[Federal Register Volume 66, Number 154 (Thursday, August 9, 2001)]
[Proposed Rules]
[Pages 41817-41822]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-20017]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 9, 122, 123, 124, and 130

[WH-FRL-7024-6]
RIN 2040-AD22


Delay of Effective Date of Revisions to the Water Quality 
Planning and Management Regulation and Revisions to the National 
Pollutant Discharge Elimination System Program in Support of Revisions 
to the Water Quality Planning and Management Regulations; and Revision 
of the Date for State Submission of the 2002 List of Impaired Waters

AGENCY: Environmental Protection Agency.

ACTION: Notice of proposed rulemaking.

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SUMMARY: Today's action proposes to delay by 18 months the effective 
date of a rule published in the Federal Register on July 13, 2000. The 
July 2000 rule amends and clarifies existing regulations implementing 
section 303(d) of the Clean Water Act (CWA), which requires States to 
identify waters that are not meeting State water quality standards and 
to establish pollutant budgets, called Total Maximum Daily Loads 
(TMDLs), to restore the quality of those waters. The rule also lays out 
specific time frames under which EPA will assure that lists of waters 
not meeting water quality standards (the 303(d) lists) and TMDLs are 
completed as scheduled, and necessary National Pollutant Discharge 
Elimination System (NPDES) permits are issued to implement TMDLs.
    The July 2000 rule generated considerable controversy, as expressed 
in letters, testimony, public meetings, Congressional action, and 
litigation. Congress prohibited EPA from implementing the final rule 
through a spending prohibition attached to the

[[Page 41818]]

Military Construction Appropriations Act: FY 2000 Supplemental 
Appropriations. This provision prohibited EPA from using funds made 
available for fiscal years 2000 and 2001 ``to make a final 
determination on or implement'' the July 2000 TMDL rule. The spending 
prohibition is scheduled to expire on September 30, 2001 and, barring 
further action by Congress or EPA, the rule will go into effect 30 days 
later on October 30, 2001.
    Based on the concerns expressed by many interested organizations 
and in light of a recent report from the National Research Council 
(NRC), entitled ``Assessing the TMDL Approach to Water Quality 
Management,'' which recommends changes to the TMDL program, EPA 
believes that it is important at this time to re-consider some of the 
choices made in the July 2000 rule. While continuing to operate the 
program under the 1985 TMDL regulations, as amended in 1992. A delay of 
the effective date would allow the Agency to solicit and carefully 
consider suggestions on how to structure the TMDL program to be 
effective and flexible and to ensure that it leads to workable 
solutions that will meet the Clean Water Act goals of restoring 
impaired waters. In addition, EPA believes that its decision 
voluntarily to reconsider the July 2000 rule may result in revisions to 
the rule that would resolve at least some of the issues raised in 
pending litigation in the D.C. Circuit Court of Appeals. Instead of 
expending resources in lengthy litigation, EPA believes it can speed up 
the process of putting in place a more workable program, while building 
a foundation of trust among stakeholders in the basic process for 
restoring impaired waters. Once this foundation is soundly built, it is 
far more likely that diverse stakeholders will be able to agree on 
plans for restoring water quality and far more likely that these 
important plans will be implemented.
    In addition, in response to the NRC report, today's action proposes 
to revise the date on which States are required to submit the next list 
of impaired waters. EPA is proposing to revise the date from April 1, 
2002 to October 1, 2002. This delay is intended to provide time for EPA 
to issue guidance incorporating some of the NRC's recommendations 
regarding the methodology used to develop the list and the content of 
the list.

DATES: Written comments on this proposed rule should be submitted by 
September 10, 2001. Comments provided electronically will be considered 
timely if they are submitted by 11:59 P.M. September 10, 2001.

ADDRESSES: You may send written comments on this proposed rule to the 
W-98-31-III TMDL Comments Clerk, Water Docket (MC-4101); U.S. 
Environmental Protection Agency; 1200 Pennsylvania Ave., NW, 
Washington, DC 20460. Comments may be hand-delivered to the Water 
Docket, U.S. Environmental Protection Agency; 401 M Street, SW; EB-57; 
Washington, DC 20460; (202) 260-3027 between 9 a.m. and 4:00 p.m. 
Eastern Time, Monday through Friday excluding legal holidays. Comments 
may be submitted electronically to [email protected]. The proposed rule 
and supporting documents are available for review in the Water Docket 
at the above address. An electronic version of this proposal will be 
available via the Internet at: http://www.epa.gov/OWOW/tmdl/delay.

FOR FURTHER INFORMATION CONTACT: For information about today's 
proposal, contact: Francoise M. Brasier, U.S. EPA Office of Wetlands, 
Oceans and Watersheds (4503F), U.S. Environmental Protection Agency, 
1200 Pennsylvania Avenue, NW., Washington, DC 20460, phone (202) 401-
4078.

SUPPLEMENTARY INFORMATION:

A. Authority

    Clean Water Act sections 106, 205(g), 205(j), 208, 301, 302, 303, 
305, 308, 319, 402, 501, 502, and 603; 33 U.S.C. 1256, 1285(g), 
1285(j), 1288, 1311, 1312, 1313, 1315, 1318, 1329, 1342, 1361, 1362, 
and 1373.

B. Entities Potentially Regulated by the Proposed Rule

                 Table of Potentially Regulated Entities
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                                             Examples of potentially
                Category                        regulated entities
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Governments............................  States, Territories and Tribes
                                          with CWA responsibilities.
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    The table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. This table lists the types of entities that EPA is now aware 
could potentially be regulated by this action. Other types of entities 
not listed in this table could also be regulated by this action. To 
determine whether you may be regulated by this action, you should 
carefully examine the applicability criteria in Sec. 130.20 of title 40 
of the Code of Federal Regulations. If you have any questions regarding 
the applicability of this action to you, consult the person listed in 
the FOR FURTHER INFORMATION CONTACT section.

C. Additional Information for Commenters

    Please submit an original and three copies of your comments and 
enclosures (including references). To ensure that EPA can read, 
understand, and therefore properly respond to comments, the Agency 
would prefer that commenters discuss the proposed delay of the 
effective date of the July 2000 rule and the proposed delay of the due 
date for the 2002 list of impaired waters separately. Electronic 
comments must be submitted as a WordPerfect 5.1, WP6.1 or WP8 file or 
as an ASCII file avoiding the use of special characters. Comments and 
data will also be accepted on disks in WP 5.1, WP6.1 or WP8, or ASCII 
file format. Electronic comments on this action may be filed online at 
many Federal Depository Libraries. Commenters who want EPA to 
acknowledge receipt of their comments should include a self-addressed, 
stamped envelope. No facsimiles (faxes) or submissions in other 
electronic formats (e.g., Word, pdf, Excel) will be accepted.
    The docket for this rulemaking has been established under number W-
98-31-III. The docket is available for inspection from 9 a.m. to 4 p.m. 
Eastern Time, Monday through Friday, excluding legal holidays, at the 
Water Docket; EB 57; U.S. EPA; 401 M Street, SW; Washington, D.C. For 
access to docket materials, please call (202) 260-3027 to schedule an 
appointment. Every user is entitled to xerox 100 free pages before 
incurring a charge. Above this quantity, the Docket may charge 15 cents 
a page.

I. Basis for Today's Action and Request for Comment

A. Why Did EPA Publish the July 13, 2000 Rule?

    EPA published a final rule on July 13, 2000 (65 FR 43586) amending 
the Agency's existing regulations implementing the CWA's TMDL and NPDES 
programs. The final regulations were intended to:
    a. Provide for a complete national accounting of impaired 
waterbodies and tracking of progress towards restoration and clean-up;
    b. clarify and provide more specificity regarding the required 
elements of a comprehensive TMDL program;
    c. achieve national consistency in all elements of the TMDL 
program;

[[Page 41819]]

    d. require implementation plans as a specific element of a TMDL 
under 303(d)
    e. require documentation of reasonable assurance that reliable 
nonpoint source controls would be implemented in order to share load 
reductions between point and nonpoint sources;
    f. require that TMDLs be established at an even pace in the 10 to 
15 years following the time a waterbody is first listed;
    g. prescribe when EPA would step in to do lists and TMDLs for 
States, Territories or authorized Tribes;
    h. require EPA to issue NPDES permits implementing TMDL wasteload 
allocations within two years of TMDL establishment, when it is the 
permitting authority; and
    i. require EPA to use its authority to step-in when States fail to 
revise and re-issue permits needed to implement TMDL wasteload 
allocations.

B. Why Does EPA Want To Undertake a Further Review of the TMDL 
Regulations?

    As EPA was developing the final rule, many organizations and 
individuals expressed reservations about the proposed requirements of 
the rule. The proposal had generated significant concerns and EPA had 
received more than 34,000 comments on the proposed rule. Because of the 
controversy, Congress enacted an amendment to the Military Construction 
Appropriations Act: FY 2000 Supplemental Appropriations (Pub. L. 106-
426). This provision prohibited EPA from using funds made available for 
fiscal years 2000 and 2001 ``to make a final determination on or 
implement'' the July 2000 TMDL rule. This Act was signed by the 
President on July 14, 2000 effectively prohibiting EPA from 
implementing the final regulations which had been signed by the 
Administrator on July 11, 2000. Anticipating that the amendment would 
go into effect, EPA provided that the effective date of the regulations 
would be 30 days after the date that Congress allowed EPA to implement 
the regulations.
    EPA's decision to promulgate the July 2000 regulations and the 
content of the final regulations have generated concerns expressed in 
letters, testimony, public meetings, Congressional action, and 
litigation. States, business and industry groups, agriculture and 
forestry organizations, and local governments have questioned the 
scope, complexity, cost, and inflexibility of some of the new 
requirements and have challenged the basis for and appropriateness of 
some of the new requirements. EPA is listing below some examples of 
concerns that have been identified to date. State officials and their 
representatives have expressed concerns about the capacity of State 
governments to carry out the many new requirements in the final rule 
and assert that the rule interferes with State authority. Other State 
objections include criticism that specific load and wasteload 
allocations in TMDLs, together with the time frames to complete TMDLs 
and implement them, will limit opportunity for stakeholder involvement 
in defining equitable point and nonpoint source controls. States have 
also indicated their concern about the role of EPA in administration of 
authorized NPDES programs, particularly the rule provisions regarding 
EPA objection to state-issued expired and administratively-continued 
permits in order to implement wasteload allocations.
    Local government officials have objected to TMDL allocation 
approaches that could result in municipal point sources bearing an 
inequitable share of the pollutant load reductions needed to attain 
water quality standards. Agriculture, forestry, cattle and poultry 
groups have expressed their concern that the new implementation plan 
requirement places EPA in an inappropriate position for dealing with 
nonpoint source controls and that the rule does not allow for adaptive 
management. Some assert that there is not enough data to support TMDLs, 
that some pollutants are not suitable for TMDL calculation, that the 
section 303(d) lists are not based on scientifically-defensible data, 
or that the delisting criteria are too inflexible.
    Environmental groups have expressed their concern that the rule 
does not do enough to address water quality impairments from nonpoint 
sources, and have argued that the new schedules in the rule unlawfully 
extend Clean Water Act deadlines. They also object to EPA's 
interpretation of what constitutes lack of substantial progress in 
developing TMDLs, and believe that the rule should specify that EPA 
immediately act upon a State, Territory or authorized Tribe's failure 
to meet a deadline.
    Many of these concerns are reflected in recent lawsuits challenging 
the July 2000 rule. Currently ten petitions have been filed by States, 
industrial and agricultural groups, and environmental organizations 
asserting that EPA's July 2000 rule exceeds the Agency's authority 
under section 303(d) of the Clean Water Act. In addition, several 
groups have intervened in these lawsuits. The issues raised by the 
petitioners include the scope and content of the section 303(d) list, 
the elements of an approvable TMDL, scheduling and backstopping of 
TMDLs, and the change to the NPDES regulations addressing 
administrative continuance of permits.
    Finally, in the FY 2001 Appropriations Bill, Congress directed EPA 
to contract with the National Academy of Sciences to evaluate the 
adequacy of scientific methods and approaches currently available to 
support development and implementation of TMDLs. The report is 
available from the National Academy Press. In general, the report is 
supportive of the TMDL program. However, it includes several 
recommendations which EPA needs to analyze carefully to determine 
whether these recommendations can be implemented in the context of the 
July 2000 rule. Particularly, EPA is examining how the July 2000 rule 
would need to be revised in order to respond to the NRC's 
recommendations, including its findings that ``many waters now on State 
303(d) lists were placed there without the benefit of adequate water 
quality standards, data or waterbody assessment'' and the NRC's 
recommendation that ``adaptive implementation is needed to ensure that 
the TMDL program is not halted because of a lack of data and 
information, but rather progresses while better data are collected and 
analyzed with the intent of improving upon initial TMDL plans.''
    While no one rule will satisfy all of these concerns, taken 
together, the concerns expressed by States and other interested parties 
raise a significant question as to whether the rule sets out a workable 
and effective approach to meeting Clean Water Act goals.

C. What Is EPA Proposing Today?

1. Delay of the Effective Date of the July 2000 Rule
    Today, EPA is proposing to delay the effective date of the TMDL 
rule until April 30, 2003, to allow time for reconsideration of 
specific aspects of the rule. EPA intends to use this time to:
     Fully analyze the findings and recommendations of the NRC 
report;
     Discuss better ways to construct the TMDL program with a 
broad array of interested parties; and
     Revise the TMDL rules through a notice and comment 
process.
    EPA believes that an 18-month delay of the effective date is the 
minimum necessary for the Agency to be able to go through a meaningful 
consultation process, analyze and reconcile the

[[Page 41820]]

recommendations of the various stakeholders and implement program 
changes. During that delay the program will continue to operate under 
the 1985 TMDL regulations as amended in 1992 at 40 CFR Part 130. Under 
these regulations, the States and EPA will continue to make significant 
progress in restoring impaired waters. EPA expects to approve more than 
1,500 TMDLs in FY 2001 and is working with the States to improve the 
technical underpinnings of the program through a series of State/EPA 
regional forums sponsored by EPA and the Association of State and 
Interstate Water Pollution Control Administrators and development of 
technical guidance such as the recently released protocol for 
developing pathogen TMDLs.
2. Revision of the Due Date on Which States Are Required To Submit the 
2002 List of Impaired Waters
    Section 130.7 (d)(1) requires that States submit a list of water 
quality limited segments still requiring TMDLs on April 1 of every 
even-numbered year. Under this requirement the next list would be due 
on April 1, 2002. However, EPA has been unable to issue guidance to the 
States, Territories or authorized Tribes regarding the development of 
that list because of the uncertainty regarding which set of regulations 
would control the listing process in 2002, and the Congress's 
prohibition on spending funds to implement the July 2000 rule. In 
addition the NRC report provides a number of recommendations for 
improving the listing process which EPA is considering implementing to 
the extent they are consistent with the Clean Water Act and the 
existing regulations. In order to do this, EPA believes that it would 
have to develop and issue guidance regarding development of the States' 
2002 lists that takes into account the various recommendations of the 
NRC. However, EPA does not believe there is enough time to allow 
States, Territories and authorized Tribes to be able to participate in 
the development of that guidance and to use it to develop lists by 
April 1, 2002, EPA, therefore, believes that it would be appropriate to 
revise the date for submission of the 2002 lists to be October 1, 2002. 
A delay of six months will afford EPA the time to develop such guidance 
and make it available to the States for use in compiling their 2002 
lists. Moreover, EPA does not believe that this brief delay of the due 
date for these lists will in any way pose a risk to public health or 
jeopardize the clean-up of the Nations's impaired waters. EPA and the 
States will continue to develop TMDLs based on the 1998 lists. EPA is 
not aware of any State where postponing the 2002 list will affect the 
number of TMDLs to be developed in 2002.
    The proposed rule includes a limited exception that would retain 
the existing requirement for a State to submit a 2002 list by April 1, 
2002, if a court order or consent decree or commitment in a settlement 
agreement expressly requires EPA to take an action related to the 
State's 2002 list prior to October 1, 2002. In recent years, litigation 
under Section 303(d) has resulted in court orders, consent decrees, and 
settlement agreements in a number of States related to EPA obligations 
in implementing Section 303(d). In order to enable EPA to meet a 
commitment embodied in a court order, consent decree, or settlement 
agreement, today's proposed rule would retain the existing requirement 
for a State to submit a list by April 1, 2002 if a court order or 
consent decree or commitment in a settlement agreement expressly 
requires EPA to take an action related to the State's 2002 list prior 
to October 1, 2002. The Act grants EPA the discretionary authority to 
interpret the requirement that States submit lists ``from time to 
time.'' In the exercise of this authority EPA believes that it is 
appropriate to continue to require a list by April 1, 2002 in those 
States in which the absence of a list on that date would unsettle an 
existing court order, consent decree or commitment in a settlement 
agreement. EPA has reviewed the consent decrees, court orders, and 
settlement agreements in cases involving the TMDL program and believes 
the only order, consent decree, or settlement agreement with a 
requirement for EPA to take an action expressly related to the 2000 
list before October 1, 2001, is a consent decree for Georgia.
3. Request for Comment
    EPA will consider comments received during the comment period for 
this notice that address the proposed delay of the July 2000 TMDL 
rule's effective date, and EPA will decide whether to issue a final 
delay of the effective date by September 30, 2001. The effect of this 
delay would be that the TMDL program would continue to operate under 
the rules promulgated in 1985, as amended in 1992, at 40 CFR Part 130. 
EPA will also consider comments that address the proposed revision of 
the due date of the next section 303(d) list to October 1, 2002 and 
decide whether to promulgate this amendment by September 30, 2001. In 
addition, EPA will consider comments on its proposal to retain the 
existing April 1, 2002, due date if a court order, consent decree, or 
commitment in a settlement agreement expressly requires EPA to take an 
action related to the State's 2002 list prior to October 1, 2002. EPA 
also solicits public comment on whether there are any such orders, 
consent decrees, or settlement agreements other than a consent decree 
in Georgia, as noted above. If there are, and if EPA revises the due 
date to October 1, 2002, as proposed, EPA will notify those States and 
will identify those States in the notice of final rulemaking as States, 
subject to the exception, in which submission of a year 2002 list by 
April 1, 2002, would be required. EPA solicits comments whether to 
include this exception in the final rule.

II. Administrative Requirements

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, (October 4, 1993)), EPA 
must determine whether the regulatory action is ``significant'' and 
therefore subject to Office of Management and Budget (OMB) review and 
the requirements of the Executive Order. The Order defines 
``significant regulatory action'' as one that is likely to result in a 
rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or Tribal governments or 
communities;
    (2) create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Pursuant to the terms of Executive Order 12866, it has been 
determined that this rule is not a ``significant regulatory action'' 
and as such, has not been submitted to OMB for review.

B. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any 
rule that: (1) Is determined to be ``economically significant'' as 
defined under Executive Order 12866, and (2) concerns an environmental 
health or safety risk that EPA has reason to believe may have a

[[Page 41821]]

disproportionate effect on children. If the regulatory action meets 
both criteria, the EPA must evaluate the environmental health or safety 
effects of the planned rule on children, and explain why the planned 
regulation is preferable to other potentially effective and reasonably 
feasible alternatives considered by EPA. This proposed rule is not 
subject to Executive Order 13045 because it is not economically 
significant as defined in Executive Order 12866.

C. Unfunded Mandates Reform Act (UMRA) of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, Tribal and local 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal Mandates'' that 
may result in expenditures to State, local, and Tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including Tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    Today's proposed rule contains no Federal mandates (under the 
regulatory provisions of Title II of the UMRA) for State, local, or 
Tribal governments or the private sector. The proposed rule imposes no 
enforceable duty on any State, local or Tribal government or the 
private sector. Thus, today's rule is not subject to the requirements 
of sections 202 and 205 of UMRA. For the same reason, EPA has also 
determined that this rule contains no regulatory requirements that 
might significantly or uniquely affect small governments. This action 
does not impose any requirement on anyone. Thus, there are no costs 
associated with this action . Therefore, today's rule is not subject to 
the requirements of section 203 of UMRA.

D. Paperwork Reduction Act (PRA)

    This action does not impose any new information collection burden 
under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et 
seq. This proposed action does not impose any requirements on anyone 
and does not voluntarily request information.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An Agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations are listed in 40 CFR Part 9 and 48 CFR Chapter 15.

E. Regulatory Flexibility Act (RFA), As Amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et 
seq.

    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking under the Administrative Procedure Act or any other statute 
unless the agency certifies that the rule will not have a significant 
economic impact on a substantial number of small entities. Small 
entities include small businesses, small organizations, and small 
governmental jurisdictions. After considering the economic impacts of 
today's proposed rule on small entities, I certify that this action 
will not have a significant economic impact on a substantial number of 
small entities. This proposed action does not impose any requirements 
on anyone, including small entities.

F. National Technology Transfer and Advancement Act

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

G. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This proposal does not have federalism implications. It will not 
have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government as 
specified in executive Order 13132. It would merely delay the effective 
date of the July 2000 rule and the due date of the April 2002 lists. 
Thus, Executive Order 13132 does not apply to this rule.
    In the spirit of Executive Order 13132, and in accordance with EPA 
policy to promote communications between EPA and State and local 
governments, EPA specifically solicits comment on this

[[Page 41822]]

proposed rule from State and local officials.

H. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by Tribal officials in the development of regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian Tribes, on 
the relationship between the Federal government and the Indian Tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian Tribes.''
    This proposed rule would merely delay the effective date of the 
July 2000 TMDL Rule and delay the due date of the April 1, 2002 lists. 
Thus, Executive Order 13175 does not apply to this rule.
    In the spirit of Executive Order 13175, and in accordance with EPA 
policy to promote communications between EPA and Tribal governments, 
EPA specifically solicits additional comment on this proposed rule from 
Tribal officials.

I. Plain Language Considerations

    The agency is required to write all rules in plain language. EPA 
invites public comment on how to make this proposed rule easier to 
understand. Comments may address the following questions and other 
factors as well:

    A. Has EPA organized the material to suit your needs?
    B. Are the requirements in the rule clearly stated?
    C. Does the rule contain technical wording or jargon that is not 
clear?
    D. Would a different format (grouping or order of sections, use 
of headings, paragraphing) make the rule easier to understand?
    E. Would more (but shorter) sections be better?
    F. Could EPA improve clarity by using additional tables, lists 
or diagrams?
    G. What else could EPA do to make the rule easier to understand?

J. Executive Order 13211: Energy Effects

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations that Significantly Affect Energy Supply, 
Distribution, or Use'', 66 FR 28355 (May 22, 2001) because it is not a 
significant regulatory action under Executive Order 12866.

List of Subjects

40 CFR Part 9

    Reporting and recordkeeping requirements.

40 CFR Part 122

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous substances, Reporting and 
recordkeeping requirements, Water pollution control.

40 CFR Part 123

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous substances, Indians-lands, 
Intergovernmental relations, Penalties, Reporting and recordkeeping 
requirements, Water pollution control.

40 CFR Part 124

    Environmental protection, Administrative practice and procedure, 
Hazardous substances, Indians-lands, Reporting and recordkeeping 
requirements, Water pollution control, Water supply.

40 CFR Part 130

    Environmental protection, Intergovernmental relations, Reporting 
and recordkeeping requirements, Water pollution control.

    Dated: July 31, 2001.
Christine T. Whitman,
Administrator.

PARTS 9, 122, 123, 124 AND 130--PROPOSED DELAY OF EFFECTIVE DATE 
AND REVISIONS

    For the reasons stated in the preamble, EPA proposes:
    1. To delay the effective date of the amendments to 40 CFR part 9, 
122, 123, 124 and 130 published July 13, 2000 (65 FR 43586) until April 
30, 2003.
    2. To amend 40 CFR part 130 to read as follows:

PART 130--WATER QUALITY PLANNING AND MANAGEMENT

    a. The authority citation for part 130 continues to read as 
follows:

    Authority: 33 U.S.C. 1251 et seq.

    b. Section 130.7 is amended by adding a new sentence after the 
fourth sentence in paragraph (d)(1) to read as follows:


Sec. 130.7  Total maximum daily loads (TMDL) and individual water 
quality-based effluent limitations.

* * * * *
    (d) * * * (1) * * * For the year 2002 submission, States must 
submit a list required under paragraph (b) of this section by October 
1, 2002, unless a court order, consent decree or commitment in a 
settlement agreement expressly requires EPA to take an action related 
to the State's 2002 list prior to October 1, 2002, in which case, the 
State must submit a list by April 1, 2002. * * *
* * * * *
[FR Doc. 01-20017 Filed 8-8-01; 8:45 am]
BILLING CODE 6560-50-P