived-from rules are codified in 40 CFR 261.3, paragraphs (a)(2)(iv) and (c)(2)(i). EPA plans to address waste mixtures and residues when the final portion of the Hazardous Waste Identification Rule (HWIR) is promulgated.

On October 10, 1995, the Administrator delegated to the Regional Administrators the authority to evaluate and approve or deny petitions submitted in accordance with sections 260.20 and 260.22, by generators within their Regions (National Delegation of Authority 8-19), in States not yet authorized to administer a delisting program in lieu of the Federal program. On March 11, 1996, the Regional Administrator of EPA, Region 4, redelegated delisting authority to the Director of the Waste Management Division (Regional Delegation of Authority 8-19).

This petition requests a delisting for a hazardous waste listed as F019. In making the initial delisting determination, EPA evaluated the petitioned waste against the listing criteria and factors cited in sections 261.11(a)(2) and (a)(3). Based on this review, the EPA agrees with the petitioner that the waste is nonhazardous with respect to the original listing criteria. (If EPA had found, based on this review, that the waste remained hazardous based on the factors for which the waste was originally listed, EPA would have proposed to deny the petition.) EPA then evaluated the waste with respect to other factors or criteria to assess whether there is a reasonable basis to believe that such additional factors could cause the waste to be hazardous. See section 260.22(a) and (d). The EPA considered whether the waste is acutely toxic, and considered the toxicity of the constituents, the concentration of the constituents in the waste, their tendency to migrate and to bioaccumulate, their persistence in the environment once released from the waste, plausible and specific types of management of the petitioned waste, the quantities of waste generated, and waste variability.

For this delisting determination, EPA used the information described in the preceding paragraph to identify plausible exposure routes (i.e., groundwater, surface water, air) for hazardous constituents present in the petitioned waste.

What is the EPACML Model and how is it Used to Calculate Delisting Levels? EPA used the EPA Composite Model for Landfills (EPACML) fate and transport model, modified for delisting, as one approach for determining the proposed delisting levels for BMW's waste. See 56 FR 32993-33012, July 18, 1991, for details on the use of the EPACML model to determine the concentrations of constituents in a waste that will not result in groundwater contamination. Delisting levels are the maximum allowable concentrations for hazardous constituents in the waste, so that disposal in a landfill will not harm human health and the environment by contaminating groundwater, surface water, or air. A Subtitle D landfill is a landfill subject to RCRA Subtitle D nonhazardous waste regulations, and to State and local nonhazardous waste regulations. If EPA makes a final decision to delist BMW's F019 waste, BMW must meet the delisting levels and dispose of the waste in a Subtitle D landfill, because EPA determined the delisting levels based on a landfill model. However, at a future date BMW may beneficially reuse the waste after receiving approval by the EPA 2 that reuse is at least as protective of human health and the environment as disposal in a landfill. With the EPACML approach, EPA calculated a delisting level for each hazardous constituent by using the maximum estimated waste volume to determine a Dilution Attenuation Factor (DAF) from a table of waste volumes and DAFs previously calculated by the EPACML model, as modified for delisting. See Table 2 of section II.B. below, which is adapted from 56 FR 32993-33012, July 18, 1991. The maximum estimated waste volume is the maximum number of cubic yards of petitioned waste that BMW estimated it would dispose of each year. The delisting level for each constituent is equal to the DAF multiplied by the maximum contaminant level (MCL) which the Safe Drinking Water Act allows for that constituent in drinking water. The delisting level is a concentration in the waste leachate that will not cause the MCL to be exceeded in groundwater underneath a landfill where the waste is disposed. This method of calculating delisting levels results in conservative levels that are protective of groundwater, because the model does not assume that the landfill has the controls required of Subtitle D landfills.

The EPA is also proposing to use the Delisting Risk Assessment Software (DRAS),3 developed by EPA, Region 6, to evaluate this delisting petition. The DRAS uses a new model, called the EPA Composite Model for Leachate Migration with Transformation Products (EPACMTP). The EPAMCTP improves on the EPACML model in several ways. EPA is proposing to use the DRAS to calculate delisting levels and to evaluate the impact of BMW's petitioned waste on human health and the environment.

Today's proposal provides background information on the mechanics of the DRAS, and the use of the DRAS in delisting decision-making. Please see the EPA, Region 6, RCRA Delisting Technical Support Document (RDTSD) for a complete discussion of the DRAS calculation methods. The RDTSD, and Federal Registers, 65 FR 75637-75651, December 4, 2000, and 65 FR 58015-58031, September 27, 2000, are the sources of the DRAS information presented in today's preamble, and are included in the RCRA regulatory docket for this proposed rule.

The DRAS performs a risk assessment for petitioned wastes that are disposed of in the two waste management units of concern: surface impoundments for liquid wastes and landfills for non-liquid wastes. BMW's petitioned waste is solid, not liquid, and will be disposed in a landfill; therefore, only the application of DRAS to landfills will be discussed in this preamble.

DRAS calculates releases from solid-phase wastes in a landfill, with the following assumptions: (1) the wastes are disposed in a Subtitle D landfill and covered with a 2-foot-thick native soil layer; (2) the landfill is unlined or effectively unlined due to a liner that will eventually completely fail. The two parameters used to characterize landfills are (1) area and (2) depth (the thickness of the waste layer). Data to characterize landfills were obtained from a nationwide survey of industrial Subtitle D landfills.4 Parameters and assumptions used to estimate infiltration of leachate from a landfill are provided in the EPACMTP Background Document and User's Guide, Office of Solid Waste, U.S. EPA, Washington, DC, September 1996.

DRAS uses the EPACMTP model to simulate the fate and transport of dissolved contaminants from a point of release at the base of a landfill, through the unsaturated zone and underlying groundwater, to a receptor well at an arbitrary downstream location in the aquifer (the rock formation in which the groundwater is located). DRAS evaluates, with the EPACMTP model, the groundwater exposure concentrations at the receptor well that result from the chemical release and transport from the landfill (Application of EPACMTP to Region 6 Delisting Program: Development of Waste Volume-Specific Dilution Attenuation Factors, U.S. EPA, August 1996). For the purpose of delisting determinations, receptor well concentrations for both carcinogens and non-carcinogens from finite-source degraders and non-degraders are determined with this model. Delisted waste is a finite source, because in a finite period of time, the waste's constituents will leach and move out of the landfill. Please see Paragraph 8. Contaminant Release and Transport Scenario in section I.B.3. of this preamble.

The EPACMTP includes three major categories of improvements over the EPACML. The improvements include:

(1) Incorporation of additional fate and transport processes (e.g., degradation of chemical constituents; fate and transport of metals);

(2) Use of enhanced flow and transport equations (e.g., for calculating transport in three dimensions); and

(3) Revision of the Monte Carlo methodology (e.g., to allow use of site-specific, waste-specific data) (EPACMTP Background Document and User's Guide, Office of Solid Waste, U.S. EPA, Washington, DC, September 1996).

A discussion of the key enhancements which have been implemented in the EPACMTP is presented here and the details are provided in the background documents to the proposed 1995 Hazardous Waste Identification Rule (HWIR) (60 FR 66344, December 21, 1995). The background documents are available through the RCRA HWIR Federal Register proposal docket (60 FR 66344, December 21, 1995). For explanations of mathematical and chemical terms used in the discussion, please contact Judy Sophianopoulos, South Enforcement and Compliance Section, (Mail Code 4WD-RCRA), RCRA Enforcement and Compliance Branch, U.S. Environmental Protection Agency, Region 4, Sam Nunn Atlanta Federal Center, 61 Forsyth Street, SW., Atlanta, Georgia 30303, (404) 562-8604, or call, toll free, (800) 241-1754, and leave a message, with your name and phone number, for Ms. Sophianopoulos to return your call. You may also contact her by e-mail: sophianopoulos.judy@epa.gov.

The EPACML accounts for: one-dimensional steady and uniform advective flow; contaminant dispersion in the longitudinal, lateral, and vertical directions; and sorption. However, advances in groundwater fate and transport have been made in recent years and EPA proposes and requests public comment on the use of the EPACMTP, which is a more advanced groundwater fate and transport model, for this RCRA delisting.

The EPACML was limited to conditions of uniform groundwater flow. It could not handle accurately the conditions of significant groundwater mounding and non-uniform groundwater flow due to a high rate of infiltration from the waste disposal units. These conditions increase the transverse horizontal, as well as the vertical, spreading of a contaminant plume.

The EPACMTP model overcomes the deficiencies of the EPACML in the following way: The subsurface as modeled with the EPACMTP consists of an unsaturated zone beneath a landfill and a saturated zone, the underlying water table aquifer. Contaminants move vertically downward through the unsaturated zone to the water table. The EPACMTP simulates one-dimensional, vertically downward flow and transport of contaminants in the unsaturated zone, as well as two-dimensional or three-dimensional groundwater flow and contaminant transport in the underlying saturated zone. The EPACML used a saturated zone module that was based on a Gaussian distribution of the concentration of a chemical constituent in the saturated zone. The module also used an approximation to account for the initial mixing of the contaminant entering at the water table (saturated zone) underneath the waste unit. The module accounting for initial mixing in the EPACML could lead to unrealistic groundwater concentrations. The enhanced EPACMTP model incorporates a direct linkage between the unsaturated zone and saturated zone modules which overcomes these limitations of the EPACML. The following mechanisms affecting contaminant migration are accounted for in the EPACMTP model: Transport by advection and dispersion, retardation resulting from reversible linear or nonlinear equilibrium sorption on the soil and aquifer solid phase, and biochemical degradation processes. The EPACML did not account for biochemical degradation, and did not account for sorption as accurately as the EPACMTP.

The EPACMTP consists of four major components:

(1) A module that performs one-dimensional analytical and numerical solutions for water flow and contaminant transport in the unsaturated zone beneath a waste management unit;

(2) A numerical module for steady-state groundwater flow subject to recharge from the unsaturated zone;

(3) A module of analytical and numerical solutions for contaminant transport in the saturated zone; and

(4) A Monte Carlo module for assessing the effect of the uncertainty resulting from variations in model parameters on predicted receptor well concentrations.

As is true of any model, the EPACMTP is based on a number of simplifying assumptions that make the model easier to use and that ensure its computational efficiency. The major simplifying assumptions used in the EPACMTP are summarized below.

1. Soil and Aquifer Medium Properties. It is assumed that the soil and aquifer are uniform, porous media and that flow and transport are described by Darcy's Law 5 and the advection-dispersion equation 5, respectively. The EPACMTP does not account for the presence of preferential pathways such as fractures and macropores. Although the aquifer properties are assumed to be uniform, the model does allow for anisotropy 5 in hydraulic conductivity.

2. Flow in the Unsaturated Zone. Flow in the unsaturated zone is assumed to be steady-state, one-dimensional, vertical flow from beneath the source toward the water table. The lower boundary of the unsaturated zone is assumed to be the water table. The flow in the unsaturated zone is assumed to be predominantly gravity-driven, and therefore the vertical flow component accounts for most of the fluid flux between the source and the water table. The flow rate is assumed to be determined by the long-term average infiltration rate through the landfill.

3. Flow in the Saturated Zone. The saturated zone module of the EPACMTP is designed to simulate flow in an unconfined aquifer with constant saturated thickness. The model assumes regional flow in a horizontal direction with vertical disturbance resulting from recharge and infiltration from the overlying unsaturated zone and landfill. The lower boundary of the aquifer is assumed to be impermeable. Flow in the saturated zone is assumed to be steady-state. The EPACMTP accounts for different recharge rates beneath and outside the source area. Groundwater mounding beneath the source is represented in the flow system by increased head values at the top of the aquifer. This approach is reasonable as long as the height of the mound is small relative to the thickness of the saturated zone.

4. Transport in the Unsaturated Zone. Contaminant transport in the unsaturated zone is assumed to occur by advection and dispersion. The unsaturated zone is assumed to be initially contaminant-free, and contaminants are assumed to migrate vertically downward from the disposal facility. The EPACMTP can simulate both steady-state and transient transport in the unsaturated zone with single-species or multiple-species chain decay reactions and with linear or nonlinear sorption.

5. Transport in the Saturated Zone. Contaminant transport in the saturated zone is assumed to be a result of advection and dispersion. The aquifer is assumed to be initially contaminant-free, and contaminants are assumed to enter the aquifer only from the unsaturated zone immediately beneath the waste disposal facility, which is modeled as a rectangular, horizontal plane source. The EPACMTP can simulate both steady-state and transient three-dimensional transport in the aquifer. For steady-state transport, the contaminant mass flux entering at the water table must be constant with time; for the transient case, the flux at the water table may be constant or may vary as a function of time. The EPACMTP can simulate the transport of a single species or multiple species, chain decay reactions, and linear sorption.

6. Contaminant Phases. The EPACMTP assumes that the dissolved phase is the only mobile phase and disregards interphase mass transfer processes other than adsorption onto the solid phase. The model does not account for volatilization in the unsaturated zone; this is a conservative approach for volatile chemicals. The model also does not account for the presence of a nonaqueous-phase liquid (such as oil) or for transport in the gas phase. When a mobile oil phase is present, significant contaminant migration may occur within it, and the EPACMTP may underestimate the movement of hydrophobic chemicals (chemicals that “prefer” not to be dissolved in water, but to be dissolved in oil or oil-like materials).

7. Chemical Reactions. The EPACMTP computes chemical reactions involving adsorption and decay processes. The EPACMTP assumes that sorption of organic compounds in the subsurface is represented by linear adsorption isotherms in both the unsaturated and saturated zones. It is assumed that adsorption of contaminants onto the soil or aquifer solid phase occurs instantaneously and is entirely reversible. The effect of geochemical interactions is especially important in fate and transport analyses of metals. For simulation of metals, the EPACMTP uses sorption isotherms generated by EPA's MINTEQA2 metals speciation model, which takes into account the fact that many metals can exist in more than one chemical form or species, and that geochemical conditions can have large effects on the mobility of metals. The EPACML could not account for metals speciation. MINTEQA2 is used to generate effective sorption isotherms for individual metals. The sorption isotherms correspond to a range of geochemical conditions that cause a metal to be present in different chemical forms or species which sorb (or bind) to subsurface material in different ways with different binding strengths (EPACMTP Metals Background Document, Office of Solid Waste, U. S. EPA, Washington, DC, September 1996). The transport modules for both the unsaturated and saturated zones in EPACMTP have been enhanced to incorporate the nonlinear MINTEQA2 sorption isotherms. This enhancement provides the model with the capability to simulate the impact of pH, leachate organic matter, natural organic matter, iron hydroxide and the presence of other ions in the groundwater on the mobility of metals in the unsaturated and saturated zones. The EPACMTP also accounts for chemical and biological transformation processes. All transformation reactions are represented by first-order decay processes. An overall decay rate is specified for the model; therefore, the model cannot explicitly consider the separate effects of multiple degradation processes such as oxidation, hydrolysis, and biodegradation. The user must determine the overall, effective decay rate when multiple decay processes are to be represented. To maximize its flexibility, the EPACMTP has the capability of determining the overall decay rate from chemical-specific hydrolysis constants using soil and aquifer temperature and pH values. The EPACMTP assumes that reaction stoichiometry (the proportion of each chemical taking part in a chemical reaction) is prescribed for scenarios involving chain decay reactions. The speciation factors are specified as constants by the user (see the EPACMTP Background Document and User's Guide, Office of Solid Waste, U.S. EPA, Washington, DC, September 1996). In reality, these coefficients may change as functions of aquifer conditions (for example, temperature and pH), concentration levels of other chemical components, or both.

8. Contaminant Release and Transport Scenario. Two source release scenarios are considered in the EPACMTP: continuous (infinite) and finite-source. Only the finite-source scenario is considered for delisting. For finite-source scenarios, the release of contaminants occurs over a finite period of time, after which the leachate concentration becomes zero (that is, all the contaminants in the waste disposed of in the landfill have leached out). The landfill parameters used by the EPACMTP to calculate contaminant release include values and/or frequency distributions of the capacity and dimensions of the landfill, the leachate concentration, infiltration and recharge rates, pulse duration, the fraction of hazardous waste in the landfill, the density of the waste, and the concentration of the chemical constituent in the hazardous waste. Data on the areas, volumes, and locations of landfills were obtained from the Nationwide Survey of Industrial Subtitle D Landfills, Westat, 1987. Derivation of the parameters for landfills is described in the EPACMTP Background Document and User's Guide, Office of Solid Waste, U.S. EPA, Washington, DC, September 1996. For finite-source scenarios, simulations are performed for transient conditions, and the source is assumed to be a pulse of finite duration. In the case of landfills, the pulse duration is based on the initial amount of contaminant in the landfill, infiltration rate, landfill dimensions, waste and leachate concentration, and waste density. For a finite-source scenario, the model can calculate either the peak receptor well concentration for non-carcinogens or an average concentration over a specified period for carcinogens. The finite-source methodology in the EPACMTP is discussed in detail in the EPACMTP Background Document for the Finite Source Methodology for Chemicals with Transformation Products and Implementation of the HWIR, Office of Solid Waste, U.S. EPA, Washington, DC, September 1996.

9. EPACMTP Modeling Assumptions and Input Parameters. Specific EPACMTP modeling assumptions (in addition to the simplifying assumptions discussed in the eight preceding paragraphs) are summarized in Table 1A, below. This table also provides information on important input parameters as well as on their data sources or details. Overall, EPACMTP input parameters can be organized in the following four groups:

The Science Advisory Board (SAB), a public advisory group that provides information and advice to the EPA, reviewed the EPACMTP model as part of a continuing effort to provide improvements in the development and external peer review of environmental regulatory models. Overall, the SAB commended EPA for making significant enhancements to the EPACMTP's predecessor, the EPACML and for responding to previous SAB suggestions. The SAB also concluded that the mathematical formulation incorporating daughter products into the model appeared to be correct and that the site-based approach using hydrogeologic regions is superior to the previous approach used in EPACML. The model underwent public comment during the 1995 proposed HWIR. See 60 FR 66344 (December 21, 1995).

The EPACMTP, as developed for HWIR, determined the DAF using a Monte Carlo approach that selected, at random, a waste volume from a range of waste volumes identified in EPA's 1987 Subtitle D landfill survey. In delisting determinations, the waste volume of the petitioner is known. Therefore, application of EPACMTP to the delisting program has been modified to evaluate the specific waste volume, just as the original EPACML model was modified for delisting to derive DAFs related to waste volume from DAFs related to landfill area. EPA modified the DAFs determined under the HWIR proposal to account for a known waste volume. To generate waste volume-specific DAFs, EPA developed “scaling factors” to modify DAFs developed for HWIR (based on the entire range of waste disposal units) to DAFs for delisting waste volumes. This was accomplished by computing a 90th percentile DAF for a conservative chemical (a chemical that persists in the environment) for 10 specific waste volumes (ranging from 1,000 cubic yards to 300,000 cubic yards) for each waste management scenario (landfill and surface impoundment). EPA assumed that DAFs for a specific waste volume are linearly related to DAFs developed by EPACMTP for the HWIR. DAF scaling factors were computed for the ten increment waste volumes. Using these ten scaling factor DAFs, regression equations were developed for each waste management scenario to provide a continuum of DAF scaling factors as a function of waste volume.

The regression equations are coded into the DRAS program which then automatically adjusts the DAF for the waste volume of the petitioner.

The method used to verify the scaling factor approach is presented in the document, Application of EPACMTP to Region 6 Delisting Program: Development of Waste Volume-Specific Dilution Attenuation Factors, U.S. EPA, August 1996. For the landfill waste management scenario, the DAF scaling factors ranged from 9.5 for 10,000 cu. yard to approximately 1.0 for waste volumes greater than 200,000 cu. yards. Therefore, for petitioned waste volumes greater than 200,000 cu. yards, the waste volume-specific DAF is the same as the DAF computed for the proposed HWIR. The regression equation that can be used to determine the DAF scaling factor (DSF) as a function of waste volume (in cubic yards) for the landfill waste management unit is: DSF = 6152.7* (waste volume) −0.7135. The correlation coefficient of this regression equation is 0.99, indicating a good fit of this line to the data points.

Several revisions have been made to the DRAS program in order to improve the modeling. Specifically, the groundwater inhalation pathway was revised to reflect recent advances in modeling household inhalation from home water use (e.g., showering). The basis for estimating the concentration of constituents in the indoor air is based on the mass transfer of constituent from water to shower air. The initial version of DRAS used a fate and transport model described by McKone and Bogen (1992) 6 which predicted the highest waste concentration emitted from the water into the air during a given water use period (e.g., 10-minute shower). This method was revised to more accurately predict the average concentration occurring during the exposure event.

The revised model used in this analysis is based on the equations presented in McKone (1987) 7 . The shower model estimates the change in the shower (or bathroom or household) air concentration based on the mass of constituent lost by the water (fraction emitted or emission rate) and the air exchange rate between the various model compartments (shower, the rest of the bathroom, and the rest of the house). The resulting differential equations were solved using finite difference numerical integration. The average air concentration in the shower and bathroom are obtained by averaging the concentrations obtained for each time step over the duration of the exposure event (shower and bathroom use). These concentrations and the durations of daily exposure are used to estimate risk from inhalation exposures to residential use of groundwater. Further, improvements were made to more accurately reflect the transfer efficiency of the waste constituent from the groundwater to the air compartment. The fraction emitted from the bathroom or household water use is a function of the input transfer efficiency (or maximum fraction emitted) and the driving force for mass transfer (the differential between air saturation concentration at air/water interface and bulk air concentration). For example, in the shower compartment, the constituent emission rate is estimated from the change in the shower water concentration as the water falls through the air.

The shower emissions can be modeled based on falling droplets as a means of estimating the surface-area-to-volume ratio for mass transfer and the residence time of the water in the shower compartment, assuming the constituent concentration in the gas phase is constant over the time frame of the droplet fall. By assuming the drops fall at terminal velocity, the surface-area-to-volume ratio and the residence time can be determined based solely on droplet size. A droplet size of approximately 1 mm (0.1 cm) was selected. The terminal velocity for the selected droplet size is approximately 400 cm/s. The fraction of constituent emitted from a water droplet at any given time can then be calculated.

The equations used to predict surface volatilization from a landfill have been modified to more accurately reflect true waste concentration releases. The previous version of DRAS used Farmer's equation 8 to estimate the emission rate of volatiles from the surface of the landfill. Farmer's equation assumes that the emission originates as volatiles in liquids trapped in the pore spaces between solid particles of waste. The volatiles evaporate from the liquid and are emitted from the landfill following gaseous diffusion through the solid waste particles and soil cover to the surface of the landfill. Farmer's equation requires the mole fraction of a given volatile constituent in the liquid in order to calculate the emission. The previous version of DRAS used the TCLP value of a volatile constituent in the waste to approximate the mole fraction of a given constituent in the pore liquid. Since the TCLP test includes a 20-fold dilution, the calculation might underestimate the available concentration of volatiles in freshly deposited waste. The DRAS has been revised to use Shen's modification of Farmer's equation, described in U.S. EPA Office of Air Quality Planning and Standards' 1984 Evaluation and Selection of Models for Estimating Air Emissions from Hazardous Waste Treatment, Storage, and Disposal Facilities, EPA-450/3-84-020. Shen took the simplified version of Farmer's equation for vapor flux from a soil surface and converted it to an emission rate by multiplying it by the exposed landfill area. Shen's modification uses the total waste constituent concentration (weight fraction in the bulk waste) to approximate the mole fraction of that constituent in the liquid phase.

In estimating the amount of a given waste constituent that is released to surface water and eventually becomes freely dissolved in the water column, previous delisting petitions and the earlier version of the DRAS used the maximum observed TCLP concentration in waste as the total amount of the waste constituent available for erosion. Further, the former method assumed that all of the constituent mass that reached the stream, based on TCLP, became dissolved in the aqueous phase. Assuming complete conversion to a dissolved state is overly conservative and not in agreement with recent EPA methodology. In the revised DRAS, the total waste constituent concentration is used to estimate the constituent mass that reaches the stream. The portion of the waste constituent that becomes freely dissolved is determined by an estimate of partitioning between suspended solids and the aqueous phase. This methodology is described in U.S. EPA's 1998 Human Health Risk Assessment Protocol for Hazardous Waste Combustion Facilities, Volume One, Peer Review Draft, EPA530-D-98-001A (HHRAP).

Recent developments in mercury partitioning described in the Mercury Report to Congress led to another revision to the surface water pathway. The DRAS was modified to account for bioaccumulation of methyl mercury as a result of the release of mercury into the surface water column. The primary human health hazard posed by the release of mercury into surface water is through bioaccumulation of methyl mercury in fish followed by human consumption of the contaminated fish. Biological processes in surface water cause the conversion, or methylation, of elemental mercury to methyl mercury. In accordance with the HHRAP, 15% of mercury in the water column is assumed to be converted to methyl mercury. This fraction is then used, along with the current bioaccumulation factor, to determine the predicted concentration of methyl mercury in fish tissue.

BMW submitted to the EPA analytical data from its Greer, South Carolina plant and from the BMW plant in Dingolfing, Germany. Four composite samples of wastewater treatment sludge, from approximately 60 batches of wastewater, were collected from each plant, over a three-week period. A summary of analytical data is presented in Table 1B of section II below, with analytical details in the Table footnotes.

After reviewing the analytical data and information on processes and raw materials that BMW submitted in the delisting petition, EPA developed a list of constituents of concern and calculated delisting levels for them using MCLs and EPACML DAFs and calculated delisting levels and risks using DRAS and EPACMTP DAFs as described above. EPA requests public comment on these proposed methods of calculating delisting levels and risks for BMW's petitioned waste.

EPA also requests comment on three additional methods of evaluating BMW's delisting petition and determining delisting levels: (1) Use of the Multiple Extraction Procedure (MEP), SW-846 Method 1320,9 to evaluate the long-term resistance of the waste to leaching in a landfill; (2) setting limits on total concentrations of constituents in the waste that are more conservative than results of calculations of constituent release from waste in a landfill to surface water and air, and release during waste transport; and (3) setting delisting levels at the Land Disposal Restrictions (LDR) Universal Treatment Standards (UTS) levels in 40 CFR 268.48. The UTS levels for BMW's constituents of concern are the following:

Barium: 21 mg/l TCLP; Cadmium: 0.11 mg/l TCLP; Chromium: 0.60 mg/l TCLP; Cyanide Total: 590 mg/kg; Cyanide Amenable 30 mg/kg; Lead: 0.75 mg/l TCLP; Nickel: 11 mg/l TCLP.

The EPA provides notice and an opportunity for comment before granting or denying a final exclusion. Thus, a final decision will not be made until all timely public comments (including those at public hearings, if any) on today's proposal are addressed.

BMW manufactures BMW automobiles, and is seeking a delisting for the sludge that will be generated by treating wastewater from its manufacturing operations, when aluminum will be used to replace some of the steel in the automobile bodies. Wastewater treatment sludge does not meet a hazardous waste listing definition when steel-only automobile bodies are manufactured. However, the wastewater treatment sludge generated at automobile manufacturing plants where aluminum is used as a component of automobile bodies, meets the listing definition of F019 in § 261.31.10

BMW petitioned EPA, Region 4, on June 2, 2000, to exclude this F019 waste, on a generator-specific basis, from the lists of hazardous wastes in 40 CFR part 261, subpart D.

The hazardous constituents of concern for which F019 was listed are hexavalent chromium and cyanide (complexed). BMW petitioned the EPA to exclude its F019 waste because BMW does not use either of these constituents in the manufacturing process. Therefore, BMW does not believe that the waste meets the criteria of the listing.

BMW claims that its F019 waste will not be hazardous because the constituents of concern for which F019 is listed will be present only at low concentrations and will not leach out of the waste at significant concentrations. BMW also believes that this waste will not be hazardous for any other reason (i.e., there will be no additional constituents or factors that could cause the waste to be hazardous). Review of this petition included consideration of the original listing criteria, as well as the additional factors required by the Hazardous and Solid Waste Amendments (HSWA) of 1984. See section 222 of HSWA, 42 U.S.C. 6921(f), and 40 CFR 260.22(d)(2)-(4). Today's proposal to grant this petition for delisting is the result of the EPA's evaluation of BMW's petition.

In support of its petition, BMW submitted: (1) Descriptions of its manufacturing and wastewater treatment processes, the generation point of the petitioned waste, and the manufacturing steps that will contribute to its generation; (2) Material Safety Data Sheets (MSDSs) for materials used to manufacture automobiles and to treat wastewater; (3) the minimum and maximum annual amounts of wastewater treatment sludge generated from 1996 through 1999, and an estimate of the maximum annual amount expected to be generated in the future; (4) results of analysis for metals, cyanide, sulfide, fluoride, and volatile organic compounds in the currently generated waste at the BMW plants in Greer, South Carolina, and Dingolfing, Germany; (5) results of the analysis of leachate obtained by means of the Toxicity Characteristic Leaching Procedure ((TCLP), SW-846 Method 1311), from these wastes; (6) results of the determinations for the hazardous characteristics of ignitability, corrosivity, and reactivity, in these wastes; (7) results of determinations of dry weight percent, bulk density, and free liquids in these wastes; and (8) results of the MEP analysis of the currently generated waste at the plant in Greer, South Carolina.

The BMW automobile assembly plant in Greer, South Carolina, manufactures automobiles for domestic consumption and for shipment to foreign markets. BMW's Standard Industrial Classification (SIC) code is 3711. The assembly plant operations include body welding, conversion coating, painting, final assembly, and shipment. The manufacturing process that will cause F019 to be generated is conversion coating, when applied to automobile bodies that contain aluminum. Conversion coating takes place in the plant's paint shop and treats the metal surface of each automobile body before painting to provide resistance to corrosion and to prepare the metal surface for optimum paint adhesion. Wastewater from all plant operations is treated at BMW's wastewater pretreatment plant which is located in an area of the paint shop. The wastewater is treated to meet the requirements of BMW's wastewater pretreatment permit before discharging the water to the publicly owned treatment works (POTW). Treatment results in the formation of insoluble metal hydroxides and phosphates. Wastewater treatment sludge is generated when these metal hydroxides and phosphates are dewatered in a filter press. The sludge that exits from the filter press will be classified as F019 when the automobile bodies contain aluminum, and the exit from the filter press will be the point of generation of F019.

BMW began generating wastewater treatment sludge from its Greer, South Carolina, assembly plant in 1994. From 1996 through 1999, BMW generated from 264 tons to 386 tons of wastewater treatment sludge per year. BMW estimated that production could increase to 1,600 vehicles per day in the next decade, and the generation rate of wastewater treatment sludge could reach 2,400 tons per year. BMW produces relatively large quantities of sludge because the company voluntarily removes phosphate from its wastewater in order to protect water quality in a recreational lake located downstream of the POTW discharge.

Table 1B below summarizes the hazardous constituents and their concentrations in BMW's wastewater treatment sludge generated from the manufacture of steel-only automobile bodies at the Greer, South Carolina, plant, and in the wastewater treatment sludge generated from the manufacture of automobile bodies containing steel and aluminum, at the BMW plant in Dingolfing, Germany.

EPA concluded after reviewing BMW's waste management and waste history information that no other hazardous constituents, other than those tested for, are likely to be present in BMW's petitioned waste. In addition, on the basis of test results and other information provided by BMW, pursuant to section 260.22, EPA concluded that the petitioned waste will not exhibit any of the characteristics of ignitability, corrosivity, or reactivity. See §§ 261.21, 261.22, and 261.23, respectively.

During its evaluation of BMW's petition, EPA also considered the potential impact of the petitioned waste on media other than groundwater. With regard to airborne dispersal of waste, EPA evaluated the potential hazards resulting from airborne exposure to waste contaminants from the petitioned waste using an air dispersion model for releases from a landfill. The results of this evaluation indicated that there is no substantial present or potential hazard to human health from airborne exposure to constituents from BMW's petitioned waste. (A description of EPA's assessment of the potential impact of airborne dispersal of BMW's petitioned waste is presented in the RCRA public docket for today's proposed rule.)

EPA evaluated the potential impact of the petitioned waste on surface water resulting from storm water runoff from a landfill containing the petitioned waste, and found that the waste would not present a threat to human health or the environment. (See the docket for today's proposed rule for a description of this analysis). In addition, EPA believes that containment structures at municipal solid waste landfills can effectively control runoff, as Subtitle D regulations (see 56 FR 50978, October 9, 1991) prohibit pollutant discharges into surface waters. While some contamination of surface water is possible through runoff from a waste disposal area, EPA believes that the dissolved concentrations of hazardous constituents in the runoff are likely to be lower than the extraction procedure test results reported in today's proposed rule, because of the aggressive acidic medium used for extraction in the TCLP. EPA also believes that, in general, leachate derived from the waste will not directly enter a surface water body without first traveling through the saturated subsurface where dilution of hazardous constituents may occur. Transported contaminants would be further diluted in the receiving water body. Subtitle D controls would minimize significant releases to surface water from erosion of undissolved particulates in runoff.

In order to account for possible variability in the generation rate, EPA calculated delisting levels using a maximum generation rate of 2,400 tons per year. EPA converted the 2,400 tons to a waste volume of 2,850 cubic yards, by using BMW's conservative estimate that the density of the sludge is approximately equal to the density of water. While the sludge is certainly more dense than water, using the lower density results in a higher value for the waste volume, and a lower, more conservative, Dilution Attenuation Factor (DAF). Table 2 below is a table of waste volumes in cubic yards and the corresponding DAFs from the EPACML model. EPA obtained a DAF of 70 from Table 2, for BMW's petitioned waste.

Table 3A below is a table of EPACML delisting levels for each constituent of concern in BMW's petitioned waste. The constituents of concern are barium, cadmium, chromium, cyanide, lead, and nickel, and the EPACML DAF is 70 for the maximum estimated volume.

Delisting levels and risk levels calculated by DRAS, using the EPACMTP model, are presented in Table 3B below. DRAS found that the major pathway for human exposure to this waste is groundwater ingestion, and calculated delisting and risk levels based on that pathway. The input values required by DRAS were the chemical constituents in BMW's petitioned waste; their maximum reported concentrations in the TCLP extract of the waste and in the unextracted waste (Values for the South Carolina plant in Table 1B, Preamble Section II.A.); the maximum annual volume to be disposed (2,850 cubic yards) in a landfill; the desired risk level, which was chosen to be no worse than 10-6 for carcinogens; and a hazard quotient of no greater than 1 for non-carcinogens. The only carcinogenic constituent in the waste is cadmium, and cadmium also has non-carcinogenic toxic effects. Allowable total concentrations in the waste, as calculated by DRAS for the waste, itself, not the TCLP leachate, were all at least 1,000 times greater than the actual maximum total concentrations found in the waste, and are not included in Table 3B, since many amount to metal or cyanide concentrations of several per cent. However, in addition to limits on the concentrations of constituents in the TCLP leachate of the petitioned waste, EPA does propose to set the following limits on total concentrations, in units of milligrams of constituent per kilogram of unextracted waste (mg/kg): Barium: 2,000; Cadmium: 500; Chromium: 1,000; Cyanide (Total, not Amenable): 200; Lead: 2,000; and Nickel: 20,000. EPA asks for public comment on these limits which were chosen to be both protective of human health and the environment and to be realistic, attainable values for wastewater treatment sludges that contain metals and cyanide. The maximum reported total concentrations for BMW's petitioned waste were all below these limits. The limit for cyanide was chosen so that the waste could not exhibit the reactivity characteristic for cyanide by exceeding the interim guidance for reactive cyanide of 250 mg/kg of releasable hydrogen cyanide (SW-846, Chapter Seven, Section 7.3.3.)

EPA proposes to use the delisting levels in the TCLP leachate calculated by the older method using the EPACML DAF for BMW's petitioned waste, because the EPACML levels are more conservative for this waste. EPA requests public comment on the proposal to use the delisting levels obtained with the EPACML DAF instead of those calculated by the DRAS, using the EPACMTP, in combination with the limits on total concentrations proposed in the paragraph preceding Table 3B.

EPA developed the MEP test (SW-846 Method 1320) to help predict the long-term resistance to leaching of stabilized wastes, which are wastes that have been treated to reduce the leachability of hazardous constituents. The MEP consists of a TCLP extraction of a sample followed by nine sequential extractions of the same sample, using a synthetic acid rain extraction fluid (prepared by adding a 60/40 weight mixture of sulfuric acid and nitric acid to distilled deionized water until the pH is 3.0 ± 0.2). The sample which is subjected to the nine sequential extractions consists of the solid phase remaining after, and separated from, the initial TCLP extract. EPA designed the MEP to simulate multiple washings of percolating rainfall in the field, and estimates that these extractions simulate approximately 1,000 years of rainfall. (See 47 FR 52687, Nov. 22, 1982.) MEP results are presented in Table 4 below. In response to a request by EPA for additional information, BMW reported the following practical quantitation limits in the MEP test: 0.001 mg/l for cadmium, 0.003 mg/l for lead, 0.01 mg/l for nickel, and 0.02 for zinc. Table 4 presents the results of analysis of MEP extracts.

The MEP data in Table 4 indicate that the petitioned waste would be expected to leach metals at low and decreasing concentrations for a period of at least 100 years, and only about 10 per cent of the amount of metal in the waste would leach during this time period. 11 The average life of a landfill is approximately 20 years. (See 56 FR 32993, July 18, 1991; and 56 FR 67197, Dec. 30, 1991.)

The MEP pH data in Table 4 indicate that the pH of the petitioned waste would be expected to lose its alkalinity over a period of years. However, the amount of metal in the leachate remains similar to or lower than the initial TCLP results, and decreases over time.

After reviewing BMW's processes, the EPA concludes that (1) no hazardous constituents of concern are likely to be present in BMW's waste at levels that would harm human health and the environment; and (2) the petitioned waste does not exhibit any of the characteristics of ignitability, corrosivity, or reactivity. See 40 CFR 261.21, 261.22, and 261.23, respectively.

EPA believes that BMW's petitioned waste will not harm human health and the environment when disposed in a nonhazardous waste landfill if the delisting levels for land disposal as proposed in Preamble section II.B. are met.

EPA proposes to exclude BMW's petitioned waste from being listed as F019, based on descriptions of waste management and waste history, evaluation of the results of waste sample analysis, and on the requirement that BMW's petitioned waste must meet proposed delisting levels before disposal. Thus, EPA's proposed decision is based on verification testing conditions. If the proposed rule becomes effective, the exclusion will be valid only if the petitioner demonstrates that the petitioned waste meets the verification testing conditions and delisting levels in the amended Table 1 of appendix IX of 40 CFR part 261. If the proposed rule becomes final and EPA approves that demonstration, the petitioned waste would not be subject to regulation under 40 CFR parts 262 through 268 and the permitting standards of 40 CFR part 270. Although management of the waste covered by this petition would, upon final promulgation, be relieved from Subtitle C jurisdiction, the waste would remain a solid waste under RCRA. As such, the waste must be handled in accordance with all applicable Federal, State, and local solid waste management regulations. Pursuant to RCRA section 3007, EPA may also sample and analyze the waste to determine if delisting conditions are met.

This proposed rule, if promulgated, would be issued under the Federal (RCRA) delisting program. States, however, are allowed to impose their own, non-RCRA regulatory requirements that are more stringent than EPA's, pursuant to section 3009 of RCRA. These more stringent requirements may include a provision which prohibits a Federally issued exclusion from taking effect in the States. Because a petitioner's waste may be regulated under a dual system (i.e., both Federal and State programs), petitioners are urged to contact State regulatory authorities to determine the current status of their wastes under the State laws. Furthermore, some States are authorized to administer a delisting program in lieu of the Federal program, i.e., to make their own delisting decisions. Therefore, this proposed exclusion, if promulgated, would not apply in those authorized States. If the petitioned waste will be transported to any State with delisting authorization, BMW must obtain delisting authorization from that State before the waste may be managed as nonhazardous in that State.

This rule, if made final, will become effective immediately upon final publication. The Hazardous and Solid Waste Amendments of 1984 amended section 3010 of RCRA to allow rules to become effective in less than six months when the regulated community does not need the six-month period to come into compliance. That is the case here, because this rule, if finalized, would reduce the existing requirements for the petitioner. In light of the unnecessary hardship and expense that would be imposed on this petitioner by an effective date six months after publication and the fact that a six-month deadline is not necessary to achieve the purpose of section 3010, EPA believes that this exclusion should be effective immediately upon final publication. These reasons also provide a basis for making this rule effective immediately, upon final publication, under the Administrative Procedure Act, pursuant to 5 U.S.C. 553(d).

Information collection and record-keeping requirements associated with this proposed rule have been approved by the Office of Management and Budget (OMB) under the provisions of the Paperwork Reduction Act of 1980 (Public Law 96-511, 44 U.S.C. 3501 et seq.) and have been assigned OMB Control Number 2050-0053.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

This proposed rulemaking involves environmental monitoring or measurement. Consistent with the Agency's Performance Based Measurement System (“PBMS”), EPA proposes not to require the use of specific, prescribed analytical methods, except when required by regulation in 40 CFR parts 260 through 270. Rather the Agency plans to allow the use of any method that meets the prescribed performance criteria. The PBMS approach is intended to be more flexible and cost-effective for the regulated community; it is also intended to encourage innovation in analytical technology and improved data quality. EPA is not precluding the use of any method, whether it constitutes a voluntary consensus standard or not, as long as it meets the performance criteria specified.

Under section 202 of the Unfunded Mandates Reform Act of 1995 (“UMRA”), Public Law 104-4, which was signed into law on March 22, 1995, EPA generally must prepare a written statement for rules with Federal mandates that may result in estimated costs to State, local, and tribal governments in the aggregate, or to the private sector, of $100 million or more in any one year. When such a statement is required for EPA rules, under section 205 of the UMRA EPA must identify and consider alternatives, including the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. EPA must select that alternative, unless the Administrator explains in the final rule why it was not selected or it is inconsistent with law. Before EPA establishes regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must develop under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, giving them meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising them on compliance with the regulatory requirements.

The UMRA generally defines a Federal mandate for regulatory purposes as one that imposes an enforceable duty upon State, local, or tribal governments or the private sector. EPA finds that today's proposed delisting decision is deregulatory in nature and does not impose any enforceable duty on any State, local, or tribal governments or the private sector. In addition, the proposed delisting does not establish any regulatory requirements for small governments and so does not require a small government agency plan under UMRA section 203.

Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601-612, whenever an agency is required to publish a general notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the impact of the rule on small entities (i.e., small businesses, small organizations, and small governmental jurisdictions). No regulatory flexibility analysis is required, however, if the Administrator or delegated representative certifies that the rule will not have a significant economic impact on a substantial number of small entities.

This rule, if promulgated, will not have an adverse economic impact on any small entities since its effect would be to reduce the overall costs of EPA's hazardous waste regulations and would be limited to one facility. Accordingly, I hereby certify that this proposed regulation, if promulgated, will not have a significant economic impact on a substantial number of small entities. This regulation, therefore, does not require a regulatory flexibility analysis.

Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) the Agency 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.

OMB has exempted this proposed rule from the requirement for OMB review under section (6) of Executive Order 12866.

The Executive Order 13045 is entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This order applies to any rule that EPA determines (1) Is economically significant as defined under Executive Order 12866, and (2) the environmental health or safety risk addressed by the rule has a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. This rule is not subject to Executive Order 13045 because this is not an economically significant regulatory action as defined by Executive Order 12866.

Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly affects or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments. If the mandate is unfunded, EPA must provide to the Office of Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected and other representatives of Indian tribal governments “to meaningful and timely input” in the development of regulatory policies on matters that significantly or uniquely affect their communities of Indian tribal governments. Today's proposed rulemaking does not significantly or uniquely affect the communities of Indian tribal governments. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this proposed rule.

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 Congress and to the Comptroller General of the United States.

The EPA is not required to submit a rule report regarding today's action under section 801 because this is a rule of particular applicability, etc. Section 804 exempts from section 801 the following types of rules: rules of particular applicability; rules relating to agency management or personnel; and rules of agency organization, procedures, or practice that do not substantially affect the rights or obligations of non-agency parties. See 5 U.S.C. 804(3). This rule will become effective on the date of publication as a final rule in the Federal Register.

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.”

“Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

Under section 6 of Executive Order 13132, EPA may not issue a regulation that has federalism implications, that impose substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. The EPA also may not issue a regulation that has federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation.

This action does not have federalism implication. It will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because it affects only one facility.

For the reasons set out in the preamble, 40 CFR part 261 is proposed to be amended as follows:

This is a summary of the Federal Communications Commission's Notice of Proposed Rulemaking (NPRM), FCC 01-28, in WT Docket No. 01-14, adopted on January 19, 2001 and released on January 23, 2001. The full text of this NPRM is available for inspection and copying during normal business hours in the FCC Reference Center, Room CY-A257, 445 12th Street, SW., Washington, DC 20554. The complete text may be purchased from the Commission's copy contractor, International Transcription Service, Inc., 1231 20th Street, NW., Washington, DC 20037. The full text may also be downloaded at: http://www.fcc.gov. Alternative formats are available to persons with disabilities by contacting Martha Contee at (202) 418-0260 or TTY (202) 418-2555.

1. In this Notice of Proposed Rulemaking (NPRM), we begin our reexamination of the need for Commercial Mobile Radio Services (CMRS) spectrum aggregation limits as part of our 2000 biennial regulatory review of the Commission's telecommunications regulations. Specifically, we are initiating our second comprehensive review of the two regulations that currently limit the aggregation of broadband CMRS spectrum: The CMRS spectrum cap and the cellular cross-interest rule. Pursuant to the mandate of section 11 of the Communications Act of 1934, as amended (Communications Act), 47 U.S.C. 161, we seek comment on whether competitive or other developments in CMRS markets warrant elimination or modification of one or both of these regulations.

2. The CMRS spectrum cap rule reads: “No licensee in the broadband PCS, cellular, or SMR services (including all parties under common control) regulated as CMRS * * * shall have an attributable interest in a total of more than 45 MHz of licensed broadband PCS, cellular and SMR spectrum regulated as CMRS with significant overlap in any geographic area, except that in Rural Service Areas (RSAs), * * * no licensee shall have an attributable interest in a total of more than 55 MHz of licensed broadband PCS, cellular, and SMR spectrum regulated as CMRS with significant overlap in any RSA.” 47 CFR 20.6(a). No more than 10 MHz is attributed to an entity when calculating Specialized Mobile Radio (SMR) spectrum under the cap.

3. Section 20.6(d) of the Commission's rules provides generally that ownership interests of 20 percent or more are deemed attributable. Once all the applicable CMRS spectrum attributable to a given entity is identified, one then determines whether the attributable CMRS spectrum serves markets having a “significant overlap.” 47 CFR 20.6(a), (c). When a situation involves both a PCS license and a cellular or SMR license, a significant overlap exists when 10 percent or more of the population of the designated PCS licensed service area is within the cellular geographic service area (CGSA) or SMR service area(s) in question. Where only PCS licenses are involved, however, this analysis does not apply, and any overlap between BTA-licensed and MTA-licensed spectrum is considered significant.

4. In our First Biennial Review Order, issued in September 1999 as part of the 1998 biennial review, we decided substantially to retain the CMRS spectrum cap (and the cellular cross-interest rule), with targeted modifications to reflect circumstances in rural areas and to permit passive institutional investors to acquire greater non-attributable interests in CMRS carriers. See 1998 Biennial Regulatory Review, Spectrum Aggregation Limits for Wireless Telecommunications Carriers, WT Docket No. 98-205, Report and Order, 15 FCC Rcd 9219, 9249 paragraph 66 (1999) (First Biennial Review Order). We reaffirmed the 45 MHz limit as striking the proper balance (in non-rural areas) in providing carriers with sufficient spectrum until we could allocate additional amounts suitable for the provision of CMRS, while helping assuage the competitive consequences of the spectrum-related barriers to entry in today's CMRS markets. We concluded that a 55 MHz spectrum ceiling in RSAs recognizes the reality that higher concentration through efficiency-enhancing partnering and other arrangements is likely or inevitable in rural areas.

5. To the extent licensees on different channel blocks have any degree of overlap between their respective CGSAs, § 22.942 of the Commission's rules prohibits any entity from having a direct or indirect ownership interest of more than 5 percent in one such licensee when it has an attributable interest in the other licensee. An attributable interest is defined generally to include an ownership interest of 20 percent or more, as well as any controlling interest. Under the rule, however, an entity may have non-controlling and otherwise non-attributable direct or indirect ownership interests of less than 20 percent in licensees for different channel blocks in overlapping CGSAs.

6. As part of our 1998 biennial review of the cellular cross-interest rule, we determined that the restriction continued to be necessary to protect against substantial anticompetitive threats from common ownership between the two cellular carriers in any given geographic area. However, because competition from other services had increased on the whole since the rule's inception in 1991, we altered what had been a near absolute bar against cross-ownership by relaxing application of the rule's attribution standards to the current limits under § 22.942.

7. In passing the Telecommunications Act of 1996 to significantly amend the Communications Act, Congress anticipated that, as competition developed, market forces would reduce the need for regulation. Specifically, in adopting section 11 of the Communications Act, Congress required the Commission, every two years, to review all regulations that apply to “the operations or activities of any provider of telecommunications service” and to “determine whether any such regulation is no longer necessary in the public interest as the result of meaningful economic competition between providers of such service.” 47 U.S.C. 161(a)(1), (2). If we determine that, as the result of competition in CMRS markets, certain regulations applicable to CMRS providers are no longer necessary in the public interest, then we “shall repeal or modify” those regulations per Congress” mandate. 47 U.S.C. 161(b).

8. To determine whether the CMRS spectrum cap and the cellular cross-interest rule are no longer necessary in the public interest as the result of meaningful economic competition, we are here soliciting detailed comments from wireless telecommunications carriers, consumers of their services, and other interested parties on whether we should retain, repeal or modify these limits under the standards of section 11 of the Communications Act. Under section 11, our fundamental inquiry is whether, as a result of meaningful economic competition among providers of telecommunications services, spectrum aggregation limits are no longer necessary in the public interest, e.g., to prevent harmful concentration of spectrum ownership or to ensure meaningful opportunities for broadband CMRS market entry. In order to make this determination, we seek comment regarding what providers of “telecommunications service” fall within the purview of our section 11 analysis of our spectrum aggregation policies. What constitutes “meaningful economic competition” under section 11, and to what degree have the relevant competitive conditions changed since our 1998 biennial review of these rules? If meaningful competition between providers of telecommunications services now exists, have spectrum aggregation limits served their purpose and are they no longer in the public interest? Or, are there public interest reasons to retain spectrum aggregation limits notwithstanding the development of meaningful economic competition? We ask commenters to consider generally the relation between “public interest” and “meaningful economic competition” under section 11's terms. We note that we are incorporating by reference all comments on the spectrum cap that we received in our 2000 Staff Report proceeding. See In the Matter of the 2000 Biennial Regulatory Review, CC Docket No. 00-175, Report, FCC 00-456 (rel. Jan. 17, 2001) (2000 Staff Report).

9. In this review under section 11, we seek public comment and input, including the submission of specific market data and studies, to assist our public interest determination of whether the CMRS spectrum aggregation rules are no longer necessary in the public interest and, if they are necessary, whether our existing spectrum limits should be modified.

10. Since we last reviewed spectrum aggregation limits in September 1999, CMRS markets have continued to grow in size, range of service offerings, and the pace of technological advances. In our Fifth Annual CMRS Competition Report, released in August 2000, we described considerable evidence that the mobile telephony market has experienced strong growth and competitive development. See Implementation of Section 6002(b) of the Omnibus Budget Reconciliation Act of 1993; Annual Report and Analysis of Competitive Market Conditions With Respect to Commercial Mobile Services, Fifth Report, FCC 00-289 (rel. Aug. 18, 2000) (Fifth Annual CMRS Competition Report). For example, we reported that non-cellular carriers had for the first time attracted a majority of the industry's total new subscribers. As a result, cellular licensees' market share of mobile telephone subscribers nationwide had dropped from 86 percent at the end of 1998 to approximately 75 percent at the end of 1999. Concurrent with, and we believe largely as the result of, the continued growth of competition in the mobile telephony market, consumers have benefited from declining prices, rapidly expanding coverage areas, new service packages, and technological innovation.

11. In light of these developments in competition, we now seek comment on whether these regulations continue to serve the public interest by promoting or protecting competition in CMRS services. Will our spectrum aggregation limits continue to contribute to the rise of competition and resulting benefits to consumers, as we have found in the past, or are they no longer necessary? We seek comment regarding the correlation between the number of competitors maintained by current spectrum aggregation limits and the growth and maintenance of competition that has produced the benefits to consumers that we have observed.

12. We seek comment on whether competitive developments since 1999 have obviated the need for limits such as the spectrum cap to prevent potentially harmful reconsolidation. How valuable a role do spectrum limits play in preventing potentially harmful concentration versus allowing consolidations that benefit the public interest? In this regard, we note that spectrum aggregation limits do not appear to have prevented the consolidation of carriers into nationwide networks with the resulting beneficial service options for consumers.

13. We ask for comment on the various economic relationships on which our spectrum cap policy is based. How do recent developments affect our concern that limits were necessary in order to ensure a minimum number of competitors in any given geographic area? Should the relevant measures of market capacity (e.g., assigned spectrum, subscriber shares, etc.) be weighted differently than in the past? What role should we continue to afford HHI calculations or similar measures of concentration of ownership or control, and what inputs should we use in calculating HHI? Should we continue to apply the cap to all broadband PCS, cellular, and SMR spectrum regulated as CMRS, regardless of the use to which the spectrum currently is dedicated; or, should we limit application of the cap to CMRS spectrum used for mobile voice service? If we were to limit the cap to mobile voice services only, how would we further and clearly define the included and excluded product markets? Also in the increasingly converging marketplace, are these product markets truly segregable? Moreover, how would such a policy affect the spectrum cap's goal to guard against excessive accumulation of CMRS spectrum? Also, how should we define the relevant geographic market, especially in light of the trend toward nationwide footprints and affiliations? Commenters should specifically address whether today's CMRS markets will enable new entrants—both existing carriers seeking to expand their footprints and firms, including small businesses, seeking to enter the market ab initio—to have access to the limited spectrum that is practically available today for mobile telephone services.

14. We also seek comment on the implications for our spectrum aggregation limits of our authority under section 310(d) of the Communications Act to determine that a particular consolidation is not in the public interest. If we were to eliminate or relax the spectrum cap, could we, or should we, adopt new standards or methodologies such as a processing threshold that if a proposed transaction would cause an applicant to exceed 45 MHz of covered spectrum (or some other threshold amount), it must provide an additional public interest showing meeting certain criteria (e.g., HHI and/or other economic data demonstrating concentration of market)? Alternatively, would it be preferable to establish a threshold based on the number of competitors providing CMRS (or CMRS mobile voice telephony) in a geographic market? Commenters should consider the impact of any standards that will increase time and expense for small businesses, which often may not have the requisite resources for case-by-case reviews. To the extent that we decide to eliminate the spectrum cap and rely on the section 310(d) review process, we note that attribution and ownership issues could also arise outside that process if licensees are permitted to lease spectrum usage rights without prior section 310(d) approval.

15. We seek comment on the implications of other agencies' enforcement of antitrust laws for our spectrum aggregation limits and our public interest review required by section 310(d). Can we, and should we, defer to the Department of Justice (DOJ) in cases where it has entered into consent decrees with merging CMRS carriers to prevent competitive harm, and if so, what form should such deference take? For example, can we, and should we, adopt an approach such that all transfers resulting in consolidation of spectrum below a spectrum threshold should be exempt from section 310(d) competitive analysis? Can we, and should we, eschew an independent review of the competitive implications of license transfers that are part of mergers that are subject to some specified level of DOJ review, and, if so, how should we define that level? What would be the legal and policy implications of adopting these or any alternative approaches? Do spectrum aggregation limits continue to promote other public interest goals that stress policies such as the beneficial role of market entry?

16. If we conclude that spectrum aggregation limits remain necessary at this time, we ask commenters to address whether subsequent competitive developments could obviate the need for such limits and thereby enable us to sunset these regulations. If commenters believe that a sunset provision is appropriate, we seek further comment on whether it should be tied to a specific date in the future, and how best to predict the timing of the competitive developments on which it would be based. Alternatively, we seek comment on whether a sunset should be based on the development of specified competitive conditions or other criteria, in some or all markets, regardless of when they occur.

17. We ask for comment on the potential harms or benefits of adopting limits other than the current 45/55 MHz spectrum cap thresholds. For example, assuming consolidation between broadband PCS and cellular operators, a 55 MHz cap would still ensure at least four broadband competitors under the 180 MHz of covered spectrum. However, under such a limit, it is possible that one competitor could have significantly less spectrum than the other three under current allocations. Under increased thresholds, which combinations would harm or benefit consumers?

18. We also seek comment on whether we should repeal the cellular cross-interest rule. The distinctions between cellular and PCS services appear to have decreased since our 1998 biennial review. On the other hand, most broadband PCS operators are still deploying their networks and do not yet provide facilities-based coverage comparable to the current combined nationwide cellular footprint. We therefore seek comment on whether the need for a separate cellular cross-interest rule has lessened, or whether the cellular sector may still have the potential to undermine the level of CMRS competition we have seen so far. Can we continue to make distinctions and compare competitive differences between “cellular carriers” and their competitors, e.g., “PCS carriers”? We ask commenters to provide empirical evidence and/or studies on the relative competitive and buildout status of cellular, SMR, and broadband PCS carriers on a market-by-market as well as comprehensive basis.

19. We also seek comment on whether the cellular cross-interest rule may still be necessary to prevent cellular carriers from merging in rural and/or certain other markets where there is limited or no competition from other CMRS providers. Could the purpose of the cross-interest rule still be served by its application in these circumstances?

20. Finally, we seek comment on whether and, if so, how our spectrum aggregation limits affect CMRS providers' ability to enter into and compete in local telecommunications markets. Since September 1999, has the spectrum cap enhanced or impeded the provision of wireless services as a competitive alternative to wireline services? How significant are the opportunity costs of dedicating broadband CMRS spectrum to mobile services when other spectrum bands are available for fixed wireless services? To the extent that incumbent licensees build networks using CMRS spectrum that are targeted mainly to particular services, are opportunities for entry and development of competition in other services limited in the short to medium term?

21. We must also review the CMRS spectrum aggregation rules in light of our spectrum management responsibilities, pursuant to which we issue the licenses for spectrum necessary to provide CMRS, as well as other regulatory considerations. We begin by acknowledging that, relative to demand, there is a limited amount of spectrum available that, as a practical matter, is suitable for the provision of broadband CMRS within the foreseeable future. For example, the propagation characteristics of spectrum above approximately 3 GHz make it generally unsuitable for mobile use using current technology. In addition, many bands below 3 GHz are allocated for multiple uses other than CMRS, including broadcast operations, private mobile and fixed services, and various types of satellite operations. Moreover, significant amounts of spectrum below 3 GHz are allocated for important federal government uses, such as defense, national security, law enforcement, and air traffic control. Because scarcity issues to some degree affect all users of spectrum (and, indeed, all users of any finite natural resource) and all spectrum bands, scarcity in and of itself is not sufficient to justify a limit on the aggregation of spectrum. However, significant shortages of spectrum relative to demand raise concerns, especially in service markets where there are few close non-spectrum substitutes. The scarcity of this spectrum relative to demand is evidenced by the increasing market value of broadband CMRS licenses. The Commission has found that the particular conditions that apply to broadband CMRS spectrum support the use of aggregation limits in the bands currently used for these services. In other bands, where different conditions prevail, we have taken a different approach. For instance, there are several substantial, technologically suitable bands allocated for fixed wireless services, and we do not impose any aggregation limits on such spectrum. Moreover, wireline services are for many customers close substitutes for such wireless services and so aggregation of such spectrum in a small number of licensees would not necessarily raise competitive concerns.

22. There have been a number of regulatory actions since the last biennial review that may affect our decisions here regarding CMRS spectrum aggregation limits. For example, we recently reconfigured the licenses available in the broadband PCS C and F block auction—Auction No. 35—to better enable all carriers to acquire additional CMRS spectrum in most markets without triggering any CMRS spectrum cap concerns. In addition, we decided to exclude from spectrum aggregation limits the 700 MHz bands that will be auctioned early this year. We also eliminated the separate narrowband PCS spectrum aggregation limit earlier last year.

23. Another significant regulatory consideration is spectrum efficiency. Increases in the number of competitors and the associated demand for CMRS spectrum are leading to increases in spectrum efficiency. As operators seek to increase mobile voice capacity and deploy spectrum-intensive, advanced wireless services such as high-speed Internet access and mobile video conferencing, we see the marketplace responding with technological solutions that are increasing the technical capacity of wireless networks.

24. In addition, we found in the First Biennial Review Order that bright-line rules like the spectrum cap and cellular cross-interest rules hold many benefits over alternative regulatory tools. In particular, we reconfirmed that the spectrum cap would allow review of CMRS acquisitions in an administratively simple manner and lend certainty to the marketplace. We determined that bright-line rules reduce burdens placed on both the Commission and industry, especially small businesses, as well as give industry advance notice of which types of cross-ownership situations the Commission would find anticompetitive. In recognition that any bright-line test may be over-inclusive or under-inclusive in individual cases, we specifically provided that parties who believed that individualized analysis is appropriate could always request a waiver of the spectrum cap and/or cross-interest rule.

25. Choices about CMRS spectrum aggregation limits appear to involve market structure and fundamental spectrum management issues regarding this limited amount of spectrum. For example, the Commission is exploring the possible use of several frequency bands below 3 GHz to support the introduction of new advanced wireless services, including third-generation (3G) wireless systems. Accordingly, we seek comment on our above analysis of CMRS spectrum scarcity issues and its implications for our decisions on CMRS spectrum aggregation limits.

26. We seek comment on the potential efficiency benefits or costs of our spectrum aggregation limits. Have such limits provided incentives to the development and deployment of spectrum-efficient technologies that will better serve the public interest in the middle and long term? Or, would such innovation have occurred independent of our spectrum aggregation limits? In addition, do spectrum limits do more to impede the efficient development of new 3G technologies that may be spectrum-intensive in the short term?

27. We seek comment on the extent, if any, to which our regulations impede beneficial economies of scale and the introduction of innovative new technologies and services. We seek specific comment on how the decision to limit carriers' access to CMRS spectrum affects the deployment of next-generation services and the migration of 2G service providers to those services. How do aggregation limits impact the emergence of mobile Internet access and other data services? We seek comment on how to promote advanced wireless services while simultaneously ensuring that meaningful economic competition continues to develop.

28. We also seek comment on how our spectrum aggregation limits may impair potential efficiencies for all CMRS markets, including those within urban areas. We noted in 1999 that up to a point, horizontal concentration in CMRS markets may be in the public interest because it could allow efficiencies and economies that would otherwise not be achievable. In today's CMRS markets, would achieving such economies be in the public interest despite any potential increased risk of anticompetitive consolidation?

29. In discussing the availability of spectrum for advanced wireless services, commenters should address the extent to which companies' ability to use alternative spectrum—i.e., spectrum outside of the broadband PCS, cellular and SMR bands subject to the cap—should affect our analysis here. To the extent that future spectrum bands like 700 MHz are not subject to the cap, does this lessen the need to increase the spectrum cap by creating opportunities for CMRS incumbents to obtain spectrum in these bands? Or, will new spectrum eliminate the access-to-spectrum barrier to entry faced by potential competitors, and thus lessen the need to maintain a spectrum cap at all?

30. Similarly, we seek comment on how to assess the treatment of newly allocated spectrum for spectrum cap purposes. As a general matter, we believe that newly available CMRS-suitable spectrum either should be excluded from the spectrum cap or, if it is included, that the cap should be adjusted accordingly. We seek comment on the factors to consider in deciding between these two options. While we will not be making specific decisions in this proceeding on what, if any, constraints ought to apply to concentration of ownership in newly available spectrum bands, we plan to consider an analytical framework to apply to such bands.

31. We also seek comment on whether the impact of the spectrum cap on development of advanced services could be adequately addressed by continuation of the waiver policy that we adopted in the First Biennial Review Order. Does our specific waiver process enable carriers with a demonstrable need for additional spectrum, especially for advanced wireless services, to obtain such spectrum? We request parties to provide specific evidence and concrete examples of the extent to which carriers' holdings in markets approach or are at the 45/55 MHz cap.

32. Commenters are also asked to address whether any developments in the last year should lead us to alter our determination that a bright-line approach remains preferable to exclusive reliance on case-by-case review under section 310(d). We seek comment on the extent to which our approach has benefited licensees, including licensees that are small businesses. Commenters are encouraged to provide specific examples where our aggregation limits either did or did not provide the certainty or efficiency that a particular marketplace transaction required.

33. Finally, we seek specific comment on whether we should make any fundamental changes in rural and high-cost markets, which appear not to have seen the development of competition in mobile wireless services to the degree that is evident in urban areas. We seek comment on whether increasing the existing spectrum cap last year in rural areas has had any impact on the delivery of service to rural customers in terms of prices, availability of digital services, or other factors. Should we, at a minimum, continue to retain the cellular cross-interest rule until increased PCS and other service deployments become more firmly established?

34. We also wish to examine the significance for our reexamination of spectrum aggregation limits of foreign mobile licensing policies, and particularly the 3G licensing process now taking place in Europe and Asia. A recent study issued by the Organization for Economic Cooperation and Development has documented a global trend in mobile licensing policy towards increasing numbers of operators in a given market, a trend that predates the 3G licensing process. Moreover, many Western European countries are using the 3G licensing process as an opportunity to promote the development of competitive market structures.

35. European countries are able both to ensure a minimum number of competitors and to permit each provider access to more spectrum because substantially more suitable spectrum has been allocated for commercial mobile telecommunications services in Europe than in the United States. With the additional 140 to 145 MHz of spectrum that most Western European countries have allocated to licensed 3G use, the total amount of spectrum available for mobile telephony services in these countries now exceeds 180 MHz, in most cases by a wide margin. In particular, we estimate that the total amount of spectrum available for first-, second- and third-generation mobile communications services in most Western European countries is generally about 250-300 MHz, and ranges from a high of almost 365 MHz in the United Kingdom to a low of about 187 MHz in Norway. Thus, because most European countries have allocated more total spectrum for mobile telecommunications services, they are able to allow individual carriers to acquire larger total spectrum holdings than would be permitted under our spectrum cap policy, while at the same time ensuring that there are at least four, and often more, competitors in their markets.

36. We also note that other countries limit the amount of spectrum operators can acquire in the secondary market. In the vast majority of countries, including European Union (EU) Member States, strict limits on trading of wireless licenses and/or spectrum rights render a spectrum cap largely superfluous. Apart from the United States, only a relative few countries, including Canada, Australia and New Zealand, allow spectrum licenses to be traded both in whole and in part.

37. We generally seek comment on the lessons to be learned from experience internationally. In addressing these issues, commenters should consider the significance of the differences summarized above, as well as the fact that unlike our “flexible use” approach in the United States, spectrum management policies abroad generally do not afford wireless operators the flexibility to deploy 3G technologies on spectrum currently licensed for 2G services.

38. We also seek comment generally on how international developments relate to the question of whether to eliminate spectrum limits to direct the course of development in U.S. CMRS markets. We note that most EU Member States have already licensed 3G spectrum or are planning to do so by the first half of 2001 to give operators sufficient lead time to plan for 3G deployment. Spectrum aggregation limits may affect U.S. development of advanced wireless services over the short term. We ask parties to comment on the trade-offs that we will face in the United States during this time. We also seek comment on whether U.S. carriers may require smaller amounts of total spectrum for 2G and 3G services than their counterparts in Europe and Asia because our policies afford U.S. carriers more flexibility with respect to spectrum use and alternative means of acquiring access to spectrum. Finally, we seek comment on whether any of the mechanisms other countries use to ensure they have an adequate number of competitors in their markets might be adapted to the U.S. market, as an alternative to our spectrum cap approach.

39. In the event that we do not eliminate our spectrum aggregation limits, we also request comment on whether specific attributes of the CMRS spectrum cap and cellular cross-interest rule should be modified to allow some of the benefits that may arise from additional cross-ownership interests. Commenters should also address any possible interim modifications that would benefit the public interest in the event that we decide to sunset our spectrum aggregation limits in the future.

40. We seek comment on aspects of the CMRS spectrum cap that could be modified to increase carriers' flexibility and promote our various public policy objectives. To begin, we seek comment on the effect of recent changes in CMRS markets, particularly the emergence of broadband PCS licensees as competitors to cellular licensees, on the rationale for a 10 percent population overlap threshold. What are the public interest benefits of increasing the threshold and do those benefits outweigh any potential for reduced consumer benefits from the concentration of ownership or control of CMRS licenses?

41. We solicit comment on whether there is a mechanism for triggering the application of a spectrum cap in given geographic areas that might be superior to our current overlap standard. We ask for comment on the pros and cons of adopting a simplified overlap standard that turns on a certain allowable percentage of overlap between licensed service areas. For example, assuming a 10 percent threshold, one possible approach would be a standard where a PCS BTA-based license's overlap with a partitioned MTA-based license would not come under the cap if the population covered by the overlap were less than 10 percent of the total population of the PCS BTA and less than 10 percent of the total population of the partitioned PCS MTA. Similarly, if we were to eliminate the cellular cross-interest rule under such a standard, an A-Block cellular license's overlap in CGSA with the CGSA of a B-Block cellular license would not trigger the cap if the population covered by the overlap were less than 10 percent of the total population of the A-Block CGSA and less than 10 percent of the total population of the B-Block CGSA. A variation of this standard would be to exempt overlaps from the cap if the population in the overlap area were less than 10 percent of the total population of the more populous licensed service area. In addition, the threshold could be set at some level other than 10 percent. We seek comment on these and any other possible approaches.

42. We seek comment here on whether recent developments in the SMR industry warrant any modification of the special provisions for SMR overlap analysis and calculation of attributable spectrum. The original justification for the maximum attribution of 10 MHz was based on the conclusion that SMR spectrum is not equivalent to cellular or broadband PCS. We seek comment on whether the rationale for this 10 MHz limit continues in today's marketplace for broadband CMRS. For example, how have our recent auctions of SMR spectrum affected the rationale to limit the amount of SMR spectrum attributed to a carrier? Do we need to clarify our spectrum cap analysis to account for application of the cap when these auctioned geographic-based SMR licenses overlap with PCS licensed service areas? In addition, should significant recent acquisition and merger activity lead us to question the assumption that SMR spectrum is difficult to reconfigure? If we were to revise our approach to station-defined SMR spectrum, should we increase the maximum attributable amount from 10 MHz to a higher figure (e.g., 15 or 20 MHz), or should we simply attribute to each carrier the actual spectrum it has in each market? If we were to adopt the latter approach, how would we determine the amount of spectrum and define the geographic area for our overlap analysis?

43. We also seek comment on whether we should modify our ownership attribution standards. Should the 20 percent general attribution standard be modified? We seek comment on the effect that a 40 percent attribution standard has had on the ability of CMRS providers to obtain capital. Have small businesses benefited from their general 40 percent attribution standard? We also seek comment on whether any of our other ownership attribution criteria should be modified. For example, are there situations proscribed by our attribution rules that do not pose a threat to competition? Should we attribute spectrum used pursuant to potential spectrum leasing arrangements, or to management and joint marketing agreements?

44. If we decide not to repeal the cellular cross-interest rule, we seek comment on whether we should modify the rule so that it does not apply in certain circumstances where other regulations will provide adequate safeguards. We seek comment on whether there is a need to maintain any cellular-specific restrictions in more urban areas, where there is generally a larger number of competitive choices for consumers. Although cellular providers still maintain large market shares in MSAs, would cellular/cellular combinations be more anticompetitive than cellular/PCS or PCS/PCS combinations if the cellular cross-interest rule is repealed in MSAs? Commenters should focus on whether cellular combinations would be able to sustain prices above the competitive level without reduction in market shares and explain their conclusions with specific data such as customer churn percentages and whether these are price driven, quality/coverage driven, or both.

45. Another possibility, given that cellular licensees can now disaggregate their spectrum, would be to replace the current rule with a separate cellular spectrum cap of 35 MHz (or some other amount). Under the current cross-interest rule, an entity with an attributable interest in a cellular license cannot hold a 5 percent interest in a disaggregated license for even 1 MHz of spectrum on the other channel block in an overlapping CGSA. Such a rule change would allow increased opportunities for partnering while maintaining protection against the complete consolidation of two 25 MHz cellular carriers. We ask parties to comment on any modifications necessary to permit parties to disaggregate spectrum.

46. In addition, we seek comment on the public interest benefits and/or harms of increasing the 5 percent ownership interest limit in a cellular licensee when one has a controlling or otherwise attributable interest in the other licensee in an overlapping CGSA. Although the cross-interest rule prohibits interests greater than 5 percent, our ownership disclosure standards for wireless telecommunications services only require licensees to report interests greater than 10 percent. We therefore seek comment on whether conformity between these two provisions would permit the Commission more accurately to regulate compliance with the cellular cross-interest rule.

47. We also seek comment on whether we should modify the divestiture provisions related to the cellular cross-interest rule. For example, should we revise the rule to operate similar to the spectrum cap? In contrast to the cross-interest rule, we consider parties to have come into compliance with the spectrum cap once they have submitted an application for assignment or transfer of control of sufficient spectrum to comply with the cap. Commenters are asked to address the competitive and public interest implications of harmonizing these and any other provisions of the two rules.

48. As required by the Regulatory Flexibility Act, see 5 U.S.C. 603, the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the possible impact on small entities of the proposals in the Notice of Proposed Rulemaking. The IRFA is set forth. Written public comments are requested on the IRFA. These comments must be filed in accordance with the same filing deadlines for comments on the NPRM, and they must have a separate and distinct heading designating them as responses to the IRFA. The Commission's Consumer Information Bureau, Reference Information Center, will send a copy of this NPRM, including the IRFA, to the Chief Counsel for Advocacy of the Small Business Administration, in accordance with the Regulatory Flexibility Act.

49. This is a permit-but-disclose notice and comment rule making proceeding. Ex parte presentations are permitted, except during the Sunshine Agenda period, provided they are disclosed as provided in Commission rules. See generally 47 CFR 1.1202, 1.1203, 1.1206.

50. Pursuant to applicable procedures set forth in §§ 1.415 and 1.419 of the Commission's rules, interested parties may file comments on or before April 13, 2001 and reply comments on or before March 14, 2001. Comments and reply comments should be filed in WT Docket No. 01-14. All relevant and timely filings will be considered by the Commission before final action is taken in this proceeding. To file formally in this proceeding, interested parties must file an original and four copies of each filing. All filings must be sent to the Commission's Secretary, Magalie Roman Salas, Office of the Secretary, Federal Communications Commission, 445 12th St., SW., Rm. TW-A325, Washington, DC 20554, with a copy to Michael J. Rowan, Commercial Wireless Division, Wireless Telecommunications Bureau, Federal Communications Commission, 445 12th St., SW., Rm. 4A-131, Washington, DC 20554. One copy of all filings should also be sent to the Commission's copy contractor.

51. Comments may also be filed using the Commission's Electronic Comment Filing System (ECFS). Comments filed through the ECFS can be sent as an electronic file via the Internet to http://www.fcc.gov/e-file/ecfs.html. Generally, only one copy of an electronic submission must be filed. Parties may also submit an electronic comment by Internet E-Mail. To obtain filing instructions for E-Mail comments, commenters should send an E-mail to ecfs@fcc.gov, and should include the following words in the body of the message: “get form (your E-Mail address).” A sample form and directions will be sent in reply. Or you may obtain a copy of the ASCII Electronic Transmittal Form (FORM-ET) at http://www.fcc.gov/e-file/email.html.

52. Comments and reply comments will be available for public inspection during regular business hours at the FCC Reference Information Center, Rm. CY-A257, at the Federal Communications Commission, 445 12th St., SW., Washington, DC 20554. Copies of comments and reply comments are available through the Commission's duplicating contractor: International Transcription Service, Inc. (ITS, Inc.), 1231 20th Street, NW., Washington, DC 20037, (202) 857-3800.

53. As required by the Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et. seq., the Commission has prepared this Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities of the policies and proposals in this Notice of Proposed Rulemaking (NPRM), WT Docket No. 01-14. Written public comments are requested on this IRFA. These comments must be filed in accordance with the same filing deadlines for comments on the rest of this NPRM, as set forth above, and they must have a separate and distinct heading designating them as responses to the IRFA.

54. As part of our biennial regulatory review, pursuant to section 11 of the Communications Act, we solicit comment on whether we should retain, modify, or eliminate the commercial mobile radio services (CMRS) spectrum cap. We also seek comment on whether we should retain, modify, or repeal the cellular cross-interest rule. In asking these questions, the NPRM looks at recent competitive changes in CMRS markets, reexamines the public interest objectives that the spectrum limits are designed to achieve, and asks whether there are alternatives to the existing rules that avoid any potential public interest costs. It seeks comment on how international trends and developments in the marketplace since the completion of our last biennial review in September 1999 may affect our analysis. The NPRM discusses reliance on case-by-case analysis of the potential competitive effects of a proposed spectrum holding pursuant to section 310(d) of the Communications Act as one potential alternative to the current rules, and it discusses possible modifications to the spectrum cap and cross-interest rules. These include, among other things: (1) increasing the amount of spectrum that a single entity may hold in a given geographic area beyond 45/55 MHz; (2) modifying the spectrum cap's 10 percent population overlap threshold and/or attribution rules; (3) eliminating or modifying the rule that limits attributable Specialized Mobile Radio (SMR) spectrum to 10 MHz; (4) altering the cellular cross-interest rule's provisions as they relate to disaggregation of spectrum and/or post-licensing divestiture; and (5) modifying the ownership attribution standards under both rules. Through the process of seeking public comment and collecting data, we hope to assess the impact of recent competitive trends, international developments, and spectrum management and other regulatory considerations.

55. The potential actions on which comment is sought in this NPRM would be authorized under sections 1, 4(i), 11, 303(g), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 161, 303(g), and 303(r).

56. The RFA requires that an initial regulatory flexibility analysis be prepared for notice-and-comment rulemaking proceedings, unless the Agency certifies that “the rule will not, if promulgated, have a significant impact on a substantial number of small entities.” See 5 U.S.C. 603(b)(3). The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which: (1) is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA. This IRFA describes and estimates the number of small-entity licensees that may be affected if the proposals in this NPRM are adopted.

57. This NPRM could result in rule changes that, if adopted, would affect small businesses that currently are or may become licensees in the cellular, broadband Personal Communications Services (PCS) and/or SMR services.

58. Cellular Radiotelephone Service. Neither the Commission nor the SBA has developed a definition of small entities applicable to cellular licensees. Therefore, the applicable definition of small entity is the definition under the SBA rules applicable to radiotelephone (wireless) companies. This provides that a small entity is a radiotelephone company employing no more than 1,500 persons. According to the Bureau of the Census, only twelve radiotelephone firms from a total of 1,178 such firms, which operated during 1992, had 1,000 or more employees. Therefore, even if all twelve of these firms were cellular telephone companies, nearly all cellular carriers were small businesses under the SBA's definition. In addition, we note that there are 1,758 cellular licenses; however, a cellular licensee may own several licenses. In addition, according to the most recent Telecommunications Industry Revenue data, 808 carriers reported that they were engaged in the provision of either cellular service or PCS, which are placed together in the data. We do not have data specifying the number of these carriers that are not independently owned and operated or have more than 1,500 employees, and thus are unable at this time to estimate with greater precision the number of cellular service carriers that would qualify as small business concerns under the SBA's definition. Consequently, we estimate that there are fewer than 808 small cellular service carriers that may be affected by these proposals, if adopted.

59. Broadband Personal Communications Service (PCS). The broadband PCS spectrum is divided into six frequency blocks designated A through F, and the Commission has held auctions for each block. The Commission defined “small entity” for Blocks C and F as an entity that has average gross revenues of less than $40 million in the three previous calendar years. For Block F, an additional classification for “very small business” was added and is defined as an entity that, together with its affiliates, has average gross revenues of not more than $15 million for the preceding three calendar years. These regulations defining “small entity” in the context of broadband PCS auctions have been approved by the SBA. No small businesses within the SBA-approved definition bid successfully for licenses in Blocks A and B. There were 90 winning bidders that qualified as small entities in the Block C auctions. A total of 93 small and very small business bidders initially won approximately 40 percent of the 1,479 licenses for Blocks D, E, and F. On March 23, 1999, the Commission reauctioned 347 C, D, E, and F Block licenses; there were 48 small business winning bidders. Based on this information, we conclude that the number of small broadband PCS licensees will include the 90 winning C Block bidders and the 93 qualifying bidders in the D, E, and F blocks plus the 48 winning bidders in the re-auction, for a total of approximately 231 small entity PCS providers as defined by the SBA and the Commission's auction rules. In addition, the Commission anticipates that a total of 422 licenses will be auctioned in the broadband PCS reauction of the C & F Blocks that began December 12, 2000. Therefore, we conclude that the number of additional C & F Block broadband PCS licensees that may ultimately be affected by these proposals could be as many as 422.

60. Specialized Mobile Radio (SMR). Pursuant to 47 CFR 90.814(b)(1), the Commission has defined “small business” for purposes of auctioning 900 MHz SMR licenses, 800 MHz SMR licenses for the upper 200 channels, and 800 MHz SMR licenses for the lower 230 channels on the 800 MHz band as a firm that has had average annual gross revenues of $15 million or less in the three preceding calendar years. The SBA has approved this small business size standard for the 800 MHz and 900 MHz auctions. The auction of the 1,020 900 MHz SMR geographic area licenses for the 900 MHz SMR band began on December 5, 1995, and was completed on April 15, 1996. Sixty (60) winning bidders for geographic area licenses in the 900 MHz SMR band qualified as small businesses under the $15 million size standard. The auction of the 525 800 MHz SMR geographic area licenses for the upper 200 channels began on October 28, 1997, and was completed on December 8, 1997. Ten (10) winning bidders for geographic area licenses for the upper 200 channels in the 800 MHz SMR band qualified as small businesses under the $15 million size standard.

61. The lower 230 channels in the 800 MHz SMR band are divided between General Category channels (the upper 150 channels) and the lower 80 channels. The auction of the 1,053 800 MHz SMR geographic area licenses (1,050—800 MHz licenses for the General Category channels, and 3—800 MHz licenses for the upper 200 channels from a previous auction) for the General Category channels began on August 16, 2000, and was completed on September 1, 2000. At the close of the auction, 1,030 licenses were won by bidders. Eleven (11) winning bidders for geographic area licenses for the General Category channels in the 800 MHz SMR band qualified as small businesses under the $15 million size standard. The auction of the 2,800 800 MHz SMR geographic area licenses for the lower 80 channels of the 800 MHz SMR service began on November 1, 2000, and was completed on December 5, 2000. Nineteen (19) winning bidders for geographic area licenses for the lower 80 channels in the 800 MHz SMR band qualified as small businesses under the $15 million size standard. In addition, there are numerous incumbent site-by-site SMR licensees on the 800 and 900 MHz bands. The Commission awards bidding credits in auctions for geographic area 800 MHz and 900 MHz SMR licenses to firms that had revenues of no more than $15 million in each of the three previous calendar years.

62. This NPRM neither proposes nor anticipates any additional reporting, recordkeeping or other compliance measures.

63. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.

64. In our September 1999 First Biennial Review Order, we concluded that retention of the CMRS spectrum cap and cellular cross-interest rule serves the public interest. We found that the benefits of these bright-line rules in addressing concerns about increased spectrum aggregation continued to make these approaches preferable to exclusive reliance on case-by-case review under section 310(d). By setting bright lines for permissible ownership interests, we found that the rules continued to benefit both the telecommunications industry and subscribers, including small businesses, by providing regulatory certainty and facilitating more rapid processing of transactions. Specifically, we noted that case-by-case review is especially expensive and time-consuming for small businesses, which often do not have the requisite resources.

65. In our 2000 biennial regulatory review pursuant to section 11, we here reexamine our findings and determinations in September 1999. Since that time, there have been international and economic developments that have significantly affected CMRS markets. For example, consolidation within the CMRS industry in an effort to create national service footprints has tended to reduce the number of smaller entities providing broadband CMRS on a purely local level. As part of this 2000 biennial review, we seek to develop a record regarding whether the CMRS spectrum cap and cellular cross-interest rule continue to make regulatory and economic sense in CMRS markets in the current-, mid-, and long-term. In doing so, we generally request comment on whether retention, modification, or elimination of the CMRS spectrum cap and/or cellular cross-interest rule is appropriate with respect to small businesses that are licensees in the cellular, broadband PCS and/or SMR services. We seek comment on whether there continues to be a need for these rules to ensure that new entrants, including small businesses, have access to spectrum licenses both at auction and in the secondary market. We inquire whether these bright-line rules continue to create efficiencies and reduce transaction costs for small business. We consider the impact on small businesses if we were to adopt alternative approaches that rely more heavily on case-by-case review. We also seek specific comment on various aspects of these rules that particularly affect small business, such as the whether our September 1999 decision to increase attribution standards to 40 percent has benefited small businesses.

66. None.

67. Accordingly, It Is Ordered, pursuant to the authority of sections 1, 4(i), 11, 303(g), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 161, 303(g), and 303(r), that this Notice of Proposed Rulemaking is Adopted.

68. It Is Further Ordered that the Commission's Consumer Information Bureau, Reference Information Center, Shall Send a copy of the Notice of Proposed Rulemaking, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

The spruce-fir moss spider is the smallest of the mygalomorph spiders, with adults measuring only 2.5 to 3.8 millimeters (0.10 to 0.15 inch) in length (Coyle 1981, Service 1995). The species' coloration ranges from light brown to a darker reddish brown, and there are no markings on the abdomen (Harp 1992). Microhexura montivaga is known from only the highest mountain peaks (at and above 1,646 m (5,400 ft) in elevation) in the Southern Appalachian Mountains of North Carolina and Tennessee.

Recent and ongoing surveys funded by the National Park Service, U.S. Forest Service, and us indicate that reproducing populations of the spruce-fir moss spider still survive on Grandfather Mountain in North Carolina (Harp 1992; pers. observation 1995; Jane Thompson, The Nature Conservancy, pers. comm. 1997); Mount LeConte in Tennessee (Coyle 1997); and Mount Buckley (Coyle, pers. comm. 2000) and Roan Mountain in North Carolina and Tennessee (Coyle 1999). The Mount Mitchell population is believed to be extirpated (Harp 1992), and both the Mount Collins and Clingmans Dome populations, if still present, are extremely small, with only one spruce-fir moss spider having been found at each of these two sites in recent years (Harp 1991, 1992).

The microhabitat of the spruce-fir moss spider appears to be virtually restricted to certain areas of rock outcrops and boulders in Fraser fir and/or fir-dominated spruce-fir forests. The primary threat to, and reason for, the recent decline of the spruce-fir moss spider at all of the sites from which it has been recorded appears to be associated with the loss of suitable moss habitat, due primarily to the loss of mature Fraser firs (Coyle, in litt., 1991, 1999; Harp 1991, 1992; Service 1998).

On February 6, 1995, we listed the spruce-fir moss spider as endangered (60 FR 6968) under the Endangered Species Act of 1973, as amended (Act). The primary threat to the species was identified as deterioration of the spider's high-elevation forest habitat due primarily to exotic insects and possibly to past land use history, air pollution, and other factors not yet fully understood. On October 6, 2000, we published in the Federal Register a proposal to designate critical habitat for this species (65 FR 59798). The proposal includes: (1) Areas at and above 1,646 meters (m) (5,400 feet (ft)) in elevation in the Great Smoky Mountains National Park (GSMNP) on and/or in the vicinity of Mount LeConte in Sevier County, Tennessee, and Mount Collins, Clingmans Dome, and Mount Buckley in Swain County, North Carolina, and Sevier County, Tennessee; (2) areas at and above 1,646 m (5,400 ft) in elevation at Grandfather Mountain in Avery, Caldwell, and Watauga Counties, North Carolina; and (3) portions at and above 1,646 m (5,400 ft) in elevation at Roan Mountain, Avery and Mitchell Counties, North Carolina, and Carter County, Tennessee. All of the areas on or in the vicinity of Mount LeConte, Mount Collins, Clingmans Dome, and Mount Buckley that are proposed for critical habitat designation are within the boundaries of the GSMNP; all of the areas of Roan Mountain that are proposed for critical habitat designation are within the boundaries of the Pisgah National Forest in North Carolina and the Cherokee National Forest in Tennessee; and the areas of Grandfather Mountain that are proposed for critical habitat designation are privately owned.

Section 4(b)(2) of the Act requires that we designate or revise critical habitat based upon the best scientific and commercial data available and after taking into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat. We may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area as critical habitat, provided such exclusion will not result in the extinction of the species. Consequently, we have prepared a draft economic analysis concerning the proposed critical habitat designation, which is available for review and comment at the above Internet and mailing addresses.

We solicit comments on the draft economic analysis described in this notice, as well as any other aspect of the proposed designation of critical habitat for the spruce-fir moss spider. Our final determination on the proposed critical habitat will take into consideration comments and any additional information received by the date specified above. All previous comments and information submitted during the comment period need not be resubmitted. Written comments may be submitted to the State Supervisor (see ADDRESSES section).

Please submit electronic comments as an ASCII file format and avoid the use of special characters and encryption. Please also include “Attn: [RIN number]” and your name and return address in your e-mail message. If you do not receive a confirmation from the system that we have received your e-mail message, contact us directly by calling our Asheville Field Office (see ADDRESSES section).

Our practice is to make all comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address from the rulemaking record, which we will honor to the extent allowable by law. In some circumstances, we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish for us to withhold your name and/or address, you must state this prominently at the beginning of your comments. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.

A complete list of all references cited in this document is available upon request from the Asheville Field Office (see ADDRESSES section).

The primary author of this document is John A. Fridell (see ADDRESSES section).

The first petition to address steelhead in the Klamath Mountains Province or “KMP” (named after a geological province in southwest Oregon and northwest California) was received on May 5, 1992, and dealt with winter steelhead in the Illinois River, a tributary to Oregon’s Rogue River. The agency conducted a status review of this population (NMFS, 1993) and published a May 20, 1993, determination (58 FR 29390) wherein NMFS concluded that Illinois River winter steelhead did not warrant listing because they did not represent a “species” under the ESA. However, NMFS recognized that this population was part of a larger ESU whose extent had not yet been determined, but whose status might warrant listing because of declining trends in steelhead abundance observed in several southern Oregon streams.

In its May 20, 1993, finding regarding Illinois River winter steelhead, NMFS announced that it would conduct an expanded status review to identify all coastal steelhead ESUs within California, Oregon, and Washington and to determine whether any identified ESUs warranted listing under the ESA (58 FR 29390). Subsequently, on February 16, 1994, NMFS received a petition from the Oregon Natural Resources Council and from 15 co-petitioners to list all steelhead (or specific ESUs, races, or stocks) within the States of California, Oregon, Washington, and Idaho. In response to this petition, NMFS announced the expansion of its status review of steelhead to include inland steelhead populations occurring in eastern Washington and Oregon and the State of Idaho (59 FR 27527, May 27, 1994).

On March 16, 1995, NMFS identified a KMP steelhead ESU and published a proposed rule to list it as a threatened species under the ESA (60 FR 14253). The proposed ESU included steelhead populations inhabiting coastal river basins between the Elk River in Oregon and the Klamath River in California, inclusive. Subsequent to this proposal, the agency completed a coastwide status review of steelhead (NMFS, 1996a) that identified a total of 15 steelhead ESUs in the states of Washington, Oregon, Idaho, and California. By August 9, 1996, the agency had proposed 10 steelhead ESUs, including KMP steelhead, for listing as threatened or endangered under the ESA (61 FR 41541). While the agency had proposed listing KMP steelhead prior to the other ESUs, unresolved issues and practical considerations made it more prudent to consider a final determination on KMP steelhead in the context of final listing decisions for all West Coast steelhead ESUs.

On August 18, 1997, NMFS published a final rule listing five ESUs as threatened and endangered under the ESA (62 FR 43937). In a separate document published on the same day, NMFS determined that substantial scientific disagreement remained for five proposed ESUs, including the KMP steelhead ESU (62 FR 43974, August 18, 1997). In accordance with section 4(b)(6)(B)(i) of the ESA, NMFS deferred its decision on these five steelhead ESUs for 6 months for the purpose of soliciting additional data. During this 6-month period of deferral, NMFS’ scientist evaluated new information regarding the status of these proposed steelhead ESUs. This new information resulted in the updating of status review documents for these five ESUs (NMFS, 1997; NMFS, 1998).

The public hearing will be convened to obtain the views of fishery participants and the general public regarding specific issues about the use of powerhead gear to target reef fish species in the FMP’s management unit. The issues to be addressed include the following: Conflicts/competition between user groups; harvest of lethargic fish during the winter months; harvest of aggregations of spawning fish; excessive harvesting by divers; and, the illegal sale of fish. The Council intends that proposed regulatory actions to address these issues would be through a regulatory amendment under the FMP’s framework procedure for regulatory adjustments.

The public hearing will be held on Tuesday, February 20, 2001, beginning at 6 p.m., and will be held at the Sea Turtle Inn, One Ocean Boulevard, Atlantic Beach, FL 32233; telephone: (904) 249-7402; FAX (904) 247-1517.

This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to the Council (see ADDRESSES) by February 12, 2001.

FMPs and amendments must meet the requirements of the Magnuson-Stevens Act as well as a number of other Federal laws and regulations. The FMP has been developed to meet all Federal requirements and contains all the required elements of an FMP. In particular, the FMP addresses the Magnuson-Stevens Act requirement that an FMP be developed for overfished species and that targets and thresholds for stock size and fishing mortality be established.

A recent NMFS stock assessment indicates that the tilefish stock north of North Carolina is at a low biomass level and is overexploited. Total tilefish biomass in 1998 was estimated to be 6.8 million lb (3.1 million kg), which is about 35 percent of the biomass (B) that would produce maximum sustainable yield (MSY) or BMSY. Biomass-based fishing mortality (F) was estimated to be 0.45, which is about double the F at MSY (FMSY) of 0.22. Total landings in 1998 were 2.7 million lb (1.2 million kg) and significantly below the estimated MSY of 4.2 million lb (1.9 million kg). Current fishing mortality rates are unsustainable, as indicated by a shift in the exploitation pattern towards smaller fish. -

The management unit for the FMP is defined as all golden tilefish under United States jurisdiction in the Atlantic Ocean north of the Virginia/North Carolina border. Tilefish south of the Virginia/North Carolina border are currently managed as part of the Fishery Management Plan for the Snapper-Grouper Fishery prepared by the South Atlantic Fishery Management Council. The fishing year for tilefish would be the 12-month period beginning with the implementation date of the FMP. -

To meet the overall goal of the FMP, the Council adopted the following objectives: (1) Prevent overfishing and rebuild the resource to the biomass that would support MSY; (2) prevent overcapitalization and limit new entrants; (3) identify and describe essential fish habitat; and (4) collect necessary data to develop, monitor, and assess biological, economic, and social impacts of management measures designed to prevent overfishing and to reduce bycatch in all fisheries. -

The FMP would establish: (1) An overfishing definition; (2) a 10-year rebuilding schedule; (3) permit and reporting requirements for commercial vessels, operators, and dealers; (4) an FMP Monitoring Committee; (5) a framework adjustment process; (6) a commercial quota to be divided into full-time, part-time, and incidental categories; (7) a trip limit for the incidental category (non-longline); (8) a limited entry scheme for the full-time and part-time quota categories; and (9) an identification and description of essential fish habitat (EFH) for tilefish.

The Magnuson-Stevens Act requires each fishery management plan to specify objective and measurable status determination criteria for identifying when stocks or stock complexes are overfished. Status determination criteria for tilefish would specify a maximum fishing mortality rate (F) threshold and minimum stock size threshold. The maximum F threshold would be specified as FMSY, and the minimum biomass threshold would be specified as ½ BMSY. Guidelines for the Magnuson-Stevens Act National Standards suggest that a risk-averse fishing mortality rate target and a biomass target be specified. The Council adopted a target fishing mortality rate consistent with the recommended rebuilding schedule for tilefish. The FMP specifies a target stock biomass equal to BMSY. -

The Magnuson-Stevens Act requires fishery management plans to identify EFH and to address habitat issues such as description of non-fishing and fishing threats. EFH designations for tilefish under the FMP would be reviewed and, if needed, updated at least every 5 years. The FMP provides the authority to implement new or amended measures through a framework process.

Vessel owners desiring to fish for tilefish within the EEZ with the intent to sell, transport, or deliver for sale, any tilefish taken from the EEZ, would be required to obtain a Federal commercial vessel permit. Any individual who operates a vessel for the purpose of fishing commercially for tilefish would be required to obtain an operator’s permit. Any vessel fishing commercially for tilefish would be required to have on board at least one operator who holds an operator’s permit. Any dealer of tilefish would be required to have a permit.

Federal commercial permit holders would be required to submit completed logbooks within 15 days of the end of the reporting month in order to monitor the fishery. Dealers with permits issued pursuant to the FMP would be required to submit weekly landings reports. Dealers would also be required to use the NMFS interactive voice response reporting system. Dealers would be required to report all purchases of tilefish, regardless of whether a vessel possesses a valid commercial permit issued by NMFS. Buyers who do not purchase directly from vessels would not be required to submit reports under this provision. The processing sector would be required to submit the Processed Product Report, as is required in all Northeast FMPs.

The Monitoring Committee would be a joint committee made up of staff representatives of the Council, the NMFS Northeast Regional Office, the NMFS Northeast Fisheries Science Center, state representatives, and an industry member. The Monitoring Committee would annually review the best available data and make recommendations to the Council through its Tilefish Committee regarding annual specifications and management measures consistent with the rebuilding schedule for the tilefish fishery.

In addition to the annual specification setting procedure, the Council could add or modify management measures through a framework adjustment process. This adjustment procedure would allow the Council to add or modify management measures through an expedited process while allowing opportunities for public review.

Landings for each of the next 10 fishing years would be set at 1.995 million lb (905,172 kg). The quota would be divided among three categories: Incidental, part-time, and full-time. The full-time category would in turn be divided into two tiers. Placement of a vessel into a full-time or part-time category is based on qualifying criteria that reflect historical and present participation in the fishery. The incidental permit, which is open access, would allow vessels to retain up to 300 lb (138 kg) of tilefish per trip. The “target” estimate of landings for the incidental category (5 percent of the total allowable landings (TAL)) would first be subtracted from the TAL and then the remainder of the TAL would be divided among the full-time tier 1 category, which would receive 66 percent; the full-time tier 2 category, which would receive 15 percent; and the part-time category, which would receive 19 percent.

The rebuilding schedule in the FMP would have a 50-percent probability of rebuilding the tilefish stock to Bmsy in 10 years. The rebuilding schedule would reduce F from the 1998 level of 0.45, to 0.31 in the first year of the FMP. The rebuilding plan would allow for a constant harvest of 1.995 million lb (905,172 kg) per year for 10 years, beginning in 2001. -

Public comments are being solicited on the FMP through the end of the comment period (see DATES). A proposed rule that would implement the FMP may be published in the Federal Register for public comment following NMFS’ evaluation under Magnuson-Stevens Act procedures. Public comments on the proposed rule must be received by the end of the comment period on the FMP in order to be considered in the approval/disapproval decision on the FMP. All comments received by the end of the comment period on the FMP, whether specifically directed to the FMP or the proposed rule to implement the FMP, will be considered the approval/disapproval decision on the FMP. All comments received on the FMP or on the proposed rule will be responded to in the preamble to the final rule.