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 99-NE-46-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. 99-NE-46-AD, 12 New England Executive Park, Burlington, MA 01803-5299.

On April 27, 2000, the FAA issued AD 2000-09-05, Amendment 39-11714 (65 FR 26121, May 5, 2000), to require removal of certain compressor cone shafts from service before exceeding new cyclic life limits, and replacement with serviceable parts. That action was prompted by additional testing and low-cycle fatigue (LCF) life analysis that substantiated lower cyclic lives than originally determined. That condition, if not corrected, could result in LCF failure of compressor cone shafts, uncontained engine failure, and damage to the airplane. Since the issuance of that AD, the manufacturer has made changes to the engineering and manufacturing processes for new cone shafts, P/N 23070729, that increase the cyclic life limit, based on approved FAA and Rolls-Royce methodology for establishing cycle life.

Since an unsafe condition has been identified that is likely to exist or develop on other Rolls-Royce Corporation AE 3007 series turbofan engines of this same type design, the proposed AD would revise AD 2000-09-05 to require increasing the cyclic life limit for certain serial numbers of new compressor cone shafts, part number (P/N) 23070729, that are used on AE3007A1/3 and AE3007A1P engines.

There are approximately 598 engines of the affected design in the worldwide fleet. The FAA estimates that 364 engines installed on aircraft of U.S. registry would be affected by this proposed AD, that it would take approximately 150 work hours per engine to accomplish the proposed actions, and that the average labor rate is $60 per work hour. Required parts would cost approximately $3,921 per engine. Based on these figures, the total cost impact of the proposed AD on U.S. operators is estimated to be $4,703,244.

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:

We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (CGD07-01-017), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying. If you would like to know they reached us, please enclose a self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them.

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

In 1997 we issued regulations, after notice and comment, to control the practice of vessel rafting and ensure a safe minimum channel width along the Miami River and Tamiami Canal. (62 FR 50511, September 26, 1997). These regulations are contained in 33 CFR 165.726. The current regulations do not address vessels that are inoperable because of repairs, equipment or manning deficiencies, or judicial proceedings. This is often referred to as lay up status. The Coast Guard proposes to amend the current regulations to minimize potential environmental and navigational hazards posed by these vessels within the Port during the annual hurricane season.

South Florida's official hurricane season runs from June 1 until November 30, during which time the Coast Guard and maritime community are on a heightened alert for approaching heavy weather patterns. Along the 5.5 miles of interior waterway on the Miami River and Tamiami Canal, many commercial vessels involved in trade between Miami and the Caribbean are routinely placed out of service either for repairs or due to judicial and/or financial injunctions. While in lay up status, these vessels are typically inoperable mechanically, rendering them unable to depart the Port when heavy weather is imminent and evacuations are ordered. Commercial vessels remaining on this waterway after a Captain of the Port order to depart due to heavy weather create a substantial pollution threat to the environment and these vessels are at risk of breaking their moorings and becoming navigational hazards, restricting or closing the narrow waterway and threatening the viability of Florida's fifth largest Port. Amending the regulations to prohibit inoperable vessels from laying up on the Miami River and Tamiami Canal during the annual hurricane season will mitigate the potential environmental and navigational hazards which threaten the waterway during the hurricane season.

The proposed rule would require all vessels greater than 200 gross tons to be capable of leaving the waterway within 24 hours notice during hurricane season. This will minimize the potential environmental and navigational hazards that could result from hurricane conditions and ensure that vessels can depart the port when heavy weather is imminent.

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

We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary.

This proposed rule would only affect those vessels over 200 gross tons that are incapable of leaving the waterways within 24 hours notice. This relatively small number of vessels can make alternate arrangements in advance. Further, vessels that desire to remain can request approval from the Captain of the Port. Requests will be evaluated on a case by case basis.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. This proposed rule would affect the following entities, some of which might be small entities, vessel owners or operators intending to lay up or leave their vessels inoperable on the Miami River or Tamiami Canal during some portion of the hurricane season from June 1 until November 30.

This proposed rule would not have a significant economic impact or a substantial number of small entities for the following reasons. The proposed rule would be in effect for six months, and vessel owners could schedule lengthy maintenance outside of the hurricane season. Further, vessels intending to lay-up during hurricane season could locate, in advance, other less hazardous berthing. Vessels that can depart within 24 hours notice will not be affected.

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

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104- 121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact LTJG Heath Hartley at (305) 535-8762 for assistance in understanding and participating in this rulemaking.

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State and local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

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

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

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

This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it 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.

We considered the environmental impact of this proposed rule and concluded that, under, Figure 2-1, paragraph 34(g) of Commandant Instruction M16475.1C, this rule is categorically excluded from further environmental documentation. A “Categorical Exclusion Determination” is available in the docket where indicated under ADDRESSES.

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

On August 10, 2000 (65 FR 49060), EPA proposed standards for cooling water intake structures at new facilities to implement section 316(b) of the Clean Water Act (CWA) (see #2-001 in the Docket). EPA has received numerous comments and data submissions concerning the proposal and has collected additional data. In this notice, EPA is making these new data available for comment and is assessing the relevance of the data to EPA's analysis. Since the end of the comment period, EPA also received an alternative regulatory approach suggested by a trade group representing the utility industry which is discussed in this notice and is included in the record for the rule. EPA has initially reviewed this approach and, in this notice, suggests modifications to the approach that are being considered for the final rule. EPA solicits public comments regarding any of the information presented in this notice and the record supporting this notice.

EPA proposed that the term “cooling water intake structure” means the total physical structure and any associated constructed waterways used to withdraw water from waters of the U.S., provided that at least twenty-five (25) percent of the water withdrawn is used for cooling purposes (see proposed 40 CFR 125.83, 65 FR 49116). A number of commenters asserted that EPA did not provide a rational basis in its record for proposing that use of 25% of intake flow for cooling should determine whether an intake structure is a “cooling water intake structure.” In response to these comments, EPA requests comment on preliminary data the Agency recently gathered from its detailed questionnaire for existing facilities. These data document the percentage of manufacturing facilities that use the following percentages of water withdrawn from waters of the U.S. for cooling purposes: more than 5% (87% of the manufacturing facilities); more than 10% (82% of manufacturing facilities); more than 15% (77% of manufacturing facilities); more than 20% (74% of manufacturing facilities); more than 25% (68% of manufacturing facilities); and more than 50% (49% of manufacturing facilities). See “Percentages of In-scope Facilities Using Various Proportions of Their Intake Water for Cooling Purposes' (#2-002 in the Docket). EPA will continue refining these data by, as necessary, calling back certain facilities to clarify any data quality concerns. The Agency will use these data to estimate the effect of alternative thresholds on the amount of new cooling water subject to this rulemaking. EPA will determine whether to revise the definition of a cooling water intake structure for the final new facility regulation based on this information, other information noticed today on adverse environmental impact (Section E below), waterbody sensitivity (Section D below) and proposed limitations on intake capacity based on waterbody flow rates (Section F below) and on information already in the record.

To improve the definition in EPA's proposal (65 FR 49066-49067), EPA requests comment on two alternatives:

• New facility intake structures not subject to this rule because of the amount of cooling water they use are not considered cooling water intake structures for regulatory purposes and thus would not be subject to section 316(b) of the CWA; or

• New facility intake structures not subject to this rule because of the amount of cooling water they use may be subject to requirements established by permit authorities under CWA section 316(b) on a case-by-case basis.

EPA's proposed regulations would apply to new facilities that have a cooling water intake structure with a design intake capacity of greater than or equal to two (2) million gallons per day (MGD) of source water. 65 FR 49067-49068. Since proposal, EPA collected preliminary data from its detailed questionnaire for existing facilities. These data document the percentage of existing facilities constructed in the last 10 years that would be covered by national regulation at the following alternative regulatory flow thresholds: 2 MGD, 5 MGD, 10 MGD, 15 MGD, 20 MGD, 25 MGD, 30 MGD, 50 MGD and 100 MGD. The data analysis shows that 58% of the manufacturers, 70% of the nonutilities and 100% of the utilities built in the last 10 years would be regulated if the threshold was 2 MGD as proposed in the new facility rule. At the 2 MGD threshold 99.7% of the total flow would be covered. At a threshold of 15 MGD, 32% of the manufacturers, 29% of the nonutilities and 50% of the utilities would be covered, as would 97.3% of the total flow. The total flow covered remains relatively high, because the large flows from a small number of utility facilities dominate the total flow. At a threshold of 25 MGD, 18% of the manufacturers, 17% of the nonutilities and 50% of the utilities built in the last 10 years would be regulated, covering 94.9% of the total flow. By industry category, 71.4% of the flows from manufacturers, 74.3% of the flows from nonutilities, and 99.5% of the flows from utilities would be regulated. See “Percentages of In-scope Facilities Meeting Various Design Intake Flow Thresholds” (see #2-003 in the Docket).

The Agency also is considering State of Maryland regulations for cooling water intake structures (see COMAR 26.08.03, #2-004 in the Docket). These regulations exclude cooling water intake structures withdrawing less than 10 MGD if the volume of water is less than 20 percent of the design stream flow for nontidal waters or less than 20 percent of the annual average net flow past the intake which is available for dilution for tidal waters. EPA intends to consider this new information, as well as the information discussed and included in the record at proposal and any other relevant sources of information, to establish a minimum flow threshold in final regulations.

EPA intends to consider basing its estimate of new electricity-generating facilities for the final rule, in part, on a revised Department of Energy (DOE) forecast for growth in demand for electricity over the next twenty years. (See Annual Energy Outlook 2001, DOE, Energy Information Agency DOE/EIA #6383 (2001), #2-005 in the Docket.) At the time of proposal, DOE projected a 1.3% annual increase in growth in demand for electricity over the next twenty years. Now, due in part to a revision in the methodology used by the Department of Commerce to calculate gross domestic product, DOE projects a 1.8% rate of increase in growth in demand for electricity over the next twenty years. DOE also projects that new electricity generating capacity will be needed sooner than previously forecast. Of the new generating capacity needed in the next 20 years, DOE projects that 22 Gigawatts will be supplied by coal-fired steam electric generating facilities, and that 209 Gigawatts will be supplied by natural gas-fired, combined-cycle facilities.

DOE does not gather information on specific, planned new electricity-generating facilities and does not estimate the number of facilities that utility and nonutility power producers will build to meet increases in demand. Thus, EPA is considering, as at proposal, using the NEWGen database, a proprietary database owned by Resources Data International, Inc., to estimate the average size of new combined-cycle facilities. (See Engineering and Economic Analyses for the Proposed Section 316(b) New Facility Rule, EPA-821-R-00-019 (#1-5046-PR in the Docket) for more information on the methodology EPA used to project new facilities and their compliance costs at proposal.) To estimate the total number of new combined-cycle facilities that will be built over the next twenty years, EPA is considering dividing DOE's new forecast of demand for new combined-cycle electricity generating capacity over the next twenty years by the average size of new, U.S. combined-cycle facilities in the February 2001 version of the NEWGen database. EPA also may use the February 2001 NEWGen database to estimate the percentage of new combined-cycle facilities that have characteristics that would make them subject to a section 316(b) rule for new facilities (e.g., do they plan to withdraw cooling water from waters of the U.S. in amounts greater than the regulatory threshold). For costing purposes, EPA is considering using the methodology used at proposal (described Chapters 5 and 6 and Appendices A and B of Economic and Engineering Analyses of the Proposed Section 316(b) New Facility Rule, EPA-821-R-00-019, August 2000) using the February 2001 NEWGen database to estimate the baseline of cooling water intake structure technologies that would be in place at new combined-cycle facilities without final regulations.

Following proposal, EPA received comment from the Utility Water Act Group (UWAG), an association of individual electric utilities and three national trade associations of electric utilities (see W-00-03, 316(b) Comments 1.68). UWAG objected to the Agency's use of the NEWGen database to project the number of combined-cycle facilities that would be subject to the regulations and the baseline of intake structure technologies without making this proprietary database available to the public. On September 25, 2000, EPA added information to the rulemaking record (see #1-6001-AD, Identification of NEWGen Facilities for the Economic Analysis for the proposed section 316(b) New Facility Rule) so that the public could determine which facilities the Agency considered in developing its profile of new combined-cycle facilities and comment on additional facilities that the Agency should have considered. EPA is now reviewing information provided by the Edison Electric Institute (EEI) (see W-00-03, 316(b), Comments 1.69) regarding additional combined-cycle facilities that EEI asserts would be subject to the proposed regulations.

At proposal, the NEWGen database contained information about 94 combined-cycle facilities. EPA is now investigating the 323 combined-cycle facilities documented in the February 2001 NEWGen database. Because the Agency received this information very recently, EPA has not completed its analysis of these combined-cycle facilities. Therefore, EPA cannot provide additional information at this time on:

• The total number of combined-cycle facilities the Agency projects may bear costs to comply with final new facility regulations

• The average size of new combined-cycle facilities

• The intake structure technologies likely to be in place at these facilities absent final regulations.

As a supplement to the approach described above, EPA intends to consider publicly-available information from the 1998 Annual Electric Generator Reports that utility and nonutility power generators submit to DOE (see data from Forms EIA-860A and EIA-860B, Annual Electric Generator Report-1998, Energy Information Administration (EIA), U.S. Department of Energy, #2-007 in the Docket), as well as data from the section 316(b) Questionnaire EPA sent to existing facilities. Specifically, EPA is evaluating data from the EIA-860 databases for each utility and nonutility power plant that EPA surveyed to estimate the average size of new combined-cycle facilities. To estimate average plant size, EPA also is evaluating EIA's Assumptions to the Annual Energy Outlook 2001, DOE/EIA #0554(2001) (see #2-008 in the Docket), which lists the average size of future combined-cycle and coal units as 400 MW and states that most plants are likely to have more than one unit. EPA also is evaluating the section 316(b) survey responses to estimate the number of new facilities likely to be subject to regulation and the distribution of cooling systems and intake structure technologies likely to be in place at these facilities in the absence of new regulations. (See Newbert, Riley, and Mike Fisher, Abt Associates. Memo on: Analysis of Information Regarding Average Plant Size, In-scope Rate, and Distribution of Baseline Cooling System Types to Lynne Tudor, et.al., USEPA. April 24, 2001, #2-009 in the Docket.) These survey data indicate that, depending on whether one analyzes only the detailed questionnaire data or the detailed questionnaire in combination with the screener questionnaire data, between 44% and 59% of the coal plants constructed in the last 20 years would be covered by the proposed new facility regulations. Of the combined cycle plants surveyed, 15% would be covered by the proposed regulations. Of these facilities, 73% of the coal-fired plants and 100% of the combined-cycle plants built in the last 20 years have a recirculating cooling system and would meet the proposed requirement to reduce intake capacity to a level commensurate with use of a closed-cycle recirculating cooling system. For coal-fired facilities built in the last 10 years, the percentage of facilities that would be covered that have closed-cycle recirculating cooling systems increases to 88%. Looking at utilities only, these data show that 54% of the coal-fired plants and 15% of the combined-cycle plants built in the last 20 years would be covered by the proposed regulations. Of the 33 utilities built in the last 20 years that would be covered (if they were new facilities), 66% of the coal-fired plants and 100% of the combined-cycle plants have a closed-cycle recirculating cooling system. Seventy-five percent of the utility coal-fired plants built in the last 10 years that would be covered by the proposed regulations have a closed-cycle recirculating cooling system.

At proposal, the NEWGen database contained no information on new coal-fired steam electric generating facilities. For the years 2001-2010, DOE's Annual Energy Outlook 2000 projected limited new coal-fired steam electric generating capacity. Thus, EPA did not project any new coal facilities for 2001-2010. For the years 2011-2020, EPA used DOE's projected demand for new capacity from coal-fired facilities and information from the following sources to estimate the number of new coal-fired power plants that had characteristics that would make them subject to the rule and to estimate what cooling water intake structure technology would be in place at these plants absent final regulation:

• Form EIA-767, Steam Electric Plant Operation and Design Report, Energy Information Administration, U.S. Department of Energy, 1994, 1997. This database contains data on air and water quality from steam-electric power plants with generating capacities of 100 megawatts (MW) or greater. A small subset of the data is provided for steam electric power plants with generating capacity between 10 and 100 MW. An electronic copy of this database can be found in #2-010 in the Docket.

• Form EIA-860, Annual Electric Generator Report, Energy Information Administration, U.S. Department of Energy, 1994, 1997. Since EIA-767 contains only detailed information on utility facilities greater than 100 MW, this database was used to provide information on utility facilities less than 10 MW and to provide limited technical data on facilities between 10 and 100 MW. An electronic copy of this database can be found in #2-010 in the Docket.

• Power Statistics Database, Utility Data Institute, McGraw-Hill Company, 1994. This data was combined with data from DOE's Stream Electric Plant Operation and Design Report to provide more specific details on cooling water intake structure, cooling water system, and water body characteristics.

For the final rule, EPA is considering using a similar methodology to project the average size of new coal-fired facilities, the number that would be subject to the rule, and the baseline of intake structure technology that would be in place absent final regulations, but would supplement the DOE data described above with data from the section 316(b) survey of cooling water use by existing facilities. To support such an analysis, EPA is developing profiles as shown in the table “Surveyed Coal Plants, By Age of Oldest Unit and In-Scope Status” in #2-009 in the Docket. The Agency is also examining 17 coal-fired steam electric generating facilities in the February 2001 NEWGen database. EPA is actively seeking information from vendors and other sources of engineering information (see #2-011A-B in the Docket).

Following proposal, EPA received comment from the Department of Energy, the International Association of Drilling Contractors, the Offshore Oil Operators Committee, the American Petroleum Institute, and from individual companies expressing concern that the proposed regulations could adversely impact offshore and coastal oil and gas drilling operations that use cooling water. Among other concerns, these commenters stated that:

• Offshore and coastal oil and gas drilling facilities have much more limited technology options for addressing any adverse environmental impact of cooling water intake than land-based facilities;

• Under current regulations (40 CFR 435.11), existing mobile oil and gas extraction facilities are considered new sources when they operate on new development wells and, could be required to perform costly retrofits in order to comply with the 0.5 ft/s velocity standard if they become subject to the proposed requirements for cooling water intake structures at new facilities; and

• Higher cooling water intake velocities are necessary in marine waters to control biofouling of cooling water intake structures.

At proposal, EPA had not considered or projected impacts on this industrial category. EPA seeks additional information on cooling water use by offshore and coastal oil and gas extraction facilities (e.g., drill ships, semi-submersibles, jack-ups, tension-leg platforms, spars, etc.). EPA requested additional information from the commenters (see #2-012A-B in the Docket). The Agency has also sought information from the Department of Interior's Minerals Management Service and from the U.S. Coast Guard. This new information suggests that mobile offshore and coastal drilling units use volumes of cooling water that could make them subject to the proposed regulations. However, little information is available about impingement and entrainment associated with this use of cooling water or the costs or achievability of measures to reduce any adverse environmental impact. EPA requests that the public provide peer-reviewed data (e.g., journal articles), operator/drilling contractor field data, and/or design schematics for mobile offshore drilling units to support or dispute assertions made by these commenters. Specifically, EPA would like additional reference data for the following areas:

• Cooling water intake structure capacities (e.g., volumes of water used per unit of time) and velocities (specifically whether measured on a through-screen or approach velocity basis) for various types of offshore and coastal oil and gas extraction facilities;

• Velocity requirements and other preventative measures (e.g., type and amount of chemical treatment, backlashing) for inhibiting growth of marine organisms;

• Potential issues (e.g., hull design implications, load paths, fatigue, risks to divers) related to either: (1) retrofitting sea chests and other cooling water intake structures for existing offshore and coastal oil and gas extraction facilities; or (2) outfitting newly-built offshore and coastal oil and gas extraction facilities with cooling water intake structures consistent with the proposed requirements for new facilities;

• Estimated costs to retrofit existing facilities or to outfit new facilities as described in the preceding bullet, with as much detailed information as possible regarding the basis for the estimates;

• Potential scheduling impacts on new or existing mobile offshore and coastal oil and gas extraction facilities due to section 316(b) requirements for new facilities; and

• What issues or costs, if any, would make technologies for zero use of cooling water unavailable or economically impracticable on offshore and coastal oil and gas extraction facilities.

• Any impingement or entrainment data collected at coastal or offshore oil and gas extraction facilities.

EPA is considering not including within the scope of this Phase I rule offshore and coastal oil and gas operations. Instead of addressing oil and gas operations as part of this rulemaking, EPA is considering addressing oil and gas operations as part of either the Phase II or Phase III rulemaking. Alternatively, if EPA addresses offshore and coastal oil and gas facilities in this Phase I rule, EPA is considering a higher regulatory threshold for these facilities (e.g., 25 or 50 MGD).

EPA received many comments about its proposal to have the most stringent technology requirements apply in all parts of estuaries and tidal rivers (see proposed 125.84(d), 65 FR 49118). Some commenters assert that adverse environmental impact can be minimized in some, if not all, parts of tidal rivers and estuaries with less protective technologies than EPA proposed. Some of these commenters observe that many of the aquatic organisms that inhabit tidal rivers and estuaries have reproductive strategies that rely on open-water dispersal of a very large number of eggs and larvae and that, even in the absence of impacts from a cooling water intake structure, most of the early life stages of these organisms do not survive to a reproductive age. Further, these commenters assert that increased survival of early life stages of these organisms can lead to increased competition among later-stage juvenile and adult organisms and actually reduce, not increase, populations of these organisms (see also the discussion of options for defining adverse environmental impact later in this notice). In response to comments, EPA further examined this issue and requests comment on the following documents found in #2-013A-O in the Docket. These documents include information on larval densities in selected estuaries and tidal rivers, impingement and entrainment rates for facilities located in these areas, conditional mortality rates of organisms in selected estuary and tidal rivers (requires calculation of larval densities), and discussions of the life history and reproductive strategies of marine and estuarine organisms that are relevant to EPA's consideration of whether these locations may be sensitive to impingement and entrainment impacts associated with cooling water intake structures. In the proposed rule EPA asserted that estuaries deserve the most stringent protection because of the abundance and diversity of aquatic life they harbor. Estuaries are also an important habitat for the vast majority of commercial and recreational important species of fin fish. Further, both EPA and commenters noted that the reproductive strategies of many estuarine species include pelagic or planktonic larvae. EPA invites comment on the documents which may support a judgment that the reproductive strategies of tidal river and estuarine species, together with other physical and biological characteristics of those waters, make these ecosystem waters particularly susceptible to cooling water intake structures. In addition to these documents, EPA notes that some of the new data discussed below (at Section E) regarding the assessment of adverse environmental impact, as well as information below regarding the susceptibility of non-tidal freshwater rivers and streams to cooling water intake structure impacts (at Section D.5.), also may be relevant in determining whether tidal rivers and estuaries are more sensitive to cooling water intake structures than some parts of other waterbodies.

EPA received many comments on EPA's proposed definition of “littoral zone” and its use of this concept to divide oceans, freshwater streams and rivers, and freshwater lakes and reservoirs, into areas where different suites of technologies are judged to be best technology available for minimizing adverse environmental impact. Many of these comments assert that EPA's proposed definition does not give a rationale for delineating water bodies into parts that are more or less sensitive to impacts of cooling water intake structures. EPA requests comment on the following data and possible revisions to its approach for delineating more and less sensitive parts of waterbodies.

First, EPA is considering changing the term “littoral zone,” which has a relatively precise definition in limnology (the study of lakes) to another term such as “area of potential high impact” or “productivity zone.” This measure would avoid confusion with the long-standing use of “littoral zone.” On the other hand, EPA might not use a general term for areas with greater potential for adverse impacts and might define these areas on a waterbody-specific basis.

For example, the Agency might continue to define a sensitive area in oceans, as it did at proposal: “the photic zone of the neritic region. The photic zone is that part of the water that receives sufficient sunlight for plants to photosynthesize. The neritic region is the shallow water or nearshore zone over the continental shelf.”

A number of commenters objected to EPA's proposal to define estuaries based, in part, on salinity concentrations (see “estuary” at proposed 40 CFR 125.83). In response to these comments, EPA requests comment on new data it has gathered (as described and compiled in #2-015A-G in the Docket) which provides methods for delineating estuaries. EPA is considering revising its definition of estuary to incorporate elements of the information described in these documents and requests comment on use of these data to revise the definition of estuary. EPA also requests comment on a revised definition of estuary based largely on the definition of estuary at proposed 40 CFR 125.83 that would read as follows: “estuary means all or part of the mouth of a river or stream or other body of water having an unimpaired natural connection with open oceans and within which the seawater is measurably diluted with fresh water derived from land drainage. The salinity of an estuary exceeds 0.5 parts per thousand (by mass).”

Finally, EPA is considering and requests comment on a revised definition of oceans at proposed 40 CFR 125.83 to read as follows: “ocean means marine waters seaward of the mean low tide mark or seaward of the waters defined as estuary waters.”

At 65 FR 49086, the Agency noted that the Great Lakes, like estuaries, have areas of high productivity and sensitive critical habitat that may need more stringent requirements than those proposed for lakes and reservoirs. One commenter asserted that there is no biological basis for treating the Great Lakes separately and further asserted that the communities in these lakes are probably less sensitive than those in other lakes. Since proposal, EPA has gathered additional information on the susceptibility of the Great Lakes system to impact from cooling water intake structures and may provide protections for the Great Lakes beyond those proposed for lakes and reservoirs. In #2-016A-C in the Docket, EPA has made available for comment information that supports the idea that the Great Lakes are a unique system that may deserve additional protection from the impact of cooling water intake structures. The Agency requests comment on this information and the position that the Great Lakes should be protected to a greater extent than other lakes and reservoirs.

EPA is considering data that may support the proposition that the aquatic species predominant in freshwater rivers and streams have reproductive and life history strategies that generally make them less susceptible to the impact of cooling water intake structures. These data may demonstrate that the species in these systems are primarily demersal (bottom) and adhesive egg-laying or nest-building organisms. These species do not exhibit the planktonic (free-floating) egg- and larval-dispersal behaviors that may expose early life stages to impact from cooling water intake structures. One of these documents also contains assertions that freshwater fish populations are not harvested as extensively as marine fish, and that management practices for marine fish are slow to respond to over-exploitation. EPA invites comment on the following documents:

EPA is considering whether these data would support a modification to its proposed regulatory requirements for freshwater streams and rivers. Such a modification would: (1) Eliminate the proposed requirement for facilities to reduce intake capacity to a level commensurate with use of a closed-cycle cooling system for intakes located inside or within 50 meters of the littoral zone; and (2) require implementation of additional design and construction technologies that minimize impingement and entrainment of fish, eggs, and larvae and maximize survival of impinged adult and juvenile fish (such as extremely fine-mesh screens, or fish return systems that significantly increase the survival of impinged organisms) in all parts of freshwater rivers and streams rather than only within the littoral zone. The approach would retain the proposed requirements for a design intake flow of ≤5% of the source water mean annual flow and ≤25% of the source water 7Q10 low flow, and a design intake velocity of ≤0.5 ft/s in all parts of freshwater rivers and streams. This approach would potentially have lower costs than the proposed requirements. EPA invites comment on this potential modification.

Several commenters asserted that the proposed regulations would require use of protective and costly technologies in areas that are not particularly susceptible to impact from cooling water intake structures because they do not support aquatic life. EPA is evaluating these comments and, in response, may identify other less costly technologies as best technology available for minimizing adverse environmental impact in waterbodies a State or Tribe designates as having no use supporting the propagation or maintenance of aquatic life in accordance with 40 CFR part 131 (e.g., the State or Tribe has conducted a Use Attainability Analysis and EPA has approved the revised use). EPA recognizes that this would be a very small set of water bodies and that including such a provision would have little practical effect on the regulatory requirements for most new facilities. EPA requests comment on other ways of identifying or defining waters with low susceptibility to impact from cooling water intake structures because of limited potential for aquatic life support even in the absence of the facility.

Although EPA's proposed regulatory text did not include a definition of the term “adverse environmental impact” in the preamble to these regulations, the Agency invited comment on a number of alternatives for either defining adverse environmental impact or determining a threshold for the level of environmental impact deemed to be adverse. 65 FR 49074-49075.

EPA received numerous comments on its proposed rule asserting that the proper endpoint for defining adverse environmental impact (AEI) is at the population level, that some of EPA's proposed alternative definitions of adverse environmental impact would essentially protect “one fish,” and that EPA's alternative for defining adverse environmental impact as recurring and nontrivial impingement and entrainment was vague or would lead to excessive and costly efforts to protect a very few fish that would not result in ecologically relevant benefits. While EPA's record at proposal demonstrates that cooling water intake structures do not kill, impinge, or entrain just “one fish,” or even a few aquatic organisms, today's Notice invites comment on additional information that provides further examples of cooling water intake structures that kill or injure large numbers of aquatic organisms. For example, in #2-013 in the Docket, EPA provides information on aquatic organism conditional mortality rates for the Hudson and Delaware rivers which demonstrate the degree of mortality due to cooling water intake structures. EPA is considering this information, as well as information (at Section E.2 below) on impingement and entrainment survival and impact, as it deliberates on options for the final rule and how it should define adverse environmental impact. If EPA decides to include a definition of AEI in the final rule, it is considering whether to define adverse environmental impact using a population endpoint or an alternative that relies upon counts of impinged and entrained organisms.

Further, EPA is considering documents that discuss potential consequences associated with the loss of large numbers of aquatic organisms. These include impacts on the stocks of various species, including any loss of compensatory reserve due to the deaths of these organisms, and the overall health of ecosystems. EPA invites comments on the following documents:

Some commenters assert that impact on individual organisms, large numbers of individual organisms, or subpopulations are not ecologically relevant and recommend that EPA define adverse environmental impact as follows: “Adverse environment impact is a reduction in one or more representative indicator species that (1) creates an unacceptable risk to the populations's ability to sustain itself, to support reasonably anticipated commercial or recreational harvests, or to perform its normal ecological function, and (2) is attributable to the operation of the cooling water intake structure.” Under this approach, EPA would define unacceptable risk using a variety of methods that fisheries scientists have developed for estimating (1) the level of mortality that can be imposed on a fish population without threatening its capacity to provide “maximum sustainable yield,” as developed under the Magnuson-Stevens Fishery Conservation and Management Act, on a long-term basis, and (2) the optimum population size for maintaining maximum sustainable yield. (See W-00-03, 316(b), Comments 1.68).

In response to comments, EPA has included in the record for comment a memorandum providing a list of references that EPA intends to review to assess the merits of using a population modeling approach to define adverse environmental impact. EPA also intends to evaluate and seeks comment on how and whether it is possible to use such models, which have historically been used to perform single species assessments, to assess impacts on multiple species as is often necessary in evaluating impingement and entrainment by cooling water intake structures. EPA invites comment on the following documents found in #2-019A-B in the Docket.

Further, EPA has included information addressing the issue of compensation and its application relative to the section 316(b) rulemaking. In particular, EPA is seeking comment on a memorandum titled, “Compensation” in #2-020C in the Docket. This document states that the use of compensation factors is typically limited to those cases where fishery managers have extensive data on a fish population and that specific, numerical compensation values generally are not used in the absence of a robust data sets with a minimum of 15-20 years of data suggested. Moreover, fish stocks for which these robust data sets exist are generally the highly exploited commercial and recreational stocks and it is unlikely the data exists for the non-harvested species. This memorandum also notes that in the absence of sufficient data, various proxies are typically used in order to side-step the need for quantitatively determining compensation. EPA invites comment on each of the following documents in #2-020A-D in the Docket:

EPA is also evaluating information submitted by the Utility Water Act Group (UWAG) and the Electric Power Research Institute (EPRI), both in their comments and in studies provided to the Agency after the comment period. (See UWAG original comments at W-00-03, 316(b), Comments 1.68; EPRI original comments at W-00-03, 316(b), Comments 1.58, EPRI documents submitted after November 9, 2000 at W-00-03, 316(b), Comments 2.11; EPRI meeting material, January 24, 2001(see #2-021A in the Docket); and UWAG meeting material, January 25, 2001(see #2-021B in the Docket)). In summary, these comments and documents assert or are intended to support the assertion that entrainment of very large numbers of eggs, larvae, and early juvenile-stage fish does not necessarily meaningfully affect populations of the entrained species and that substantial percentages of the organisms of many species may survive entrainment. Further, these comments and documents assert or are intended to support the assertion that impingement survival is high for many species and that impingement often impacts low-value, forage species when they are naturally prone to seasonal die-off regardless of cooling water intake structures. One of these comments asserts that EPRI and some of the best fishery scientists in the world have never identified a site where definitive or conclusive aquatic population or community level impacts have occurred from operation of cooling water intake structures. EPA invites comment on each of these documents.

Biological assessments and criteria are recognized as important methods for gathering relevant ecological data for addressing attainment of biological integrity and designated aquatic life uses (see #1-5038-PR, #2-022A, #2-022C, and #2-022F in the Docket). EPA invites comment on the following discussion and documents that identify potential constraints on using these methods to determine adverse environmental impact from the operation of cooling water intake structures.

First, biological assessment and criteria methods are still being developed for large rivers and the Great Lakes, two large water body types where many cooling water intake structure are located. Secondly, although biological assessment and criteria methods have been published by EPA for small streams and wadeable rivers (see #2-022A and #2-022D in the Docket), lakes and reservoirs (see #2-022C in the Docket), and estuaries and coastal marine waters (see #1-5044-PR in the Docket), many States have yet to implement these methods in the largest of these water bodies (reservoirs, lakes, estuaries and coastal water (see #2-022B and #2-022E in the Docket).) where cooling water intake structure would be located. Most work to date by the States (see #2-022B, #2-022D and #2-022E in the Docket) to use these methods has been applied to small streams and wadeable rivers where few cooling water intake structures are located.

In addition, although bioassessments and criteria are a valuable tool for determining the biological condition of a water body, in complex situations where multiple stressors are present (point source discharges, non-point source discharges, harvesting, runoff, hydromodifications, habitat loss, cooling water intake structures, etc.), it is not well understood at this time how to identify all the different stressors impacting the biology in a water body and how best to apportion the relative contribution to the biological impairment of the stressors from each source within a watershed (see #2-022E in the Docket). Although ecological risk assessment methods have been successfully used to identify and attribute causation of biological impairment in some water bodies (see #2-022F in the Docket), the application of these approaches to cooling water intake structures has not been tested.

EPRI has also developed a document that examines the suitability of multimetric bioassessment for regulating cooling water intake structures under Section 316(b) of the CWA (see #2-022E in the Docket). In its conclusion, EPRI states that biocriteria are well suited for assessing community-level effects but are not designed as indices to measure population-level effects without additional analyses; that assumptions about the structure and function of ecosystems embedded in the biocriteria approach appear to conflict with current understanding of ecosystems as dynamic, nonequilibrium systems structured on multiple time and space scales; and that issues such as significant uncertainty in reference conditions due to unaddressed sources of natural variability among reference sites may be of particular importance for large, open systems such as estuaries sand coastal marine wasters. EPA invites comment on this document and on the documents listed below, which may be found in #2-022A-F in the Docket:

In addition to reviewing the merits of a population approach to assessing adverse environmental impact, EPA is also considering additional information suggesting that impingement and entrainment, in combination with other factors, may be a non-trivial stress on a waterbody. EPA recognizes that cooling water intake structures are not the only source of human-induced stress on aquatic communities. These stresses include, but are not limited to, nutrient loadings, toxics loadings, low dissolved oxygen content of waters, sediment loadings, stormwater runoff, and habitat loss. While recognizing that a nexus between a particular stressor and adverse environmental impact may be difficult to establish with certainty, the Agency has identified methods for evaluating more generally the stresses on aquatic communities from human-induced perturbations other than fishing. Of particular importance is the recognition that stressors that cause or contribute to the loss of aquatic organisms and habitat may incrementally impact the viability of aquatic resources. EPA is examining whether waters meet their designated uses, whether fisheries are in stress, and whether waters would have higher water quality or better support their designated uses if EPA established additional requirements for new cooling water intake structures. EPA is considering use of this type of information as one approach for evaluating adverse environmental impact and requests comment on this approach.

EPA has prepared a brief memorandum (Dabolt, Thomas, EPA. Memo to File RE: 316(b) Analysis—Relationship of Location to Cooling Water Intake Structures to Impaired Waters. April 18, 2001.) documenting that about 35% of existing cooling water intake structures at facilities that completed EPA's detailed section 316(b) questionnaire are located within two miles of locations within waterbodies identified as impaired and listed by a State as needing development of a Total Maximum Daily Load to restore the waterbody to its designated use. EPA recognizes, however, that these data do not establish that cooling water intake structures are the cause of adverse environmental impact in any particular case and that there may be other reasons for the presence of impaired waters near cooling water intake structures, such as the frequent location of facilities with cooling water intake structures near other potential sources of impairment (e.g., industrial point sources, urban stormwater). EPA requests comment on the relevance of these data to adverse environmental impact determinations for cooling water intake structures (see #2-023 in the Docket).

EPA has also summarized information from a number of sources indicating overutilization of about 46% of the fishery stocks of known status tracked by and under NOAA purview (73 out of 158 stock groups), and which rely on tidal rivers, estuaries, and oceans for spawning, nursery, or adult habitat. An additional 45 stocks under NOAA purview are of unknown status (about 22% of the fishery). In addition, NOAA documents in a number of their Fishery Management Plans that cooling water intake structures, and in particular once-through cooling water systems that withdraw large volumes of water, cause adverse environmental impacts due to significant impingement of juveniles and entrainment of eggs and larvae. EPA recognizes that stress due to overutilization may not be directly relevant to adverse environmental impact, but believes that it may be relevant to assessing cumulative impacts of multiple stressors, including cooling water intake structures. EPA requests comment on the potential use of these data for this purpose.

EPA invites comment on the following documents and information the Agency is considering as it evaluates possible definitions of adverse environmental impact and concerns associated with assessing multiple stressors and their impacts on aquatic communities (see #2-024A-O in Docket).

EPA has gathered new data on adverse environmental impact determinations made in connection with State and Federal NPDES Permit decisions. EPA invites comment on the following documents compiled in #2-025A-W in the Docket.

In the proposed rule preamble, EPA discussed several other option for interpreting adverse environmental impact. One option would be to look to section 316(a) of the Clean Water Act for guidance in assessing adverse environmental impact from cooling water intake structures. Section 316(a) addresses requirements for thermal discharge and provides that effluent limitations associated with such discharge should generally not be more stringent than necessary to “assure the protection and propagation of a balanced indigenous population of shellfish, fish, and wildlife in and on that body of water.” The same language is repeated in section 303(d) with reference to Total Maximum Daily Load listing requirements for waters impaired by thermal discharge. These statutory provisions show that Congress intended this standard to be used in evaluating the environmental impacts of thermal discharges. Some have suggested that since thermal discharges are usually paired with cooling water intake, it may be reasonable to interpret the Clean Water Act to apply this standard in evaluating adverse environmental impact from cooling water intake structures as well.

Another option would be to define adverse environmental impact as a level of impingement and entrainment that is “recurring and non trivial.” 65 FR 49074. EPA is considering refining that idea by interpreting “recurring and non trivial” impacts as the degree of impingement and entrainment that would have resulted from the use of the traditional technologies in use at the time the Clean Water Act (including section 316(b)) was enacted in 1972. EPA believes that the traditional technology in use at that time would have been a once-through cooling system with a simple bar rack screen to minimize entrainment of large debris items and a simple mesh screen to minimize entrainment of small debris items into the condenser. Under this approach, EPA would define the common performance of the traditional technologies as having an adverse environmental impact and then consider reasonable requirements to improve over that performance. EPA recognizes that the statutory phrase “minimize adverse environmental impact” could be interpreted in a way that focuses on the environmental impacts of cooling water intake structures to determine whether and to what extent these impacts are “adverse,” perhaps using a population approach, as suggested by some. However, EPA believes that the phrase “best technology available to minimize adverse environmental impact” could also reasonably be interpreted in a way that focuses on the technology, rather than the impact, in a manner analogous to the technology-based standards applicable to point source dischargers under Clean Water Act sections 301, 304, and 306. EPA requests comment on these alternative approaches for interpreting adverse environmental impact.

EPA also notes that a number of other options for interpreting or defining adverse environmental impact were discussed in the proposal (65 FR 49074), and does not intend in this notice to suggest that they are not still under active consideration. EPA is still considering all of the options for interpreting and defining adverse environmental impact that were discussed in the proposal as options for the final rule and invites further comment on any of them.

EPA proposed specific flow limits of 5% of mean annual flow of freshwater streams and rivers because the Agency determined this would be the best way to protect 95% of the aquatic life in these water bodies from entrainment. EPA also proposed to limit withdrawals from estuaries and tidal rivers to 1% of the tidal excursion. The proposed limit is based on the concept that withdrawal of a unit volume of water from a water body will result in the impingement and/or entrainment of an equivalent unit of aquatic life (particularly eggs and larval organisms) suspended in that volume of the water column. This, in turn, is related to the idea that the density of aquatic organisms withdrawn by a cooling water intake structure is equivalent to the density of the organisms in the water column. Thus, if 5% of the mean annual flow (or alternative proposed levels of 10% and 15% for freshwater bodies) is withdrawn, it will result in the impingement and/or entrainment of 5% (or alternative) of the aquatic life in that water body.

Some commenters asserted that this assumption is not valid. They argued that aquatic organisms are not uniformly distributed within the water column and that patchy distribution of aquatic organisms invalidates the assumption that withdrawal of a certain percentage of a water body would correlate to an equivalent withdrawal of aquatic life. Since proposal, EPA received new information concerning the distribution and density of organisms in natural waters. In #2-013 D and E in the Docket, EPA is providing for comment information on the density of organisms in the Hudson and Delaware rivers as well as in Mt. Hope Bay. In #2-013J in the Docket, the Agency is also providing for comment information on models identified by EPRI that may be used to estimate and/or evaluate aquatic organism densities in order to estimate entrainment rates. EPA believes the use of these data and modeling approaches is supportable because assessments of aquatic organism densities are the basis for calculations for the empirical transport model which is, in turn, the basis for calculating conditional mortality rates. Both of these methods are widely used by industry and regulatory agencies to estimate losses related to cooling water intake structures.

The Agency has identified information from other State and Federal agencies that supports the need for flow-based standards to protect aquatic organisms. This information includes methodologies for determining the limiting flow conditions for a waterbody for the protection and propagation of aquatic life and wildlife in stream environments (see #2-026B, #2-026C, and #2-026D in the Docket). EPA invites comment on the following documents:

EPA also invites comment on the following supplement to the discussion at proposal of the proposed limitations on intake flow as a proportion of waterbody flow (see 65 FR 49085-49087). EPA is considering whether a proportional flow limitation would have the effect of reducing or minimizing adverse environmental impact that may be associated with withdrawal of large volumes of cooling water from relatively small water bodies. EPA is considering and seeks comment, in particular, about the efficacy of the proposed limitation associated with the mean annual flow of freshwater streams and rivers. These limitations could be effective because large-volume withdrawals occurring on a year-round basis may affect all aspects of the life cycles of the organisms susceptible to entrainment. Inasmuch as some commenters have asserted that aquatic organisms are not uniformly distributed within the water column (i.e., exhibit “patchy” distribution), the withdrawal of large volumes of water may, over the course of the year, smooth out the “patchiness” and subject a portion of the biota commensurate with intake flow to entrainment. The Agency is considering and seeks comment on whether a proportional flow standard based on mean annual flow proposed at 40 CFR 125.84(b) will effectively protect smaller freshwater rivers and streams from levels of impingement and entrainment proportional to the volume of water withdrawn from these waterbodies.

At least one commenter asserted that the regulation as proposed can be interpreted to require that no alteration of the natural thermal stratification is allowed, regardless of the size, limit, or location relative to the intake structure. They further asserted that this standard is unachievable and should not be included in the final rule.

The Agency continues to consider whether these regulations should limit withdrawals of large quantities of cooling water from lakes which are naturally stratified. In particular, EPA is considering whether the withdrawal of large quantities of subsurface water may negatively affect a lake's thermal stratification and seasonal turnover dynamics. EPA is also considering whether cooling water withdrawals from deeper, colder areas within lakes, followed by discharge of used cooling water either at, or where it may rise to, the lake's surface, may bring nutrient-rich, hypolimnion  1 water to the surface where it may stimulate the growth and respiration of harmful levels of algae and other biological assemblages within a lake. EPA is considering and invites comment on whether such concerns are appropriately addressed in regulation for cooling water intake structures or should be addressed by a permitting agency when it establishes any limitations on the discharge of the cooling water.

EPA is also considering whether the proposed limitation to “not alter” and “not upset” natural stratification may be subject to considerable interpretation such that the intent of that portion of the proposed regulation is not sufficiently clear. Thus, the Agency solicits public comments on the information contained in “Cumulative Impacts of Power Plant Cooling Systems on Lake TMDLs” (see #2-027A in the Docket) which supports the idea of maintaining natural stratification. EPA also requests comment on the use of the phrase “not disrupt the natural stratification and turnover pattern of the source water body” and invites commenters to suggest other alternatives to the terms “not alter the natural stratification of the source water body” or “not upset the natural stratification of the source water body” as used at 65 FR 49077 and 49118.

EPA proposed 0.5 ft/sec as a velocity limit in all waters except those 50 meters beyond the littoral zone in lakes and reservoirs. Since proposal, EPA has gathered or received data on the swimming speed of fish of various species from EPRI (see W-00-03, 316(b) Comments 2.11), from the University of Washington studies that support the current National Marine Fisheries Service velocity standard for intake structures and from references included in comments from the Riverkeeper (see Turnpenny, 1988, referenced in W-00-03, 316(b) Comments 2.06. Document found in #2-028B in the Docket). All of the swim speed data used is contained in #2-028 in the Docket. Also located in #2-028 in the Docket, is new data EPA received from the National Marine Fisheries Service on screen design consideration for approach velocities to protect juvenile salmonids.

The Graph (Swim Speed Data, #2-029 in the Docket), is a compilation of the data EPA received on fish swimming speeds as it varies with the length of the tested fish and with water temperature. These data show that, not accounting for any safety margin to address screen fouling (which increases velocity in screen areas that remain open), a 1.0 ft/s velocity standard would protect 78% of the tested fish, and a 0.5 ft/s velocity would protect 96% of these fish. EPA is evaluating these data and considering whether to maintain or modify the proposed velocity limitation. To estimate the extent to which a low-velocity performance standard might affect new facilities, EPA also is evaluating preliminary data on the design intake velocity of existing facilities from the Agency's section 316(b) survey questionnaire (see Percentage Distribution of Intake Velocities for Recently Constructed In-Scope Cooling Water Structures, #2-030 in the Docket). These preliminary data indicate that 73% of the manufacturing facilities and 62% of the electricity generating facilities built in the last 15 years meet the proposed velocity limitation of no more than 0.5 feet/second.

EPA is evaluating a number of other issues that could cause it to modify the proposed velocity limitation. As discussed at Section A.3 above, EPA received comments asserting that offshore and coastal oil and gas platforms might be subject to the rule and face difficulties meeting the proposed velocity limitation due to biofouling concerns in marine waters and engineering/technical issues associated with drilling platforms. EPA is evaluating these assertions and seeking additional information on this topic. Should EPA include new offshore and coastal oil and gas platforms within the scope of the final regulations, the Agency will decide whether subcategorization and a different velocity limitation may be appropriate for these facilities. EPA is also investigating whether biofouling is an issue for cooling water intake structures at land-based facilities.

In response to comments, EPA is evaluating whether the 0.5 ft/s velocity limitation is appropriate or necessary for offshore intakes equipped with velocity caps. Velocity caps work by changing vertical flows, which fish do not avoid because they can not detect, to horizontal flows, which fish detect and avoid. Commenters suggested that offshore intakes with velocity caps designed with velocities greater than 0.5 ft./s would be more effective in reducing biofouling than those with lower velocities and would be more effective in protecting fish located in waterbodies with higher flow velocities. Commenters also raised issues associated with the effects of tidal and long-shore currents on velocities in the vicinity of velocity caps. EPA identified documentation (see Turnpenny, 1988, W-00-03, 316(b) Comments 2.06 in #2-028B in the Docket; Mussalli, Taft, Larson, 1980; and Schlenker 2001 in #2-031B in the Docket ) that may substantiate commenters' concerns with the influence of tidal and current velocities on velocities at a velocity cap. However, the documentation also provides design solutions to minimize the influence of water body currents on velocity caps. EPA identified documents indicating that, in these circumstances, limiting velocities at intakes with velocity caps may afford some additional protection, but that the entrainment reduction may be small. One of the documents states that the location of the submerged intake structure may be the most important factor in limiting the impact from the intake structure. EPA requests comment on the following documents.

EPA also requests comment on the American Society of Engineers' Design of Water Intake Structures for Fish Protection (see #2-032 in the Docket) which suggests that design velocities should range from 0.5 ft/s to 1.5 ft/s. Based on comments and these documents, the Agency requests comment on allowing velocities of up to 1.5 ft/s at offshore intake structures with velocity caps in all types of waterbodies.

Finally, EPA is considering comments on where velocity should be measured. Some commenters assert that velocity should be measured on the basis of “approach-velocity” rather than the proposed design intake velocity (also known as through-screen or through-technology velocity). Other commenters assert that velocity should be measured where its value is highest, which might be at the screen face or at another location in front of the screen (for example, at a narrow constriction in an intake canal or at a narrow opening in a curtain wall placed in front of the screen). (See W-00-03, 316(b) Comments 2.06 (River Keeper) and 1.56 (EPRI). EPA is also providing for comment, the document contained in #2-033 in the Docket.

One objective of EPA's proposed rule was to develop section 316(b) requirements applicable to broad classes of waterbodies in order to minimize the permitting burden on the States (which, for the most part, are the permit authorities responsible for implementing section 316(b)). Some States have expressed concern about adopting a site-specific approach for new facilities which, in their view, would require a burdensome expenditure of resources to develop section 316(b) requirements for each new facility. States that commented on the proposed regulations, including Michigan, New York, New Jersey, and Alaska, generally supported the adoption of minimum technology requirements. Michigan and New Jersey specifically expressed concern about the existing case-by-case approach. Only Louisiana specifically opposed adoption of the proposed regulations, stating that any requirements for cooling water intake structures should be implemented under the CWA section 404 program or under section 10 of the Rivers and Harbors Act.

EPA invites comment on additional information documenting resources that several States have devoted to implementing section 316(b) on a case-by-case basis (see #2-034A-B in the Docket). EPA will consider this information as the Agency evaluates the practicality of various alternatives for the final rule. EPA invites commenters to submit any other data on the workload associated with implementing section 316(b) under the current case-by-case approach. EPA also invites comment on the need for nationally applicable regulations, as opposed to a site-specific approach, in order to minimize the burden on States for permitting new facilities. EPA invites comment again on its estimates of the cost to States to implement the proposed requirements (See #1-5067-PR, Information Collection Request for Cooling Water Intake Structures New Facility Proposed Rule, Chapter 6), and acknowledges that these costs may change based on any changes in the final regulations.

To estimate the percentage of manufacturers, utilities and nonutilities constructed in the last fifteen (15) years that meet various proposed requirements for cooling water intake structure technology, EPA performed an analysis using detailed questionnaire data. These preliminary data indicate that 47% of the recently-constructed manufacturers, 42% of the recently-constructed nonutilities, and 53% of the recently-constructed utilities meet the proposed requirement to install additional design and construction technologies such as a traveling screen with a fish return system, a wedge wire screen, or a fine mesh screen with a fish return system. (see #2-035A in the Docket).

EPA performed a similar analysis of the detailed questionnaire data to estimate what percentage of in-scope facilities constructed during the last 15 years meet the proposed requirement for reducing intake flow to a level commensurate with use of a recirculating cooling water system. These preliminary data show that 38% of the manufacturing facilities, 66% of the nonutility facilities, and 70% of the utility facilities have closed-cycle, recirculating cooling systems. (see #2-035B in the Docket). EPA is now working to verify the accuracy of these estimates as they appear to be lower than the estimated percentages in the record at proposal based on information from DOE's Energy Information Agency and RDI's NEWGen database.

Finally, EPA analyzed the detailed questionnaire data to estimate what percentage of the in-scope manufacturing, utility and nonutility facilities constructed in the last 15 years meet all three of the proposed requirements for: (1) Reducing intake capacity to a level commensurate with use of a closed-cycle recirculating cooling system: (2) reducing intake velocity to no more than 0.5 ft/sec; and (3) developing a plan and installing additional design and construction technologies. The analysis shows that 16% of these manufacturers, 31% of these nonutilities, and 44% of these utilities meet all three performance and technology standards. (see #2-035C in the Docket). Based on these data, EPA is considering and invites comment on whether it is reasonable for new facilities to meet these proposed standards.

At proposal, EPA invited comment on a regulatory alternative that would require zero or extremely low intake flow commensurate with levels achievable through the use of dry-cooling systems. EPA discussed and invited comment on a number of issues including any potential energy penalty at new facilities using dry-cooling systems.

Alternatives to conventional wet cooling towers or once-through systems are often described as dry cooling systems but, in fact, may include hybrid wet-dry cooling systems. These alternative cooling systems may be less efficient in rejecting heat than conventional wet cooling towers or once-through systems. Alternative cooling systems generally have higher parasitic (fan) electrical loads and can create a higher pressure (temperature) in the steam turbine condenser. Both of these factors can decrease the thermal efficiency and power output of the plant. Estimating the nature of this penalty is difficult given that the facility could be designed and operated in a variety of ways using one of these alternative cooling technologies. As discussed at proposal, climactic conditions may significantly influence the efficiency of alternative cooling systems (see 65 FR 49081). For instance, dry cooling systems can be less efficient during warmer periods than during cooler periods.

At proposal, EPA's discussion of energy inefficiency due to cooling requirements focused on energy penalties associated with the operation of dry cooling systems. Since proposal, EPA has sought out information measuring and/or estimating comparable efficiencies of cooling towers (wet, dry, and hybrid) to once-through cooling systems. EPA discovered some additional information comparing dry and hybrid cooling towers to wet cooling towers and obtained a limited amount of information on the topic through public comment. EPA invites comments on the following new data (see #2-036A-D in the Docket):

EPA intends to revise the operation and maintenance costs of its estimates for wet and dry cooling towers to include the marginal cost of energy penalties. EPA intends to estimate any energy penalties as compared to cooling systems that new facilities would be likely to install absent final regulations. When EPA projects that a facility would switch from a once-through cooling system to a closed-cycle cooling system employing a wet cooling tower to comply with final regulations, EPA will estimate the energy penalty based on values derived from documents already in the record, the new materials referenced above, and similar sources of information. To project the energy penalty of dry cooling systems compared to once-through cooling systems, EPA will use its estimate of the energy penalty of a closed-cycle cooling system employing a wet cooling tower, then estimate any additional energy penalty imposed by use of a dry cooling system based on documents already in the record, the new materials referenced above, and similar sources of information. To project the energy penalty of dry cooling towers compared to a closed-cycle cooling system employing a wet cooling tower, EPA will estimate the energy penalty based on documents already in the record, the new materials referenced, and other relevant sources of information.

Some public comments on the proposed regulations assert that EPA's annual cost estimates for wet cooling towers did not include essential components such as wiring, foundations, condenser pumps, and noise attenuation treatment. EPA did not separately identify these items in the estimates presented at the time of proposal because the Agency used empirical models based on actual construction project costs to verify its costing estimates. These empirical models represent the cost to the plant and include all essential components. However, to further document the annual costs that EPA used in its cost estimates for wet cooling towers, EPA requests comment on the new data in EPA's April 23, 2001 memorandum titled, “Supporting Documentation for Unit Costs” contained in #2-037 of the Docket.

Since proposal, EPA collected additional project cost information to verify its empirical cost models. EPA requests comment on the capital cost information contained in #2-037 of the Docket.

Based on literature and vendor information, EPA's proposal estimated a 10 degree Fahrenheit design approach value for wet cooling towers. EPA requests comment on information contained in #2-037 of the Docket in support of this value.

EPA proposed that operation and maintenance (O&M) costs of wet cooling towers reflect an “economy of scale” with increasing size. Therefore, in some cases, as the size of the cooling tower increases, O&M costs decrease per unit of water cooled. EPA is supplementing the record to support its assumption that there are “economies of scale” based on comments received on the proposal. EPA has placed information in the record to support EPA's methodology for calculating O&M costs for wet cooling towers (see #2-037 in the Docket).

At proposal, EPA assumed that some new facilities would use once-through cooling systems absent final regulations and would switch to a closed-cycle cooling system employing a wet cooling tower. In these cases, EPA costed the water flow used in the recirculating cooling tower as 15 percent of the original flow. EPA acknowledges that this assumption does not match standard industry design practice. EPA intends to revise its estimates of recirculating flow upward based on the entire flow of cooling water through the cooling tower and will size and cost the recirculating pumps accordingly.

EPA's proposed wet cooling tower costs may have included elevated capital costs due to a design estimate that plume abatement would be applied at a large proportion of the cooling towers built as a result of the regulations. Since proposal, EPA sought additional information regarding industry practice for wet cooling tower construction and the use of plume abatement. Through vendor contact, EPA learned that wet cooling towers generally do not incorporate plume abatement technologies. Therefore, EPA intends to revise its wet cooling tower estimates to reflect a reduced implementation of plume abatement techniques. EPA also intends to study the sensitivity of costs with respect to this aspect of its cost estimates. (See #2-037 in the Docket.)

At proposal, EPA estimated the marginal annual cost of dry cooling towers over once-through cooling systems but did not explain its methodology for estimating the capital and O&M costs of dry cooling towers. EPA invites comment on the information the Agency used to estimate annual costs of dry cooling towers placed in the record. (See #2-037 in the Docket.)

EPA obtained further information relating to the capital cost of dry cooling towers since proposal. The Agency invited comment on the following information:

EPA discussed the water quality and non-water quality impacts of cooling towers (both wet and dry) at proposal (see 65 FR 49075 and 65 FR 49081). However, EPA did not quantify all impacts that may result from implementation of the rule. For the final rule, EPA intends to estimate, to the extent possible, the marginal increases in emissions of air pollutants associated with wet and dry cooling towers. The Agency intends to compare projected emissions under the rule to projected emissions absent the rule. (At proposal, EPA projected that, regardless of the outcome of the rule (that is, absent these regulations) a majority of units would have wet cooling towers and a minority would have once-through or dry cooling systems.)

EPA may estimate air emissions using the permit application calculations required by the Colorado Department of Public Health and Environment (CDPHE), Colorado Air Pollution Control Division, Stationary Sources Program. This program requires emissions estimates for new power generating permits according to the codified guidance at 40 CFR chapter 1, appendix W to part 51 (July 1, 1999). The technique would use emissions factors from the Compilation of Air Pollutant Emission Factors, Volume I (AP-42) for stationary turbines and derive estimates of pollutant emissions for each type of unit. EPA would adjust the emissions estimates, when appropriate, to reflect a marginal comparison by using energy penalty estimates. For example, in the case where EPA examines any increase in emissions of air pollutants due to dry cooling, it would base this estimate on a calculation of any energy penalty associated with dry cooling as compared to energy use at plants projected to install wet closed-cycle cooling systems or once-through cooling systems absent these regulations. EPA expects that a small fraction of facilities would not experience any increased air pollutant emissions because that they are projected to use dry cooling, regardless of the outcome of the rule.

Alternatively, EPA may estimate air emissions using the Emissions & Generation Resource Integrated Database (E-GRID2000). This database integrates data from 18 different federal sources and provides emissions and resource mix data for every plant, electric generating company, state and region in the country. From E-Grid 2000, EPA may generate an emission rate per MWh or loaded hour for NO X , SO 2 , CO 2 , and Hg to estimate increased emissions at plants that consume additional fuel because they install a wet or dry cooling tower to comply with final regulations. Such an analysis would presume that an individual plant increase its loading in order to meet this energy cost as opposed to delivering less power to the grid which in turn would be made up by a different plant.

The following references are included in the record for public review. (See #2-039A-C in the Docket.)

EPA's proposed regulations would require a permit applicant to complete a “source water baseline biological characterization” based on at least one year of pre-operational biological monitoring (proposed 40 CFR. 125.86). The applicant would use this information to develop a plan for installing additional design and construction technologies (such as screens, or barrier nets, or well-designed return systems for impinged fish). This information would also support the permitting agency (in most cases, a State) in considering whether site-specific conditions warrant more than the baseline regulatory protections (see proposed 40 CFR 125.84(f) and (g)). The proposed regulations would also require permittees to conduct impingement monitoring over a 24-hour period once per month during the first two years of the permit and to conduct entrainment monitoring over a 24-hour period no less than biweekly during the period of peak reproduction and larval abundance. After two years, the permitting agency could reduce impingement and entrainment monitoring frequency in the remaining permit term and when the permit is reissued (proposed 40 CFR 125.87).

The July 2000 “Information Collection Request for Cooling Water Intake Structures New Facility Proposed Rule” (ICR) estimated costs for the Sourcewater Baseline Characterization Activities and for entrainment and impingement monitoring based on Bureau of Labor Statistics base wage rates multiplied by time spent in each labor category. Direct Labor Costs and Operation and Maintenance Costs were added to estimate the burden and costs per facility. The ICR states that the Sourcewater Baseline Characterization costs would include $19,500 for contracted laboratory assistance with monitoring, taxonomy and data tabulation (plus $500 for other direct costs (ODCs)). Similarly, text in the ICR states that contracted lab costs for entrainment and impingement monitoring would amount to $19,500 and $4,580, respectively (plus $500 in ODCs). Tables 7 and 8 of the ICR indicate that the Sourcewater Baseline Characterization would cost each facility $11,655 in labor and $750 in ODCs; entrainment monitoring would cost $14,675 in labor and $4,000 for ODCs; and impingement monitoring would cost $6,736 labor plus $2,000 ODCs. However, the contracted laboratory costs discussed in the text of the ICR are not included in these tables. Thus, to eliminate confusion about EPA's estimated costs for biological monitoring in the ICR, the Agency states that it used the following cost estimates at proposal: approximately $32,000 for Sourcewater Baseline Characterization per facility; approximately $38,000 annually for entrainment monitoring per facility; and approximately $13,000 annually for impingement monitoring per facility. These costs were considered an average cost for all types of waterbodies combined.

EPA received comment from several commenters, including UWAG and EPRI, asserting that EPA's proposal underestimated the costs of biological monitoring (see UWAG comments at W-00-03, 316(b) Comments 1.68 and EPRI's comments at W-00-03, 316(b) Comments 1.56). As discussed in the memorandum, “316(b) Monitoring Cost Estimates for New Facilities,” EPA has refined its cost estimates and believes it should use cost ranges that, for the sourcewater baseline characterization and entrainment monitoring, vary for different types of waterbodies. EPA invites comment on the following revised cost estimates. (See #2-040 in the Docket.)

• Sourcewater Baseline Characterization: $8,000 to 25,000 for a freshwater stream/river; $8,000 to 35,000 for a lake/reservoir; $8,000 to 50,000 for an estuary/tidal river; and $8,000 to 70,000 for an ocean.

• Biological Monitoring—Entrainment: $15,000 to 40,000 for a freshwater stream/river; $15,000 to 40,000 for a lake/reservoir; $20,000 to 50,000 for an estuary/tidal river; and $20,000 to 50,000 for an ocean.

• Biological Monitoring—Impingement: $10,000 to 25,000 for a freshwater stream/river, a lake/reservoir, an estuary/tidal river and an ocean.

EPA received comment asserting that a one-year sourcewater biological characterization would provide information of limited utility, particularly in estuarine and coastal areas where fish populations exhibit tremendous inter-annual variability (see EPRI comments at W-00-03, 316(b) Comments 1.56 in the Docket). Among other concerns, this commenter asserted that the baseline year may not represent average population characteristics. In response to these comments, EPA invites comment on the documents located in #2-041 in the Docket. This information generally supports the assertion that a multi-year baseline reduces the confounding effect of year-related phenomenon on assessments and (see EPA 1990, referenced below) provides a better basis for evaluating management actions:

• Fast-Track Alternative

In comments on the proposed regulations and in other materials EPA recently received, the Utility Water Act Group (UWAG), an industry trade association, has suggested that EPA consider an alternative based on several of the regulatory alternatives EPA described at proposal (see UWAG. Email to EPA RE: Brief Description of a Two-track Process. April 12, 2001, in #2-042 in the Docket). Under this approach, a company seeking to build a new facility could pursue one of two tracks: either (1) to commit to one or more of a number of specified technologies deemed to represent highly protective technology at the outset or (2) to engage in a site-specific study to determine the best technology available (BTA) for the site.

Under Track 1 (the “fast track”), an applicant would commit to install highly protective technologies in return for expedited permitting without the need for pre-operational or operational studies in the source waterbody. Such fast-track technologies might include:

1. Any technologies that limit intake flow to the flow that would be required by wet closed-cycle cooling at that site and that has an average approach velocity (measured in front of the cooling screens or the opening to the cooling water intake structure) of no more than 0.5 fps; or

2. Any technologies that will achieve a level of protection from impingement and/or entrainment that is within the range expected under Option 1 for closed-cycle cooling (with 0.5 fps approach velocity) on the type of waterbody where the facility is to be located. This option is intended to allow facilities to use either standard technologies, or new ones, that have been demonstrated to be effective for the species, type of waterbody, and flow volume of the cooling water intake structure proposed for their use. Examples of candidate technologies would include:

a. Wedgewire screens where there is constant flow, as in rivers;

b. Traveling fine mesh screens with a fish return system designed to minimize entrainment and impingement mortality; and

c. Gunderbooms at sites where they would not be rendered ineffective by high flows or fouling.

UWAG believes that the record developed to date indicates that the combination of flows associated with closed-cycle cooling and low intake velocity reduce entrainment and impingement mortality to such low levels that adverse environmental impact (“AEI”) is avoided thereby not just meeting, but exceeding the section 316(b) standard of protection. UWAG also believes that information in the record and additional materials described in Section H.2. below demonstrates that other technologies, including those above, when used properly, may provide a level of protection within the same range and thus would also be highly protective of aquatic resources.

Closed-cycle cooling and extremely low approach velocities have been used to avoid levels of entrainment and impingement mortality that could cause adverse environmental impact. Nevertheless, UWAG states that some interested parties have argued that EPA cannot support a finding that such technologies constitute BTA due to factors such as very high capital and other costs compared to environmental benefits, cross-media effects, site-specific factors (such as land constraints or habitat or air emissions concerns), or jurisdictional issues regarding cooling towers (which some commenters argue are part of the cooling system, not “intake structure” technologies). These stakeholders argued that such low flows and velocities are far more conservative than needed to meet the statutory standard of “best technology available to minimize adverse environmental impact.” This objection would be beside the point under this alternative, because EPA would not define these technologies as BTA for “minimizing” adverse environmental impact but instead determine that they avoid adverse environmental impact altogether. Using this approach, the final rule would reflect EPA's determination that, where the permittee proposes to use a demonstrated technology that meets the above criteria, the technology would, in almost every case, avoid adverse environmental impact and exceed the requirements of section 316(b). UWAG believes that financing issues associated with uncertainty and delay during periods of pre-permitting biological study (described in Section H.3 below) would make the fast-track option highly desirable for many new facility applicants who otherwise might face significant difficulties that are building new facilities that are urgently needed to meet increased demand for electricity.

UWAG also suggested that, in conjunction with its fast-track alternative, EPA should use a similar approach to encourage rather than foreclose alternative or innovative intake structure technologies that provide a level of protection reasonably consistent with the criteria established above. If a proponent of a new facility knows of an alternative technology but cannot try it without extensive pre-operational site-specific studies, he or she may not be inclined to take the risk of developing the new technology. To remove this disincentive, EPA could allow expedited permitting when an applicant can demonstrate, as part of its permit application, that the intake structure technology it proposes will achieve a level of protection reasonably consistent with the criteria established in Option 1 above. Such a demonstration would not require source waterbody studies. It might instead be based on successful use of the innovative technology at a comparable site or successful testing in a laboratory or a pilot-scale trial. Some monitoring after the facility begins operating may be appropriate to validate the design performance of alternative technologies.

In addition, UWAG suggests that, as part of this approach, EPA could in the future approve additional, alternative “fast-track” technologies based on accumulated experience. There could potentially be unusual species-specific circumstances in which fast-track technologies meeting the above criteria would not be sufficient to avoid adverse environmental impact. While, in UWAG's view, the number of such sites will be very small, the rule could nevertheless give permit writers the authority to require additional protective technology if the permitting agency has information that exceptional conditions exist such that, even with fast-track technology, the proposed facility would adversely impact a representative indicator species in a way that other federal or state requirements, such as the Endangered Species Act, would not prevent. EPA invites comments on those proposals as well.

Track 2 of the industry approach would be for facilities and sites for which the applicant does not want to commit to any of the above technology options but believes that a close look at site characteristics, including the local biology, would justify another intake technology, such as once-through cooling. For these situations, the applicant could demonstrate to the permitting agency, based on site-specific studies, either that the proposed intake would not create an appreciable risk of adverse environmental impact or, if it would create an appreciable risk of adverse environmental impact, that the applicant would install technology to “minimize” adverse environmental impact. Such demonstrations would recognize that some entrainment and impingement mortality can occur without creating “adverse environmental impact,” but, where there was an appreciable risk of adverse environmental impact, the technology that would “minimize” it would also be the technology that maximized net benefits. If the proposed intake created an appreciable risk of adverse environmental impact, the applicant would have to identify all reasonably available intake structure technologies that would reduce the impact to the aquatic community and that would be feasible for the site. The applicant would also estimate both the costs and benefits of each such technology, including the impacts of the cooling water intake structure on aquatic biota, as well as the monetary costs of construction and operation, energy costs, and environmental costs such as air pollution, aesthetics, and land use. Summing the costs and benefits for each “available” technology, the permittee would choose as “best” the one that had the highest net benefit. Industry asserts that efficient methods for assessing costs and benefits, based on a variety of federal precedents, might be developed to determine the net benefits without undue delay or uncertainty. Industry did not specify what federal precedents or methods for assessing benefits would be applied.

Under the industry approach, the second track would not require the same type or intensity of study for every site or every proposed plant design. In designing a Track 2 study to determine whether there is an appreciable risk of adverse environmental impact and, if so, what will “minimize” it, the applicant and permitting agency could apply a series of tests to focus the study. First, no further study would be necessary if the intake draws its water from an area not designated for protection of fish or aquatic life (in accordance with the requirements of 40 CFR part 131) or an area that does not support or could not support vulnerable life stages of representative indicator species due to lack of dissolved oxygen or for other reasons. Second, an intake structure would not have to be assessed for entrainment if it withdraws an amount no greater than a given percentage of the source waterbody that has proven to be extremely conservative. (UWAG asserts that some interested parties have suggested a value of 5% or less of the 90% exceedance flow of a river  2 or 5% or less of the volume of the biological zone of influence in a lake or reservoir, measured when entrainable life stages of representative indicator species are present.) Third, the proposed facility would not have to be assessed for entrainment if it were designed to ensure that entrainment losses of equivalent adults would be less than a value that has generally proven to be highly conservative or not inconsistent with fishery management plans. (Some interested parties, UWAG asserts, have suggested values equal to or less than 1% of the population of any commercially or recreationally important species and equal to or less than 5% of the population of non-harvested species.) The permitting agency would consider survival rates for entrained representative indicator species in applying this test.

Under the industry-suggested Track 2 approach, some proposed new facilities might be able to use the Track 2 tests to show that they would not cause adverse environmental impact and, therefore, would need no further analysis. Others might find that the Track 2 tests eliminated from concern some risks (entrainment, for example) or some species. For these proposed facilities, once the necessary studies had been focused by the Track 2 tests, the applicant would assess the likelihood that the intake would cause an appreciable risk of adverse environmental impact. They would use a process like that outlined in EPA's Ecological Risk Assessment Guidelines (see #2-020D in the docket), using biological, locational, design, and operational data from the site. If the study showed an appreciable risk of adverse environmental impact, then the applicant would be obligated to identify all reasonably available technologies that would be feasible at the site. It would then perform the cost-benefit analysis described above to determine which technology would maximize net benefits. EPA requests comment on this approach.

In considering the industry approach, EPA also solicits comment on the following potential modifications. EPA is considering a fast-track approach that would be based on a commitment by the facility to employ a suite of technologies that would be determined to represent BTA for the fast-track option. The technologies under consideration are: reduction in capacity commensurate with that achievable by use of a closed-cycle cooling system; a velocity limitation of less than or equal to 0.5 ft/sec; and location where intake capacity would be no more 5% of the mean annual flow or 25% of the 7Q10 flow of a freshwater stream or river, no more than 1% of the tidal excursion volume of a tidal river or estuary, or where the intake capacity would not disrupt the natural stratification and turnover patterns of a lake or reservoir. EPA is also considering designating the following two additional design and construction technologies as part of a fast-track, BTA suite of technologies: a fine mesh traveling screen with a fish return system, variable speed pumps and a low pressure spray; or a submerged wedgewire fine mesh screen. (By contrast, industry's suggested approach would be that in order to qualify for fast track permitting, facilities would commit to either low velocity, closed-cycle cooling or a once-through cooling system with an intake equipped with one of a number of other technologies, e.g., wedge wire screens, fine mesh traveling screens with a fish return system, or Gunderbooms, based on a determination in the final rule that these other technologies may be as effective as closed-cycle cooling with a velocity limit of 0.5 ft/sec for purposes of reducing impingement and entrainment for the species, type of waterbody, and flow volume of the cooling water intake structure proposed for their use.)

Under the modification EPA is considering, the fast-track technologies and performance standards would reflect levels that some newer facilities have achieved. Based on data on existing facilities in the record at proposal, EPA estimates that almost all new facilities are likely to meet the proposed proportional flow standard for freshwater rivers (total intake flow less than 5% of mean annual flow or 25% of the low flow that occurs over a one-week period no more than once every 10 years) and for estuaries and tidal rivers (total intake flow no greater than one percent of the volume of the water column within the area centered about the opening of the intake with a diameter defined by the distance of one tidal excursion at the mean low water level). As discussed at Section F.5 above, 16% of the manufacturing, 31% of the nonutility and 44% of the utility facilities constructed in the last 15 years meet all three of the proposed requirements for: (1) Reducing intake capacity to a level commensurate with use of a closed-cycle recirculating cooling system; (2) reducing intake velocity to no more than 0.5 ft/sec; and (3) developing a plan and installing additional design and construction technologies. (See #2-035C in the Docket). Under this approach, EPA would define these technologies as BTA for the fast-track option.

Other alternatives for fast-track technologies include:

• Dry cooling, either at all locations or in certain waterbodies determined to be particularly sensitive to impacts from cooling water intake structures, or in certain regions in the country where dry cooling is demonstrated, or at certain sizes of facilities where dry cooling is particularly well-demonstrated;

• Differing suites of “fast-track” technologies based on the type of waterbody or the facility's location within a waterbody (e.g., adding additional fast-track technologies in tidal rivers and estuaries over those required in the parts of oceans, freshwater rivers and streams, and lakes and reservoirs that may be designated as less sensitive than other parts of these areas).

EPA also invites comment on other possible modifications to the industry fast-track option:

• EPA is considering a modification where limited pre-operational monitoring would be required. Under this approach, the planned facility would be required to monitor at the proposed site during the time of year of highest egg and larval abundance, which should correspond to the peak period for impingement and entrainment vulnerability. To the extent that the proposed year-long timeframe for pre-operational monitoring could result in significant delay in building a new facility, this modification might reduce those delays for some or many facilities. However, EPA recognizes that, depending on construction schedules and how they relate to the time of year when monitoring would be required this modification could limit the usefulness of the fast track approach for some new facilities.

• EPA is considering a modification where the permit would contain some or all of the proposed operational monitoring requirements at proposed 40 CFR 125.87, 65 FR 49121 or a reduced frequency of operational monitoring requirements.

• EPA is considering a modification where the permitting authority (most often a State) would retain authority to revisit section 316(b) requirements at permit renewal based on the facility's impingement and entrainment monitoring data or other new information (see proposed 40 CFR 125.84(f) and 40 CFR 125.84(g)).

• EPA is considering a modification where the Director (usually, a State official) could require pre-operational studies under circumstances similar to those described in proposed 40 CFR 125.84(f), 65 FR 49119, and/or proposed 40 CFR 125.84(g), 65 FR 49119 or at the Director's discretion. For example, the Director might require pre-operational monitoring if he or she determines it is reasonably necessary as a result of the effects of multiple cooling water intake structures in the same body of water (40 CFR 125.84(f) or it is reasonably necessary to ensure attainment of water quality standards (40 CFR 125.84(g)).

EPA is also considering and invites comment on the following modifications to the industry's Track 2 option:

• EPA is considering a modification where, in all but exceptional or unusual circumstances (e.g., where a State or Tribe has designated a waterbody as having no use for supporting the propagation or maintenance of aquatic life and EPA has approved the revised use). A Track 2 facility would need to conduct a site-specific study that, at a minimum, meets the proposed requirements for a one-year source water baseline biological characterization at proposed 40 CFR 125.86 or, alternatively, for oceans, tidal rivers and estuaries, a longer study period might be required as discussed at Section G.4.

• Under the industry approach, an intake structure would not have to be assessed for entrainment if it withdraws an amount no greater than a given percentage of the source waterbody. The industry approach suggests a value of 5% or less of the 90% exceedance flow of a river or 5% or less of the volume of the biological zone of influence in a lake or reservoir, measured when entrainable life stages of representative indicator species are present. EPA is analyzing these proposed screening criteria at one location. As discussed in an EPA Memorandum to the Record titled “Utilities Proposal Re: Assessment for Entrainment,” April 19 2001 (see Docket #2-043 in the Docket), at one location for which data are readily available, the threshold proposed by industry for entrainment assessment in rivers would equal about 40% of the maximum allowable intake flow that EPA proposed. EPA is considering the industry approach and a modification where an applicant would not have to assess potential entrainment impact if an intake structure withdrew a proportion of waterbody flow or volume significantly less than any final limitations for proportional flow, such as those at proposed 40 CFR 125.84. (EPA proposed that a facility withdraw no more than 5% of the mean annual flow or 25% of the 7Q10 flow of a freshwater river or stream. For tidal rivers and estuaries, a facility could withdraw no more than 1% of the volume of the water column within the area centered about the opening of the intake with a diameter defined by the distance of one tidal excursion at the mean low water level.) EPA invites comment on potential screening levels for entrainment assessment. EPA is currently considering screening levels between 1% and 50% of any final proportional flow limitations, but invites comment on other levels as well. To address concerns that a very large facility on a large waterbody might entrain a large number of aquatic organisms, EPA also invites comment on a possible screening level for entrainment assessment based on the total intake flow at a facility. EPA is currently considering a range of 2 MGD (equivalent to EPA's proposed regulatory threshold) to 15 or 25 MGD, but invites comments on other levels. Section A above provides perspective on the percentage of facilities and flows that would require entrainment assessment at these thresholds. EPA has not yet analyzed industry's suggested screening threshold for entrainment assessment in lakes and reservoirs. The Agency invites comment on whether this is a reasonable threshold, and on other potential screening thresholds for lakes and reservoirs, or other waterbodies such as estuaries, tidal rivers and oceans.

• Under the industry approach, a proposed facility would not be assessed for entrainment unless it exceeded both a flow-based threshold and a population-based threshold (see previous bullet for discussion of the flow-based threshold). The population-based threshold would be designed to ensure that entrainment losses of equivalent adults would be less than a value that, in industry's view, has generally proven to be highly conservative or not inconsistent with fishery management plans. Industry states that some interested parties have suggested values equal to or less than 1% of the population of any commercially or recreationally important species and equal to or less than 5% of the population of non-harvested species. EPA requests comment on a modification that would require that entrainment should be assessed if it exceeds either a flow-based threshold, or a threshold based on equivalent-adult losses. EPA is also considering a modification that would require entrainment assessment above a threshold as low as 1% or as high as 50% of those organisms that occupy or pass-through the area from which source water moves into the intake. Alternatively, EPA might use concepts from the 1977 Draft Guidance for Evaluating the Adverse Impact of Cooling Water Intake Structures on the Aquatic Environment to focus entrainment assessment on potential impact on organisms in the “primary study area,” “the secondary study area,” or the “zone of potential involvement.” (These are areas where biota may be drawn into or affected by a cooling water intake structure.) EPA requests comment on the use of any of these definitions from its 1977 Guidance to define areas for which entrainment assessments would be required. EPA is currently considering a range of 1% to 5% as a quantitative screening requirement in conjunction with any of these definitions, but invites comment on percentages outside of this range.

• Under the industry approach, if a Track 2 site-specific study showed an appreciable risk of adverse environmental impact, the applicant would have to identify all reasonably available technologies that would be feasible at the site. It would then perform the cost-benefit analysis to determine which technology would “maximize net benefits.” The industry approach does not define how to maximize net benefits. However, industry comments suggest an approach that would involve determining applicable fish protection alternatives, assessing their incremental monetary costs and benefits to the extent feasible, major uncertainties in the analysis, and whether relevant costs or benefits have not been quantified. The applicant would then develop a BTA choice that is likely to maximize net benefits in that particular case. EPA invites comment on whether it would be appropriate to ensure that such site-specific cost-benefit studies include assessment of the following categories of data and ecological risks and benefits: numbers of individuals of various species and age-classes impinged and entrained for each technology alternative; commercial or recreational fishing opportunities enhanced or foregone; and/or other categories of benefits such as impact on other recreational opportunities (e.g., birding related to bird populations that are in part dependent on fish populations). EPA also invites comment on whether such studies should be based upon a single-year or multiple-year baseline. Finally, EPA is considering other economic analyses that could support a Track 2 decision on appropriate technologies and/or performance standards. The Agency invites comment on whether it should use the “wholly disproportionate” cost-benefit test that has been previously used in many case-by-case section 316(b) decisions or one of the economic affordability tests described at proposal.

UWAG asserts that, at certain sites and under certain conditions, technologies such as wedge wire screens, fine mesh traveling screens with a fish return system, and Gunderbooms can be used at intakes with a capacity commensurate with once-through cooling and can reduce losses from entrainment and impingement to levels reasonably consistent with those of an intake structure with a capacity commensurate with use of a wet, closed-cycle cooling system and an intake velocity of no more than 0.5 feet per second. In the document, “Existing Technologies Which, Appropriately Applied, Can Reduce Fish Losses to Levels Reasonably Consistent with Wet Cooling Towers,” April 18, 2001 (see #2-044A in the Docket), UWAG provides data that it asserts supports this position. UWAG also discusses this assertion in the document “Reasonably Consistent,” April 20, 2001 (see #2-044B in the Docket). These data and information are intended to support the alternative industry approach discussed in section H.1. of this Notice. EPA is evaluating the UWAG assertions and will consider any public comments on them.

As discussed in the document, “Financial Ramifications of Pre-operational Biological Monitoring Requirements” (see #2-045 in Docket), UWAG asserts that delays associated with EPA's proposed requirements for pre-operational biological monitoring could have significant costs for the facilities required to conduct such monitoring. These costs would include the replacement value for electricity not generated because new facilities did not enter the market as quickly as they might have without the requirement. UWAG also asserts that these delays will increase the costs of financing for a new facility because the lender will be taking a greater risk over a longer term for a facility that does not yet have a permit. EPA solicits comment on specifically how much the cost of financing would increase for a new facility based on such delay and uncertainty. UWAG further asserts that the pre-operational biological monitoring requirement will create an incentive to build plants that are not subject to this requirement and its associated delays and produce more expensive electricity. These data and information are intended to support the alternative industry approach discussed in Section H.1. of this Notice. EPA is evaluating and invites public comment on the UWAG assertions. EPA is very interested in evaluating any impact these regulations may have on new facility construction. EPA invites the public to provide detailed information on the extent to which a year-long, pre-operational biological monitoring program might lengthen the timeframes for new facility development beyond those normally associated with, for example, site selection, financing, construction, local permitting, and environmental assessments conducted under other federal, state or local requirements.

EPA encourages public participation in this rulemaking and requests comments on this notice of data availability supporting the proposed rule for cooling water intake structures for new facilities.

EPA invites all parties to coordinate their data collection activities with the Agency to facilitate mutually beneficial and cost-effective data submissions. Please refer to the FOR FURTHER INFORMATION section at the beginning of this preamble for technical contacts at EPA.

To ensure that EPA can properly respond to comments, the Agency prefers that commenters cite, where possible, the paragraph(s) or sections in the document or supporting documents to which each comment refers. Please submit an original and two copies of your comments and enclosures (including references).

See the information provided in the Direct Final action of the same title which is located in the Rules and Regulations section of this Federal Register .

Throughout this document, the words “we,” “us,” or “our” means the Environmental Protection Agency (EPA).

The Clean Air Act (CAA) Amendments of 1990 authorized EPA to designate areas across the country as nonattainment, and to classify these areas according to the severity of the air pollution problem. Pursuant to section 107(d) of the CAA, following enactment on November 15, 1990, States were requested to submit lists, within 120 days, which designated all areas of the country as either attainment, nonattainment, or unclassifiable for CO. The EPA was required to promulgate these lists of areas no later than 240 days following enactment of the CAA Amendments (see 56 FR 56694, (November 6, 1991)).

On enactment of the CAA Amendments, a new classification structure was created for CO nonattainment areas, pursuant to section 186 of the CAA, which included both a moderate and a serious area classification. Under this classification structure, moderate areas with a design value of 9.1-16.4 ppm, were expected to attain the CO NAAQS as expeditiously as practicable, but no later than December 31, 1995. CO nonattainment areas designated as serious, with a design value of 16.5 ppm and above, were expected to attain the CO NAAQS as expeditiously as practicable, but no later than December 31, 2000.

States containing areas designated as either moderate or serious for CO had the responsibility of developing and submitting to EPA State Implementation Plans (SIPs) which addressed the nonattainment air quality problems in those areas. The EPA issued general guidance concerning the requirements for SIP submittals, which included requirements for CO nonattainment area SIPs, pursuant to Title I of the CAA (see generally, 57 FR 13498 (April 16, 1992), and 57 FR 18070 (April 28, 1992)). The air quality planning requirements for moderate and serious CO nonattainment areas are addressed in sections 186-187 respectively of the CAA, which pertain to the classification of CO nonattainment areas, as well as to the requirements for the submittal of both moderate and serious area SIPs.

The EPA has the responsibility for determining whether a nonattainment area has attained the CO NAAQS by the applicable attainment date. 1 In this case the EPA is required to make determinations concerning whether serious CO nonattainment areas attained the NAAQS by their December 31, 2000 attainment date. Pursuant to the CAA, the EPA is required to make attainment determinations for these areas by June 30, 2001, no later than 6 months following the attainment date for the areas. Therefore, this action is being taken to make a determination of attainment for a serious CO nonattainment area with a December 31, 2000 attainment date.

Section 179(c)(1) of the CAA provides that attainment determinations are to be based upon an area's “air quality as of the attainment date, and section 186(b)(2) is consistent with this requirement.” EPA will make the determination as to whether an area's air quality is meeting the CO NAAQS based upon air quality data gathered at CO monitoring sites in the nonattainment area which has been entered into the Aerometric Information Retrieval System (AIRS). This data is reviewed to determine the area's air quality status in accordance with EPA guidance at 40 CFR 50.8, and in accordance with EPA policy and guidance as stated in a memorandum from William G. Laxton, Director Technical Support Division, entitled “Ozone and Carbon Monoxide Design Value Calculations,” dated June 18, 1990.

The 8-hour CO design value is used to determine attainment of CO areas, and is computed by first finding the maximum and second maximum (non-overlapping) 8-hour values at a monitoring site for the most recent 2 years of air quality data. Then the maximum value of the second high values is used as the design value for the monitoring site. The CO NAAQS requires that not more than one 8-hour average per year can exceed 9.0 ppm (9 greater than or equal to 9.5 ppm to adjust for rounding). CO attainment is evaluated and determined by reviewing 8 quarters of data, or a total of 2 complete calendar years of data for an area. If an area has a design value that is greater than 9.0 ppm, this means that a monitoring site in the area, where the second highest (non-overlapping) 8-hour average was measured, was greater than 9.0 ppm in at least 1 of the 2 years being reviewed to determine attainment for the area. Then this indicates that there were at least two values which measured above the NAAQS for CO. Thus, the standard was not met in the area.

As stated above, the Anchorage CO nonattainment area was designated nonattainment for CO by operation of law upon enactment of the CAA Amendments of 1990. Under 186(a) of the CAA, each CO area designated nonattainment was also classified by operation of law as either “moderate” or “serious” depending on the severity of the area's air quality problem. States containing areas that were classified as moderate nonattainment were required to attain the CO NAAQS as expeditiously as practicable but no later than December 31, 1995. Anchorage received a one year extension to December 31, 1996, from the mandated attainment date of December 31, 1995, for moderate nonattainment areas. On June 12, 1998, EPA made a finding that Anchorage did not attain the CO NAAQS by the December 31, 1996 attainment date for the moderate nonattainment area. This finding is based on EPA's review of monitored air quality data for compliance with the CO NAAQS. As a result of this finding the Anchorage CO nonattainment area was reclassified as a serious CO nonattainment area by operation of law (see 62 FR 63687, (December 2, 1997)). As a result of this reclassification, the State was to attain the CO NAAQS as expeditiously as practicable but no later than December 31, 2000, the CAA attainment date for serious areas.

EPA is, by today's action, making the determination that the Anchorage serious CO nonattainment area did attain the CO NAAQS by the attainment date of December 31, 2000. As explained below, the Anchorage nonattainment area remains classified a serious CO nonattainment area, and today's action does not redesignate the Anchorage nonattainment area to attainment.

Alaska has four CO monitoring sites in the Anchorage CO nonattainment area. The air quality data in AIRS for these monitors show that, for the 2-year period from 1999 through 2000, there were no violations of the annual CO standard. The highest 8-hour annual average measured during this 2-year period was at the Trinity Christian Church monitoring site in 1999 where the 8-hour CO NAAQS average measured 7.8 ppm. Based on this information, EPA has determined that the area attained the CO NAAQS standard as of the attainment date of December 31, 2000.

In summary, EPA proposes to find that the Anchorage CO nonattainment area attained the CO NAAQS as of the attainment date of December 31, 2000. If we finalize this proposal, consistent with CAA section 188, the area will remain a serious CO nonattainment area with the additional planning requirements that apply to serious CO nonattainment areas. This proposed finding of attainment should not be confused with a redesignation to attainment under CAA section 107(d). Alaska has not submitted a maintenance plan as required under section 175A(a) of the CAA or met the other CAA requirements for redesignation to attainment. The designation status in 40 CFR part 81 will remain serious nonattainment for the Anchorage CO nonattainment area until such time as EPA finds that Alaska has met the CAA requirements for redesignations to attainment.

We are soliciting public comments on EPA's proposal to find that the Anchorage CO nonattainment area has attained the CO NAAQS as of the December 31, 2000, attainment date. These comments will be considered before taking final action. Interested parties may participate in the Federal rulemaking process 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. This proposed action merely makes a determination based on air quality data and does not impose any requirements. 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 proposed rule does not impose any enforceable duty, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 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 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 makes a determination based on air quality data 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.

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. ).

This is a synopsis of the Commission's Report and Order, MM Docket No. 01-58, adopted May 2, 2001, and released May 11, 2001. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center (Room CY-A257), 445 Twelfth Street, SW., Washington, DC 20036, (202) 857-3800. The complete text of this decision may also be purchased from the Commission's copy contractor, International Transcription Service, Inc., 1231 20th Street, NW., Washington, D.C. 20036, (202) 857-3800.

NHTSA has been petitioned by the Heavy Duty Brake Manufacturers Council (HDBMC) to delay implementation of the in-cab warning lamp requirements in FMVSS No. 121. These requirements became effective March 1, 2001. The HDBMC petition dated January 16, 2001, asked for a one-year extension to March 1, 2002. The requirements apply to air-braked vehicles that tow or are towed by other air-braked vehicles, such as tractors, trucks, trailers, and converter dollies. The in-cab warning lamp provides the driver with an indication on the truck instrument panel that there is a malfunction in the ABS of a towed vehicle, so that the driver can identify such malfunctions and have them corrected. The requirements for ABS malfunction signaling between towed and towing vehicles were originally adopted in a final rule issued on March 10, 1995 (60 FR 13216). These requirements underwent slight revisions and were finalized in their present form in a final rule issued on May 31, 1996 (61 FR 27288).

In 1997, the industry formed the PLC-4-TRUCKS consortium to develop a system to transmit the trailer ABS malfunction signals between towing and towed vehicles. The industry believed that the systems commercially-available at that time did not meet all of the industry's needs, which include the ability of the system to be incorporated into the ABS electronic control units installed on the subject vehicles; the availability of a system that is not proprietary and thus any manufacturer could produce the needed components; and the ability of the system to work within the existing wiring common among heavy-duty tractors and trailers.

The PLC-4-TRUCKS system that was developed by the consortium uses computer chips manufactured by Intellon Corporation that provide spread-spectrum data communications capability over a power line, or power line carrier (PLC). These chips, which are used in other commercial applications, were adapted to heavy-duty truck use and through the PLC-4-TRUCKS consortium, a communications protocol was developed. As HDBMC states in their petition, Alan Lesesky of VES Corporation was granted a patent in October, 2000, which covers the use of spread-spectrum data communications on tractor-trailer applications, and subsequently VES filed a lawsuit against Intellon alleging patent infringement issues. Prior to filing the lawsuit, VES offered licensing agreements to the manufacturers of heavy-duty ABS systems to enable them to use this technology. As stated in the petition, the HDBMC believes that the licensing fees proposed by VES are commercially unreasonable and inconsistent with past licensing arrangements for products covered by Society of Automotive Engineers (SAE) or NHTSA standards.

NHTSA notes that as early as 1998, the agency was prepared to initiate rulemaking to mandate one of the commercially-available systems for the purpose of communicating trailer ABS warning lamp signals, to ensure that the industry would comply with the March 1, 2001 compliance date. However, the agency was assured by the industry that the PLC-4-TRUCKS solution was indeed that way that the industry wanted to go and that such a mandate was unnecessary. The agency heeded the industry's recommendations and subsequently did not begin the rulemaking process for such a mandate.

NHTSA contacted VES and Intellon attorneys for an update on the lawsuit by VES against Intellon. The attorney for VES indicated that one of the HDBMC member companies, Eaton Corporation, had negotiated and signed a licensing agreement with VES to use the spread-spectrum technology for trailer ABS warning lamp purposes. The VES attorney indicated that he believed other ABS manufacturers would follow suit. The agency believes that if suitable licensing agreements are made between the ABS manufacturers and VES, then the lawsuit would be terminated so that manufacturing the PLC-4-TRUCKS system with the Intellon computer chips could resume.

The agency therefore denies the petition for a one-year extension of the March 1, 2001, compliance date for trailer ABS malfunction signals. The technology is available to transmit the trailer ABS malfunction signals. The agency believes that this issue is a business matter that the ABS suppliers need to work out with appropriate parties, including Intellon, VES, and the vehicle manufacturers to whom they sell their products. The agency notes that it was prepared to mandate one of the older, commercial systems on the market, but the agency was persuaded not to do so. Under these circumstances the fact that the vehicle manufacturers do not want to pay the amount proposed by VES is not an adequate basis to extend the effective date. Further, the agency notes that the cost of ABS in general has decreased significantly (i.e., a factor of two or three) compared to ABS costs prior to the tractor ABS mandate of March 1, 1997, and that the cost to incorporate the trailer ABS malfunction signaling would only amount to a small increase in the cost of current ABS equipment.

Currently, regulations pertaining to general provisions of the Magnuson-Stevens Act related to Council operations are contained in title 50 of the Code of Federal Regulations (CFR). NMFS is proposing to update part 600 (Regional Fishery Management Councils, subpart B, and Council Membership, subpart C), to codify important provisions of the recently withdrawn Council Operations and Administration Handbook (Handbook), which was a reference guide that compiled various requirements of the Magnuson-Stevens Act and other applicable law, as well as policy guidance. Some of the guidance contained in the Handbook consisted of regulations that were removed from title 50 of the CFR at the time the Handbook was developed. NMFS is proposing to reinstate some of those former regulations because they are not contained elsewhere and they are necessary for the Councils to function. Other proposed additions and revisions reflect necessary policy changes that were not contained in the Handbook, and were not previously in regulation.

1. The topic of compensation for Council staff (not Council members) would be added at § 600.120, noting that Council pay rates must be consistent with the pay rates established for General Schedule Federal employees or the alternative personnel management system for the U.S. Department of Commerce (62 FR 67434; December 24, 1997). The Councils have the discretion to adjust pay rates and pay increases for cost of living (COLA) and other adjustments, but no pay adjustment may exceed the applicable percentage of salary for COLA and locality pay available to Federal employees in the same geographic area. In addition, the regulations would prohibit salary increases funded in lieu of life and medical/dental policies, a former regulation that was contained in the Handbook. Other additions at § 600.120 that reinstate former regulations include fair hiring practices and the hiring of an independent legal counsel.

2. The topic of payment for unused sick and annual leave would be added at § 600.120. It would provide that unused sick leave may be accumulated to a maximum as established by the Council. It also provides for the distribution of accumulated funds for unused sick leave to the employee upon his or her retirement, or their estate upon his or her death, as established in the Council’s Statement of Organization, Practices, and Procedures (SOPP). Each Council may pay for unused annual leave upon separation, retirement, or death of an employee.

3. A requirement would be added under § 600.125 regarding agreements, including grants, contracts, or cooperative agreements. Councils may not independently enter into agreements in which they will receive funds, and all such agreements must be approved and entered into by NOAA on behalf of the Council. A policy that was contained in the Handbook regarding the receipt of gifts or contributions would also be added at § 600.125.

4. Policies in the Handbook regarding meeting notification, meeting closures, and voting procedures that were also former regulations would be added at § 600.135.

5. A policy that was contained in the Handbook regarding the disposition of records that was also a former regulation would be added at § 600.150.

6. A policy contained in the Handbook regarding responding to Freedom of Information Act requests that was also a former regulation would be added at § 600.155.

7. The constituent states of the eight Regional Fishery Management Councils are represented by “principal state officials” designated by their Governors. Each principal state official under section 302(b) of the Magnuson-Stevens Act is currently required to be employed, on a full-time basis, in a position related to the development of fisheries management policies for that state. The proposed rule would amend the language at § 600.205 so that a designee of that official would not have to be a full-time employee of the state, with the aforementioned responsibilities, but must be a resident of the state and knowledgeable and experienced in the fishery resources of the geographic area of concern to the Council. This would grant greater flexibility to the principal state official in selecting a designee, who may have the expertise and ability to serve, but might not be a full-time state employee.

8. Section 302(d) of the Magnuson-Stevens Act establishes GS-15, step 7 General Schedule as a Council member's daily pay rate. This proposed rule would remove § 600.245(a) which is inconsistent with the statutory provision.

This action has been determined to be not significant for purposes of E.O. 12866.

The Chief Counsel for Legislation and Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities in the fishing industry. This proposed rule does not affect any small entities. Rather, it establishes procedures or guidelines for the administration of the Councils. The Councils are established under the Magnuson-Stevens Act and are not a small business, small organization, or a small government jurisdiction, as these terms are defined in the Regulatory Flexibility Act, 5 U.S.C 601 et seq.

NMFS has analyzed this proposed rule in accordance with the criteria of the National Environmental Policy Act (NEPA). This proposed rule does not constitute a major Federal action significantly affecting the quality of the human environment because it only provides notice and comment on agency procedure or practice (i.e., procedures and guidelines for the administration of Councils). NMFS has determined that issuance of this policy qualifies for a categorical exclusion as defined by NOAA 216-6 Administrative Order, Environmental Review Procedures

This rule contains no collection-of-information requirements subject to the Paperwork Reduction Act.

Fisheries, Fishing.

The Fishery Management Plan for Summer Flounder, Scup, and Black Sea Bass Fisheries (FMP) and its implementing regulations (50 CFR part 648, subparts G, H, and I) describe the process for specifying annual recreational measures. The FMP has established Monitoring Committees (Committees) for each of the three fisheries, consisting of representatives from the Atlantic States Marine Fisheries Commission (Commission), the Mid-Atlantic Fishery Management Council (Council), the New England and South Atlantic Fishery Management Councils, and NMFS. The FMP and its implementing regulations require the Committees to review annually scientific and other relevant information, and to recommend measures necessary to achieve the recreational harvest limits established for the summer flounder, scup, and black sea bass fisheries. The FMP limits these measures to minimum fish sizes, possession limits, and closed seasons. The Council’s Demersal Species Committee and the Commission’s Summer Flounder, Scup, and Black Sea Bass Board (Board) then consider the Committees’ recommendations and any public comment in making their recommendations to the Council and the Commission, respectively. The Council then reviews the recommendations of the Demersal Species Committee, makes its own decision, and forwards its recommendation to NMFS.

For several reasons the rulemaking process that would have established recreational measures for these fisheries for the year 2000 was not completed. NMFS published proposed measures for summer flounder and black sea bass on August 16, 2000 (65 FR 49959) with comments accepted through September 15, 2000. In the meantime, the Council had met in August 2000 to begin the process for the fishing year that began January 1, 2001. NMFS determined that publication of measures for 2000 so late in the year would provide no conservation benefit and could create confusion; therefore, NMFS did not publish a final rule.

Final specifications for the 2001 scup and black sea bass fisheries were published at 66 FR 12902, March 1, 2001, and for the summer flounder fishery at 66 FR 16151, March 23, 2001. These specifications included a coastwide recreational harvest limit of 7.16 million lb (3.25 million kg) for summer flounder, 1.77 million lb (0.803 million kg) for scup, and 3.148 million lb (1.43 million kg) for black sea bass. Those specifications did not establish recreational measures since final recreational catch data were not available when the Council made its recreational harvest limit recommendation to NMFS.

The final specifications established a Total Allowable Landings (TAL) for summer flounder of 17.91 million lb (8.125 million kg), consistent with the emergency action taken on August 2, 2000 (65 FR 47648), in response to the April 25, 2000, Court Order in NRDC v. Daley . The specifications divided the summer flounder TAL into a commercial quota of 10.75 million lb (4.877 million kg) and a recreational harvest limit of 7.16 million lb (3.248 million kg).

Although NMFS did not publish final Federal recreational measures for 2000, most of the coastal states from Maine through North Carolina, acting under the Commission’s Interstate Fishery Management Plan (IFMP), implemented a 15.5-inch (39.37-cm) total length (TL) minimum fish size, an 8-fish possession limit, and an open season from May 10 through October 2. Despite these measures, 2000 Marine Recreational Statistics Survey (MRFSS) data project recreational summer flounder landings to be 15.63 million lb (7.09 million kg), or more than double the established recreational harvest limit of 7.41 million lb (3.36 million kg) for 2000. Assuming recreational fishing effort in 2001 will be similar to 2000, the recreational measures need to reduce summer flounder recreational landings in 2001 by approximately 54 percent to achieve this recreational harvest limit. Therefore, the recreational measures need to further constrain the recreational summer flounder harvest in 2001.

In a meeting held on April 3, 2001, with NMFS, environmental groups, and other stakeholders, the Commission adopted a summer flounder quota consistent with the emergency action. In addition, the Commission’s Summer Flounder Board chose to calculate the reduction needed in 2001 based on an average of recreational landings for the past 3 years (1998-2000), rather than on estimated 2000 landings (15.63 million lb (7.09 million kg)). By basing the 2001 reductions on this 3-year average of 12.16 million lb (5.52 million kg), the Commission will enact measures to achieve a 41-percent, as opposed to a 48-percent, reduction in recreational landings.

The Council recommended the following measures to NMFS at its December 12-14, 2000, meeting to achieve its 7.16 million-lb (3.248 million-kg) harvest limit: A 15.5-inch (39.27-cm) minimum fish size, a 3-fish possession limit, and an open season from May 25 through September 4 (i.e., a closed season from January 1 through May 24 and from September 5 through December 31). These measures should reduce recreational landings by approximately 53 percent, assuming they are complied with 85 percent of the time.

NMFS did not issue final recreational measures for scup in 2000. On January 12, 2000, the Council submitted its recommended annual recreational measures for scup to NMFS. The Council’s submission included proposed scup measures of a 7-inch (17.78-cm) TL minimum fish size, a 50-fish possession limit, and no closed season for 2000. After careful review, NMFS rejected the Council’s proposed scup measures on March 10, 2000, because the Council’s submission indicated the proposed scup measures would result in landings in excess of the recreational harvest limit established for 2000. The Council did not submit revised measures for scup.

Although NMFS rejected the proposed scup measures submitted by the Council, many coastal states from Maine to North Carolina implemented these measures under the Commission’s IFMP. MRFSS data project 2000 recreational scup landings to be 5.197 million lb (2.357 million kg), or more than four times greater than the recreational harvest limit established for 2000 (1.24 million lb (0.56 million kg)). Assuming recreational effort in 2001 is the same as 2000, the recreational measures need to reduce scup recreational landings in 2001 by approximately 66 percent to achieve the recreational harvest limit for 2001.

At its January 23-24, 2001, meeting, the Commission voted to calculate the reduction needed in 2001 based on an average of recreational scup landings for the past 3 years (1998-2000), rather than on estimated 2000 landings (5.197 million lb (2.357 million kg)). By basing the 2001 reductions on this 3-year average of 2.657 million lb (1.205 million kg), the Commission will enact measures to achieve about a 33-percent, as opposed to a 66-percent, reduction in recreational landings.

At its December 12-14, 2000, meeting, the Council recommended the following recreational measures for scup to achieve the recreational harvest limit: A 9-inch (22.86 cm) TL minimum fish size, a 50-fish possession limit, and an open season from August 15 through October 31 (i.e., a closed season from January 1 through August 14 and from November 1 through December 31). These measures should reduce recreational scup landings by approximately 60 percent, assuming they are complied with 85 percent of the time.

The final specifications for 2001 for black sea bass established a recreational harvest limit of 3.15 million lb (1.43 million kg), the same as for 2000. MRFSS data project 2000 black sea bass landings to be 4.291 million lb (1.95 million kg), or 36 percent greater than the harvest limit established for 2000. Assuming recreational effort in 2001 is similar to 2000, the recreational measures need to reduce black sea bass recreational landings by approximately 27 percent to achieve the harvest limit established for 2001.

At its December 12-14, 2000, meeting, the Council recommended the following measures to NMFS to achieve the recreational harvest limit: An 11-inch (27.94-cm) TL minimum fish size, a 25-fish possession limit, and an open season from January 1 through February 28 and from May 10 through December 31 (i.e., a closed season from March 1 through May 9). At this meeting, the Commission’s Black Sea Bass Board recommended the same measures to the Commission. These measures should reduce black sea bass landings by approximately 26 percent in 2001, assuming they are complied with 85 percent of the time.

This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

The Council and NMFS prepared an IRFA that describes the economic impact this proposed rule, if adopted, would have on small entities. A copy of the complete IRFA can be obtained from the Northeast Regional Office of NMFS (see ADDRESSES ) or via the Internet at http://www.nero.nmfs.gov/ro/doc/nero.html . A summary of the analysis follows:

This preamble includes a description of the action, why it is being considered, and the legal basis for this action. This proposed rule does not duplicate, overlap, or conflict with other Federal rules.

The Council’s IRFA analysis examined the economic impacts of three alternative sets of recreational management measures for the summer flounder, scup, and black sea bass fisheries: A preferred alternative and two non-preferred alternatives. The preferred alternative consists of the measures recommended by the Council for the summer flounder, scup and black sea bass fisheries and is included in this proposed rule. Non-preferred Alternative 1 consists of measures recommended by the Monitoring Committees for summer flounder and scup and of a restrictive set of alternative black sea bass measures. Non-preferred Alternative 2 would maintain 2000 measures for all three fisheries (status-quo).

The category of small entities likely to be affected by this action are party/charter vessels harvesting summer flounder, scup, and/or black sea bass. This action could affect any party/charter vessel holding a Federal permit for summer flounder, scup, and/or black sea bass, regardless of whether they are fishing in Federal or in state waters. The Council estimates that the proposed measures could affect 694 vessels with a Federal charter/party permit for summer flounder, scup and/or black sea bass. Only 364 of these vessels reported actively participating in the recreational summer flounder, scup, and/or black sea bass fisheries in 1999.

The Council’s analysis assessed various management measures from the standpoint of determining the changes in revenue on party/charter vessels. Since data on costs and revenues were not available, the analysis estimated revenues for party/charter vessels participating in the summer flounder, scup and/or black sea bass fisheries by employing various assumptions. The Council analyzed the effects of measures by employing quantitative approaches to the extent possible. Where quantitative data were not available, the Council conducted qualitative analysis.

Projected MRFSS data indicate that an estimated 1.626 million trips were taken by anglers aboard party/charter vessels in 2000 in the Northeast Region. The summer flounder recreational measures proposed under the preferred alternative for the 2001 fishing year would have affected about 2.64 percent of those trips in 2000. Specifically, 42,916 angler trips taken aboard party/charter vessels in 2000 landed at least one summer flounder that was smaller than 15.5 inches (39.7 cm) TL, or landed more than 3 summer flounder, or landed at least one summer flounder during the proposed closed season (January 1 to May 24 and September 5 to December 31). Assuming that angler effort and catch rates in 2001 are similar to 2000, the analysis projects the proposed reduction in the summer flounder possession limit and extension of the closed season to affect approximately 2.64 percent of the party/charter fishing effort in 2001. The analysis estimates vessel revenues associated with these trips by multiplying the number of potentially affected trips in 2001 (42,916) by the average fee paid by anglers in the Northeast region ($39.09). The average party/charter fee for 2001 is based on the average fee paid by anglers in 1998 calculated from information collected through an economic supplement to the NMFS MRFSS. As a result, total potential revenue loss could be up to $1,677,586 (42,916 x $39.09). Assuming the same number of party/charter vessels that participated in 1999 (318 vessels) would also participate in the summer flounder fishery in 2001, the average potential revenue loss per vessel for the preferred alternative could be up to $5,275 ($1,677,586/318).

Under the first non-preferred summer flounder alternative (16-inch minimum fish size, 3-fish possession limit, and an open season), the analysis estimated that 2.72 percent of trips aboard party/charter vessels would be affected, assuming angler effort and catch rates in 2001 are similar to 2000. Specifically, the analysis projects 44,216 angler trips taken aboard party/charter vessels in 2001 to land at least one summer flounder smaller than 16 inches (40.64 cm) TL, land more than 3 summer flounder, or land at least one summer flounder during the proposed closed season (January 1 to May 17 and September 15 to December 31). Total party/charter revenues associated with these trips are estimated to be $1,728,403 (44,216 x $39.09). Assuming the same number of party/charter vessels will participate in the 2001 summer flounder fishery that participated in 1999 (318 vessels), the average potential revenue loss per vessel for the first non-preferred alternative could be up to $5,435 ($1,728,403 divided by 318).

Losses of this magnitude (as estimated for the preferred and first non-preferred alternatives) are unlikely to occur, given that anglers will continue to have the ability to engage in catch and release fishing for summer flounder and that numerous alternative target species are available to anglers. Unfortunately, very little information is available to empirically estimate how sensitive the affected party/charter boat anglers might be to the proposed regulations. In addition, only 7.3 percent of recreational summer flounder landings come from the Exclusive Economic Zone (EEZ). Federal measures apply to federally permitted vessels wherever they fish. However, the states, through the Commission, will likely implement different measures for summer flounder, since the Commission has adopted a “target” that is a smaller percent reduction in landings in 2001 (compared to 2000) than that adopted by the Council for 2001. Given these factors, the demand for recreational party/charter trips targeting summer flounder should not be significantly affected by the preferred and first non-preferred alternatives. Thus, the monetary impacts per vessel should be considerably lower than estimated above.

The second non-preferred summer flounder alternative maintains the status quo at a 15.5-inch (39.37 cm) TL minimum fish size, an 8-fish possession limit, and an open season from May 10 to October 2. Although NMFS did not publish a final rule implementing these measures, most of the coastal states from Maine to North Carolina implemented these measures in 2000. Assuming that angler effort in 2001 is similar to that in 2000 and that catch rates remain constant, this alternative would not affect any additional recreational fishing trips for summer flounder in 2001.

For scup, the analysis projected that the preferred 2001 recreational measures would affect approximately 1.44 percent of the total angler trips taken aboard party/charter vessels in 2001, assuming catch rates and angler effort in 2001 are similar to those in 2000. Specifically, the analysis projected 23,409 angler trips taken aboard party/charter vessels in 2001 to land at least one scup that is smaller than 9 inches (22.86 cm) TL, land more than 50 scup, or land at least one scup during the proposed closed season (January 1 to August 14 and November 1 to December 31). The analysis estimated vessel revenues associated with these trips by multiplying the average fee paid by anglers in Northeast region ($39.09) by the affected trips (23,409). Thus, party/charter vessels could lose total revenues up to $915,058 (23,409 x $39.09) as a result of the preferred management measures. Analysis of Northeast logbook data for 1999 indicated that 126 party/charter vessels participated in the scup fishery. Assuming that the same number of vessels participate in the scup fishery in 2001, the average potential revenue loss per vessel for the preferred alternative could be up to $7,262 ($915,058 divided by 126).

The analysis projects that management measures proposed under the first non-preferred alternative for scup would affect approximately 1.4 percent of the total angler trips taken aboard party/charter boats in 2001, assuming that catch rates and angler effort in 2001 are similar to those in 2000. Specifically, the analysis projects that 22,898 angler trips taken aboard party charter vessels in 2001 would land at least one scup that is smaller than 9 inches (22.86 cm) TL, land more than 15 scup, or land at least one scup during the proposed closed season (January 1 to June 30 and September 30 to December 31). Total party/charter revenues associated with these trips are estimated to be $895,083 (22,898 x $39.09). Assuming the same number of party/charter vessels will participate in the 2001 scup fishery that participated in 1999 (126 vessels), the average potential revenue loss per vessel for the first non-preferred alternative could be up to $7,104 ($895,083 divided by 126).

Losses of this magnitude (as estimated for the preferred and first non-preferred alternatives) are unlikely to occur for the same reasons noted earlier for summer flounder (catch and release, alternative species). Furthermore, the states, through the Commission, will be implementing alternative measures for scup. The Commission voted to enact measures to reduce scup landings by only 33 percent based on average landings over the past 3 years at its January 23-24, 2001, meeting. While a larger portion of the recreational scup fishery occurs in the EEZ than in the case of summer flounder, recreational fishermen catch only 13.4 percent of recreational scup landings from the EEZ. Given these factors, the demand for recreational party/charter trips targeting scup should not be significantly affected by the preferred and first non-preferred alternatives. Thus, the monetary impacts per vessel should be considerably lower than estimated above.

The second non-preferred alternative for scup maintains the status quo at a 50-fish possession limit, a 7-inch (17.78 cm) TL minimum fish size, and no closed season. Although NMFS did not publish a final rule implementing these measures, most of the coastal states from Maine to North Carolina implemented these measures in 2000. Assuming that angler effort in 2001 is similar to that in 2000 and that catch rates remain constant, the second non-preferred alternative would not affect any additional recreational fishing trips for scup in 2001.

For black sea bass, the analysis estimated that 0.09 percent of the trips aboard party/charter vessels in 2000 (1.626 million trips) would have been affected by the preferred 2001 recreational measures, assuming catch rates and angler effort in 2001 are similar to those in 2000. In other words, the analysis projects that 1,463 angler trips aboard party/charter vessels in 2001 would land at least one black sea bass that is smaller than 11 inches (27.94 cm) TL, land more than 25 black sea bass, or land at least one black sea bass during the proposed closed season (March 1 through May 9). The analysis determined total party/charter vessel revenues associated with these trips by multiplying the number of potentially affected trips in 2001 (1,463) by the average fee paid by anglers ($39.09). Thus, adoption of the preferred management measures could reduce total party/charter vessel revenues by up to $57,189 (1,463 x $39.09). Analysis of Northeast logbook data indicated that 261 party/charter vessels participated in the recreational black sea bass fishery in 1999. Assuming the same number of vessels will participate in this fishery in 2001, the average potential revenue loss per vessel for the preferred alternative could be up to $219 ($57,189 divided by 261).

Under the first non-preferred black sea bass alternative, the analysis estimated that 0.83 percent of the trips aboard party/charter vessels in 2000 would have been affected by these measures in 2001, assuming catch rates and angler effort in 2001 are similar to those in 2000. In other words, the analysis projects that 13,492 angler trips taken aboard party/charter vessels in 2001 would land at least one black sea bass that is smaller than 10 inches (25.4 cm) TL, land more than 15 black sea bass, or land at least one black sea bass during the proposed closed season (January 1 through May 31 and November 25 through December 31). The analysis determined total party/charter vessel revenues associated with these trips to be $527,402 (13,492 x 261). Assuming the same number of vessels will participate in the black sea bass fishery in 2001 as in 2000 (261 vessels), the average potential revenue loss per vessel for the first non-preferred alternative could be up to $2,021 ($527,402 divided by 261).

Losses of this magnitude (as estimated for the preferred and first non-preferred alternatives) are unlikely to occur for the same reasons noted earlier for summer flounder (catch and release, alternative species).

The second non-preferred alternative for black sea bass maintains the status quo at a 10-inch (25.4 cm) TL minimum fish size with no size or possession limits. Although NMFS did not publish a final rule implementing these measures, most coastal states from Maine to North Carolina implemented these measures in 2000. Assuming angler effort in 2001 is similar to that in 2000 and catch rates remain constant, the second non-preferred alternative would not affect any additional recreational fishing trips for black sea bass in 2001.

The domestic groundfish fisheries in the EEZ off Alaska are managed by NMFS under the FMPs. The FMPs were prepared by the North Pacific Fishery Management Council (Council) under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Regulations governing the Alaska groundfish fisheries appear at 50 CFR parts 600 and 679. This proposed action would clarify the definition of vessel LOA, remove the definitions of stem and stern, and add a definition for bulwarks.

Presently, the definition of LOA requires measurement from the “foremost part of the stem” to the “aftermost part of the stern.” As illustrated by Figure 6 of 50 CFR part 679, this definition is intended to be an end-to-end measurement of the vessel and implicitly include the bulwarks of a vessel. For purposes of commercial fishing in the EEZ off Alaska, vessel LOA was first defined by the final rule implementing the observer program (55 FR 4839, February 12, 1990). Figure 6 was added to 50 CFR part 679 by a subsequent interpretive rule and technical amendment (57 FR 43621, September 22, 1992) that intended to clarify that definition. Although NMFS does not explicitly mention the term “bulwarks” in that interpretive rule/technical amendment, the preamble to the rule provides a technical description and interpretation of the term “stem” as “the foremost position of the vessel, a section of timber or cast, forged, or rolled metal to which the sides of a vessel are united at the fore end” (57 FR 43622). The illustration amended to the regulations as Figure 6 clearly depicts the inclusion of bulwarks in LOA measurement. NMFS intended the interpretative language and the illustration of Figure 6 to clarify the definition of LOA to include bulwarks. Moreover, NMFS enforcement policy has always included in any LOA measurement bulwarks that constitute the foremost or aftermost part of a vessel.

NMFS recognizes now that the definition of LOA still requires clarification. Despite the visual representation of bulwarks as part of the LOA in Figure 6, the language of the former interpretative rule is overly technical and the terms “stem” and “stern” remain open to misinterpretation. This action would remove “stem” and “stern” from the definition of LOA, add the term “bulwarks,” and thus clarify the original intent of the regulation that LOA measurement be an end-to-end measurement of a vessel.

Maritime regulations of other Federal agencies such as the USCG often use similar terminology to define LOA. However, the terms “foremost part of the stem” and “aftermost part of the stern” may or may not implicitly include bulwarks in the definition of overall vessel LOA. Federal regulators define LOA differently for different purposes. For instance, USCG regulations at 46 CFR 69.203 use LOA to categorize vessels by buoyant hull volume, which cannot include structures such as bulwarks that are open to the weather and thus constitute no part of a vessel’s buoyant hull envelope. These two different uses of the terms “foremost part of the stem” and “aftermost part of the stern” create the potential for confusion and inconsistent application of the LOA measurement by the regulated public.

For purposes of managing fisheries, vessel LOA provides NMFS with one criterion by which to categorize and manage the diverse capacities and capabilities of fishing vessels operating in Federal waters off Alaska. Distinguishing vessels by LOA categories allows NMFS to assign harvesting privileges in ways that ensure that fishing fleets remain relatively diversified between larger and smaller vessels and prevent over-consolidation of fishing privileges among any one sector of the fisheries, as well as to manage the growth of harvest capacity in a fishery and protect the historical character of a fishery and its dependent communities.

LOA categories also allow NMFS to assess the relative ability of fishermen to afford the cost of certain regulatory requirements, such as those requiring observer coverage.

Moreover, NMFS enforcement officers and USCG personnel charged with monitoring the fisheries for compliance with regulations require a practical definition of LOA that will facilitate the measurement of LOA. Despite the difficulty of measuring LOA during fishing operations, enforcement officers do take such measurements at dockside or at sea to ensure a vessel’s compliance with regulatory requirements, such as observer coverage requirements. Bulwarks are a clearly visible part of a vessel’s size; as such, including them in LOA measurement would make a vessel’s length easier to ascertain from dockside or while the vessel is at sea.

For these reasons, NMFS proposes to revise the definition of LOA to explicitly include bulwarks, remove the definitions of “stem” and “stern,” and add a definition of “bulwark” to the definitions in 50 CFR 679.2. This action would not require a vessel owner to change the recorded LOAs of a vessel already registered with NMFS, provided the vessel’s LOA accurately reflects the vessel’s end-to-end measurement as shown in Figure 6 of 50 CFR part 679. This figure accurately depicts the end-points of LOA measurement. This action would prevent future misinterpretation of the regulatory definition of LOA.

This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

NMFS prepared an IRFA that analyzes the potential impact of this proposed action on small entities for purposes of the Regulatory Flexibility Act. While this action is intended simply to clarify the existing definition of LOA and thus prevent any misunderstanding or equivocation by vessel owners in determining a vessel’s LOA. Some of the 1,613 vessels currently operating in the EEZ off Alaska under Federal Fisheries Permits may find their registered LOAs to be inconsistent with the regulatory definition of LOA. Vessels failing to have correct LOA measurements may incur costs associated with remeasuring their LOA. Unfortunately, at this time, NMFS has insufficient data to assess the actual number of such vessels affected in this manner, but it believes most LOAs are accurate.

However, vessels that are near observer coverage thresholds, (125 ft or 60 ft, as applicable) may incur considerable cost if it is determined that their LOA is incorrect and that they should actually be subject to a higher level of observer coverage. Approximately 38 vessels with recorded LOA measurements of 124, 123,and 122 ft may be subject to more stringent observer requirements if their LOAs are actually 125 ft or greater. Approximately 156 vessels with LOA measurements of 57, 58, and 59 ft may be subject to more stringent observer requirements if their LOAs are actually 60 ft or greater. Such vessels could incur costs of $300/day for an observer.