[Federal Register Volume 66, Number 202 (Thursday, October 18, 2001)]
[Rules and Regulations]
[Pages 53044-53048]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-26265]



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Part III





Environmental Protection Agency





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



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

  Federal Register / Vol. 66 , No. 202 / Thursday, October 18, 2001 / 
Rules and Regulations  

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ENVIRONMENTAL PROTECTION AGENCY

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

[WH-FRL-7086-1]
RIN 2040-AD79


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: Today's action establishes April 30, 2003 as the effective 
date of the revisions to EPA's Total Maximum Daily Load (TMDL) and 
National Pollutant Discharge Elimination System Program (NPDES) 
regulations published in the Federal Register on July 13, 2000. The 
July 2000 rule amends and clarifies existing regulations implementing 
section 303(d) of the Clean Water Act (CWA), which requires States to 
identify waters that are not meeting State water quality standards and 
to establish pollutant budgets, called TMDLs, to restore the quality of 
those waters. The rule also lays out specific time frames under which 
EPA will assure that lists of waters not meeting water quality 
standards (the 303(d) lists) and TMDLs are completed as scheduled, and 
that necessary point and nonpoint source controls are implemented to 
meet TMDLs.
    In addition, today's action amends 40 CFR 130.7(d)(1), currently in 
effect, to revise the date on which States are required to submit the 
next list of impaired waters from April 1, 2002 to October 1, 2002. 
This new date will provide States who wish to do so the time to 
incorporate some or all of the recommendations suggested by EPA in a 
forthcoming guidance entitled: 2002 Integrated Water Quality Monitoring 
and Assessment Report Guidance, which is currently undergoing a final 
review.

DATES: The July 2000 rule amending 40 CFR parts 9,122,123,124 and 130 
published on July 13, 2000 at 65 FR 43586 is effective on April 30, 
2003. The amendment to 40 CFR 130.7(d)(1) made by this rule is 
effective November 19, 2001. This action is considered issued for 
purposes of judicial review as of 1 p.m. Eastern Daylight Time, on 
November 1, 2001 as provided in Sec. 23.2.

ADDRESSES: The complete administrative record for the final rule has 
been established under docket number W-98-31-III TMDL, and includes 
supporting documentation as well as printed, paper versions of 
electronic comments. The docket is available for inspection from 9 a.m. 
to 4 p.m. Eastern Time, Monday through Friday excluding legal holidays 
at the Water Docket; EB 57; U.S. EPA; 401 M Street, SW., Washington, DC 
20460. For access to docket materials, please call (202) 260-3027 
between 9 a.m. and 4 p.m. An electronic version of this final rule will 
be available via the Internet at: http://www.epa.gov/owow/tmdl/defer/

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

SUPPLEMENTARY INFORMATION:

A. Authority

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

B. Entities Potentially Regulated by the Proposed Rule

                 Table of Potentially Regulated Entities
------------------------------------------------------------------------
                                             Examples of potentially
                Category                        regulated entities
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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 potentially regulated by this 
action. This table lists the types of entities that EPA is now aware 
could potentially be regulated by this action. Other types of entities 
not listed in this table could also be regulated by this action. To 
determine whether you may be regulated by this action, you should 
carefully examine the applicability criteria in Sec. 130.20 of title 40 
of the Code of Federal Regulations. If you have any questions regarding 
the applicability of this action to you, consult the person listed in 
the FOR FURTHER INFORMATION CONTACT section.

C. Explanation of Today's Action

I. Background

    On August 9, 2001, EPA proposed to take two actions regarding the 
TMDL program. First, EPA proposed to delay by 18 months the effective 
date of a rule published in the Federal Register on July 13, 2000, 
which amends existing regulations governing the TMDL program. The July 
2000 rule generated considerable controversy, as expressed in letters, 
testimony, public meetings, Congressional action, and litigation. 
Congress prohibited EPA from implementing the final rule through a 
spending prohibition attached to an FY2000 appropriations bill, which 
prohibited EPA from using funds made available for FY2000 and FY2001 
``to make a final determination on or implement'' the July 2000 TMDL 
rule. Cognizant of this spending prohibition, in the preamble to the 
July 2000 rule, EPA said that the July 2000 rule was not effective 
``until 30 days after the date that Congress allows EPA to implement 
this regulation'' and that EPA would publish notice of the effective 
date in the Federal Register. Second, EPA proposed to revise its 
currently effective regulations to postpone the date by which States 
are required to submit the next section 303(d) list of impaired waters 
from April 1, 2002 to October 1, 2002. This delay was intended to 
provide time for EPA to issue guidance incorporating some of the 
National Research Council's (NRC) recommendations regarding the 
methodology used to develop the 303(d) lists and the content of these 
lists.
    Based on concerns expressed by many interested organizations and in 
light of a recent report from the National Research Council (NRC), 
entitled ``Assessing the TMDL Approach to Water Quality Management,'' 
which recommends changes to the TMDL program, EPA believes that it is 
important at this time to re-consider some of the choices made in the 
July 2000 rule, while continuing to operate the program under the 1985 
TMDL regulations, as amended in 1992. A delay of the effective date 
would allow the Agency to solicit and carefully consider suggestions on 
how to structure the TMDL program to be effective and flexible and to 
ensure that it leads to workable solutions that will meet the Clean 
Water Act goals of restoring impaired waters. In addition, EPA believes 
that its decision voluntarily to reconsider the July 2000 rule may 
result in revisions to the rule that would resolve at least some of the 
issues raised in pending litigation in the D.C. Circuit Court of 
Appeals. Instead of

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expending resources in lengthy litigation, EPA believes it can speed up 
the process of putting in place a more workable program, while building 
a foundation of trust among stakeholders in the basic process for 
restoring impaired waters. Once this foundation is soundly built, it is 
far more likely that diverse stakeholders will be able to agree on 
plans for restoring water quality and far more likely that these 
important plans will be implemented.

II. Response to Comments and Final Decisions

Effective Date of the Final Regulations
    EPA received approximately 100 separate comment letters and 85 
duplicate postcards regarding its proposal to delay the effective date 
of the July 2000 rule. A majority of individual commenters supported 
EPA's action noting the controversy generated by the rule, the issues 
raised in recent lawsuits challenging the July 2000 rule, and the need 
to reevaluate the flexibility, practicality and scope of the rule. 
Other commenters, however, expressed concerns that postponing the 
effective date of the July 2000 rule would significantly impede 
progress towards cleaning up the nation's impaired waters. EPA does not 
agree with these commenters that an 18-month delay of the effective 
date of the July 2000 rule will significantly slow down the pace at 
which impaired waters are restored. In recent years, EPA and the States 
have made great strides in implementing the existing 303(d) program to 
list impaired waters and develop and implement TMDLs. States have 
substantially improved their TMDL programs while the Agency has 
provided the States with significant increases in technical and 
financial support to expand and strengthen all elements of their 
programs. EPA and the States also are cooperatively undertaking 
workshops around the country to present successful approaches to 
developing and implementing TMDLs. Much of this progress is driven by 
TMDL litigation. To date, environmental groups have filed legal actions 
in 38 States. Over 20 of these lawsuits have resulted in court orders 
or consent decrees under which EPA is required to establish TMDLs if 
the State fails to do so pursuant to specific schedules. The pace of 
TMDL establishment has increased greatly over the last few years with 
almost twice as many TMDLs approved or established by EPA in 2001 as in 
2000.
    Current court orders and consent decrees require EPA to establish 
(if the States do not) approximately 2000 TMDLs in the next 18 to 24 
months. These requirements are in place independently of any separate 
requirements in the July 2000 rule. Accordingly, EPA does not believe 
that an 18-month delay in the July 2000 rule's effective date will in 
any significant way slow the development of TMDLs.
    Some commenters opposed to the delay of the effective date of the 
July 2000 rule expressed concerns that TMDLs established during that 
delay might not include implementation plans, which they see as an 
essential component of the July 2000 rule. It is true that, absent a 
requirement to include an implementation plan as part of a TMDL as 
required by the July 2000 rule, States may not develop implementation 
plans for all TMDLs. However, section 130.37 of the July 2000 rule 
provided that EPA could approve a TMDL without an implementation plan 
during a 9-month transition period following the effective date of the 
July 2000 rule. Accordingly, for one half of the 18-month delay period, 
implementation plans would not have been required for TMDL approval. 
Moreover, EPA is working in other ways to ensure that management 
measures reflecting load allocations in TMDLs are undertaken. For 
example, EPA issued a guidance on September 13, 2001 entitled 
``Supplemental Guidelines for the Award of Section 319 Nonpoint Source 
Grants to States and Territories in FY 2002 and Subsequent Years'' 
available at http://www.epa.gov/owow/nps/Section319/fy2002.html, which 
provides for a more concentrated focus on the implementation of TMDLs 
related to nonpoint source pollution for FY 2003 and beyond. Finally, 
even under the currently effective TMDL regulations, States may submit 
and some, such as California, Virginia, Washington and Oregon, have 
been submitting implementation plans along with TMDLs.
    Some commenters who agreed that EPA should delay the effective date 
of the rule suggested that EPA should do so for longer than 18 months. 
EPA disagrees. EPA believes that 18 months should be a sufficient time 
to reconsider the controversial elements of the July 2000 rule that 
have already been the subject of significant comments and dialogue. 
Other commenters who agreed with EPA also submitted comments regarding 
the requirements which EPA should consider including in a new rule. EPA 
will consider these recommendations as it reevaluates the July 2000 
rule. Several commenters also suggested that EPA should provide the 
public a detailed schedule for issuance of a new rule including 
information on planned public outreach and the internal Agency decision 
process. On October 9, 2001, EPA announced a series of outreach 
meetings and has posted information regarding these meetings on the 
internet. EPA also intends to post discussion guides and meeting 
summaries on the internet. In addition, EPA will, to the best of its 
ability, meet and share information with stakeholders as it develops 
any revisions to the July 2000 rule.
    EPA is committed to structuring a flexible, effective TMDL program 
that States, Territories and authorized Tribes can support and 
implement. EPA believes that, given its decision to reconsider the July 
2000 rule and to do so in an expeditious manner, it would be 
undesirable to have the July 2000 rule go into effect now for a 
relatively short time. This is especially so given that the rule's 
requirements would not be mandatory for another nine months (65 FR 
43635). The Agency believes that by delaying the effective date of the 
July 2000 rule until April 30, 2003, it will be better able to 
reconsider the rule and address concerns expressed about it by a wide 
range of stakeholders. The Agency hopes to be able to narrow the 
differences among the diverse stakeholders interested in or are 
affected by the TMDL rules such that a framework is established under 
which TMDLs will actually be implemented in a timely and cost-effective 
manner.
    Therefore, after carefully considering all the comments received on 
delaying the effective date of the July 2000 rule, EPA is promulgating 
a final action today that establishes April 30, 2003 as the effective 
date of the TMDL rule published in the Federal Register on July 13, 
2000 (65 FR 43586). EPA believes that this delay of the effective date 
is the minimum necessary for the Agency to be able to conduct a 
meaningful consultation with the public, analyze recommendations of 
various stakeholders, reconcile concerns about the scope, complexity, 
and cost of the TMDL program, and structure a flexible yet effective 
solution to meet Clean Water Act goals of restoring the nation's 
impaired waters. During this delay, the program will continue to 
operate under the 1985 TMDL regulations, as amended in 1992 at 40 CFR 
part 130, and EPA and the States and Territories will continue to 
develop TMDLs to work towards cleaning up the nation's waters and 
meeting water quality standards.

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Revisions to the Due Date of the Next List of Impaired Waters
    EPA received approximately 60 separate comments and 85 duplicate 
postcards regarding its proposal to revise the date on which States are 
required to submit the next section 303(d) list of impaired waters from 
April 1, 2002 to October 1, 2002. A substantial number of individual 
commenters agreed with the Agency's proposal and its rationale. 
However, several commenters disagreed. A few commenters stated that the 
Agency should not allow any more time for States to develop the next 
list. In their view, an April 2002 list already represents a two-year 
delay because EPA had earlier eliminated the requirement for States to 
submit a list to EPA on April 1, 2000. They also disagreed with EPA's 
rationale that new guidance was needed before States should be required 
to submit a new list. They argued any guidance issued at this time 
would have to follow the current regulations and could not incorporate 
some of the recommendations of the NRC. They, therefore, believed that 
existing guidance was sufficient to produce the 2002 list. EPA agrees 
that any guidance it issues at this point must be based on current 
regulations and it is not EPA's intent to change these existing 
regulations by guidance. However, EPA believes that within the context 
of the current regulations, there is sufficient flexibility to issue 
guidance that it believes could significantly improve some States' 
lists. EPA has drafted a guidance entitled ``2002 Integrated Water 
Quality Monitoring and Assessment Report Guidance'' which will be 
released shortly. EPA believes that States should be given additional 
time to review and incorporate some of the elements of the guidance in 
their next list if they so wish. For that reason, EPA continues to 
believe that a relatively brief 6-month delay of the 303(d) lists' due 
date is warranted.
    Some commenters believed that the Agency should postpone the next 
303(d) list until after the new rule is in place. They argued that 
development of a new rule would introduce substantial uncertainty while 
the States are developing their listing methodologies and their next 
lists pursuant to a rule and guidance that may be substantially changed 
soon after the 2002 lists are submitted. EPA continues to believe, 
however, that it is important for a new list to be produced in 2002. 
EPA believes that it is important to update States' 1998 lists to 
reflect current information to maintain the credibility of the TMDL 
program. EPA is aware of concerns expressed by some point source 
dischargers about the impact of being located on a listed stream. EPA 
believes that its upcoming guidance should help ensure that the 2002 
section 303(d) lists more accurately identify currently impaired waters 
than earlier lists.
    Some commenters stated their concerns that, if the 2002 list 
deadline is moved to October, the report required under section 305(b) 
of the CWA and the list required under section 303(d) would be due at 
different times. These commenters asked that the Agency also delay the 
date of the section 305(b) report. However, the due date of the section 
305 (b) report is a statutory requirement and EPA cannot change it by 
regulation or guidance. The Agency can take steps however, to ensure 
that States that choose to submit a 305(b) report on October 1, 2002 do 
not suffer any adverse consequences. EPA will review its agreements 
with States regarding distribution of grants under section 106 of the 
CWA to make sure that receipt of grant funds are not contingent upon 
completion of a section 305 (b) report on April 1, 2002.
    EPA received only one comment on its proposal to retain the April 
1, 2002 listing requirement if a court order or consent decree or 
commitment in a settlement agreement expressly requires EPA to take 
action related to the State's 2002 list prior to October 1, 2002. When 
EPA published the proposal, EPA stated that it believed that this 
provision would only apply to the State of Georgia. The commenter 
expressed concern that, notwithstanding a consent decree, it was 
inequitable to require Georgia to meet the existing April 2002 
deadline. The commenter noted that, if Georgia was required to submit 
its 2002 list prior to issuance of EPA's 2002 listing guidance, parts 
of the Georgia list may be invalidated.
    EPA believes that the commenter's concerns can be addressed while 
requiring Georgia to submit its 2002 list in April 2002. EPA continues 
to believe that a State should be required to submit a 2002 list by 
April 1, 2002, in order to enable EPA to meet a commitment embodied in 
a court order, consent decree, or settlement agreement expressly 
requiring EPA to take action related to the State's 2002 list prior to 
October 1, 2002. Since this provision only applies to the State of 
Georgia, EPA will work with Georgia to ensure that the list it submits 
to EPA by April 1, 2002, meets the requirements of the Clean Water Act 
and EPA's currently effective regulations. In addition, EPA anticipates 
issuing guidance on the 2002 lists shortly so that Georgia will have 
the benefit of that guidance at least several months before the date it 
is required to submit its 2002 list. Finally, the listing guidance will 
not and cannot impose any binding requirements on the States, separate 
and apart from the statutory and regulatory requirements.
    After careful review of all comments, EPA continues to believe that 
briefly delaying the due date of the next section 303(d) list is an 
appropriate step that will give the States that wish to do so time to 
adopt some or all of the recommendations of EPA's new guidance. EPA is 
aware that some States are well underway in their development of a 2002 
section 303(d) list which they intended to submit on April 1, 2002. EPA 
will review and approve or disapprove a State list within 30 days as 
required by the CWA regardless of when it is submitted. EPA's decision 
to approve or disapprove such a list will be based on the statutory 
requirements at section 303(d) and EPA's regulations at 40 CFR 130.7.

III. Administrative Requirements

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

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B. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks
    Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any 
rule that: (1) is determined to be ``economically significant'' as 
defined under Executive Order 12866, and (2) concerns an environmental 
health or safety risk that EPA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the EPA must evaluate the environmental health or safety 
effects of the planned rule on children, and explain why the planned 
regulation is preferable to other potentially effective and reasonably 
feasible alternatives considered by EPA. This rule is not subject to 
Executive Order 13045 because it is not economically significant as 
defined in Executive Order 12866.
C. Unfunded Mandates Reform Act (UMRA) of 1995
    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, Tribal and local 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal Mandates'' that 
may result in expenditures to State, local, and Tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including Tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    Today's rule contains no Federal mandates (under the regulatory 
provisions of Title II of the UMRA) for State, local, or Tribal 
governments or the private sector. The rule imposes no enforceable duty 
on any State, local or Tribal government or the private sector. Thus, 
today's rule is not subject to the requirements of sections 202 and 205 
of UMRA. For the same reason, EPA has also determined that this rule 
contains no regulatory requirements that might significantly or 
uniquely affect small governments. This action does not impose any 
requirement on anyone. Thus, there are no costs associated with this 
action . Therefore, today's rule is not subject to the requirements of 
section 203 of UMRA.
D. Paperwork Reduction Act (PRA)
    This action does not impose any new information collection burden 
under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et 
seq. This action does not impose any requirements on anyone and does 
not voluntarily request information.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An Agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.
E. Regulatory Flexibility Act (RFA), as Amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et. 
seq.
    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking under the Administrative Procedure Act or any other statute 
unless the agency certifies that the rule will not have a significant 
economic impact on a substantial number of small entities. Small 
entities include small businesses, small organizations, and small 
governmental jurisdictions. After considering the economic impacts of 
today's rule on small entities, I certify that this action will not 
have a significant economic impact on a substantial number of small 
entities. This action does not impose any requirements on anyone, 
including small entities.
F. National Technology Transfer and Advancement Act
    As noted in the proposed rule, section 12(d) of the National 
Technology Transfer and Advancement Act of 1995 (``NTTAA''), Public Law 
No. 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use 
voluntary consensus standards in its regulatory activities unless to do 
so would be inconsistent with applicable law or otherwise impractical. 
Voluntary consensus standards are technical standards (e.g., materials 
specifications, test methods, sampling procedures, and business 
practices) that are developed or adopted by voluntary consensus 
standards bodies. The NTTAA directs EPA to provide Congress, through 
OMB, explanations when the Agency decides not to use available and 
applicable voluntary consensus standards. This rulemaking does not 
impose any new technical standards.
G. Executive Order 13132: Federalism
    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This rule does not have federalism implications. It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government as 
specified in executive Order 13132. It merely delays

[[Page 53048]]

the effective date of the July 2000 rule and the due date of the April 
2002 lists. Thus, Executive Order 13132 does not apply to this rule.
H. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments
    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by Tribal officials in the development of regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian Tribes, on 
the relationship between the Federal government and the Indian Tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian Tribes.''
    This rule establishes a relatively short delay in the effective 
date of the July 2000 TMDL Rule and the due date of the April 1, 2002 
lists. Because these delays are relatively brief (18 months and six 
months, respectively) EPA does not believe this rule will have 
``substantial direct effects'' on Tribes or the relationship or 
distribution of power between Tribes and the Federal Government. As 
discussed earlier in the preamble, during the 18-month period before 
the July 2000 rule becomes effective, TMDLs will continue to be 
developed pursuant to the regulations in effect at section 130.7. 
Moreover, EPA does not believe that a 6-month delay in submission of 
the 2000 lists will slow the pace of TMDL development given the number 
of waters on existing lists and the many court orders and schedules 
directing TMDL development. Thus, Executive Order 13175 does not apply 
to this rule.
I. Congressional Review Act
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). The July 2000 rule amending 40 CFR parts 9, 122, 123, 124 and 
130 published on July 13, 2000 at 65 FR 43586 is effective on April 30, 
2003. The amendment to 40 CFR 130.7(d)(1) is effective November 19, 
2001.
J. Executive Order 12866--Plain Language Considerations
    Executive Order 12866 requires each agency to write all rules in 
plain language. EPA invited public comment in the proposed rule on how 
to make this rule easier to understand including addressing concerns 
regarding organization of material, clear presentation of technical 
terms and concepts, and alternative formats to facilitate better 
understanding of the Agency's action. The Agency received only one 
comment on this issue requesting that the rule be clearly written. The 
Agency has addressed this concern by reducing the amount of technical 
jargon in this notice, by organizing the material in a straightforward, 
understandable format, and by clearly discussing each of the 
requirements of this rule. By doing so the Agency has met the plain 
language requirements of Executive Order 12866.
K. Executive Order 13211: Energy Effects
    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations that Significantly Affect Energy Supply, 
Distribution, or Use'', 66 FR 28355 (May 22, 2001) because it is not a 
significant regulatory action under Executive Order 12866.

List of Subjects

40 CFR Part 9

    Reporting and recordkeeping requirements.

40 CFR Part 122

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

40 CFR Part 123

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

40 CFR Part 124

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

40 CFR Part 130

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

    Dated: October 12, 2001.
Christine T. Whitman,
Administrator.

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

    For the reasons stated in the preamble, EPA is establishing April 
30, 2003 as the effective date of the amendments to 40 CFR parts 9, 
122, 123, 124 and 130 published July 13, 2000 (65 FR 43586).
    For the reasons stated in the preamble, EPA is amending 40 CFR part 
130 as follows:

PART 130--WATER QUALITY PLANNING AND MANAGEMENT

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

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

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


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

* * * * *
    (d) * * * (1) * * * For the year 2002 submission, a State must 
submit a list required under paragraph (b) of this section by October 
1, 2002, unless a court order, consent decree or commitment in a 
settlement agreement expressly requires EPA to take an action related 
to that State's 2002 list prior to October 1, 2002, in which case, the 
State must submit a list by April 1, 2002. * * *
* * * * *

[FR Doc. 01-26265 Filed 10-17-01; 8:45 am]
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