For additional information see the direct final rule published in the final rules section of this Federal Register.

This rule is limited to the changes contained in Amendment 1 to Certificate of Compliance Number (CoC No.) 1025 and does not include other aspects of the NAC-MPC cask system design. The NRC is using the “direct final rule procedure” to issue this amendment because it represents a limited and routine change to an existing CoC that is expected to be noncontroversial. Adequate protection of public health and safety continues to be ensured.

Because NRC considers this action noncontroversial and routine, the proposed rule is being published concurrently with a direct final rule. The direct final rule will become effective on November 15, 2001. However, if the NRC receives significant adverse comments on the direct final rule by October 1, 2001, then the NRC will publish a document to withdraw the direct final rule. A significant adverse comment is a comment where the commenter explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or would be ineffective or unacceptable without a change. A comment is adverse and significant if:

(1) The comment opposes the rule and provides a reason sufficient to require a substantive response in a notice-and-comment process. For example, in a substantive response:

(a) The comment causes the staff to reevaluate (or reconsider) its position or conduct additional analysis;

(b) The comment raises an issue serious enough to warrant a substantive response to clarify or complete the record; or

(c) The comment raises a relevant issue that was not previously addressed or considered by the staff.

(2) The comment proposes a change or an addition to the rule, and it is apparent that the rule would be ineffective or unacceptable without incorporation of the change or addition.

(3) The comment causes the staff to make a change to the CoC or TS.

If the direct final rule is withdrawn, the NRC will address the comments received in response to the proposed revisions in a subsequent final rule. Absent significant modifications to the proposed revisions requiring republication, the NRC will not initiate a second comment period for this action if the direct final rule is withdrawn.

Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications should identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2001-NE-16-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, New England Region, Office of the Regional Counsel, Attention: Rules Docket No. 2001-NE-16-AD, 12 New England Executive Park, Burlington, MA 01803-5299.

The FAA has received a report of an uncontained LPT 5th stage disk failure on a PW JT9D-7R4G2 turbofan engine that resulted in damage to the airplane and in-flight shutdown. The investigation into the cause of that failure revealed that the disk failure resulted from an incomplete blending of damage, previously caused by an LPT stage 4-5 tiebolt fracture. High-energy damage to the disk caused by a tiebolt fracture, if not completely removed by blending, may lead to disk cracking and fracture. Also, a review of the Engine Manual and the Standard Practices Operating Procedures for blending repairs indicates that these blending procedures may not ensure complete removal of all damaged material from the disks. This condition, if not corrected, could result in uncontained failure of the LPT 5th stage disk, due to incomplete blend repairs, resulting in in-flight shutdown and damage to the airplane.

The FAA has reviewed and approved the technical contents of PW service bulletin (SB) JT9D-7R4-72-574, Revision 1, dated June 26, 2001. That SB describes procedures for a one-time visual inspection of all PW JT9D-7R4 series LPT 5th stage disks for evidence of blend repairs and damage from fractured tiebolts in the forward and aft web and bore area, and disk removal from service based on the extent of damage.

Since an unsafe condition has been identified that is likely to exist or develop on other Pratt & Whitney JT9D-7R4 series turbofan engines of the same type design, the proposed AD would require a one-time visual inspection of PW JT9D-7R4 series LPT 5th stage disks for evidence of blend repairs in the forward and aft web and bore area. If a disk has any amount of blended or unblended damage in the web and bore area that was caused by a fractured tiebolt, or if a disk has five or more blended or unblended areas of damage by any cause, the disk must be removed from service. The actions would be required to be accomplished at the next separation of the LPT module from the engine after the effective date of this AD, in accordance with the service bulletin described previously.

There are approximately 647 Pratt & Whitney (PW) JT9D-7R4 series turbofan engines of the affected design in the worldwide fleet. The FAA estimates that 151 engines installed on airplanes of U.S. registry would be affected by this proposed AD. The FAA also estimates that it would take approximately one work hour per engine to accomplish the proposed actions, and that the average labor rate is $60 per work hour. A replacement disk would cost approximately $145,260 per engine. Based on these figures, the total cost impact of the proposed AD on U.S. operators is estimated to be $21,943,320.

This proposed rule does not have federalism implications, as defined in Executive Order 13132, because it would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, the FAA has not consulted with state authorities prior to publication of this proposed rule.

For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES.

Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

NBSAC is an advisory committee created under 46 U.S.C. 13110(a). It advises the Coast Guard on substantive matters of boating safety. Its 21 members come from 3 segments of the boating community: The boating industry; State officials on boating safety; and representatives of national recreational boating organizations and the general public. NBSAC meets twice a year, in the spring and fall. The meetings are open to the public. Under 46 U.S.C. 4302(c)(4), the Coast Guard must consult NBSAC in the formulation of boating safety regulations.

In 1981, 1986, 1992, and 1997, we conducted comprehensive reviews of our boating safety regulations in conjunction with a single NBSAC meeting. We asked NBSAC to determine whether the regulations were still necessary, beneficial, cost-effective, and consistent with current technology. These periodic reviews led NBSAC to make numerous recommendations to improve and update specific provisions in the regulations.

We plan to conduct this review in three stages at sequential NBSAC meetings, starting in April 2002. We will publish notices in the future, requesting comments for the two remaining stages and announcing the specific date of each NBSAC meeting. Each stage will evaluate current boating safety regulations, but will not include any rules under development.

The first review stage will include administrative requirements for manufacturers and importers of recreational vessels (33 CFR part 179 and part 181, subparts B and C) and fire and explosion prevention requirements for manufacturers and importers of recreational vessels (33 CFR part 183, subparts I, J, and K). NBSAC will review these regulations and comments at its April 2002 meeting.

The second review stage will include requirements for manufacturers and importers of recreational vessels to prevent drownings (33 CFR part 183, subparts B, C, D, F, G, H, and L). NBSAC will review these regulations and comments at its October 2002 meeting.

The third review stage will include requirements for operators (33 CFR parts 95, 100, 173, 174, 175, 177 and 46 CFR part 25, subparts 25.30, 25.35 and 25.40, and part 58, subparts 58.03 and 58.10). NBSAC will review these regulations and comments at its April 2003.

You may find copies of the boating safety regulations at any public library that carries the United States Code of Federal Regulations. You may buy them from the Superintendent, Government Printing Office, telephone: 202-512-2250; facsimile: 202-512-1800. You may also access them on the Internet at URL address http://www.gpo.gov/nara/cfr.

We encourage interested persons from all sectors of the boating community to participate in this first regulatory review stage by submitting comments and related material regarding any changes to the current boating safety regulations, including elimination or revocation of any requirements. If you submit comments, please include your name and address, identify the docket number for this notice (USCG-2001-10479) and give the reasons for each comment. You may submit your comments and material by mail, hand delivery, fax, or electronic means to the Docket Management Facility at the address under ADDRESSES; but please submit your comments and material by only one means. If you submit them by mail or hand delivery, submit them in an unbound format, no larger than 81/2 by 11 inches, suitable for copying and electronic filing. If you submit them by mail and would like to know they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period.

We are especially interested in responses to the following questions:

• Need—Is there still a need for the regulation? Is the problem that the regulation was originally intended to solve still a problem?

• Technical Accuracy—Has the regulation kept pace with the technological, economic, environmental, or other relevant conditions? Would any particular changes make it more effective in achieving its intended goal?

• Cost/Benefit—What are the costs, or other burdens or adverse effects, including impacts on use of energy, of the regulation? What are the benefits of the regulation in terms of personal safety or other values? Do the benefits outweigh the costs?

• Problems—Are there any problems or complaints in understanding or complying with the regulation?

• Alternative—Are there any nonregulatory ways to achieve the goal of the regulation at a lower cost, lower burden, or adverse effect?

We will summarize all comments received in response to this request during the comment period and will provide a copy of the summary to the NBSAC members for their consideration before the April 2002 meeting. We will consider all relevant comments in the formulation of any changes to the boating safety regulations that may result from this review stage.

The Office proposes to amend §§ 1.4, 1.10, 2.21, 2.56, 2.76, 2.88, 2.89, 2.161, 2.166, 2.167 and 2.168 to make electronic filing through the Trademark Electronic Application System (TEAS) mandatory. TEAS is a collection of electronic forms for commonly filed trademark documents. Each document can be easily completed by the trademark applicant or attorney and filed with the Office at the click of a button. The system is available at www.uspto.gov 24 hours a day, seven days a week, and can be used by anyone with NETSCAPE NAVIGATOR® (version 3.0 or higher) or MICROSOFT INTERNET EXPLORER® (Version 4.0 or higher). During the hours between 11:00 p.m. EST, Saturday and 6:00 a.m. EST, Sunday TEAS is available but credit card payments cannot be processed; therefore, no documents requiring fees can be filed during that time period. In addition, to file an initial application for a stylized or design mark, or if a specimen is being filed, the filer must be able to attach a black-and-white GIF or JPG image file.

The Office proposes to require electronic filing of all documents for which forms are currently available in TEAS: applications for registration of marks; amendments to allege use; statements of use; requests for extensions of time to file a statement of use; affidavits of continued use or excusable nonuse under 15 U.S.C. 1058 (§ 8 affidavits); affidavits of incontestability under 15 U.S.C. 1065 (§ 15 affidavits); combined affidavits under 15 U.S.C. 1058 and 1065 (§§ 8 and 15 affidavits) and combined filings under 15 U.S.C. 1058 and 1059 (combined §§ 8 and 9 filings). In the future, after appropriate notice, the Office may require the filing of other trademark-related documents when the appropriate electronic form is available in TEAS. There will be two exceptions to the requirement that trademark documents be filed electronically: first, if the pro se applicant or registrant, or an attorney for applicant or registrant, verifies in an affidavit or declaration under § 2.20 that he or she does not have access to TEAS or does not have the technical capability to use TEAS, the pro se applicant or registrant, or an attorney for applicant or registrant, will not be required to file its trademark documents using TEAS; and second, if the applicant or registrant is a person described in 15 U.S.C. 1126(b), then the applicant or registrant will not be required to file its trademark documents using TEAS.

A person described in 15 U.S.C. 1126(b) is a person who has citizenship, domicile or a real and effective industrial or commercial establishment in a country other than the United States and whose country of origin is a party to any convention or treaty relating to trademarks, trade or commercial names, or the repression of unfair competition, to which the United States is also a party, or extends reciprocal rights to nationals of the United States by law.

The number of trademark applications and other trademark documents filed in the Office has increased substantially in the last few years, and filings are expected to continue to increase dramatically in the next few years. The Office received over 295,000 trademark applications in fiscal year 1999 and over 375,000 applications in 2000—an increase each year of 27% over the prior year. In fiscal year 2001, filings are currently forecast to be 25% higher than 2000, which means the Office is likely to receive over 300,000 new applications and over 150,000 application and registration-related filings this year. Although the Office has made substantial changes in an attempt to keep up with the increased filings, the Office believes that it must make further changes in its business practices to ensure that every applicant and registrant receives a high level of customer service.

Currently, parties may file paper documents via mail or hand delivery, or file electronically using TEAS. It is now possible to file essentially all trademark-related documents electronically over the Internet, at http://www.uspto.gov.

The Office now maintains both paper files and electronic databases of critical application and registration data. Processing paper is extremely labor-intensive and subject to error and misfiling. A new application must undergo multiple steps before it is ready for examination, including fee processing, minimum filing requirement review, capture of data into automated databases, and paper file jacket assembly. In addition to processing new applications, the Office must sort through several thousand documents that are received on a daily basis. These documents must be delivered to the appropriate work unit, matched with the paper file, and entered into the file jacket and the automated systems.

To expedite processing of trademark documents and to improve the quality of data capture, the Office proposes to require that all trademark documents available in TEAS be filed electronically. Mandatory electronic filing will increase efficiency, improve the accuracy of the information in the Office's automated systems, and eliminate delays caused by mailing, manual data capture and paper processing. It will also result in fewer lost and misdirected papers. Electronic forms contain standardized data that is tagged to permit transfer into the Office's databases.

Electronic filing benefits the public as well as the Office. TEAS is available for the filing of trademark documents 24 hours a day, seven days a week at http://www.uspto.gov. During the hours between 11:00 p.m. EST, Saturday and 6:00 a.m. EST, Sunday TEAS is available but credit card payments cannot be processed. Therefore, during that time period, documents that must be accompanied by a fee cannot be filed. When a document is filed electronically, the Office receives it within seconds after filing, and immediately issues a confirmation of filing via e-mail. This confirmation is evidence of filing should any question arise as to the filing date of the document. Under § 1.6(a)(4), trademark-related correspondence filed via TEAS is considered to have been filed on the date the Office receives the transmission, regardless of whether that date is a Saturday, Sunday, or Federal holiday within the District of Columbia. Thus by using TEAS applicants, registrants and their attorneys can ensure a “date certain” for any filing made using TEAS. This benefit eliminates the need for the filing of applications by Express Mail.

Electronically filed applications are processed much faster than their paper counterparts. Filing receipts for TEAS applications are sent via e-mail the same day of filing, while filing receipts for paper applications are mailed about 14 days after filing; critical data concerning TEAS applications (e.g., mark, goods and services, owner, etc.) are entered into the automated systems (and therefore made available to anyone searching Office records for conflicting marks) within 10 days, while data concerning paper applications are entered and made available to the public approximately 14-15 days after filing; and TEAS applications are received in the e-Commerce law offices and available for review in 20 days, while paper application files are assembled and delivered to law offices approximately 70 days after filing.

Continued increases in trademark application filings dictate that the Office change its business approach for serving the Office's customers. Electronic filing and communication allows us to provide more customers with better quality, using fewer resources. Electronic filing improves the quality and accuracy of the information that is submitted to and processed by the Office. Customers have greater assurance that the content of the electronic application is complete, because the information provided by the customer is loaded directly into the Office's automated systems. By requiring that everyone, with few exceptions, file electronically, all of the Office's customers will receive better service, because electronic filing provides a level of consistency, accuracy, and predictability that a paper-based process cannot.

The results of customer surveys clearly indicate that customers who file electronically are far more satisfied than customers who file paper applications. All of the Office's electronic customers stated that they were satisfied with the ease of access and use of the filing system and the time it took to receive a filing receipt, and 94 percent of the Office's electronic customers were satisfied with the accuracy of the filing receipt. Customers who filed paper applications were less satisfied: only 44 percent were satisfied with the accuracy of the filing receipt, and only 27 percent were satisfied with the time it took to receive it.

In their first annual report to the President, the Secretary of Commerce, and the Judiciary Committees of the United States Senate and House of Representatives, the Trademark Public Advisory Committee (TPAC) endorsed mandatory electronic filing for trademark applications. The TPAC concluded that the Office should take immediate steps to maximize the use of technology in fulfilling its mission by mandating electronic filing, to the extent allowed by law, and by replacing paper-based processes and information with electronic processes.

On December 17, 1999, the President issued a Memorandum, “Electronic Government,” which called on Federal agencies to use information technology to ensure that the American people can easily access governmental services and information. The Government Paperwork Elimination Act (GPEA), Title XVII, §§ 1701—1710, Pub. L. 105-277, 112 Stat. 2681-749 (44 U.S.C. 3504), was signed into law on October 21, 1998. GPEA requires Federal agencies, by October 21, 2003, to provide individuals or entities that deal with agencies the option to submit information or transact with the agency electronically, and to maintain records electronically, when practicable. GPEA is an important tool to improve customer service and governmental efficiency through the use of information technology. This improvement involves transacting business electronically with Federal agencies and widespread use of the Internet and the World Wide Web and thus furthers the goals of the GPEA.

The Office proposes to add a new § 1.4(h), providing that if any form required to be filed under any provision of this section is available for filing using TEAS, the form must be filed electronically, unless § 2.22 applies.

The Office proposes to amend § 1.10(a) to prohibit the use of Express Mail for any correspondence for which an electronic form exists.

The Office proposes to amend § 2.21 to add a new subsection (a)(1), requiring that an application for registration of a mark be filed using TEAS to receive a filing date, unless § 2.22 applies. Applications filed on paper will be returned and not given a filing date, unless filed with an affidavit or declaration under § 2.20 that meets the requirement of § 2.22. The Office further proposes to redesignate §§ 2.21(a)(1) through (a)(5) as §§ 2.21(a)(2)(i) through (a)(2)(v).

The Office proposes to add new § 2.22 to provide two exceptions to the requirement that trademark documents be filed electronically: first, if the pro se applicant or registrant, or an attorney for applicant or registrant, verifies in an affidavit or declaration under § 2.20 that it does not have access to TEAS or does not have the technical capability to use TEAS, the pro se applicant or registrant, or an attorney for applicant or registrant, will not be required to file his or her trademark documents using TEAS; and second, if the applicant or registrant is a person described in 15 U.S.C. 1126(b), then the applicant or registrant will not be required to file its trademark documents using TEAS.

The Office proposes to revise § 2.76(b) to require that an amendment to allege use be filed using TEAS, unless § 2.22 applies.

The Office proposes to remove § 2.76(d), which now provides that the title “Amendment to allege use under § 2.76” should appear at the top of the first page of an amendment to allege use. This requirement is no longer necessary.

The Office proposes to redesignate § 2.76(e) as § 2.76(d), and to add a new § 2.76 (d)(1) to state that filing electronically is a minimum requirement that must be met before an amendment to allege use can be referred to an examining attorney for examination, unless § 2.22 applies.

The Office proposes to redesignate §§ 2.76(f) and (g) as §§ 2.76(e) and (f), and to revise them to update cross-references. The Office proposes to redesignate §§ 2.76(h) through (j) as §§ 2.76(g) through (i).

The Office proposes to revise § 2.88(b) to require that a statement of use be filed using TEAS, unless § 2.22 applies.

The Office proposes to remove § 2.88(d), which now provides that the title “Statement of use under § 2.88” should appear at the top of the first page of a statement of use. This requirement is no longer necessary.

The Office proposes to redesignate § 2.88(e) as § 2.88(d), and to add a new § 2.88(d)(1) to state that filing electronically is a minimum requirement that must be met before a statement of use can be referred to an examining attorney for examination, unless § 2.22 applies.

The Office proposes to redesignate §§ 2.88(f) and (g) as §§ 2.88(e) and (f), and to revise them to update cross-references. The Office proposes to redesignate §§ 2.88(h) through (l) as §§ 2.88(g) through (k).

The Office proposes to amend §§ 2.89(a) and (b) to require that a request for an extension of time to file a statement of use be filed using TEAS, unless § 2.22 applies.

The Office proposes to amend § 2.161 by redesignating paragraphs (a) through (h) as (b) through (i), adding a new paragraph (a) to require § 8 affidavits be filed using TEAS, unless § 2.22 applies, and to revise the redesignated § 2.161(f)(1) to update a cross-reference.

The Office proposes to amend § 2.166 to require that combined §§ 8 and 9 filings be filed using TEAS unless § 2.22 applies.

The Office proposes to redesignate §§ 2.167(a) through (g) as §§ 2.167(b) through (h), and to add a new § 2.167(a) to require that § 15 affidavits be filed using TEAS, unless § 2.22 applies.

The Office proposes to amend § 2.168(a) to require that §§ 8 and 15 affidavits be filed using TEAS, unless § 2.22 applies.

The Office has determined that the proposed rule changes have no federalism implications affecting the relationship between the National Government and the State as outlined in Executive Order 12612.

The Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration, that the proposed rule changes will not have a significant impact on a substantial number of small entities (Regulatory Flexibility Act, 5 U.S.C. 605(b)). The rule will not significantly impact any businesses. As a result, an initial regulatory flexibility analysis was not prepared.

The proposed rule changes are in conformity with the requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), Executive Order 12612, and the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.). The proposed changes have been determined to be significant for purposes of Executive Order 12866.

Notwithstanding any other provision of law, no person is required to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the PRA unless that collection of information displays a currently valid OMB control number. This rule contains collections of information requirements that have been approved by OMB under OMB Control Number 0651-0009. The public reporting burden for this collection of information is estimated to average as follows: seventeen minutes for applications to obtain registrations based on an intent to use the mark under 15 U.S.C. 1051(b), if completed using paper forms; fifteen minutes for applications based on 15 U.S.C. 1051(b), if completed using electronic forms; twenty-three minutes for applications to obtain registrations based on use of the mark in commerce under 15 U.S.C. 1051(a), if completed using paper forms; twenty-one minutes for applications to obtain registrations based on 15 U.S.C. 1051(a), if completed using electronic forms; twenty minutes for applications to obtain registrations based on an earlier-filed foreign application under 15 U.S.C. 1126(d), if completed using paper forms; nineteen minutes for applications to obtain registrations based on 15 U.S.C. 1126(d), if completed using electronic forms; twenty minutes for applications to obtain registrations based on registration of a mark in a foreign applicant's country of origin under 15 U.S.C. 1126(e), if completed using paper forms; eighteen minutes for applications to obtain registrations based on 15 U.S.C. 1126(e), if completed using electronic forms; thirteen minutes for allegations of use of the mark under §§ 2.76 and 2.88 if completed using paper forms; twelve minutes for allegations of use under §§ 2.76 and 2.88 if completed using electronic forms; ten minutes for requests for extensions of time to file statements of use under § 2.89 if completed using paper forms; nine minutes for requests for extensions of time to file statements of use if completed using electronic forms; eleven minutes for § 8 affidavits if completed using paper forms; ten minutes for § 8 affidavits if completed using electronic forms; fourteen minutes for combined §§ 8 and 9 filings if completed using paper forms; thirteen minutes for combined §§ 8 and 9 filings if completed using electronic forms; fourteen minutes for combined §§ 8 and 15 affidavits if completed using paper forms; thirteen minutes for combined §§ 8 and 15 affidavits if completed using electronic forms; eleven minutes for § 15 affidavits if completed using paper forms; and ten minutes for § 15 affidavits if completed using electronic forms. These time estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Comments are invited on: (1) Whether the collection of information is necessary for proper performance of the functions of the agency; (2) the accuracy of the agency's estimate of the burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information to respondents. Send comments regarding this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, to the Commissioner for Trademarks, 2900 Crystal Drive, Arlington, VA 22202-3513 (Attn: Ari Leifman), and to the Office of Information and Regulatory Affairs, OMB, 725 17th Street, NW., Washington, DC 20503 (Attn: PTO Desk Officer).

For the reasons given in the preamble and under the authority contained in 35 U.S.C. 2 and 15 U.S.C. 41, as amended, the Office proposes to amend parts 1 and 2 of title 37 as follows:

A. When did Pennsylvania submit the RACM analysis? On July 19, 2001, the Commonwealth of Pennsylvania (Pennsylvania) submitted the RACM analysis for the Philadelphia area as a SIP revision.

B. Did Pennsylvania submit any other revisions to or other material relevant to the attainment demonstration on July 19, 2001? On July 19, 2001, Pennsylvania also submitted revised motor vehicle emissions budgets for the Pennsylvania portion of the Philadelphia area that include the benefits of the Federal Tier 2/Sulfur rule, and a revised enforceable commitment to conduct a mid-course review. The revised budgets and revised enforceable commitment submitted on July 19, 2001 are the subject of a separate supplemental notice of proposed rulemaking published recently in the Federal Register.

A. What are the requirements for reasonably available control measures (RACM)? Section 172(c)(1) of the Act requires SIPs to contain reasonably available control measures (RACM) as necessary to provide for attainment. EPA has previously provided guidance interpreting the RACM requirements of section 172(c)(1). (See 57 FR 13498, 13560, April 16, 1992.) In that guidance, EPA indicates that potentially available control measures, which would not advance the attainment date for an area, would not be considered RACM under the Act. EPA concludes that a measure would not be reasonably available if it would not advance attainment. EPA's guidance also indicates that states should consider all potentially available measures to determine whether they are reasonably available for implementation in the area, including whether or not they would advance the attainment date. Further, the guidance calls for states to indicate in their SIP submittals whether measures considered are reasonably available or not, and if so the measures must be adopted as RACM. Finally, EPA indicated that states could reject potential RACM measures either because they would not advance the attainment date, would cause substantial widespread and long-term adverse impacts, or for various reasons related to local conditions, such as economics or implementation concerns. The EPA also issued a recent memorandum on this topic, “Guidance on the Reasonably Available Control Measures (RACM) Requirement and Attainment Demonstration Submissions for Ozone Nonattainment Areas.” John S. Seitz, Director, Office of Air Quality Planning and Standards. November 30, 1999. Web site: http://www.epa.gov/ttn/oarpg/t1pgm.html.

B. How does this submission address the RACM requirement? The analysis submitted by the Commonwealth on July 19, 2001, as a supplement to its attainment demonstration SIP for the Philadelphia area, addresses the RACM requirement. The Commonwealth convened a stakeholders group (the Southeastern Pennsylvania Ozone Stakeholders Group) to examine a wide variety of potential stationary source and mobile source controls. The stationary/area source controls that were considered included the adoption of South Coast Air Quality Management District/California Air Resources Board's (SCAQMD/CARB) limits for certain volatile organic compound (VOC) source categories that are more stringent than the already adopted control technique guideline (CTG) limits (e.g., fabric/paper, magnet wire, vinyl, miscellaneous metal parts, coil and metal furniture coating); limits on area source categories not covered by a CTG (e.g., adhesives, motor vehicle refinishing, surface/cleaning degreasing, underground storage tank vents); rule effectiveness improvements; wood furniture coating (Pennsylvania has a SIP-approved rule encompassing the reasonably available control technology limits recommended under the CTG; under consideration for the RACM analysis was expanding the applicability of those limits to sources smaller than those covered by the CTG); “beyond RACT” controls on major stationary sources of nitrogen oxides (NOX); and other potential measures. The mobile source control measures considered included the national low emission vehicle program, accelerated replacement of older buses with cleaner buses, compressed natural gas (CNG) fueled buses, and emissions-based vehicle registration fees. Mobile source controls also included control measures aimed at reducing vehicle trips, travel or congestion via land use planning, traffic flow improvements (signalization, ramp metering, speed limit restriction enforcement), improved mass transit, expanded parking at rail stations, telecommuting, bicycle lanes or access improvements at rail stations, parking taxes/surcharge, and increased gasoline taxes or miles travel based fees. The Commonwealth considered an extensive list of potential control measures and chose measures for implementation which went beyond the Federally mandated controls, which were found to be cost effective and technologically feasible. From the list of measures considered, the rules and measures adopted and submitted by Pennsylvania, as analyzed and examined by the stakeholders group, are as follows:

(1) Pennsylvania has adopted, and EPA has SIP-approved, the Commonwealth's rule for vehicle refinishing. The rule includes VOC content limits for motor vehicle refinishing coatings, application standards and storage and housekeeping work practices. This rule goes beyond the Federal rule in content limits and application and work practices standards. Compliance with this rule was required in 2000.

(2) Pennsylvania has adopted, and EPA has SIP-approved, the Commonwealth's rule requiring the sale of vehicles under the national low-emission vehicle program.

(3) Pennsylvania has adopted, and EPA has SIP-approved, the Commonwealth's rule to implement Phase II NOX controls under the Ozone Transport Commission's (OTC) Memorandum of Understanding (MOU). This rule established a fixed cap on ozone-season NOX emissions from major point sources of NOX. The rule grants each source a fixed number of NOX allowances, applies state-wide, and requires compliance during the ozone season. The implementation of this rule commenced May 1, 1999 in the Commonwealth and reduces NOX emissions both inside and outside the Philadelphia area.

(4) Pennsylvania has adopted and EPA has proposed approval of the Commonwealth's rule to implement the NOX SIP call. We received no adverse comments on our proposed approval and expect to publish our final approval in the near future. The Pennsylvania rule requires compliance commencing with the start of the 2003 ozone season. (This measure was identified as Phase III control under the OTC MOU on NOX control in the submittal because the evaluation occurred in 1996 well before the SIP call proposal.)

(5) Pennsylvania has also adopted rule effectiveness improvements for the implementation of regulations through the attainment year of 2005 for its portion of the Philadelphia area as part of its post 1996 Rate of Progress Plan which EPA has proposed or will shortly propose to approve in a separate rulemaking action in the Federal Register.

A large number of the considered measures have the potential to achieve benefits but are not considered to be cost effective, others have the potential for substantial widespread and long-term adverse impacts and one measure, a mandatory ban on residential lawn care activities on high ozone days, was considered infeasible due to the impracticability of effective enforcement. These are explained in further detail in the docket for this rulemaking.

The attainment demonstration for the Philadelphia area contains modeling using the urban airshed model (UAM) which demonstrates that the Philadelphia area cannot attain solely through reductions in the Philadelphia nonattainment area. The Philadelphia area relies on background reductions of transported ozone to attain the 1-hour ozone standard. EPA established in the NOX SIP Call, promulgated on October 27, 1998 (63 FR 57356), the appropriate division of control responsibilities between the upwind and downwind States under the Act. In Michigan v. EPA, 213 F.3d 663 (D.C. Cir. 2000), the court upheld the NOX SIP Call on most issues, although a subsequent order of the court delays the implementation date to no later than May 31, 2004. EPA is moving forward to implement those portions of the rule that have been upheld, ensuring that most—if not all—of the emission reductions from the NOX SIP Call assumed in the 1-hour ozone NAAQS attainment demonstration for the Philadelphia area will occur. EPA's modeling to determine the region-wide impacts of the NOX SIP Call clearly shows that regional transport of ozone and its precursors is impacting nonattainment areas several states away, and this analysis was upheld by the court. Also, on January 18, 2000 (65 FR 2674), EPA promulgated a final rule on petitions filed pursuant to section 126 of the Act by eight Northeastern States including Pennsylvania, that sought to mitigate interstate transport of NOX emissions from a number of large electric generating units (EGUs) and large industrial boilers and turbines. Because the allocation of responsibility for transport was not made until late 1998 and early 2000, the prohibitions on upwind contributions under section 110(a)(2)(D) and section 126 could not be enforced prior to 2003 or 2004. The implementation of the control measures in states upwind of the Philadelphia area that are needed to eliminate the significant contribution of sources in those states—will not ripen until 2003 under the section 126 petitions or 2004 under the NOX SIP call.

To demonstrate attainment of the one hour ozone standard, the UAM modeling required the Pennsylvania portion of the Philadelphia area to achieve emissions levels on the order of 428 tons per day of VOC emissions and 317 tons per day of NOX. The ROP plan for 2005 is projected to get emissions levels down to 428 tons per day of VOC emissions and 310 tons per day of NOX. The ROP plan does not consider the effects of the Federal Tier 2/Sulfur rule nor Pennsylvania's NOX SIP call rule. These two programs will further reduce emissions in the area staring with the 2004 model year vehicles in the case of the Tier 2/Sulfur program and May 2003 for Pennsylvania's SIP call rule. Any potential reductions from the remaining potential RACM measures in aggregate are relatively small as documented in the docket compared to the ROP reductions (plus the additional benefits of Pennsylvania's SIP call rule and the Tier 2/Sulfur benefits) that will be reached by the 2005 attainment date.

Thus, EPA concludes that no additional measures could advance the attainment date for the Philadelphia area prior to full implementation of all upwind and local controls scheduled for implementation by 2005.

The EPA is opening a comment period for 30 days to take comment on the Commonwealth's July 19, 2001 RACM submittal discussed above. EPA is proposing to approve Pennsylvania's SIP revision for RACM, which was submitted on July 19, 2001, as a supplement to its 1-hour attainment demonstration for the Philadelphia area. EPA is soliciting public comments on the issues discussed in this document or on other relevant matters. These comments will be considered before taking final action. Interested parties may participate in the Federal rulemaking procedure by submitting written comments to the EPA Regional office listed in the ADDRESSES section of this document.

EPA is proposing to approve the RACM analysis submitted by the Commonwealth of Pennsylvania on July 19, 2001 as a supplement to its 1-hour attainment demonstration for the Philadelphia area.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely proposes to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule proposes to approve pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). This proposed rule also does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely proposes to approve a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This proposed rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this proposed rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This proposed rule regarding Pennsylvania's RACM analysis for the Philadelphia area does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

For severe ozone nonattainment areas, the Clean Air Act (the Act) requires states to submit a plan to the United States Environmental Protection Agency (EPA) to achieve a fifteen (15) percent net reduction by November 15, 1996 of actual anthropogenic (human-caused) volatile organic compound (VOC) emissions. In addition to the 15 percent reduction, the Act also requires states to submit SIP revisions that achieve actual VOC emission reductions of at least 3 percent per year averaged over each consecutive 3-year period beginning November 1996, until the severe area's applicable attainment date of 2005. These ROP emission reductions are based on the states' 1990 emission levels. The Act also provides for crediting of VOC emission reductions achieved in the 1990-1996 period to the Post-1996 ROP plan if they are in excess of 15 percent VOC reductions requirements, and substitution of any anthropogenic nitrogen oxides ( NOX) emission reductions, net of growth, occurring in the post-1990 period for the post-1996 VOC emission reduction requirements.

The SIP revision for the 1990-1996 reductions is termed the “15 Percent ROP plan,” and the plans for an average 3 percent per year reduction over each 3-year period after 1996 are collectively termed the “Post-1996 ROP plan.” The Post-1996 ROP plan for a severe area with an attainment date of 2005, has 3 milestone years, 1999, 2002 and 2005. To satisfy the Post-1996 Plan requirement, States generally developed separate plans for each 3 year period and refer to those plans as the1999 ROP plan, the 2002 ROP plan and the 2005 ROP plan.

For states within the Ozone Transport Region (OTR) with serious and above ozone nonattainment areas, a memorandum dated March 2, 1995, from Mary D. Nichols, EPA's then Assistant Administrator for Air and Radiation, provides for a two-phased approach to the Post-1996 ROPs. Briefly, in Phase I, the states are required to develop a plan for the milestone year of 1999 which includes necessary control measures to achieve a 9 percent reduction of VOC and/or NOX emissions between November 1996 and November 1999. In Phase II, the states are required to assess the regional and local control measures necessary to meet the rate-of-progress requirements through the attainment year and to achieve attainment. Thus severe ozone nonattainment areas such as the Philadelphia area, the Phase II plan needed to identify the measures needed to demonstrate ROP through the 2005 attainment year. States were to phase-in adoption of rules and implement measures to meet ROP beginning no later than 1999.

The Philadelphia nonattainment area is comprised of seven counties in New Jersey, five counties in Pennsylvania, two counties in Delaware and one county in Maryland. These jurisdictions made a collective decision that each would be responsible for producing ROP plans for its portion of the Philadelphia area using its 1990 baseline of emissions.

Section 172(c)(9) of the Act requires moderate and above ozone nonattainment areas to adopt contingency measures to be implemented should the area fail to achieve ROP or to attain by its attainment date. In addition, section 182(c)(9) of the Act requires serious and above areas to adopt contingency measures which would be implemented if the area fails to meet any applicable milestone.

Under EPA's transportation conformity rule, like an attainment plan, an ROP plan is referred to as a control strategy SIP (62 FR 43779). A control strategy SIP identifies and establishes the motor vehicle emissions budgets (MVEBs) to which an area's transportation improvement program and long range transportation plan must conform. Conformity to a control strategy SIP means that transportation activities will not produce new air quality violations, worsen existing violations, or delay timely attainment of the national ambient air quality standard.

On December 16, 1999, we published a notice of proposed rulemaking (NPR) proposing approval of the attainment demonstration SIP revision submitted by Delaware for the Philadelphia area (64 FR 70444). Our approval was contingent upon certain actions by Delaware for the Philadelphia area. These actions were: (1) Delaware had to adopt and submit an adequate motor vehicle emissions budgets including the benefits of the Federal Tier 2/Sulfur-in-Fuel rule (required because the Philadelphia area's attainment SIP includes the benefits of EPA's Tier 2/Sulfur-in-Fuel rule); and (2) Delaware had to adopt and submit enforceable commitments to do the following:

(a) Submit measures by October 31, 2001 for additional emission reductions as required in the attainment demonstration test as discussed in section I.C.5. of the December 16, 1999 proposed approval. For additional emission reduction measures developed through the regional process, the state must also submit an enforceable commitment for the additional measures and a backstop commitment to adopt and submit intrastate measures for the emission reductions in the event the regional process does not recommend measures that produce emission reductions.

(b) Submit a revised SIP and motor vehicle emissions budgets by October 31, 2001 if additional measures affect the motor vehicle emissions inventory.

(c) Submit a revised SIP and motor vehicle emissions budgets one year after MOBILE6 issued.

(d) Perform a mid-course review.

On December 16, 1999, EPA proposed approval of the attainment demonstrations for ten ozone nonattainment areas in the eastern United States (64 FR 70317). On July 28, 2000, we published a supplemental notice of proposed rulemaking (SNPR) on the attainment demonstration (65 FR 46383). In that SNPR, we clarified and expanded on two issues relating to the motor vehicle emissions budgets for the SIP revisions subject to all of these December 16, 1999 proposed actions. In the July 28, 2000 SNPR, we reopened the comment period to take comment on these two issues and to allow comment on any additional materials that were placed in the dockets for the proposed actions close to or after the initial comment period closed on February 14, 2000. For many of the areas, including the Philadelphia area, covered by the July 28, 2000 SNPR, additional information had been placed in the docket during or after the initial comment period concluded. In general, the SNPR identified these materials as consisting of motor vehicle emissions budgets, and revised or additional commitments or reaffirmations submitted by the States (65 FR at 46387, July 28, 2000).

On January 24, 2000 (prior to July 28, 2000 but during the original comment period), DNREC submitted revised motor vehicle emissions budgets that reflect the benefits from EPA's Tier 2/Sulfur rule and the enforceable commitments to: (1) Adopt control measures consistent with the reductions assumed in the attainment plan, and assume reductions in transported NOX consistent with EPA's NOX SIP Call; (2) adopt additional measures that can be adopted regionally such as in the OTR, or locally; and (3) conduct a mid-course review. The comment period established by the July 28, 2000 SNPR concluded on August 28, 2000.

As stated above, on January 24, 2000, Delaware submitted an addendum to its May 22, 1998 submittal of the Phase II attainment plan for the Philadelphia area that provided revised emission budgets for the on-road mobile source portion of the plan which reflect the benefits of the National Low Emission Vehicle program (NLEV), Heavy-Duty Diesel Engine (HDDE) rule, Reformulated Gasoline (RFG II) and the Tier 2/Low Sulfur rule. On May 31, 2000, EPA determined the attainment budgets to be adequate for transportation conformity purposes. That determination became effective on June 23, 2000 (65 FR 36440, June 8, 2000). As stated earlier, the submittal of January 24, 2000 also included the enforceable commitments.

As stated earlier, the attainment date for the Philadelphia area severe ozone nonattainment area is 2005. This rulemaking addresses the SIP revisions submitted by DNREC to satisfy the Post-1996 ROP requirements of the Act for the Delaware portion of the Philadelphia area, namely Kent and New Castle Counties. In this rulemaking, EPA is proposing to approve Delaware's plans demonstrating ROP through the 2005 attainment year. Also as part of this rulemaking, EPA is proposing to approve the contingency measures that were submitted with the Delaware ROP plans. EPA is also proposing to approve the two revised enforceable commitments that Delaware submitted in response to our December 16, 1999 proposed rulemaking.

All the aforementioned rate-of-progress emission reductions are to be from the state's 1990 emission levels. Delaware's 1990 Base Year Ozone Emission Inventory, which is an inventory of the 1990 actual VOC, NOX, and CO emissions from all sources in Delaware (stationary, on-road mobile, off-road mobile, area and biogenic), was submitted to EPA as a SIP revision on May 27, 1994, and was approved on January 24, 1996 (61 FR 1838). Delaware's actual 1990 VOC and NOX emissions are 196.52 tons per day (tpd) and 162.82 tpd, respectively. Since the ozone NAAQS attainment date for the Philadelphia area is 2005, Delaware is required to submit a 15 Percent ROP plan, and ROP plans for the three post-1996 milestone years, i.e., 1999, 2002, and 2005 for Kent and New Castle Counties. Delaware's 15 Percent ROP was submitted to EPA as a SIP revision in February 17, 1995. In this plan, Delaware showed that, by implementing necessary control measures, the required 15 percent VOC emission reduction could be successfully met by 1996. EPA fully approved Delaware's 15 Percent ROP on October 12, 1999 (64 FR 55139).

Delaware's 1999 ROP plan, the first post-1996 SIP revision developed according to the Phase I requirements set forth in the Nichols' memorandum, was submitted to EPA on December 29, 1997. On June 17, 1999, Delaware submitted amendments to the 1999 ROP plan. The Phase I plan contained the first 9 percent ROP demonstration for the 1999 milestone year, and enforceable commitments to address the first phase of the attainment plan. On May 22, 1998, Delaware submitted the Phase II attainment demonstration document for the Philadelphia area. EPA asked Delaware to submit additional technical information for the Phase II plan. Delaware submitted the Phase II supplement on October 8, 1998. In the May 22, 1998 submittal, Delaware made a commitment to submit a SIP revision to EPA before the end of 2000 to address the emission reductions for the post-1999 rate of progress milestone years up to the 2005 attainment date for the one hour ozone standard (i.e., 2002, 2005). Delaware submitted its 2002 ROP plan on February 3, 2000 and amendments to that plan on December 20, 2000. Delaware submitted its 2005 ROP plan on December 20, 2000.

On December 20, 2000, Delaware submitted amendments to the enforceable commitments it previously had submitted as required by our December 16, 1999 proposed action. These amendments involve commitments made by Delaware to: (1) Submit by October 31, 2001, additional measures for additional emission reductions, and (2) revise the SIP and the motor vehicle emission budgets within a year of the release of MOBILE6. The commitments submitted on December 20, 2000 have been placed in docket for the attainment demonstration SIP. We are proposing to approve these revised enforceable commitments, which were submitted on December 20, 2000, as part of Delaware's attainment demonstration SIP for the Philadelphia area. We are soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action. Interested parties may participate in the Federal rulemaking procedure by submitting written comments to the EPA Regional Office listed in the ADDRESSES section of this document.

The first step in demonstrating ROP is to determine the target level of allowable emissions for each ROP milestone year. The target level of emissions represents the maximum amount of emissions that can be emitted in a nonattainment area in the given ROP milestone year, which in this case is 1999, 2002 or 2005. The Act allows states to substitute NOX emission reductions for VOC emission reductions in Post-1996 ROP plans. The required ROP is demonstrated when the sum of all creditable VOC and NOX emission reductions equal at least 3 percent per year grouped in three year periods (i.e., 1996-1999), or for a total of 9 percent. If a state wishes to substitute NOX for VOC emission reductions, then a target level of emissions demonstrating a representative combined 9 percent emission reduction in VOC and NOX emissions must be developed for that milestone year. The six steps involved in calculating the target level of emissions for the milestone years are described below.

(1) Develop the 1990 base year inventory for VOC and NOX.

(2) Develop the 1990 baseline inventory. The baseline inventory is calculated by removing from the 1990 base year inventory: biogenic emissions, any emissions from the sources located outside of the nonattainment area, and the non-reactive perchloroethylene (PERC) emissions (for VOC inventory only). In addition, the 1990 baseline inventory for Delaware's portion the Philadelphia area has been amended due to switching from the MOBILE5a model to the MOBILE5b model.

(3) Develop the 1990 adjusted base year inventory. The 1990 adjusted baseline inventory excludes VOC and NOX emissions reductions achieved by the Federal Motor Vehicle Program (FMVCP) and Reid Vapor Pressure (RVP) regulations promulgated prior to the enactment of the Act (Section 182 (b)(1)(D)).

(4) Calculate the fleet turnover correction term for the three year period. The fleet turnover correction is the difference between the FMVCP/RVP emission reductions calculated in step 3 and the previous milestone year's FMVCP/RVP emission reductions.

(5) Calculate the required VOC and NOX emission reduction to demonstrate ROP for each consecutive three year milestone interval (multiply the adjusted base year inventory by 0.09).

(6) Calculate the target levels of VOC and NOX emissions in each milestone years. The target levels in each milestone years are calculated by subtracting the required emission reductions (see step 5) and the fleet turnover corrections (see step 4) from the previous milestone year. One exception is the calculation of NOX emission target for the 1999 milestone year. Because 1999 is the first milestone year with respect to NOX emission reduction, the target calculation does not subtract the fleet turnover correction (EPA Guidance on the Post-1996 Rate of Progress Plan and Attainment Demonstration, February 1994).

Because Delaware used MOBILE5b in estimating the on-road mobile source emissions, the VOC and/or NOX target levels for 1996, 1999 and 2002 have also been recalculated to account for the use of MOBILE5b. The calculations and results are summarized in Table 1. The VOC and NOX emissions are in tons per day (tpd) in the peak ozone season (June 1 through August 31).

Section 182(c)(2) of the Act requires Delaware's two severe ozone nonattainment counties (Kent and New Castle Counties) to achieve a 3 percent per year emissions reduction averaged over each consecutive 3-year period after 1996, plus offsetting emission growth, until 2005, the year of attainment for the Philadelphia area. To determine the total amount of VOC and NOX emissions reductions for 1999, 2002 and 2005 ROP, the emissions levels for the milestone years must be estimated. For this purpose, the growth factors are developed for various source categories of emissions based on economic indicators. The 1990 baseline emissions multiplied by these growth factors, and the resulting inventory is called the Current Control Projection Inventory. The current control projections are estimates of VOC and NOX emissions that will occur in each milestone year, if no new emission control measures are implemented between 1990 and 2005. The differences between the milestone year current control projections and the milestone year target level of emissions are the total VOC and/or NOX emissions that Delaware must plan to reduce in order to meet the VOC and/or NOX reduction requirements for that milestone year. The required reductions are summarized in Table 2.

The methodologies used by Delaware to project emissions growth and EPA's evaluation are discussed in more detail in a Technical Support Document (TSD) prepared in support of this proposed rulemaking. A copy of the TSD is available, upon request, from the EPA Regional Office listed in the ADDRESSES section of this document. We believe that the methodology employed in Delaware's ROP plans for selecting growth factors and applying them to the 1990 base year emissions inventory to estimate emissions growth in point, area, on-road mobile and off-road mobile sources is approvable.

The ROP plan is to demonstrate how the state will reduce emissions 3 percent per year, grouped in three year intervals, through the area's attainment year. In general, reductions toward ROP requirements are creditable provided the control measures occurred after 1990 and are real, permanent, quantifiable, federally enforceable and they occurred by the applicable ROP milestone year. A detailed evaluation of each of the control measures implemented by Delaware can be found in the TSD prepared for this rulemaking. Table 3 below provides a summary of the control measures used by Delaware to achieve ROP in Kent and New Castle Counties. All control measures in the ROP demonstration have been adopted and fully implemented by the State of Delaware or are Federal measures being implemented nationally. All state control measures have been fully approved by EPA into the Delaware SIP and are permanent and enforceable. The mobile source control programs include the total amount of reductions associated with vehicle inspection and maintenance, Tier 1 motor vehicle emission standards, reformulated gasoline, the National Low Emissions Vehicle (NLEV) program, highway heavy duty diesel engine standards, and Tier 2 emission standards and low sulfur fuel standards. EPA's MOBILE5b emissions model was used to generate mobile source emission reductions.

Milestone Year 1999: The control measures that Delaware plans to implement in order to meet the average 3 percent per year rate of progress for the milestone year 1999 are listed in Table 3 above. The VOC and NOX emissions reductions for the nonattainment area are 49.54 and 40.08 tons per peak ozone season day (tpd), respectively. The VOC and NOX reductions that are required by Delaware in order to meet the average 3 percent rate-of-progress requirement are 41.92 and 36.91 tons per peak ozone season day, respectively (refer to Table 2 above). Therefore, the control measures listed in Table 3 are adequate to meet the 3 percent per rate of progress requirement for the milestone year 1999.

Milestone Year 2002: The control measures that Delaware plans to implement to meet the average 3percent per year rate of progress requirement, plus offsetting the emission growth for the 1999-2002 period are listed in Table 3 above. The VOC and NOX emissions reductions for the attainment area are 63.37 and 44.80 tpd, respectively. The VOC and NOX reductions that are required by Delaware in order to meet the average 3 percent rate of progress requirement are 59.55 and 41.15 tpd, respectively (refer to Table 2 above). Therefore, the control measures in Table 3 are adequate to meet the average 3 percent per year rate of progress requirement, plus offsetting the emission growth for the 2000-2002 period.

Milestone Year 2005: The control measures that Delaware plans to implement to meet the average 3 percent per year rate of progress requirement, plus offsetting the emission growth for the 2003-2005 period are listed in Table 3 above. The VOC and NOX emissions reductions for the attainment area are 68.30 and 61.22 tpd, respectively. The VOC and NOX reductions that are required by Delaware in order to meet the average 3 percent rate-of-progress requirement are 68.30 and 60.54 tpd, respectively (refer to Table 2 above). Therefore, the control measures in Table 3 are adequate to meet the average 3 percent per year rate of progress requirement, plus offsetting the emission growth for the 2003-2005 period.

Delaware's ROP demonstration is summarized in Table 4 below. The table shows that the projected control strategy inventories are less than or equal to the target level established for each milestone year. Therefore the ROP plans demonstrate that emissions have been reduced by a minimum of 9 percent, net of growth, for each milestone year.

Under EPA's transportation conformity rule, a ROP plan is referred to as a control strategy SIP (62 FR 43779). A control strategy SIP identifies and establishes the MVEBs to which an area's transportation improvement program and long range transportation plan must conform. Conformity to a control strategy SIP means that transportation activities will not produce new air quality violations, worsen existing violations, or delay timely attainment of the national ambient air quality standard. The budgets for the Delaware ozone nonattainment area are shown in Table 5 below.

The 1999 on-road motor vehicle emission budgets were determined adequate for transportation conformity determinations in a April 29, 1999 letter from EPA Region III to DNREC (64 FR 31217, June 10, 1999). Both the 2002 and 2005 budgets were determined adequate for transportation conformity determinations on April 5, 2001. That determination became effective May 2, 2001 (66 FR 19769, April 7, 2001). By proposing approval of Delaware's Post-1996 ROP plans, EPA is also proposing to approve these motor vehicle emission budgets established in the Post-1996 ROP plan SIPs.

Section 172(c)(9) of the Act requires moderate and above ozone nonattainment areas to adopt contingency measures that would be implemented should the area fail to achieve ROP or to attain by its attainment date. In addition, section 182(c)(9) of the Act requires serious and above areas to adopt contingency measures which would be implemented if the area fails to meet any applicable milestone. EPA issued a guidance, “Early Implementation of Contingency Measures for Ozone and Carbon Monoxide Nonattainment Areas, August 13, 1993,” that allows states to implement their contingency measures early. However, contingency measures that are implemented early cannot also be used to meet ROP. EPA does not believe it is logical to penalize areas that are taking extra steps to implement contingency measures early, nor should states be required to backfill for the early activation of contingency measures.

In its ROP plans, Delaware outlines its approach for using already implemented control measures for contingency purposes. The EPA encourages the early implementation of required control measures and of contingency measures as a means of guarding against failure to meet a milestone or to attain. Delaware's plans show an adequate amount of emission reductions have occurred beyond those required for ROP, and therefore, any surplus emission reductions can be considered as early implementation of contingency measures. Surplus emission reductions associated with control measures that are not required in the nonattainment area by the Act can be used for contingency purposes. Delaware has adopted several measures which are available for consideration as the early implementation of contingency measures, including implementing an annual inspection schedule for the Stage II Vapor Recovery Systems, open burning control in New Castle County, a combination of controls on various sources in the peak ozone season, as well as through improvement of rule effectiveness for the regional NOX emission control rule. Therefore, EPA believes the requirements of the Act with regard to providing contingency measures should the area fail to achieve ROP, have been satisfied for the Delaware ozone nonattainment area.

EPA is proposing to approve the Post-1996 ROP plans for milestone years 1999, 2002 and 2005 for the Delaware portion of the Philadelphia-Wilmington-Trenton severe ozone nonattainment area submitted on December 29, 1997, June 17, 1999, February 3, 2000, and December 20, 2000. EPA is also proposing to approve the contingency plans for failure to meet ROP in the Delaware portion of the Philadelphia severe ozone nonattainment area (Kent and New Castle Counties), submitted in conjunction with the ROP demonstrations. EPA is also proposing to approve the revised enforceable commitments made to the attainment plan for the Philadelphia area submitted by DNREC on December 20, 2000 to adopt additional measures to strengthen the attainment demonstration, and to revise the plan and its motor vehicle emissions budgets using MOBILE6 within one year after that model is issued. EPA is soliciting public comments on the issues discussed in this document or on other relevant matters. These comments will be considered before taking final action. Interested parties may participate in the Federal rulemaking procedure by submitting written comments to the EPA Regional office listed in the ADDRESSES section of this document.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely proposes to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule proposes to approve pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). This proposed rule also does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely proposes to approve a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act.

This proposed rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this proposed rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings' issued under the executive order.

This proposed rule to approve the Delaware Post-1996 ROP plans does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

Under the Clean Air Act as amended in 1990 (CAA), designations can be revised if sufficient data is available to warrant such revisions.

Section 107(d)(3)(E) of the CAA identifies five specific requirements that an area must meet in order to be redesignated from nonattainment to attainment.

a. The area must have attained the applicable NAAQS.

b. The area must have a fully approved SIP under section 110(k) of the CAA.

c. The air quality improvement must be permanent and enforceable.

d. The area must have a fully approved maintenance plan pursuant to section 175A of the CAA.

e. The area must meet all applicable requirements under section 110 and Part D of the CAA.

The New York portion of the New York-Northern New Jersey-Long Island CO nonattainment area is classified as a moderate 2 area (i.e., the CO design value of 12.8-16.4 parts per million, or ppm). The entire non-attainment area is part of the New York-Northern New Jersey-Long Island Consolidated Metropolitan Statistical Area (CMSA). The New York portion of the non-attainment area consists of the Counties of Bronx, Kings, New York, Queens, Richmond, Nassau, and Westchester (referred to in this document as the New York City metropolitan area, or NYCMA). The remainder of New York State is in attainment for CO.

This area was designated nonattainment for CO under the provisions of sections 186 and 187 of the CAA. Because the area had a design value of 13.5 ppm based on 1988 and 1989 data, the area was classified moderate 2. (See 56 FR 56694 (Nov. 6, 1991) and 57 FR 56762 (Nov. 30, 1992), codified at 40 CFR 81.333.) This design value was based on ambient CO data recorded in Kings County, New York. For moderate 2 CO nonattainment areas, the CAA required that air quality attain the National Ambient Air Quality Standard (NAAQS) by December 31, 1995. On April 24, 1996, the State of New Jersey submitted a request for a one year extension of the attainment date to December 31, 1996 as allowed for in the CAA. On July 31, 1996 and June 27, 1996, the States of New York and Connecticut respectively submitted letters to EPA concurring with New Jersey's request. EPA granted the request for a one year extension to December 31, 1996 in a November 5, 1996 Federal Register document. The three States had applied for this extension since there was an exceedance of the CO NAAQS in the CMSA in 1994. This extension was granted pursuant to section 186(a)(4).

In an effort to comply with the CAA and to ensure continued attainment of the NAAQS, on August 30, 1999, the State of New York submitted a CO redesignation request and maintenance plan for the New York portion of the CO nonattainment area.

On March 22, 2000, New York submitted a related SIP revision which requested removal of a number of transportation control Measures (TCMs) from the SIP because these measures have been demonstrated to no longer be necessary to provide for attainment and maintenance of the CO standard. This proposed revision is contained in a document entitled “Update to the Downtown Brooklyn Master Plan Component of the Carbon Monoxide Attainment Demonstration.”

Public hearings were held on September 7, 1999 for the CO redesignation request and on September 9, 1999 for the Downtown Brooklyn Master Plan SIP revision.

New York is requesting the removal of two sets of transportation control measures (TCMs). Three of these TCMs were identified in the November 15, 1992 CO attainment demonstration and 11 from the Downtown Brooklyn Master Plan (DBMP). NYSDEC has provided demonstration sufficient to warrant their removal from the SIP.

While EPA's approval of the November 15, 1992 CO attainment demonstration did not include removal of these TCMs, NYSDEC's modeling analysis demonstrates attainment of the NAAQS without relying on the emissions reductions associated with these TCMs. The proposed CO redesignation request demonstrates attainment and maintenance of the CO NAAQS without these TCMs, so their removal from the NYCMA CO SIP is approvable.

NYSDEC presents intersection analyses to determine if there is a continued need for the 11 unimplemented TCMs from the DBMP. The analyses followed the general procedures and methodologies consistent with the 1992 NYCMA CO SIP, with the exception of using EPA receptor guidance rather than New York City Environmental Quality Review (CEQR) and using the CAL3QHCR dispersion model. The Updated DBMP demonstrated attainment and maintenance of the CO NAAQS without these TCMs, so their removal from the NYCMA CO SIP is approvable.

The following is a brief description of how the State has fulfilled each of the CAA redesignation requirements.

New York's CO monitoring data shows that from calendar year 1992 through calendar year 1999, no violations of the CO NAAQS have occurred. A violation occurs when more than one exceedance of the standard occurs at the same CO monitor during a calendar year.

In addition, in order to demonstrate attainment of the CO NAAQS, the data must be quality-assured and not show a violation of the standard for the last two consecutive years. New York's CO data has been quality assured and shows no more than one exceedance of the NAAQS per year over the most recent two complete years of data (1999 and 2000).

Therefore, EPA finds that the New York portion of the CMSA has met the first statutory criterion for attainment of the CO NAAQS (40 CFR 50.9 and appendix C).

Furthermore, air quality data for the remainder of the CMSA shows that the entire nonattainment area has met the CO NAAQS from 1995 to the present.

New York's August 30, 1999 CO SIP revision is fully approved by EPA as meeting all the requirements of section 110(a)(2)(I) of the CAA, including the requirements of Part D (relating to nonattainment), which were due prior to the date of New York's redesignation request. The 1990 CAA required that nonattainment areas meet specific new requirements depending on the severity of the nonattainment classification. Requirements for New York include an attainment demonstration, forecast of vehicle miles traveled, the preparation of a 1990 emission inventory with periodic updates, the development of contingency measures, implementation of an enhanced inspection and maintenance (I/M) program, and adherence to the conformity rules.

New York's vehicle miles traveled forecast, emissions inventory, and contingency measures were approved on July 25, 1996 (61 FR 38594) as part of the New York CO SIP.

New York's attainment demonstration would have been approved in an earlier notice except that it relied on credit from the New York enhanced motor vehicle inspection and maintenance (I/M) program. New York's analysis demonstrated that all of the modeled intersections attained the 8-hour carbon monoxide standard of 9 ppm. Since air quality values at the most congested intersections was determined to not exceed the standard, New York has demonstrated that the entire area will be in attainment for CO. New York used appropriate modeling techniques and modeling inputs in its demonstration.

New York's enhanced I/M program was implemented in November 1997. After the State successfully demonstrated how much emissions reduction credit the program deserves, EPA published a final approval of the enhanced I/M program on May 7, 2001 (66 FR 22922).

EPA is proposing to approve the attainment demonstration at this time.

Section 176 of the CAA contains requirements related to conformity. Although EPA's regulations (see 40 CFR 51.390) require that states adopt transportation conformity provisions in their SIPs for areas designated nonattainment, or that are subject to an EPA approved maintenance plan, EPA has decided that a transportation conformity SIP is not an applicable requirement for purposes of evaluating a redesignation request under section 107(d) of the CAA.

EPA's decision is based on a combination of two factors. First, the requirement to submit SIP revisions to comply with the conformity provisions of the CAA continues to apply to areas after redesignation to attainment. Therefore, the State remains obligated to adopt the transportation conformity rules even after redesignation and would risk sanctions for failure to do so. Unlike most requirements of section 110 and part D, which are linked to the nonattainment status of the area, the conformity requirements apply to both nonattainment and maintenance areas. Second, EPA's federal conformity rules require performance of conformity analyses in the absence of approved state rules. Therefore, a delay in approving State rules does not relieve an area from the obligation to implement conformity requirements. Specifically, New York submitted adopted transportation conformity regulations on August 12, 1998. However, on March 2, 1999 the U.S. Court of Appeals for the D.C. Circuit struck down five provisions of the federal transportation conformity regulation (EDF v. EPA, 167 F.3d 641—D.C. Cir. 1999). Having preceded the court's decision, New York State includes all five of these provisions in its adopted State regulation as presented in Table 1.

Because New York State's transportation conformity regulation contains these five provisions, EPA cannot proceed with an approval of the State's regulation at this time.

Nevertheless, areas are subject to the conformity requirements regardless of whether they are redesignated to attainment and must implement conformity under Federal rules, if State rules are not yet approved. Accordingly, EPA believes it is appropriate to evaluate New York's redesignation request independent of the status of the State's conformity regulation.

Consistent with the October 14, 1994 EPA guidance from Mary D. Nichols, entitled “Part D New Source Review (Part D NSR) Requirements for Areas Requesting Redesignation to Attainment,” EPA is not requiring full approval of a Part D NSR program by New York as a prerequisite to redesignation to attainment. Under this guidance, nonattainment areas may be redesignated to attainment notwithstanding the lack of a fully approved Part D NSR program so long as the program is not relied upon for maintenance. New York has not relied on a NSR program to maintain air quality within the CO standard. Moreover, because the New York portion of the CO nonattainment area is being redesignated to attainment by this action, New York's Prevention of Significant Deterioration (PSD) requirements will be applicable to new or modified sources of CO.

New York has implemented a number of measures to control motor vehicle CO emissions. Emission reductions achieved through the implementation of these control measures are enforceable. These measures include the Federal Motor Vehicle Control Program, Federal reformulated gasoline regulation, and New York's pre-1990 modifications to its inspection and maintenance (I/M) program.

The State of New York has demonstrated that actual enforceable emission reductions are responsible for the air quality improvement and that the CO emissions in the base year are not artificially low due to local economic downturn. EPA finds that the combination of existing EPA-approved SIP and federal measures contribute to the permanence and enforceability of reduction in ambient CO levels that have allowed New York to attain the NAAQS since 1992.

Section 175A of the CAA sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. The plan must demonstrate continued attainment of the applicable NAAQS for at least ten years after the Administrator approves a redesignation to attainment. Eight years after the redesignation, the state must submit a revised maintenance plan which demonstrates attainment for the ten years following the initial ten-year period. To provide for the possibility of future NAAQS violations, the maintenance plan must contain contingency measures, with a schedule for implementation adequate to assure prompt correction of any air quality problems. In this notice, EPA is approving the State of New York's maintenance plan because EPA finds that New York's submittal meets the requirements of section 175A.

Section 172(c)(3) and 187(a)(1) of the CAA requires that CO plan provisions include a comprehensive, accurate, and current emission inventory from all sources of relevant pollutants in the nonattainment area. In addition, page 8, section 5a of the September 4, 1992 memorandum from John Calcagni, former Director, Air Quality Management Division, to EPA Regional Air Division Directors entitled “Procedures for Processing Requests to Redesignate Areas to Attainment,” requires States to “develop an attainment inventory to identify the level of emissions in the area which is sufficient to attain the NAAQS. This inventory should be consistent with EPA's most recent guidance on emission inventories for nonattainment areas available at the time and should include emissions during the time period associated with the monitoring data showing attainment.”

On November 23, 1999, New York submitted its CO redesignation request and maintenance plan to EPA. On March 22, 2000, New York submitted its update to the New York State Implementation Plan for Carbon Monoxide, entitled “Update to the Downtown Brooklyn Master Plan Component of the Carbon Monoxide Attainment Demonstration.” Finally, on May 25, 2001, New York submitted its Final Proposed Revision for redesignating the New York CO nonattainment area to attainment of the CO standard.

New York included the requisite inventory in the CO SIP. The base year for the inventory was 1996, using a three-month CO season of December 1996 through February 1997. The inventory covers the seven counties in the NYCMA.

The 1996 emissions inventory is also classified as the attainment year inventory for the CO redesignation plan. The calendar year 1996 inventory can be considered representative of attainment conditions because the NAAQS were not violated during 1996. The inventory included peak average wintertime daily emissions from stationary point, stationary area, off-highway mobile, and highway mobile sources of CO. These emission estimates were prepared in accordance with EPA guidance. EPA is approving the CO emissions inventory for the entire NYCMA CO nonattainment area.

New York estimates that total CO emissions will decrease from 4,510.7 tons per day in the 1996 base year to 3,539 tons per day in 2012. Such a reduction in CO emissions clearly supports the State's contention that the CO NAAQS will be maintained into the foreseeable future. These projected inventories were prepared in accordance with EPA guidance. The projections in Table 2 show that future CO emissions are expected to be below the level of emissions in the base year after the benefits of the Federal Motor Vehicle Control Program, reformulated gasoline and pre-1996 basic I/M program are taken into consideration. These improvements are expected to occur despite the fact that New York took into account the effects of growth due to economic activities and population changes on stationary and off-highway sources.

The submittal included transportation conformity budgets based on the control strategies, growth projections and assumptions used in the attainment demonstration and maintenance plans for the CO nonattainment area. Table 3 presents the 2000, 2007 and 2012 carbon monoxide transportation conformity budgets in tons of CO per winter day. These budgets are consistent with the State's emission baseline and projected inventories for highway mobile sources. EPA announced its findings that the budgets are adequate for transportation conformity purposes on March 27, 2000 (65 FR 16196). EPA is now proposing to approve these budgets.

New York has committed to continue to operate its existing air monitoring network and quality assurance program in accordance with 40 CFR part 58 to ensure the development of complete and accurate emission inventory and air monitoring data.

Continued attainment of the CO NAAQS in New York depends, in part, on the State's efforts toward tracking indicators of continued attainment during the maintenance period. The State has projected CO emissions out to 2012 with interim years of 2000 and 2007. The State has also committed to track actual vehicle miles traveled (VMT) on an annual basis as part of the demonstration that growth above and beyond that predicted will not result in a change of attainment determination. This tracking process will be used along with the latest EPA emission model to ensure that the 1996 baseline attainment emissions are not exceeded.

In addition to tracking changes in VMT, New York will use a process based on planned development to identify areas at risk of exceeding the CO standard. This process will rely on information collected by the New York City Departments of City Planning, the New York City Department of Transportation, the New York State Department of Transportation, or other agencies that undertake major investment studies associated with transportation projects. Additionally, the New York State Department of Environmental Conservation is to be informed by New York City of any planned commercial developments larger than 300,000 square feet. Any project(s) that meets the State's criteria will be considered an area at potential risk for violating the CO standard and would be required to mitigate any projected violations of the NAAQS.

Finally, the State previously identified the Long Island City and Downtown Brooklyn Business Districts as areas at risk of violating the CO standard because in the 1992 attainment demonstration these areas showed the potential for future exceedance of the CO standard. However, that attainment demonstration did not take credit for the benefits of the now implemented enhanced motor vehicle I/M program. With these credits, the State has demonstrated that these areas would not exceed the CO standard in the future. Accordingly, New York's request to remove the DBMP TCMs from the SIP is approved.

EPA is proposing to approve New York State's plans for verifying continued attainment of the CO standard and for identifying areas at risk of exceeding the CO standard.

The level of CO emissions in New York will largely determine its ability to stay in compliance with the CO NAAQS in the future. Despite the State's best efforts to demonstrate continued compliance with the NAAQS, it is possible that the ambient air pollutant concentrations exceed or violate the NAAQS based upon some unforeseeable condition. In order to meet this challenge, the CAA requires states to develop contingency measures to offset these conditions. New York has committed to use its winter-time Reid Vapor Pressure (RVP) regulation as its contingency measure. New York State's Subpart 225-3 “Fuel Composition and Use—Volatile Motor Fuel” permits the commissioner to set a winter RVP level for gasoline if such a level is necessary for air quality purposes. This regulation was adopted on June 30, 1993 and was approved by EPA in 61 FR 38594 as part of New York's 1992 CO SIP.

In section 2.b. of this document EPA sets forth the basis for its conclusion that New York has a fully approved SIP which meets the applicable requirements of section 110 and Part D of the CAA. EPA notes that section 110 also requires that states include in their SIPs, where applicable, oxygenated gasoline programs. The oxygenated fuels program was removed from the New York SIP because the entire CMSA, including the New York portion, was attaining the CO NAAQS. (See 65 FR 20909 (April 19, 2000)). Since oxygenated fuel was removed from the SIP because it was no longer required, its removal does not pose a problem for the redesignation of the New York portion of the CMSA from nonattainment to attainment for the CO NAAQS.

EPA has determined that the information received from the NYSDEC constitutes complete redesignation requests under the general completeness criteria of 40 CFR part 51, appendix V, sections 2.1 and 2.2.

Additionally, the New York redesignation request meets the five requirements of section 107(d)(3)(E), noted earlier.

EPA is proposing to approve New York's request for redesignating the New York portion of the New York Northern New Jersey-Long Island CO nonattainment area to attainment, because the State has demonstrated compliance with the requirements of section 107(d)(3)(E) for redesignation. EPA is also proposing to approve the New York CO maintenance plan because it meets the requirements set forth in section 175A of the CAA. In addition, EPA is proposing to approve the New York CO attainment demonstration that was submitted on November 15, 1992. Finally, EPA is proposing to approve the removal from the SIP of the 3 TCMs identified in the November 15, 1992 CO attainment demonstration and the 11 TCMs from the DBMP.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. This proposed action merely proposes to approve state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule proposes to approve pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). This proposed rule also does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely proposes to approve a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This proposed rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the state to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this proposed rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This proposed rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

EPA Regions, as well as States, Territories, and Tribes are authorized to implement the water quality standards program and the National Pollutant Discharge Elimination System (NPDES) program, and to issue permits that comply with the technology-based and water quality-based requirements of the Clean Water Act (CWA). In doing so, permitting authorities, including authorized States, Territories, and Tribes, make discretionary choices when writing permits, including the selection of pollutants to be measured and monitoring requirements. If EPA has “approved” (i.e., promulgated through rulemaking) standardized testing procedures for a given pollutant, the permit must specify one of the approved testing procedures or an approved alternate test procedure. Although EPA proposes to include test methods for four biological pollutants in section 136.3, it recommends their use only for ambient water quality monitoring. EPA does not propose to approve these test methods for effluent matrices.

EPA has developed ambient water quality criteria for E. coli and enteroccoci bacteria and is considering criteria for Cryptosporidium and Giardia. The States, Territories, and Tribes may adopt these criteria into their water quality standards and may issue water quality-based permits that require monitoring for these pollutants in ambient waters. Therefore, discharges with water quality-based permits could be affected by the standardization of testing procedures in this rulemaking in instances where the permitting authority requires that such permits incorporate ambient water monitoring. EPA does not require inclusion of ambient water monitoring for NPDES permits. In addition, when a State, Territory, or authorized Tribe provides certification of Federal licenses under the CWA section 401, and when such certification requires measurement of waste constituents specified in 40 CFR 136, then such measurements must be in accordance with approved testing procedures if such procedures are available. 40 CFR 136.1(c). Categories and entities that ultimately may be affected/regulated include:

This table is not intended to be exhaustive, but rather provides guidance for readers regarding entities likely to be affected/regulated by this action. This table lists the types of entities that EPA is now aware could potentially be affected/regulated by this action. Other types of entities not listed in the table also could be affected/regulated. If you have questions regarding the applicability of this action to a particular entity, consult one of the persons listed in the FOR FURTHER INFORMATION CONTACT section.

The record for this rulemaking has been established under docket number W-99-14. A copy of the supporting documents cited in this proposal are available for review at EPA's Water Docket. The record is available for inspection from 9 a.m. to 4 p.m. EST, Monday through Friday, excluding Federal holidays at EPA's Water Docket, 401 M Street SW., East Tower Basement (Room EB 57), Washington, DC 20460. For access to docket materials, please call (202) 260-3027 to schedule an appointment.

Commenters are requested to submit any references cited in their comments. Commenters also are requested to submit an original and three copies of their written comments and enclosures, and to clearly identify the specific pollutant and method to which the comment applies. Commenters that want a confirmed receipt of their comments should include a self-addressed, stamped envelope. All comments must be postmarked or delivered by hand. No facsimiles (faxes) will be accepted.

Electronic comments must be submitted as a Word Perfect for Windows 5/6/7/8 file or an ASCII file, avoiding the use of special characters and any form of encryption. Comments and data also will be accepted on disks in Word Perfect 5/6/7/8 or ASCII file format. Electronic comments on this notice may be filed online at many Federal Depository Libraries. All electronic comments must be identified by docket number. Electronic comments will be transferred into a paper version for the official record. EPA will attempt to clarify electronic comments if there is an apparent error in transmission.

This Federal Register document has been placed on the Internet for public review and downloading at the following location: http//www.epa.gov/fedrgstr.

Copies of analytical methods published by EPA are available for a nominal cost through the National Technical Information Service (NTIS); U.S. Department of Commerce; 5285 Port Royal Road; Springfield, VA 22161, or call (800) 553-6847. Copies of the EPA methods cited in this proposal may be obtained from Robin Oshiro; Office of Science and Technology (4304); Office of Water; U.S. Environmental Protection Agency; Ariel Rios Building; 1200 Pennsylvania Avenue, NW.; Washington, DC 20460, or call (202) 260-7278. Copies of several of the EPA methods cited in this proposal may also be downloaded from the EPA Office of Research and Development; National Exposure Research Laboratory (NERL)-Cincinnati Microbiology home page at www.epa.gov/microbes/. Copies of published journal articles for selected EPA methods are available in the public domain. All other methods must be obtained from the publisher. Publishers (with contact information) for all methods are included in the References section of today's rule. Copies of all methods are also available in the public record for this proposal.

Today's proposal is pursuant to the authority of sections 303(c), 304(a), 304(h) and 501(a) of the Clean Water Act (CWA), 33 U.S.C. 1313(c), 1314(a), 1314(h), 1361(a) (the “Act”). Section 303(c) of the Act establishes the basis for the current water quality standards program. This section requires EPA to review and approve or disapprove State-adopted water quality standards. Section 304(a) of the Act requires the EPA Administrator to conduct non-regulatory scientific assessments of ecological and public health effects to support the development of water quality criteria associated with specific ambient water uses. When these criteria are adopted as State water quality standards under section 303, they become the enforceable maximum acceptable levels of pollutants in ambient waters. Section 304(h) of the Act requires the EPA Administrator to “promulgate guidelines establishing test procedures for the analysis of pollutants that shall include the factors which must be provided in any certification pursuant to section 401 of this Act or permit applications pursuant to section 402 of this Act.” Section 501(a) of the Act authorizes the Administrator to “prescribe such regulations as are necessary to carry out this function under this Act.”

To fulfill the CWA's mandate to maintain “fishable and swimmable” waters, EPA is required to develop ambient water quality criteria based on a scientific assessment of the relationship between pollutant concentrations and environmental and human health effects. Ambient water refers to any fresh, marine, or estuarine surface water used for recreation; propagation of fish, shellfish, or wildlife; agriculture; industry; navigation; or as source water for drinking water facilities. These ambient water quality criteria become enforceable water quality standards when adopted by State, Territorial, Tribal, and local governments implementing a water-quality based approach to pollution control. For bacterial pollution in ambient water, EPA has developed bacteriological ambient water quality criteria recommendations for E. coli in freshwater and enterococci in freshwater and marine waters (51 FR 8012, March 7, 1986). There are a number of zoonotic diseases of concern to humans (diseases transferred from animals to humans) if recreational or other waters are contaminated with fecal material from non-human animal species. E. coli species are a subset of the coliform bacteria group that is part of the normal intestinal flora of humans and animals and is, therefore, a direct indicator of fecal contamination from these sources in water. Enterococci, which include Enterococcus faecalis and Enterococcus faecium, are enteric bacteria used to indicate fecal contamination and the possible presence of pathogens, in water. Based on previous EPA guidance, total and fecal coliform bacteria currently have been included in many water quality standards as indicators of bacterial contamination (USEPA, 1976). However, more recent epidemiological studies described in Ambient Water Quality Criteria for Bacteria—1986 (USEPA, 1986a), indicate that E. coli and enterococci show a direct correlation with swimming-associated gastrointestinal illness rates, while fecal coliforms do not. As the concentration of E. coli and/or enterococci increase(s), the illness rates also increase. These indicators are used as part of the bacterial water quality criteria and standards to enhance the protection of human health and the environment.

In addition to bacterial pollution, EPA is concerned about waterborne parasites and has developed test methods for Cryptosporidium and Giardia. These waterborne parasites are responsible for cases of severe and widespread human illness when present in drinking water supplies as a result of contamination of source waters. To support future regulation of these organisms in drinking water, the Safe Drinking Water Act Amendments of 1996 required the EPA to evaluate the risk to public health associated with Cryptosporidium and Giardia contamination. To implement these requirements, EPA plans to assess Cryptosporidium and Giardia occurrence in freshwater surface water bodies. Because one of the designated uses of some ambient waters may include the use of the waterbody as a drinking water source, EPA may develop ambient water quality criteria for Cryptosporidium and Giardia in the future. EPA plans to use the test methods discussed in this notice to support these assessments. By doing so, EPA desires to promote consistency on the methods used for these assessments to ensure that the data collected are of good quality and comparable. EPA also wishes to make these methods available for use by the States and for general use for risk assessments.

In today's notice, EPA is proposing test methods for E. coli, enterococci, Cryptosporidium, and Giardia. Proposal of the bacterial methods supports the use of E. coli and enterococci as indicators in place of the total and fecal coliform indicators in State, Territorial, Tribal, and local water quality-based monitoring programs. Proposal of test methods for Cryptosporidium and Giardia supports the use of these methods in evaluating surface water occurrence of these organisms and the associated watershed vulnerability levels of concern for waterbodies designated as potential drinking water sources under the water quality standards program. EPA proposes to approve the use of test methods for E. coli, enterococci, Cryptosporidium, and Giardia for ambient water quality monitoring only. Although EPA believes that these methods are appropriate for ambient water quality monitoring, the Agency has not determined that these methods are acceptable for application to other matrices.

This proposal was initiated in response to national directives that seek to improve and assist in State, Territorial, Tribal, and local implementation of water quality standards, ambient water monitoring programs, and public notification programs to reduce public health risks posed by biological pollutants in ambient water. The primary initiatives that served as impetus for today's proposal include the Beaches Environmental Assessment Closure and Health (BEACH) Program; the Beach Action Plan (EPA-600-R-98-079); the Beach Watch Program; the Beaches Environmental Monitoring for Public Access and Community Tracking (EMPACT) Program; and the Water Quality Criteria and Standards Plan. Additionally, this rule is expected to satisfy requests by State, Territorial, Tribal, and local governments, regulated entities, and environmental laboratories that EPA publish analytical test procedures for enumerating E. coli, enterococci, Cryptosporidium, and Giardia in ambient water that were evaluated through interlaboratory validation or extensive intralaboratory comparison with previously approved methods.

This proposal would make available a suite of Most Probable Number (MPN) (i.e., multiple-tube, multiple-well), and membrane filter (MF) methods for enumerating (i.e., determining organism density) E. coli and enteroccoci in ambient water as part of State, Territorial, Tribal, and local water quality monitoring programs. Multiple-tube, multiple-well, and MF formats include culture and enzyme-substrate techniques. Culture methods use lactose fermentation (E. coli), presence of turbidity (enterococci), colony formation, or color to detect the target organism. Enzyme-substrate tests use chromogenic (e.g., indoxyl-β-D-glucuronide) or fluorogenic (e.g., 4-methylumbelliferyl-β-D-glucuronide, [MUG]) substrates that react with specific enzymes (generally, β-glucuronidase in E. coli and β-glucosidase in enterococci) to produce color changes or fluorescence to detect the target organism. The methods included in this proposal were developed by EPA, voluntary consensus standards bodies (VCSBs) (i.e., American Public Health Association [APHA], American Water Works Association [AWWA], and Water Environment Foundation [WEF] who jointly publish Standard Methods for the Examination of Water and Wastewater, referred to as “Standard Methods;'American Society for Testing and Materials [ASTM]; Association of Official Analytical Chemists International [AOAC]), and commercial vendors with methods submitted to the EPA Office of Water (OW) Alternate Test Procedure (ATP) process. For several procedures, an EPA method, VCSB method, and/or a commercially available method (submitted to the ATP program) are proposed.

Although there are several methods (not yet approved by EPA) that are applicable to simultaneous determination of total coliform and E. coli, EPA is proposing to approve methods for analysis of E. coli only. EPA made this choice because at present there are no EPA-approved methods for E. coli, whereas EPA-approved methods are already available for the determination of total coliform. There is a request for comment on the expansion of today's rule to include total coliforms in Section III.A.5. Several of the total coliform test methods (or selected procedural steps) have already been approved by EPA (see Table IA at 40 CFR 136.3) or have been proposed for approval for the Clean Water Act or Safe Drinking Water Act compliance monitoring programs (66 FR 3526, January 16, 2001).

Proposed methods were selected based on data generated by EPA laboratories, submissions to the ATP program and VCSBs, published peer-reviewed journal articles, and/or publicly available study reports that indicate their applicability to quantitative analysis of the target organisms in ambient water. Since data were generated in multiple studies using different method versions and different statistical analyses, the test procedures in today's rule must be evaluated against the end-users' needs based on data quality objectives. End-users should compare any new proposed alternate method with the relevant EPA-recommended method(s) before adopting it for that matrix to ensure that the proposed method generates data of comparable quality. EPA-recommended methods for matrices in which they were tested are summarized in Tables 3 and 5. A media acronym table is provided in Section V. Full citations for methods and data reports are provided in the References section and are included in the docket for today's proposed rulemaking. At the time of final rulemaking, EPA plans to issue a draft protocol for determining the comparability of alternative test methods to those promulgated in the final rule. In addition, EPA will issue draft guidance on acceptable characteristics of methods for determining equivalency (e.g., acceptable range of false positives/false negatives). There is a request for comment in Section III.A.5 inviting suggestions on acceptable characteristics of methods and on method comparability criteria to support the equivalency testing protocol.

In Most Probable Number tests, the number of tubes/wells producing a positive reaction provides an estimate of the original, undiluted density (i.e., concentration) of target organisms in the sample. This estimate of target organisms, based on probability formulas, is termed the Most Probable Number. MPN tests can be conducted in multiple-tube fermentation (MTF), multiple-tube enzyme substrate, or multiple-well enzyme substrate formats. In multiple-tube tests, serial dilutions may be used to obtain estimates over a range of concentrations, with replicate tubes analyzed at each ten-fold dilution/volume. The numbers of replicate tubes and sample dilutions/volumes are selected based on the expected quality of the water sample. Generally, for non-potable water samples, five replicate tubes at a minimum of three dilutions/volumes are used. Tubes are incubated, and positive results are reported and confirmed. Positive results are determined under specified conditions by the presence of acid and/or the production of gas using MTF tests, or by color change or fluorescence using enzyme substrate tests. Tests also may be conducted in a multiple-well format to determine MPN, using commercially prepared substrate media, multiple-well trays, and MPN tables provided by the manufacturer. Target organism density is estimated by comparing the number of positive tubes or wells with MPN tables. The MPN tables relate the number of positive tubes or wells to an estimate of the mean target organism density based on probability formulas. Results in both types of tests are generally reported as MPN per 100 mL.

The multiple-tube fermentation methodology is useful for detecting low concentrations of organisms (<100/100 mL), particularly in samples containing heavy particulate matter, toxic compounds (e.g. metals), or injured or stressed organisms. Multiple-tube tests are applicable to freshwater, estuarine, and marine ambient waters. Since MPN tables assume a Poisson distribution, samples must be adequately shaken to break up any clumps and provide even distribution of bacteria. If the sample is not gently shaken, the MPN value may underestimate the actual bacterial density. The overall precision of each multiple-tube test depends on the number of tubes used and sample dilutions/volumes tested. Unless a large number of tubes are used (five tubes per dilution/volume or more), the precision of multiple-tube tests can be very poor. Precision is improved when the results from several samples from the same sampling event are processed, estimated separately, and then mathematically combined using the geometric mean. Further background information on multiple-tube tests is available in the 20th Edition of Standard Methods for the Examination of Water and Wastewater (APHA, 1998).

Membrane filtration is a direct-plating method in which sample dilutions/volumes are filtered through 0.45 μm membrane filters that are subsequently transferred to petri plates containing selective primary isolation agar or an absorbent pad saturated with selective broth. A second substrate medium is used in two-step MF procedures to confirm and/or differentiate the target organisms. The total sample volume to be analyzed may be distributed among multiple filters and diluted as needed, based on the anticipated water sample type, quality, and character (e.g., organism density, turbidity). The goal is to obtain plates with counts within the acceptable counting range of the method. The acceptable counting range of membrane filter tests depends on the specific analytical technique and the target organism under study. Plates are incubated and target colonies are counted. A percentage of the target colonies may then be verified as specified by the method. Target colonies are detected by observing the presence of colonies that meet a specific morphology, color, or fluorescence under specified conditions. Colonies may be counted with the aid of a fluorescent light, magnifying lens or dissecting microscope, or long-wavelength (366-nm) ultraviolet (UV) light source. Results generally are reported as colony-forming units (CFU) per 100 mL. Organism density is determined by dividing the number of target CFU by the volume (mL) of undiluted sample that is filtered and multiplying by 100. If verification steps are performed, the initial target colony count is adjusted based upon the percentage of positively verified colonies and reported as a “verified count per 100 mL” (APHA, 1998).

Membrane filtration is applicable to most freshwater, estuarine, and marine ambient waters, with limitations where an underestimation of organism density is likely: water samples with high turbidity, toxic compounds, or large numbers of non-coliform (background) bacteria, and organisms damaged by chlorine or toxic compounds. To minimize these interferences, replicates of smaller sample dilutions/volumes may be filtered and the results combined. When the MF method has not been used previously on an individual water type, parallel tests should be conducted with a MTF to demonstrate applicability, lack of interferences, and at least comparable recovery. For example, colonies from samples containing high-background levels or stressed organisms should be verified. If the MTF results are consistently higher than those obtained in MF tests, or there is an indication of suboptimal recovery, use an appropriate recovery enhancement technique and demonstrate that the recovery enhancement technique is comparable to MTF. Further background information on MF tests is available in Standard Methods for the Examination of Water and Wastewater (APHA,1998).

A statistical comparison of results obtained by the multiple-tube and MF methods showed that the MF method is more precise in enumerating target organisms than the MPN test, but differences in recovery were generally not statistically significant. However, based on susceptibility to interferences, MF tests may underestimate the number of viable bacteria, and the MPN method may overestimate the concentration because of the built-in positive bias of the method (Thomas, 1955). Tables with 95% confidence limits are available for both methods, based on the assumption that bacteria exhibit a Poisson distribution. Because of susceptibility of some MF tests to interferences, verification of some MF results with multiple-tube tests is critical. Additionally, some MPN tests require confirmation tests because of the false positive/false negative rates of the particular media. In general, although numerical results may not be identical, data from each method yield similar water quality information based on performance.

A variety of methods for E. coli and enteroccoci are being proposed in today's rule because a range of techniques are routinely used for different applications by regulatory authorities, permitees, laboratories, researchers, and others. The methods presented have been evaluated based on different study designs and statistical analyses. The variety of waters subject to monitoring, the selection of an appropriate method, number of tubes, sample dilutions/volumes, and other analytical design decisions may be made based on the available information on the type, quality, character, consistency of results, anticipated target organism density, and designated use of the water to be monitored.

EPA is proposing several methods for enumerating E. coli in ambient water. Brief descriptions of the proposed multiple-tube, multiple-well, and MF methods are provided. Method performance data is summarized in Table 3.

In Table 1, methods in the same row use the same technique, but are published by different entities. For example, ONPG-MUG is published in the “Standard Methods” manual and in the Association of Official Analytical Chemists (AOAC) manual, and is also available as a commercial product. Voluntary Consensus Standards (VCS) Methods are those developed or adopted by domestic and international voluntary consensus standard bodies. The American Public Health Association (APHA), American Water Works Association (AWWA), and Water Environment Foundation (WEF) jointly publish methods approved by a methods approval program in Standard Methods for the Examination of Water and Wastewater (“Standard Methods”). The American Society for Testing and Materials (ASTM) are methods that have met the requirements of the ASTM methods approval program. The Association of Official Analytical Chemists also publishes methods that have met the requirements of the AOAC methods approval program. EPA methods are those that have been developed by the US EPA.

The multiple-tube fermentation method for enumerating E. coli in water uses multiple-tubes and dilutions/volumes in a two-step procedure to determine E. coli concentrations (APHA, 1998). In the first step, or “presumptive phase,” a series of tubes containing lauryl tryptose broth (LTB) are inoculated with undiluted samples and/or dilutions/volumes of the samples and mixed. Inoculated tubes are incubated for 24 ± 2 h at 35 ± 0.5 °C. Each tube then is swirled gently and examined for growth (i.e., turbidity) and production of gas in the inner Durham tube. If there is no growth or gas, tubes are re-incubated for 24 ± 2 h at 35 ± 0.5 °C and re-examined. Production of growth and gas within 48 ± 3 h constitutes a positive presumptive test for coliforms, which include E. coli.

After enrichment in the presumptive medium, positive tubes are subjected to a second step for enumeration of E. coli. Presumptive tubes are agitated, and growth is transferred using a sterile loop or applicator stick to tubes containing EC broth supplemented with 4-methylumbelliferyl-β-D-glucuronide (MUG). Inoculated tubes are incubated at 44.5 ± 0.2 °C for 24 ± 2 h in a water bath. All tubes exhibiting growth and gas production are examined for bright blue fluorescence under long-wavelength UV light (366-nm) indicating a positive test for E. coli. The density of E. coli in MPN/100 mL is then calculated from the number of positive EC-MUG tubes, using MPN tables or formulas.

ONPG-MUG tests are chromogenic/fluorogenic enzyme substrate tests for the simultaneous determination of total coliforms and E. coli in water. These tests use commercially available media containing the chromogenic substrate ortho-nitrophenyl-β-D-galactopyranoside (ONPG), to detect total coliforms and the fluorogenic substrate 4-methylumbelliferyl-β-D-glucuronide (MUG), to detect E. coli. All tests must be conducted in a format that provides quantitative results for ambient water. Colilert-18® should be used for testing marine waters with a minimum of a 10-fold dilution with sterile freshwater. Media formulations are available in disposable tubes for the multiple-tube procedure or packets for the multiple-well procedure. Appropriate preweighed portions of media for mixing and dispensing into multiple-tubes and wells are also available. The use of commercially prepared media is required for quality assurance and uniformity.

For the multiple-tube procedure, a well-mixed sample and/or sample dilution/volume is added to tubes containing predispensed media. Tubes are then capped and mixed vigorously to dissolve the media. Alternatively, this procedure can be performed by adding appropriate amounts of substrate media to a bulk diluted sample (with appropriate dilutions for enumeration), then mixing and dispensing into multiple-tubes. The number of tubes, and number of dilutions/volumes are determined based on the type, quality, and character of the water sample. A multiple-well procedure may be performed with sterilized disposable packets. The commercially available Quanti-Tray® or Quanti-Tray®/2000 multiple-well tests uses Colilert® or Colilert-18® media to determine E. coli (IDEXX, 1999b,c). In these tests, the packet containing media is added to a 100-mL sample (with appropriate dilutions for enumeration). The sample is then mixed and poured into the tray. A tray sealer separates the sample into 51 wells (Quanti-Tray) or 96 wells (Quanti-tray/2000) and seals the package which is subsequently incubated at 35 ± 0.5 °C for 18 h when using Colilert-18® or 24 h when using Colilert®. If the response is questionable after the specified incubation period, the sample is incubated for up to an additional 4 h at 35 ± 0.5 °C for both Colilert® tests.

After the appropriate incubation period, each tube or well is compared to the reference color “comparator” provided with the media. If the sample has a yellow color greater or equal to the comparator, the presence of total coliforms is verified, and the tube or well is then checked for fluorescence under long-wavelength UV light (366-nm). The presence of fluorescence greater than or equal to the comparator is a positive test for E. coli. If water samples contain humic acid or colored substances, inoculated tubes or wells should also be compared to a sample water blank. The concentration in MPN/100 mL is then calculated from the number of positive tubes or wells using MPN tables provided by the manufacturer.

CPRG-MUG is a chromogenic/fluorogenic enzyme substrate test for the simultaneous determination of total coliforms and E. coli in water. These tests use a commercially available medium containing the chromogenic substrate chlorophenol red-β-D-galactopyranoside (CPRG) to detect total coliforms, and the fluorogen MUG to detect E. coli. The sample is incubated for 24 ± 2 h at 35 ± 0.5 °C. If results are negative after 24 h, the sample is incubated up to an additional 4 h before calculating results. If the sample has changed from a yellow color to a red or magenta color, the presence of total coliforms is verified and the tube or well is then checked for fluorescence. The presence of blue fluorescence under a long-wavelength UV light (366-nm) is a positive test for E. coli. The concentration in MPN/100 mL is then calculated from the number of positive tubes or wells using MPN tables provided by the manufacturer. ColisureTM is a commercially available format of this method and uses the same quantitative formats (multiple-tube and multiple-well) available for the Colilert® tests. ColisureTM is subject to the same interferences and procedural cautions listed for the Colilert® tests.

These membrane filter methods for enumerating E. coli are two-step incubation procedures (APHA, 1998). First, a sample is filtered through a 0.45 μm filter, then the filter is placed on a pad saturated with mEndo broth or a plate containing mEndo or LES-Endo agar and incubated for 23 ± 1 h at 35 ± 0.5 °C. Pink to red colonies with a metallic (golden-green) sheen on the filter are considered to be total coliforms. If initial determination of fecal coliforms is desired or non-potable water samples are analyzed, mFC media can be substituted for mEndo/LES-Endo. Following initial isolation of total coliforms (or fecal coliforms), the filter is transferred to nutrient agar containing 4-methylumbelliferyl-β-D-glucuronide (NA-MUG) and incubated for 4 h at 35 ± 0.5 °C. Sheen colonies on mEndo that fluoresce under a long-wavelength UV light (366-nm) are positive for E. coli.

The mTEC agar method is a two-step procedure that provides a direct count of E. coli in water based on the development of colonies on the surface of a membrane filter when placed on a selective nutrient and substrate media (USEPA, 1985a). This method originally was developed by EPA to monitor the quality of recreational water. This method was also used in health studies to develop the bacteriological ambient water quality criteria for E. coli. In this method, a water sample is filtered through a 0.45μm; membrane filter, the filter is placed on mTEC agar (a selective primary isolation medium), and the plate is incubated first at 35 ± 0.5 °C for 2 h to resuscitate injured or stressed bacteria and then at 44.5 ± 0.2 °C for 23 ± 1 h in a water bath. Following incubation, the filter is transferred to a filter pad saturated with urea substrate medium. After 15 minutes, all yellow or yellow-brown colonies (occasionally yellow-green) are counted as positive for E. coli using a fluorescent lamp and either a magnifying lens or a stereoscopic microscope.

The modified mTEC agar method is a single-step MF procedure that provides a direct count of E. coli in water based on the development of colonies on the surface of a filter when placed on selective modified mTEC media (USEPA, 2000a). This is a modification of the standard mTEC media that eliminates bromcresol purple and bromphenol red from the medium, adds the chromogen 5-bromo-6-chloro-3-indoyl-β-D-glucuronide (Magenta Gluc), and eliminates the transfer of the filter to a second substrate medium. In this method, a water sample is filtered through a 0.45μm membrane filter, the filter is placed on modified mTEC agar, incubated at 35 ± 0.5 °C for 2 h to resuscitate injured or stressed bacteria, and then incubated for 23 ± 1 h in a 44.5 ± 0.2 °C water bath. Following incubation, all red or magenta colonies are counted as E. coli.

The MI agar method is a single-step procedure used to simultaneously enumerate total coliforms and E. coli (Brenner, 1993). In this EPA-developed method, a water sample is filtered through a 0.45μm membrane filter, the filter is placed on an MI agar plate, and the medium is incubated at 35 ± 0.5 °C for 24 h. As with NA-MUG and modified mTEC, the MI agar MF procedure is based on the ability of E. coli to produce the enzyme β-glucuronidase, which hydrolyzes Indoxyl-β-D-glucuronide (IBDG) to form a blue color (indigo). E. coli colonies exhibit a blue color and may also be fluorescent under a long-wavelength UV light (366-nm). If desired, the plates can also be observed under long-wavelength UV light (366-nm) for the presence of fluorescent total coliform species. Because the blue color from the breakdown of IBDG can mask fluorescence, non-fluorescent blue colonies are included in the total coliform count. Water samples with high turbidity can clog the membrane filter, interfering with filtration and potentially interfering with the identification of target colonies. However, E. coli colonies on MI agar can be counted on plates from waters containing high particulate or background/non-coliform concentrations, chlorine-stressed organisms or nutrient-deprived organisms, temperature-sensitive E. coli, and/or anaerogenic strains that may not be recovered by other multiple-tube or membrane filter tests.

This broth method is a single-step MF test for enumerating total coliforms and E. coli. As with NA-MUG, modified mTEC, and MI media, the selective identification of E. coli is based on the detection of the β-glucuronidase enzyme. The test medium includes the chromogen 5-bromo-4-chloro-3-indoxyl-β-D-glucuronide (BCIG or X-Gluc). The chromogen BCIG is hydrolyzed by β-glucuronidase, releasing an insoluble indoxyl salt that produces blue colonies. M-ColiBlue24 broth is a commercially available format of this method and contains a nutritive lactose-based medium containing inhibitors to eliminate the growth of non-coliforms. With m-ColiBlue24 broth, a water sample is filtered through a 0.45μm membrane filter, and the filter is transferred to a plate containing an absorbent pad saturated with m-ColiBlue24 broth. The filter is incubated at 35 ± 0.5 °C for 24 h and examined for colony growth (Hach, 1999). The presence of E. coli is indicated by blue colonies.

To confirm the applicability and comparability of results obtained with individual methods, parallel quantitative comparison tests with multiple-tube or MF tests, and positive and negative control tests should be conducted for each site-specific sample in accordance with analytical quality control procedures in Standard Methods for the Examination of Water and Wastewater. Performance data for E. coli multiple-tube, multiple-well, and MF methods are provided in Table 3.

EPA is proposing several methods for enumerating enterococci in water. Brief descriptions of the proposed MPN and MF methods are provided below. In Table 4, methods in the same horizontal row use the same technique, but are published by different entities.

The Azide Dextrose/PSE/BHI technique for enumerating enterococci in water uses multiple-tubes and dilutions/volumes in a three-step procedure (presumptive fecal streptococcus, confirmed fecal streptococcus, and enterococcus) to determine enterococci concentrations (APHA, 1998). In the presumptive phase, multiple-tubes containing azide dextrose are inoculated with sample and mixed with the broth by gentle agitation. Inoculated tubes are incubated for 24 ± 2 h at 35°C ± 0.5 °C. Each tube then is swirled and examined for turbidity. If turbidity is absent, tubes are incubated for an additional 24 h and re-examined. Production of turbidity within 48 ± 3 h constitutes a positive presumptive reaction for fecal streptococci.

After enrichment during the presumptive phase, positive azide dextrose tubes are subjected to a confirmation step for fecal streptococci. A portion of growth from each positive azide dextrose tube is streaked on Pfizer selective Enterococcus (PSE) agar using a sterile loop. Inverted plates are incubated at 35 °C ± 0.5 °C for 24 ± 2 h and observed for the presence of brownish-black colonies with a brown halo. Such colonies are confirmed as fecal streptococci.

Target colonies from the PSE medium can be transferred to a tube of brain-heart infusion (BHI) broth and incubated at 45 °C ± 0.5 °C for 48 h. Simultaneously, these colonies can be transferred to BHI broth containing 6.5% NaCl and incubated at 35 °C ± 0.5 °C for 48 h. Growth at both 45 °C in BHI medium and in BHI medium containing 6.5% NaCl at 35 °C is indicative of the Enterococcus bacterial group. The concentration in MPN/100 mL is then calculated from the number of positive 6.5% NaCl broth tubes using MPN tables or formulas.

This method utilizes a medium contaning the fluorogenic substrate 4-methylumbelliferyl-β-D-glucoside (MUG) to determine enterococci concentrations. EnterolertTM is a commercially available test that utilizes this substrate test for the determination of enterococci in water (IDEXX, 1999f). EnterolertTM tests are incubated for 24 h at 41 ± 0.5 °C and may use the same quantitative formats available for the Colilert® tests, cited earlier in Section III-A. After incubation, the presence of blue/white fluorescence is a positive result for enterococci. The concentration in MPN/100 mL is then calculated from the number of positive tubes or wells using MPN tables provided by the manufacturer. EnterolertTM is subject to the same interferences and cautions listed for the Colilert® tests. In addition, marine water samples must be diluted at least tenfold with sterile, non-buffered freshwater (EnterolertTM is already buffered).

The mEI agar method is a two-step MF procedure that provides a direct count of bacteria in water, based on the development of colonies on the surface of a membrane filter when placed on a selective nutrient medium (USEPA, 1985b). A water sample is filtered through a 0.45μm membrane filter, and the filter is placed on a plate containing selective mE agar. After the plate is incubated at 41 ± 0.5 °C for 48 h, the filter is transferred to an Esculin iron agar (EIA) plate and incubated at 41 ± 0.5 °C for 20-30 min. After incubation, all pink to red colonies on mE agar that form a black or reddish-brown precipitate on the underside of the filter when placed on EIA are counted as enterococci. Organism density is reported as enterococci per 100 mL.

The mEI agar method is a single-step MF procedure that provides a direct count of bacteria in water, based on the development of colonies on the surface of a filter when placed on selective mEI agar (USEPA, 1997). This medium, a modification of the mE agar in EPA Method 1106.1, contains a reduced amount of 2-3-5-triphenyltetrazolium chloride, and an added chromogen, Indoxyl-β-D-glucoside. The transfer of the filter to EIA is eliminated, thereby providing results within 24 h. In this method, a water sample is filtered, and the filter is placed on mEI agar and incubated at 41 ± 0.5 °C for 24 h. Following incubation, all colonies with a blue halo, regardless of colony color, are counted as enterococci. Results are reported as enterococci per 100 mL.

To confirm the applicability and comparability of results obtained with individual methods, parallel quantitative comparison tests with multiple-tube or MF tests, and positive and negative control tests should be conducted for each site-specific sample in accordance with analytical quality control procedures in Standard Methods for the Examination of Water and Wastewater. Performance data for enterococci multiple-tube, multiple-well, and MF methods are provided in Table 5.

The final rule listing the Preble's meadow jumping mouse (Zapus hudsonius preblei) (Preble's) as a threatened species under the Endangered Species Act (Act) of 1973 (16 U.S.C. 1531 et seq.) was published in the Federal Register on May 13, 1998 (63 FR 26517). Section 9 of the Act prohibits take of endangered wildlife. The Act defines take to mean harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect or to attempt to engage in any such conduct. However, the Act also provides for the authorization of take and exceptions to the take prohibitions. Take of listed species by non-Federal property owners can be permitted through the process set forth in section 10 of the Act. For federally funded or permitted activities, take of listed species may be allowed through the consultation process of section 7 of the Act. We, the Fish and Wildlife Service, have issued regulations (50 CFR 17.31) that generally apply to threatened wildlife the prohibitions that section 9 of the Act establishes with respect to endangered wildlife. Our regulations for threatened wildlife also provide that a “special rule” under section 4(d) of the Act can be tailored for a particular threatened species. In that case, the general regulations for some section 9 prohibitions do not apply to that species, and the special rule contains the prohibitions (and exemptions) necessary and appropriate to conserve that species.

On December 3, 1998, we proposed a section 4(d) rule (63 FR 66777) to define conditions under which certain activities that could result in incidental take of Preble's would be exempt from the section 9 take prohibitions. We held two public meetings, at which 129 people attended. We also received 614 comment letters. On May 22, 2001, we published a final rule (66 FR 28125) adopting certain portions of this proposal. Some comments received on the proposed rule suggested additional exemptions to promote conservation of the Preble's. After consideration of these comments, we are now proposing to amend the section 4(d) rule to add special provisions providing exemptions from section 9 prohibitions for certain weed control and ditch maintenance activities.

We propose that the special regulations contained in this amendment be applicable for a period not to exceed 36 months from May 22, 2001, the date the final special rule became effective, in order to be consistent with the 36-month timeframe of the May 22, 2001, final section 4(d) rule, (i.e., May 22, 2001, to May 22, 2004). We expect that, during this time period, comprehensive Habitat Conservation Plans for the Preble's will be developed and a recovery plan and other conservation efforts for the Preble's will be completed.

We propose that the activities discussed below, which may result in incidental take of Preble's, would be exempted from the section 9 take prohibitions. “Incidental take” refers to taking that is otherwise prohibited, if such taking is incidental to, and not the purpose of, an otherwise lawful activity, and is consistent with exceptions provided in this special rule. Take not exempted by this proposed rule and not otherwise authorized under the Act may be referred to the appropriate authorities for civil enforcement or criminal prosecution.

a. Noxious weed control activities—Comments on the proposed section 4(d) rule of December 3, 1998, included a request to consider a rangewide exemption for control of noxious weeds. The comments stressed that laws in both Colorado and Wyoming require control of noxious weeds and that such control is compatible with Preble's conservation. We propose to amend the final 4(d) rule by including a rangewide exemption for noxious weed control, with appropriate limitations designed to prevent eradication of entire plant communities in the course of controlling weeds. We believe that this exemption will facilitate conservation of the Preble's, because noxious weeds are displacing desirable natural vegetation on which the Preble's depends for survival.

b. Ongoing ditch maintenance activities—In the December 3, 1998, proposed rule, we stated that we considered adopting a rangewide exemption for periodic maintenance of existing water supply ditches, but chose not to do so because ditches support occupied and potential Preble's habitat. We received a large number of comments on this decision, many supporting a rangewide exemption and arguing that current maintenance practices have resulted in viable habitat for the Preble's.

In response to these comments, we have elected to propose a limited exemption for customary ditch maintenance activities that are designed to protect and enhance Preble's habitat. This proposed exemption builds upon the guidance provided in a January 31, 2001, “To Whom It May Concern Letter” (Letter), which was originally issued by us on March 11, 1999, and reissued on February 1, 2000, and January 31, 2001, and which was our initial response to these comments. While the Letter specifically describes activities throughout the range of the Preble's that we believe would not constitute take under section 9 of the Act, this proposed amendment to the 4(d) rule specifies certain activities that may result in take and grants exemption from such take.

Our intent is to allow normal and customary maintenance activities that will result only in temporary or limited disturbance of Preble's habitat, and that will result in only minimal take of Preble's. We intend for this exemption to apply only to manmade ditches and not to alteration of habitat along naturally occurring streams and watercourses.

We believe that a limited exemption is necessary, not only to provide relief to those who must maintain active ditches, but to assure that currently existing Preble's habitat along ditches remains functionally intact and viable. Should limited ditch maintenance not be allowed to continue, we face the possibility that these ditches would no longer be capable of conveying water and any habitat dependent on this water would degrade over time and eventually be lost. Maintenance of these ditches, as defined by this proposed rule, is necessary to maintain future conservation options for the Preble's.

Therefore, we propose to exempt from the section 9 take prohibitions, limited maintenance activities on water conveyance ditches throughout the range of the Preble's. We believe that providing exemption from take for all ditch maintenance activities would be imprudent because—(a) some areas contain many ditches known or thought to be occupied by Preble's, (b) the stability of many local Preble's populations is uncertain, (c) the importance of ditch habitat to Preble's populations in many areas is not completely known, and (d) some occupied ditches may serve as important population refugia and travel corridors connecting populations.

We propose exemptions from the take prohibitions of section 9 of the Act for the following ditch maintenance activities, if the Best Management Practices described below are followed.

1. Normal and customary ditch maintenance activities that result in the annual loss of no more than 1/4 mile of riparian shrub habitat within any one linear mile of ditch within any calender year. Riparian shrub habitat is defined as vegetation dominated by plants that generally have more than one woody stem that measures less than 2 inches in diameter and are typically less than 10 feet in height at maturity, put on new growth each season, and have a bushy appearance. Examples of shrubs include, but are not limited to, willow, snowberry, wild plum, and alder.

2. Included in 1. above is the burning of ditches that results in the annual loss of no more than 1/4 mile of riparian shrub habitat within any one linear mile of ditch within any calendar year and is conducted out-of-season (see “Best Management Practices”).

Avoiding impacts to shrubs—Persons engaged in ditch maintenance activities must, to the maximum extent practicable, avoid impacts to shrub vegetation. For example, if it is possible to access the ditch for maintenance or repair activities from an area containing no shrubs, then damage to adjacent shrub vegetation must be avoided.

Disposition of debris—Persons engaged in placing or sidecasting silt and debris removed during ditch cleaning, vegetation or mulch from mowing/cutting, or other material from ditch maintenance must, to the maximum extent practicable, avoid shrub habitat, and at no time disturb more than 1/4 mile of riparian shrub habitat within any one linear mile of ditch within any calendar year.

Timing of work—To the maximum extent practicable, all ditch maintenance will be carried out during the Preble's hibernation season, November through April. Any maintenance activities carried out during the Preble's active season, May through October, will be conducted during daylight hours only.

This exemption includes maintenance of roads used to access ditches and related infrastructure. These maintenance activities are limited to the historic footprint associated with the infrastructure and access roads. Examples of activities that are covered by the exemption include the following activities, each limited to the destruction of 1/4 mile of riparian shrub habitat within one linear mile of ditch within any calendar year:

a. Clearing trash, debris, vegetation, and silt by either physical, mechanical, chemical, or burning procedures—Examples include mowing or cutting grasses and weeds, removal of silt and debris from the ditch below the high-water line, and control of shrubs that could result in ditch leakage.

b. Reconstruction, reinforcement, repair, or replacement of existing infrastructure with components of substantially similar materials and design—Examples include replacement of a damaged headgate, grading or filling areas susceptible to ditch failure, patchwork on a concrete ditch liner, or replacement of failed culvert with a new culvert of the same design and material.

The following maintenance activities are not exempted from the take provisions of section 9 of the Act:

a. Replacement of existing infrastructure with components of substantially different materials and design—such as replacing an existing gravel access road with a permanently paved road.

b. Construction of new infrastructure or the movement of existing infrastructure to new locations—Examples include redrilling a well in a new location, building a new access road, change in the location of a diversion structure or installation of new diversion works where none previously existed.

These additional exemptions are proposed in response to comments received during the public review on the December 3, 1998, 4(d) rule proposal. Water rights owners argued that lack of an exemption for periodic maintenance of existing ditches conflicted with the exemption for existing uses of perfected water rights, because ditch maintenance is an intrinsic part of exercising a perfected water right. In addition, respondents noted that ditch maintenance is required by State law in both Wyoming and Colorado. Failure to adequately maintain water conveyance structures can result in fines, penalties, and liability for damage to property caused by ditch failures. Finally, respondents noted that prohibition of ditch maintenance could subsequently result in curtailment or cessation of water diversions. This situation in turn could result in forfeiture or abandonment of water rights under State law.

By exempting limited periodic maintenance activities on existing water supply ditches, this proposed amendment facilitates consistency among the rangewide exemptions. Where appropriate, permits can be issued under section 10 of the Act to allow incidental take of Preble's for activities not proposed to be exempted through this rule.

Some respondents believed that any exemption should include maintenance of water supply wells, water measurement devices, dams, other infrastructure, and associated roads.

The proposed amendment includes a limited exemption for maintenance of roads used to access existing ditches and related infrastructure provided that these activities do not exceed the maximum allowable loss of riparian shrub habitat in any calendar year. This exemption covers only maintenance and replacement of dams or infrastructure directly related to, and used in, the operation of ditches. An exemption also applies to activities covered in § 17.40 (l)(2)(v) of the final rule relating to existing uses of water associated with the exercise of perfected water rights. Any person contemplating dam or infrastructure work not covered by either of these two exemptions should consult with us when the maintenance procedure has the potential to take Preble's.

Several respondents requested rangewide exemptions for maintenance of other types of water-related infrastructure. The suggested exemptions included maintenance of sewer lines; wastewater treatment and conveyance facilities; and stormwater collection, conveyance, and treatment facilities.

We elected not to propose an exemption for these types of water-related infrastructure. These systems typically incorporate extensive pipeline systems that either cross Preble's habitat, or are installed along stream corridors that provide Preble's habitat. Activities to maintain this infrastructure can create large areas of surface disturbance within or near Preble's habitat that could temporarily or permanently prevent occupation of habitat or migration from one Preble's habitat area to an adjacent Preble's habitat area.

Owners and operators of stormwater and wastewater systems will be required to consult with us when their maintenance activities have the potential to result in take of Preble's. We will work with wastewater and stormwater system owners and operators to develop maintenance procedures that minimize and mitigate take of Preble's when maintenance activities occur within Preble's habitat.

The Service invites comments on this proposed rule. Comments should be forwarded to the Field Supervisor, Colorado Field Office (see ADDRESSES section). While our normal practice is to solicit comments on proposed rules for 60 days, we believe a 30-day comment period is sufficient in this case because we have already received public comments regarding the substance of this proposed rule.

Executive Order 12866 requires each agency to write regulations that are easy to understand. We invite your comments on how to make this rule easier to understand, including answers to questions such as the following: (1) Are the requirements in the rule clearly stated? (2) Does the rule contain technical language or jargon that interferes with its clarity? (3) Does the format of the rule (grouping or order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity? (4) Would the rule be easier to understand if it were divided into more (but shorter) sections? (5) Is the description of the rule in the “Supplementary Information” section of the preamble helpful in understanding the proposed rule? What else could we do to make the rule easier to understand?

Send a copy of any comments that concern how we could make this rule easier to understand to Office of Regulatory Affairs, Department of Interior, Room 7229, 1849 C Street NW., Washington, DC 20240. You also may e-mail the comments to Exsec@ios.doi.gov.

A Record of Compliance was prepared for the May 22, 2001, final rule that exempted from the take prohibitions listed in section 9 of the Act, the four activities of rodent control, ongoing agricultural activities, landscaping, and ongoing use of existing water rights. A Record of Compliance certifies that a rulemaking action complies with the various statutory, Executive Order, and Department Manual requirements applicable to rulemaking. Amendment of the May 22, 2001, rule to include the two additional exemptions proposed herein, noxious weed control and ongoing ditch maintenance, does not add any significant elements to this Record of Compliance.

Without this proposed special rule, noxious weed control or ongoing ditch maintenance activities that may result in take of Preble's would not be exempted from the take prohibitions. This rule would allow certain affected landowners to engage in certain noxious weed control and ditch maintenance activities that may result in take of Preble's. Without this rule, anyone engaging in those activities would need to seek an authorization from us through an incidental take permit under section 10(a) or an incidental take statement under section 7(a)(2) of the Act. This process takes time and can involve an economic cost. The rule would allow these landowners to avoid the costs associated with abstaining from conducting these activities or with seeking an incidental take permit from us. These economic benefits, while important, do not rise to the level of “significant” under the following required determinations.

In accordance with the criteria in Executive Order 12866, the Office of Management and Budget has determined that this rule is not a significant regulatory action. This rule would not have an annual economic impact of more than $100 million, or significantly affect any economic sector, productivity, jobs, the environment, or other units of government. This rule would reduce the regulatory burden of the listing of the Preble's meadow jumping mouse under the Act as a threatened species by providing certain exemptions to the section 9 take prohibitions that currently apply throughout the Preble's range. These exemptions would reduce the economic costs of the listing; therefore, the economic effect of the rule would benefit landowners and the economy. This effect does not rise to the level of “significant” under Executive Order 12866.

This rule will not create inconsistencies with other Federal agencies' actions. Other Federal agencies would be mostly unaffected by this proposed rule.

This rule will not materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients. Because this rule would allow landowners to continue otherwise prohibited activities without first obtaining individual authorization, the rule's impacts on affected landowners would be positive.

This rule will not raise novel legal or policy issues. We have previously promulgated section 4(d) rules for other species, including the special rule for the Preble's pertaining to rodent control, ongoing agricultural activities, landscaping, and activities associated with water rights. This rule would simply add exempted activities to that rule.

We have determined that this rule would not have a significant economic effect on a substantial number of small entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). An initial regulatory flexibility analysis is not required, and a Small Entity Compliance Guide is not required. This rule would reduce the regulatory burden of the listing of the Preble's as a threatened species. Without this proposed rule and the final special rule, all of the take prohibitions listed in section 9 of the Act would apply throughout the range of the Preble's. This rule would allow certain affected landowners to engage in noxious weed control and ditch maintenance activities that may result in take of Preble's. This rule would enable these landowners to avoid the costs associated with abstaining from conducting these activities to avoid take of Preble's or seeking incidental take permits from us.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule would not have an annual effect on the economy of $100 million or more; would not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and would not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises. As described above, this rule would reduce regulatory burdens on affected entities, who are mostly agricultural producers.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501, et seq.), this rule would not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. This rule would not have a significant or unique effect on State, local, or tribal governments or the private sector. A Small Government Agency Plan is not required.

In accordance with Executive Order 12630, this rule does not have significant takings implications. By reducing the regulatory burden placed on affected landowners resulting from the listing of the Preble's as a threatened species, this rule would reduce the likelihood of potential takings. Affected landowners would have more freedom to pursue activities (i.e., noxious weed control and ditch maintenance) that may result in taking of Preble's without first obtaining individual authorization.

In accordance with Executive Order 13132, this rule does not have sufficient federalism implications to warrant the preparation of a federalism assessment. Currently, the State of Colorado, the Service, and various local governmental entities in Colorado and Wyoming are working together to develop plans to conserve the Preble's and its habitat. This collaborative approach is expected to result in the development of Habitat Conservation Plans that will provide the foundation upon which to build a lasting, effective, and efficient conservation program for the Preble's. Because we anticipate beneficial impacts of such collaborative conservation efforts, we are proposing that this rule would be applicable only during the 36-month timeframe of the final special rule.

In accordance with Executive Order 12988, the Office of the Solicitor has determined that this rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Executive Order.

We have examined this proposed rule under the Paperwork Reduction Act of 1995 and found it to contain no requests for information. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

The National Environmental Policy Act analysis has been conducted. An Environmental Assessment was prepared for the final special rule. The additional exemptions covered in this proposed rule were included in this analysis.

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations With Native American Tribal Governments” (59 FR 22951) and E.O. 13175, we have evaluated possible effects on federally recognized Indian Tribes. We have determined that, because no Indian trust resources occur within the range of the Preble's, this rule would have no effects on federally recognized Indian Tribes.

We have evaluated this proposed rule in accordance with E.O. 13211 and have determined that this rule would have no effects on energy supply, distribution, or use. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required.

Accordingly, the Service proposes to amend 50 CFR part 17, as set forth below:

This action is authorized by the FMP and implementing regulations at 50 CFR 600.745 and 50 CFR 660.350.

At the June 2001 Pacific Fishery Management Council (Council) meeting, the State of California presented NMFS with an EFP application. The primary purpose of the exempted fishing activity would be to measure bycatch rates of bocaccio and other rockfish species associated with the small footrope chilipepper trawl fishery in Federal waters south of 40 °10′ N. lat. Fishing for chilipepper rockfish, which is an abundant and commercially important species off California, is constrained south of 40O10' N. lat. by efforts to rebuild bocaccio, an overfished rockfish species. Fishers believe that the small footrope trawl fishery for chilipepper rockfish can be prosecuted with a much lower rockfish bycatch rate than is currently assumed.

If issued, this EFP will allow participating vessels to retain and sell for profit, chilipepper rockfish up to 25,000 lbs (11.34 mt) per month. Once a vessel has harvested a specified portion of its bocaccio trip limit, it may no longer fish for and land chilipepper rockfish. All other incidentally caught species would also continue to be counted against the individual vessel’s cumulative trip limits. Vessels fishing under the EFP would be required to retain all rockfish (Sebastes and Sebastolobus). Proceeds from the sale of rockfish that are in excess of each vessel’s trip limits will be forfeited to the State of California. Requiring the retention of all rockfish is expected to provide information to evaluate the broader application of a full retention program in the groundfish fleet. Observer data collected during this project are expected to benefit the management of the groundfish fishery by: (1) providing information on catch rates of incidentally caught species, including bocaccio rockfish, by fishing location, (2) allowing for the collection of biological data that is otherwise not available from landed catch, and (3) providing data that can be used to evaluate the full retention of rockfish as a management measure. If the EFP is issued, approximately 30 vessels would be eligible to participate under this EFP because of their historic participation in this fishery. Up to five vessels may operate under this permit at any one time. The fishing periods identified in the EFP are proposed for May through September, 2002.

In accordance with regulations at 50 CFR 600.745 and 660.306 (f), NMFS has determined that the proposal warrants further consideration and consulted with the Council. The Council considered the EFP application during its June 11-15, 2001, meeting and recommended that NMFS issue the EFP. A copy of the application is available for review from NMFS (see ADDRESSES). Regulations issued under the Magnuson-Stevens Fishery Conservation and Managmeent Act require publication of this notification to provide interested parties the opportunity to comment on applications for proposed EFPs. Based on the outcome of this EFP, this action may lead to further rulemaking.