The FAA has determined that notice and opportunity for prior public comment hereon are impracticable because these procedures would significantly delay issuance of the approval design and thus delivery of the affected helicopter. The FAA therefore finds that good cause exists for making these special conditions effective upon issuance.

The FAA invites interested persons to participate in this rulemaking by submitting written comments, views, or data. Communications should identify the regulatory docket and be submitted in duplicate to the address specified above. We will consider all comments we receive on or before the closing date for comments. We may change these special conditions in light of the comments we receive. All comments received will be available in the Rules Docket for examination by interested persons, both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerning this rulemaking will be filed in the docket. If you want the FAA to acknowledge receipt of your comments on this proposal, include a self-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you.

For the Model S-92A helicopter, Sikorsky Aircraft Corporation has applied for use of a dual-engine 30-minute power rating in addition to a maximum continuous power rating. The Sikorsky Model S-92A is a transport category A and B rotorcraft, powered by two General Electric CT7-8 engines certificated with a dual-engine 30-minute power rating greater than the maximum continuous power rating. The S-92A with the CT7-8 engine installation will have 30-Second One-Engine-Inoperative (OEI), 2-Minute OEI, Continuous OEI, 30-Minute, Takeoff, and Maximum Continuous power ratings.

This unusual dual-engine power capability must be limited to use for hovering operations only for periods not to exceed 30 minutes at any time after takeoff, to allow the rotorcraft to fly extended hover maneuvers while performing search and rescue missions. However, this rating is also suitable for other missions that require increased rotorcraft hovering capability and duration, beyond those that the maximum continuous engine rating allows.

The S-92A has the same engine torque and rotor speed limits for use of aircraft 30-minute power or maximum continuous power ratings. As a result, the FAA has determined that compliance with the structural and drive system requirements of 14 CFR part 29 (part 29) has not been affected by the 30-minute rating application.

The applicable airworthiness requirements do not contain a 30-minute power rating definition and do not contain adequate or appropriate safety standards for the type certification of this unusual engine rating. Due to increased engine N 1 (gas turbine speed) and T 4.5 (power turbine inlet temperature) limits for this new rating, as compared to the existing continuous rating, airworthiness requirements must be specified for powerplant cooling and operational limitations for this novel or unusual design feature.

Under the provisions of 14 CFR 21.17, Sikorsky Aircraft Corporation must show that the Model S-92A helicopter meets the applicable provisions of the regulations as follows:

• 14 CFR Part 29, Amendment 29-1 through Amendment 29-45, inclusive;

• 14 CFR Part 29, Appendix H, Amendments 36-1 through the amendment effective at the time of certification; and

• Any special conditions, exemptions, and equivalent safety findings deemed necessary.

If the Administrator finds that the applicable airworthiness regulations for part 29 do not contain adequate or appropriate safety standards for the Sikorsky Model S-92A because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

In addition to the applicable airworthiness regulations and special conditions, the Sikorsky Model S-92A must comply with the noise certification requirements of 14 CFR part 36, and the FAA must issue a finding of regulatory adequacy pursuant to § 611 of Public Law 92-574, the “Noise Control Act of 1972.”

Special conditions, as appropriate, are defined in § 11.19, and issued in accordance with § 11.38, and become part of the type certification basis in accordance with § 21.17(a)(2).

Special conditions are initially applicable to the model for which they are issued. Should the TC for that model be amended later to include any other model that incorporates the same novel or unusual design feature, or should any other model already included on the same TC be modified to incorporate the same novel or unusual design feature, the special conditions would also apply to the other model under the provisions of § 21.101(a)(1).

The Sikorsky Model S-92A will incorporate the following novel or unusual design features: A dual-engine 30-minute power rating which will require a special condition for hovering cooling test procedures and powerplant limitations.

As discussed above, these special conditions are applicable to the Sikorsky Model S-92A. Should Sikorsky Aircraft Corporation apply at a later date for a change to the TC to include another model incorporating the same novel or unusual design feature, the special conditions would apply to that model as well under the provisions of § 21.101(a)(1).

This action affects only certain novel or unusual design features on one model of helicopter. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the helicopter.

Under standard practice, the effective date of final special conditions would be 30 days after the date of publication in the Federal Register; however, as the certification date for the Sikorsky Model S-92A is imminent, the FAA finds that good cause exists to make these special conditions effective upon issuance.

Airspace Docket No. 02-ASO-04, published in the Federal Register on May 1, 2002, (67 FR 21575), established Class D airspace at Greenville Donaldson Center, SC, amended Class E2 airspace at Greer, Greenville-Spartanburg Airport, SC, and amended Class E5 airspace at Greenville, SC. The construction of a federal contract tower with a weather reporting system at Donaldson Center Airport made this action necessary. This action was originally scheduled to become effective on November 28, 2002; however, an unforeseen delay in beginning construction on the tower has required the effective date of this action to be delayed. Construction is now scheduled to begin in January 2003, with an anticipated date of September 2003. A notice announcing a new effective date will be published in the Federal Register at least 90 days prior to the new effective date.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Throughout this document, “we,” “us” and “our” refer to EPA.

On April 25, 2002 (67 FR 20478), we proposed a limited approval and limited disapproval of the following rules that were submitted for incorporation into the California SIP by the California Air Resources Board (CARB).

We proposed a limited approval because we determined that these rules improve the SIP and are largely consistent with the relevant CAA requirements. We simultaneously proposed a limited disapproval because some rule provisions conflict with section 110 and part D of the CAA. Our proposed action contains more information on the rules and our evaluation.

On April 25, 2002 (67 FR 20478), we also proposed a full approval of the following rule that was submitted for incorporation into the California SIP.

EPA's proposed action provided a 30-day public comment period. During this period, we received comments from the following party.

1. Richard H. Baldwin, Ventura County Air Pollution Control District, letter dated May 28, 2002 and received May 28, 2002. The comments and our responses are summarized below.

Comment 1: EPA's proposed rulemaking states that Rule 70 is deficient because, “Reverification of the performance tests of the vapor recovery system * * * should be performed more frequently * * * in order to fulfill RACT.” For a variety of reasons, the commenter believes that this deficiency is more stringent than that required by RACT.

Response 1: RACT generally refers largely to direct emission control requirements such as emission limits. Monitoring, reporting, recordkeeping, and similar requirements designed to ensure compliance with control requirements are sometimes also referred to as components of RACT, but often considered simply enforceability elements necessary to fulfill the general CAA 110(a)(2) enforceability requirement. We agree with the commenter that the control requirements in Rule 70 meet or exceed RACT. However, we should have identified the rule deficiency more clearly as an enforceability issue because, as described in our proposal action and associated TSD, we believe the existing performance test requirements do not adequately ensure continued compliance with the control requirements.

Comment 2: South Coast AQMD is the only California District that currently contains reverification of performance test requirements sufficient to address EPA's proposed limited disapproval. EPA should not define RACT based on the single most stringent adopted rule.

Response 2: EPA is not using the more stringent South Coast requirements as the primary basis for disapproving Rule 70. Rather, as discussed in our proposed action, we are relying on the research, performed by the California Air Pollution Control Officer's Association (CAPCOA), CARB, and others, which shows that existing Rule 70 reverification of performance test requirements do not adequately ensure compliance with the rule's control requirements. See also Response 1.

Comment 3: EPA should approve the submitted version of Rule 70 as meeting RACT requirements.

Response 3: We concur that Rule 70 meets or exceeds the RACT control requirements. We do not believe, however, that the reverification of performance test requirements adequately fulfill section 110(a)(2) enforceability requirements. See also Response 1.

Comment 4: EPA Region IX's guidelines for evaluating vapor recovery rules are inappropriately more stringent in California than in other states.

Response 4: The guidelines distinguish requirements in California from requirements in other states because of the unique role that CARB plays in regulating vapor recovery. We believe, however, that the substance of our guidelines is the same for California and other states.

Comment 5: The rule improvement identified by EPA is not relied upon in Ventura's approved attainment demonstration.

Response 5: Improved reverification of performance test requirements are not intended to directly yield emission reductions that would be incorporated in an attainment demonstration. They are intended to assure that control requirements contained in Rule 70, which are relied on in Ventura's attainment demonstration, are in fact achieved.

Comment 6: RACT should be determined on a national, not a regional basis.

Response 6: Reasonably available controls can vary somewhat based on local economic and other factors. See also Response 1.

No comments were submitted that change our assessment of the rules as described in our proposed action. Therefore, as authorized in sections 110(k)(3) and 301(a) of the CAA, EPA is finalizing a limited approval of VCAPCD Rule 70. This action incorporates the submitted rule into the California SIP, including those provisions identified as deficient. As authorized under section 110(k)(3), EPA is simultaneously finalizing a limited disapproval of VCAPCD Rule 70. As a result, sanctions will be imposed unless EPA approves subsequent SIP revisions that correct the rule deficiencies within 18 months of the effective date of this action. These sanctions will be imposed under section 179 of the Act as described in 59 FR 39832 (August 4, 1994). In addition, EPA must promulgate a federal implementation plan (FIP) under section 110(c) unless we approve subsequent SIP revisions that correct the rule deficiencies within 24 months.

As authorized in sections 110(k)(3) and 301(a) of the CAA, EPA is finalizing a limited approval of ICAPCD Rule 415. This action incorporates the submitted rule into the California SIP, including those provisions identified as deficient. As authorized under section 110(k)(3), EPA is simultaneously finalizing a limited disapproval of ICAPCD Rule 415. No sanctions are associated with this action because this is not a required submittal.

Note that the submitted rules have been adopted by the VCAPCD and ICAPCD, and EPA's final limited disapproval does not prevent the local agencies from enforcing them.

As authorized in sections 110(k)(3) of the CAA, EPA is finalizing a full approval of SBCAPCD Rule 346. This action incorporates the submitted rule into the California SIP.

The Office of Management and Budget has exempted this regulatory action from Executive Order 12866, entitled “Regulatory Planning and Review.”

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.

Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (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 Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

This rule is not subject to Executive Order 13045 because it does not involve decisions intended to mitigate environmental health or safety risks.

Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999) revokes and replaces Executive Orders 12612, Federalism and 12875, Enhancing the Intergovernmental Partnership. Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation.

This rule 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, because it merely acts on a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

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 final rule does not have tribal implications. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule.

The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements 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 not-for-profit enterprises, and small governmental jurisdictions.

This final rule will not have a significant impact on a substantial number of small entities because SIP approvals under section 110 and subchapter I, part D of the Clean Air Act do not create any new requirements but simply act on requirements that the State is already imposing. Therefore, because the Federal SIP approval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities.

EPA's disapproval of the state request under section 110 and subchapter I, part D of the Clean Air Act does not affect any existing requirements applicable to small entities. Any pre-existing federal requirements remain in place after this disapproval. Federal disapproval of the state submittal does not affect state enforceability. Moreover, EPA's disapproval of the submittal does not impose any new Federal requirements. Therefore, I certify that this action will not have a significant economic impact on a substantial number of small entities.

Moreover, due to the nature of the Federal-State relationship under the Clean Air Act, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds. Union Electric Co. v. U.S. EPA , 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

Under section 202 of the Unfunded Mandates Reform Act of 1995 (”Unfunded Mandates Act”), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated costs to State, local, or tribal governments in the aggregate; or to private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.

EPA has determined that the approval action promulgated does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action acts on pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.

Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.

EPA believes that VCS are inapplicable to today's action because it does not require the public to perform activities conducive to the use of VCS.

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 rule is not a “major” rule as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 30, 2002. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

EPA Regions, as well as States, Territories and Tribes authorized to implement the National Pollutant Discharge Elimination System (NPDES) program, issue permits that comply with the technology-based and water quality-based requirements of the Clean Water Act. In doing so, NPDES permitting authorities, including authorized States, Territories, and Tribes, make a number of discretionary choices associated with permit writing, including the selection of pollutants to be measured and, in many cases, limited in permits. If EPA has “approved” ( i.e. , promulgated through rulemaking) standardized testing procedures for a given pollutant, the NPDES permitting authority must specify one of the approved testing procedures or an approved alternate test procedure for the measurements required under the permit. In addition, when an authorized State, Territory, or Tribe provides certification of Federal licenses under Clean Water Act section 401, States, Territories and Tribes are directed to use the approved testing procedures. Categories and entities that may be regulated include:

This 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 the table could also be regulated. To determine whether your facility or organization is regulated by this action, you should carefully examine the applicability language at 40 CFR 136.1 (NPDES permits and CWA). If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT SECTON.

1. Docket. EPA has established an official public docket for this action under Docket ID No. W-01-05. The official public docket consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the public docket does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public docket is the collection of materials that is available for public viewing at the Water Docket located at EPA West Building, Room B135, 1301 Constitution Avenue, Washington, DC. This Docket Facility is open from 8:30 a.m. and 4:30 p.m. Eastern Time, Monday through Friday, excluding Federal holidays. The Docket telephone number is 202-566-2426.

2. Electronic Access. You may access this Federal Register document electronically through the EPA Internet under the “Federal Register” listings at http://www.epa.gov/fedrgstr/. }

An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at http://www.epa.gov/edocket/ to view public comments, access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in Unit I.B. Once in the system, select “search,” then key in the appropriate docket identification number.

Today's rule is promulgated pursuant to the authority of sections 301, 304(h), 307, and 501(a) of the Clean Water Act (CWA), 33 U.S.C. 1311, 1314(h), 1317, 1361(a) (the “Act” or “CWA”). Section 301 of the Act prohibits the discharge of any pollutant into navigable waters unless the discharge complies with a National Pollutant Discharge Elimination System (NPDES) permit, issued under section 402 of the Act. Section 304(h) of the Act requires the Administrator of the EPA to “promulgate guidelines establishing test procedures for the analysis of pollutants that shall include the factors which must be provided in any certification pursuant to section 401 of this Act or permit applications pursuant to section 402 of this Act.” Section 501(a) of the Act authorizes the Administrator to “prescribe such regulations as are necessary to carry out his function under this Act.” EPA publishes CWA analytical method regulations at 40 CFR part 136. The Administrator also has made these test procedures applicable to monitoring and reporting of NPDES permits (40 CFR parts 122, §§ 122.21, 122.41, 122.44, and 123.25), and implementation of the pretreatment standards issued under section 307 of the Act (40 CFR part 403, §§ 403.10 and 402.12).

On May 26, 1998, EPA proposed EPA Method 1631 at 40 CFR part 136 for use in determining mercury at ambient water quality criteria levels in EPA's Clean Water Act programs (63 FR 28867). On March 5, 1999, EPA published a Notice of Data Availability that included additional data supporting the application of EPA Method 1631 to effluent matrices (64 FR 10596), and on June 8, 1999, published a final rule promulgating EPA Method 1631, Revision B: Mercury in Water by Oxidation, Purge and Trap, and Cold Vapor Atomic Fluorescence Spectrometry (64 FR 30416) at 40 CFR part 136. Following method promulgation, EPA published a technical correction replacing Revision B (Method 1631B) with EPA Method 1631, Revision C (66 FR 32774; June 18, 2001). Revision C clarified the method text regarding the reporting and use of field blanks.

Following promulgation of EPA Method 1631B on June 8, 1999, several industry groups filed a petition for judicial review of the method. On October 19, 2000, EPA entered into a Settlement Agreement ( Alliance of Automobile Manufacturers, et al. v. EPA, No. 99-1420, D.C. Dir.) with the Petitioners. The Settlement Agreement includes three clauses that address revisions to EPA Method 1631 (Clauses 2, 3, and 4). Clauses 2 and 3 committed EPA to sign a notice of final rulemaking by June 15, 2001, revising sections 12.4.2 and 9.4.3.3 of EPA Method 1631B to clarify the use of field blanks. EPA complied with that commitment. On June 18, 2001, EPA published a notice of final rulemaking announcing a revised version of EPA Method 1631 (Revision C; Method 1631C).

Clause 4 of the Settlement Agreement required that EPA sign a notice for publication in the Federal Register to propose additional requirements for certain clean techniques and quality control (QC) provisions on or before September 30, 2001, and to sign a notice for final action on the proposal on or before September 30, 2002. On October 9, 2001, EPA published a notice proposing such revisions (66 FR 51518). At that time, EPA also made a draft of the method available to present the proposed revisions in context of EPA Method 1631 procedures (draft Method 1631, Revision D). Today's action satisfies EPA's obligation to take final action on the proposed rulemaking.

On October 9, 2001, EPA proposed revisions to Method 1631 under the Settlement Agreement (66 FR 51518). The proposed revisions were listed in Appendix A of the Settlement Agreement and were presented in Section IV of the proposed rule (66 FR 51520). The proposed revisions would have converted certain of the recommendations and guidance in the method (specifically, certain clean techniques and quality control provisions) into requirements. The proposal would have allowed an NPDES permittee to forgo such requirements at their own discretion, but at their own risk. The proposal would not have allowed other method users ( e.g. , State agencies) to forgo the proposed requirements.

EPA proposed several additional revisions that were not contested in the litigation. These latter proposals would clarify method procedures, increase method flexibility, and provide additional guidance for method implementation. To ensure consistency with analytical method requirements, EPA also proposed an amendment to Table II at 40 CFR 136.3(e) to address collection and handling of samples for analysis using EPA Method 1631. The additional proposed revisions and the proposed amendment to Table II at 40 CFR 136.3(e) were based on comments and recommendations submitted to EPA by various stakeholders since promulgation of EPA Method 1631B in June of 1999. EPA received 26 comment packages on the October 2001 proposed rule. Section V of this document summarizes the major comments. The administrative record supporting today's action responds to the public comments received on all the proposed changes.

Today's action replaces all previously approved versions of EPA Method 1631 with EPA Method 1631, Revision E (Method 1631E) for measurement of mercury in aqueous samples. Today's action does not repeal any other currently approved methods that measure mercury. EPA Method 1631E (the “Method”) incorporates several revisions to increase method flexibility and improve data quality. These revisions:

• Allow the use of automated flow-injection systems (Sections 10.3 and 11.2.2);

• Incorporate system blanks for use with automated flow-injection systems (Sections 9.4.2 and 10.3.2);

• Incorporate definitions for blank samples (Sections 9.4 and 17);

• Incorporate a requirement for analysis of method blanks (Section 9.4);

• Include a requirement to analyze bottle blanks at a recommended minimum frequency of 5 percent (Sections 6.1.2.4 and 9.4.7);

• Allow extension of the calibration range (Sections 1.3 and 10.4);

• Remove requirements for immediate sample preservation, refrigeration of unpreserved samples, and collection of samples with zero headspace, provided sample bottles are tightly capped and samples are either preserved or analyzed within 48 hours of collection (Section 8.5).

• Allow extension of the time until preservation to 28 days if a sample is oxidized in its sample container (Section 8.5);

• Extend the maximum sample holding time (time from sample collection until sample analysis) from 28 days to 90 days (Section 8.5);

• Incorporate a carryover test for determining the amount of mercury that would be carried into a subsequent sample when a sample containing a high level of mercury is analyzed (Sections 4.2.8.1 and 11.2);

• Further clarify that samples must be completely oxidized prior to analysis (Section 8.1);

• Allow shipment of empty bottles for sample collection (Section 6.1.2.1);

• Incorporate a requirement for analysis of a minimum of two matrix spike/matrix spike duplicate (MS/MSD) sample pairs per analytical batch of twenty samples (Section 11.1.2);

• Reinforce the requirement that only glass or fluoropolymer bottles may be used for sample collection (Section 4.3.7.1 and 8.2);

• Allow both field and laboratory sample filtration (Sections 2.2 and 8.4);

• Correct part numbers (Sections 6.1.3.2 and 6.1.3.3); and

• Clarify that method users are permitted to omit steps or modify procedures provided that all performance requirements in the Method are met, but must not omit or modify any procedure defined by the term “shall” or “must,” and must perform all quality control tests (Method introductory note).

Today's rule also amends 40 CFR 136.3(e) by adding a footnote (17) to Table II to include requirements for collection, filtration, preservation, and maximum holding times that are specific to samples collected for determination of mercury using EPA Method 1631. This footnote includes the following requirements for mercury samples: samples must be collected in either fluoropolymer or glass containers; samples must be preserved with either HCl or BrCl within 48 hours of collection; time until preservation may be extended to 28 days if samples are oxidized in the sample bottles; samples have a maximum holding time of 90 days from the date of sample collection; and samples must be filtered in a clean area in the laboratory or in the field prior to sample preservation. This amendment provides consistency with requirements approved in previous versions of EPA Method 1631 and with the revisions promulgated today.

Under the Settlement Agreement, EPA proposed certain clean techniques and quality control (QC) provisions as requirements. Under the then existing versions of Method 1631, these provisions were only recommendations. These provisions were presented in Section IV.A of the proposed rule and were indicated throughout draft Method 1631D by the word “must” in bracketed and italicized text. A summary of the comments received and EPA's response to the comments is presented in Section V.B of this document.

Commenters generally opposed the changes from “should” to “must,” maintaining that Method 1631 and other EPA methods should be “performance based”; i.e. , that the method user should be accorded flexibility to improve method performance and lower the costs of measurements, provided all performance criteria are met. However, commenters supported specific requirements for analysis of bottle blanks (Sections 6.1.2.3 and 9.4.7), analysis of blanks to test for carryover (Sections 4.3.8.1 and 11.2), analysis of two MS/MSD pairs per each analytical batch of 20 samples (Section 11.1.2), and use of either fluoropolymer or glass containers for sample collection (Section 4.3.7.1). In response to comments, EPA is incorporating these changes into EPA Method 1631E in today's rule.

Following review of comments, EPA believes that requiring the additional proposed requirements for clean techniques or quality control provisions would result in unnecessary economic burden and would limit future use of the Method. With the exceptions outlined above, EPA is not promulgating the clean techniques and quality control requirements proposed earlier. Instead, EPA has retained in the Method as recommendations that samples should be collected using clean hands/dirty hands collection procedures (Section 9.4.4.2); samples should be processed in a clean room or clean bench (Sections 4.3.3 and 8.5.3); exposure to sources of contamination should be minimized (Section 4.3); work surfaces should be cleaned prior to processing sample batches (Section 4.3.5); traps that tend to absorb large quantities of water vapor should be pre-dried or discarded (Section 4.3.3); outside air, if clean, should be brought into the clean bench air intake (Section 7.2); samples should be stored in clean, new polyethylene bags prior to use (Section 8.6); and samples collected for measurement of methylmercury should be collected and preserved according to procedures required in the analytical method that will be used (Sections 2.3 and 8.5).

Under the Settlement Agreement, EPA also proposed that an NPDES permittee or an industrial user of a POTW be able to elect not to implement the clean techniques and QC provisions “in its discretion and at its peril, unless specifically provided otherwise by the relevant permitting agency or pretreatment control authority, as the case may be.” The election, if promulgated, would apply only to those clean techniques and QC provisions designated in the Settlement Agreement and designated by bracketed and italicized text throughout draft Method 1631D. Because EPA is not imposing such requirements, EPA has not included the proposed election revision in today's final rule. A summary of the comments regarding the proposed option and EPA's response to the comments is presented in Section V.C of this document.

Since promulgation of EPA Method 1631B in June 1999, EPA received many suggestions from Method users for improving method flexibility and clarifying certain method procedures. EPA proposed and discussed these improvements and clarifications in the October 9, 2001 proposal. In today's final rule, EPA is withdrawing or revising certain proposed Method revisions based on adverse comments. Specifically, EPA is (1) revising the term “calibration blank” to “system blank” for those blank samples required during calibration and batch analyses when using a flow-injection system, (2) revising the proposed QC acceptance criteria associated with system blanks and the use of these blanks, (3) withdrawing the frequency requirement associated with analysis of bottle blanks, and (4) withdrawing the requirement to commensurately raise the lowest calibration point when the upper end of the calibration range is raised. These four revisions and the corresponding comments on the proposed rule are described in more detail in Sections V.E through V.F of this document.

In the October 9, 2001 proposal, EPA stated that it was reviewing data that indicate samples collected for measurement of low level mercury may be stable for as long as 35 days prior to preservation, and included the data in the Record supporting the proposed rule. At that time, EPA also solicited additional data or comments regarding the stability of unpreserved samples.

EPA received comments on the proposed rule that support extension of the time prior to preservation and has completed review of the data discussed in the proposed rule. In response to these data and to submitted comments, EPA is requiring in Method 1631E that samples must be preserved within 48 hours of sample collection. However, EPA is allowing extension of the time until preservation to 28 days if samples are oxidized in the sample bottles. EPA has included this change in Section 8.5 of EPA Method 1631E and in Footnote 17 to Table II at 40 CFR 136.3(e).

Minor clarifications and technical corrections are included in EPA Method 1631E to address errors and inconsistencies noted by commenters. These changes and corrections:

• Revise Section 9.4.2 to clarify that system blanks are specific to flow-injection systems;

• Revise Section 9.4.3.1 to clarify that in order to assess possible contamination from reagents, reagent blanks include hydroxylamine hydrochloride solution in addition to BrCl solution;

• Revise Section 11.2.2.1 to clarify that the amount of NH 2 OH required will be approximately 30 percent of the BrCl volume;

• Revise the QC acceptance criteria for reagent blanks in Section 9.4.3 from 0.25 ng/L to 0.2 ng/L for consistency with reporting requirements;

• Revise Section 12.2.1 to clarify that the mean peak response for bubbler blanks measured during calibration or with each analytical batch is used for calculating sample results;

• Correct the concentration units in the equations in Sections 12.2.2 and 12.3.2;

• Revise Section 9.3.2.2 to clarify that identical volumes of spiking solution must be used for MS/MSD samples;

• Revise Section 4.4.1 to clarify that, for those samples requiring pre-reduction with SnCl 2 ( i.e. , samples containing iodide concentrations greater than 3 mg/L), the SnCl 2 should be added in a closed vessel or analysis should proceed immediately;

• Revise Section 11.1.1.2 to clarify that samples containing high organic content may also be diluted to reduce the amount of BrCl that may be required, provided that the resulting level of mercury is sufficient for reliable determination within the range of method calibration;

• Revise Section 7 to include a note clarifying that the quantities of reagents and the preparation procedures are for illustrative purposes. A laboratory may use quantities of reagents and procedures that differ, provided it is able to demonstrate equivalent performance;

• Revise Sections 7.9 and 7.10 to clarify that standard solutions should be replaced monthly, or longer if extended stability is demonstrated;

• Correct Section 2.7 to include the analytical trap in the description;

• Revise Section 9.1.7 and Section 10.1 to clarify that analysis of samples may proceed without recalibration, provided system performance is verified at the end of the analytical sequence;

• Revise Section 9.4 to address the performance criteria associated with blank samples in those circumstances when a method detection limit greater than 0.2 ng/L is sufficient to address compliance monitoring;

• Include a note in Section 9.1.2.1 to clarify that acceptance criteria associated with blank samples may be adjusted to support measurements at the compliance level; and

• Revise Section 12.5.1 to include specifications for reporting results of Method blanks.

EPA requested comments on the various EPA Method 1631 revisions detailed in the October 9, 2001 proposal, and requested data supporting comments, if available. Twenty five stakeholders provided comments on the proposal addressing over 50 separate issues. Stakeholders included 10 laboratories, 6 POTWs, 3 regulatory authorities, 3 industries/industry groups, one instrument manufacturer, a group of several POTWs, and the Petitioners (see Settlement Agreement discussion, Section II.B).

The following section summarizes major comments received on the proposed rule and EPA's response. The complete Response to Comments document can be found in the public record for this final rule (Record Section VI, DCN B.1).

Several commenters on the October 9, 2001 proposed rule noted that Section 1.8 of EPA Method 1631 describes the method as performance-based, and that if certain recommendations for clean techniques included in the method were to become requirements as proposed, the method would no longer be performance-based. Commenters stated that requiring laboratories and sample collectors to adopt clean procedures that are unnecessary is contrary to a performance-based measurement system, and added that additional requirements would impose cost burdens that could result in reduced method implementation. Commenters stated further that performance-based measurements must not prescribe particular actions unless they are essential to the successful implementation of the method. Commenters added that many of the proposed requirements would lock users into current technology despite the many advances and improvements in techniques and equipment that are likely to occur in the coming decades. Commenters believe that if the performance-based nature of the method is not retained, further improvement of method performance would be hindered.

EPA developed performance-based measurement systems as part of EPA's commitment to reducing unnecessary regulatory burden and encouraging the use of emerging and innovative technologies. Throughout development of these analytical methods, EPA recognized that allowance for this flexibility must be matched with controls to ensure that data quality is maintained. For this reason, many approved methods include standardized QC tests and specific QC acceptance criteria that must be met when a method is modified to overcome interferences or lower the cost of measurement.

The QC acceptance criteria included in EPA Method 1631 were developed using method validation data from 12 laboratories. These criteria include precision and recovery performance requirements for the matrix spike and matrix spike duplicate (MS/MSD), initial and ongoing precision and recovery (IPR and OPR), calibration linearity, method detection limit (MDL), and quality control samples (QCS). EPA Method 1631 criteria also include requirements for several blanks ( i.e. , equipment, bottle, field, method, reagent, system, and bubbler blanks) to monitor potential contamination during sample collection and analysis.

EPA acknowledges the concerns submitted by commenters and agrees that the QC requirements and acceptance criteria in EPA Method 1631 are sufficient to ensure data quality and preclude inadequate method implementation. For these and other reasons given in the Response to Comments document, EPA has decided not to require most of the clean techniques and quality control provisions proposed.

Only comments submitted on behalf of the Petitioners supported promulgation of all the proposed requirements for the additional clean techniques specified in the Settlement Agreement. This commenter stated that clean sampling and analytical techniques are critical to obtaining reliable results for use in the regulatory process. The commenter stated further that, although clean techniques result in additional expense, the consequences could be more serious if data users act upon test results that may be affected by contamination.

Nineteen commenters submitted comments opposing these additional requirements. These commenters believe that EPA Method 1631 contains sufficient QC to determine the source of any contamination and that if a laboratory can demonstrate it is capable of meeting the Method QC criteria without the additional proposed clean techniques, it should be allowed to do so. Several commenters stated that the reasoning behind the proposed requirements appears to be arbitrary and that it is unclear what scientific basis was used to determine which techniques should be requirements. Commenters noted that the requirements would place a burden, operational and economic, on facilities with little or no gain in analytical performance, and could severely limit the ability of regulators to determine whether mercury discharges are being controlled effectively. At least one POTW commenter stated that, if these requirements were promulgated as proposed, it most likely would no longer use EPA Method 1631. Additionally, a regulatory authority noted that if costs escalate because of additional requirements, such costs would limit the ability of regulators to determine whether mercury discharges are being controlled effectively.

EPA agrees with the majority of commenters and believes that the additional requirements proposed to be included in EPA Method 1631 would be burdensome, and that the QC acceptance criteria included in the Method are sufficient to ensure data quality. EPA has not received data to support a decision that the proposed additional clean techniques and quality control provisions are necessary to ensure validity of data obtained through implementation of EPA Method 1631. The requirements and criteria associated with quality control and blank samples throughout the Method are the most appropriate and valuable means for identifying and controlling contamination.

Additionally, EPA believes that if all of the recommendations for clean techniques were required, compliance with the requirements would be extremely difficult to monitor. For example, EPA proposed to revise Method 1631 Section 4.3.8.4 as follows: “* * * Whenever possible, sample processing and analysis [must] occur as far as possible from sources of airborne contamination.” Following review of comments, EPA believes that it does not have sufficient information to provide specific tests to determine compliance with such a requirement. EPA believes the most appropriate means for demonstrating that samples are processed and analyzed using procedures to minimize contamination are already included in the requirements and criteria for analysis of blanks, and that analysts are appropriately advised regarding how to avoid contamination by the recommendations for clean techniques in the Method.

EPA also recognizes that sample locations and laboratory environments can differ significantly and that the site-specific clean techniques necessary to meet the performance criteria included in EPA Method 1631 will be best determined and improved upon by individual Method users. For these reasons, and to respond to the concerns of commenters, EPA is retaining the clean techniques provisions as recommendations but not requirements in EPA Method 1631E. EPA Method 1631E continues to require that all QC tests be performed and that all QC acceptance criteria are met, and continues to include the following as recommendations:

• Use a clean room or clean bench for sample preparation and analysis (Sections 4.3.3 and 8.5.3);

• Minimize exposure of the apparatus to contamination (Section 4.3.3);

• Clean work surfaces prior to processing sample batches (Section 4.3.5);

• Process samples as far as possible from sources of airborne contamination (Section 4.3.8.4);

• Ensure that laboratory air is low in mercury (Section 7.2);

• Store sample bottles in clean (new) polyethylene bags until sample analysis (Section 8.6); and

• Use “Clean Hands/Dirty Hands” techniques described in EPA's Method 1669: Sampling Ambient Water for Trace Metals at EPA Water Quality Criteria Levels for collection of equipment blanks (Section 9.4.4.2).

In addition to recommending these protocols for clean techniques throughout EPA Method 1631E, EPA published several guidance documents supporting the collection and analysis of samples for measurement of low-level mercury. These guidance documents include Guidance for Implementation and Use of Method 1631 for Determination of Low-Level Mercury (40 CFR Part 136) EPA 821-R-01-023, March 2001; Method 1669: Sampling Ambient Water for Trace Metals at EPA Water Quality Criteria Levels, EPA-821-R-96-001, July 1996; Guidance on Establishing Trace Metals Clean Rooms in Existing Facilities, EPA-821-B-96-001, January 1996; and Guidance on Documentation and Evaluation of Trace Metals Data Collected for Clean Water Act Compliance Monitoring, EPA-821-B-96-004, July 1996.

Under the Settlement Agreement, EPA proposed to require specific clean techniques and QC provisions in draft Method 1631D and to provide only NPDES permittees and industrial users with the option not to implement those techniques and provisions.

Comments submitted on behalf of the Petitioners regarding this proposed option state that this approach would be appropriate because (1) the liability associated with sampling lies with the permittee and, therefore, the permittee should have the discretion to determine what is or is not an acceptable contamination risk, (2) permittees are familiar with the characteristics of their effluent and the level to which clean techniques must be followed, and (3) EPA and State agencies lack this level of facility-specific understanding and therefore, should be required to follow clean procedures. The commenter added that, under the current system, permittees may be precluded from raising the contamination issue as a defense in an enforcement action or, at a minimum, would bear the very heavy burden of proving contamination for data generated by EPA or State agencies.

Eleven commenters stated that giving certain groups the option to eliminate certain requirements for clean techniques and QC provisions would result in a plethora of methods and would make it very difficult for contract testing laboratories who would bear the burden of the resulting confusion. Some permittees may elect to forgo required clean techniques while others would not; all laboratory customers, however, would benefit and bear costs of clean techniques, regardless of their election. These commenters believe that such an option would set a dangerous and undesirable precedent regarding what any particular person believes is “necessary” to achieve a scientifically valid result. These commenters stated further that implementation of this option would limit the quality and value of collective databases for environmental decision making.

In today's final rule, EPA is not requiring most of the proposed clean techniques and QC provisions for any users of the Method. EPA agrees with the majority of commenters that applying such requirements to only some users would create unwanted inconsistency, would severely impair laboratories serving multiple clients, and would ultimately cause misinterpretation of data and confusion among regulators and laboratories. Most importantly, EPA disagrees with the comment that all of the proposed clean techniques are necessary to obtain reliable results. EPA also disagrees with the comment that Federal and State laboratories lack the necessary information (or even need facility-specific information) to minimize contamination. In today's final rule, EPA has not included this option in EPA Method 1631E.

Rather than requiring the clean techniques and QC provisions for some users but not for others, EPA instead is providing equal flexibility for all users of the Method. Most of the clean techniques and QC provisions are included only as recommendations in the final rule. Because EPA is not requiring most of the proposed clean techniques and QC provisions for any users of the Method, there is no reason to include the option for permittees and industrial users to elect not to use them, and in today's final rule, EPA has not included this option.

EPA proposed to revise EPA Method 1631 to include requirements to assess cleanliness of bottle blanks and to require analysis of bottle blanks at a minimum frequency of 20 percent from a given lot. Most commenters agreed that requiring analysis of bottle blanks is appropriate and good practice. However, only one comment submitted regarding these blank samples supported a requirement that bottle blanks be analyzed at a frequency of 20 percent. EPA received comments from 7 laboratories, 1 instrument manufacturer, and 1 regulatory authority that this frequency requirement is excessive, and would result in unnecessary additional equipment costs. Commenters also provided cost information suggesting that, if one assumes a low cost of between $40 and $50 per Method 1631 analysis performed, this requirement would add a cost of $800 to $1000 per lot of clean bottles, or approximately $8 to the cost of each bottle purchased. Commenters also recommended alternate frequency requirements for bottle blank testing ranging from a minimum of 1 percent to 10 percent.

EPA's proposal to include a requirement that a minimum of 20 percent of the bottles from a given lot be tested for cleanliness was based on current practices implemented in a single laboratory. Because method and field blanks also are used to monitor contamination and are required in EPA Method 1631E, EPA agrees that requiring testing of 20 percent of the bottles from each lot is unnecessary and probably excessive. Although laboratories and cleaning facilities may choose to test at this frequency as a means of ensuring contamination control, EPA is not requiring that frequency in today's rule. EPA believes that testing a lot of bottles at a minimum frequency of 5% is sufficient and has included this frequency as a recommendation in EPA Method 1631E. While EPA is recommending that bottle blanks be analyzed at a frequency of 5%, laboratories have demonstrated the ability to meet EPA Method 1631 performance criteria and data quality objectives analyzing bottle blanks at a minimum frequency of 1%. Therefore, if a laboratory is able to meet performance criteria using a minimum frequency of 1%, it should be allowed.

In response to several requests from stakeholders to apply EPA Method 1631 across a broader range, EPA proposed to allow calibration to a lower point (below the ML) to more accurately measure mercury in blank samples, and to a higher point (above 100 ng/L) to measure concentrations presently measured with other approved mercury methods. EPA also proposed certain criteria to ensure that this allowance would not compromise data quality. These criteria included: (1) A minimum of five, non-zero calibration points; (2) the difference between successive calibration points must be no greater than a factor of 10 and no less than a factor of 2 and should be approximately evenly spaced on a logarithmic scale over the calibration range; (3) the relative standard deviation (RSD) of the calibration factors for all calibration points must be less than 15%; (4) the calibration factor for any calibration point at a concentration greater than 100 ng/L must be within plus or minus 15% of the average calibration factor for the points at or below 100 ng/L; (5) the calibration factor for any point less than 5 ng/L must be within plus or minus 25% of the average calibration factor for all points; (6) if the highest calibration point is increased above 100 ng/L, the lowest calibration point (ML) must be increased commensurately above 0.5 ng/L; and, (7) if the calibration is to a higher range and this Method is used for regulatory compliance, the ML must be less than one-third the regulatory compliance limit.

Several commenters expressed concern regarding the proposed option to extend the lower end of calibration in EPA Method 1631. Commenters noted that in the proposed rule preceding the June 8, 1999, promulgation of EPA Method 1631B, EPA proposed to allow users to calculate lower MDLs and MLs. Based on comments, however, EPA “removed the option for laboratories to calculate their own lower MDLs and MLs. * * *” 64 FR 30420 (June 8, 1999). In support, EPA stated its belief that “this will avoid confusion and preclude lower MDLs and MLs from being used for NPDES permitting or regulatory compliance determinations.” Commenters stated that authorization for Method users to calibrate instruments to below the Method ML would result in regulatory uncertainty. For these reasons and in response to comments, EPA has clarified this provision in EPA Method 1631E by stating that, for the purpose of measuring the level of mercury in blank samples only, calibration may be extended to a lower level.

One commenter on the proposed rule expressed concern that allowing extension of the high end of the calibration range could jeopardize low-level compliance determinations by increasing the potential for bias resulting from cross contamination or carryover. The commenter pointed out that EPA acknowledged this increased risk by proposing a new method section that specified a carryover test (see Proposed Rule, Section IV.A.7). This commenter believes that bubbler blank and method blank analyses are insufficient to identify and control contamination if calibration is extended to levels greater than 100 ng/L. EPA proposed to add a carryover test to Method 1631 in response to comments from stakeholders who requested an allowance for extension of the method calibration range, but were concerned about potential contamination that could result from extension of the upper end of calibration. EPA believes that the carryover test, the requirements associated with blank analyses, and the calibration criteria included in Method 1631, Revision E are sufficient to prevent effects that could result from cross contamination or carryover. For this reason, and in response to additional comments, EPA has included an allowance for extension of the upper end of the calibration range in EPA Method 1631, Revision E.

Three additional commenters supported extension of the upper end of the calibration range. These commenters believe the carryover test and ongoing blank determinations will ensure the analytical system remains sufficiently clean or that carryover will be detected should it occur. The commenters stated, however, that the corresponding criterion that the lowest calibration point must be raised commensurately when the upper end of calibration is raised is inappropriate. Commenters stated further that this criterion is unnecessary, particularly if an analytical system is demonstrated to be sufficiently linear and clean as specified by QC requirements included in the Method. Commenters added that commensurate raising of the lower end of calibration is unnecessary, particularly if two of the additional proposed corresponding criteria for extended calibration are met ( i.e. , the calibration factor (CF) for any calibration point at a concentration greater than 100 ng/L must be within plus or minus 15 percent of the average CF for the points at or below 100 ng/L and the CF for any point less than 5 ng/L must be within plus or minus 25 percent of the average CF for all points). EPA agrees that commensurate raising of the lower end of calibration is unnecessary, provided the remaining calibration criteria are met. EPA also points out that (1) there is no similar restriction in other methods; (2) the carryover test included in Section 4.3.8.1 of Method 1631, Revision E will allow a laboratory to determine the level at which Hg will be carried into a succeeding sample or blank; (3) the extensive requirements for blanks will detect contamination; and (4) a laboratory can run a blank before each sample, if desired, to demonstrate that a preceding sample did not carry Hg into the next sample. For these reasons, EPA is not including the proposed requirement for increasing the low end of the calibration range when the upper end is increased in today's rule.

Following review of these comments, EPA has determined that allowing Method users to raise the Method calibration range, provided the performance criteria specified in Section 10.4 of the Method are met, will increase method flexibility without compromising data quality. Such an allowance is consistent with EPA protocol for approval of new methods and with the International Union of Pure and Applied Chemists (IUPAC) guidelines for calibration. EPA agrees with most commenters and believes that Method 1631 contains QC requirements that are sufficient to detect and preclude carryover from samples or standards containing high levels of mercury ( i.e. , greater than 100 ng/L). Additionally, EPA agrees that the criteria included in Section 10.4 of the Method is sufficient to ensure data quality without the requirement to raise the lower end of calibration if an extended upper end of calibration is used. For these reasons, EPA has removed the requirement to commensurately raise the low end of the calibration range when the upper end is raised from Section 10.4 of Method 1631E and is approving the provision to allow extension of the upper end of the calibration range. EPA also agrees with most commenters that the proposed procedure for identifying and controlling carryover will assist Method users, and is promulgating the procedures in Section 4.3.8.1 (see Section V.I. below).

EPA received several comments regarding Method 1631 QC acceptance criteria associated with the analysis of blank samples. Numerous commenters stated that an acceptance criterion stipulated as less than the Method MDL (<0.2 ng/L) is inappropriate. Commenters note that measurements below the minimum level of quantitation ( i.e. , the lowest calibration point) of an analytical method are inherently problematic and will result in failures attributable to random variation alone. Commenters also state that such a criterion is inappropriate because an MDL of 0.2 ng/L is not required to meet performance specifications in the Method. These commenters point out that Section 9.2.1 of EPA Method 1631 states that an MDL less than or equal to 0.2 ng/L or one-third the regulatory compliance limit, whichever is greater, is acceptable. Commenters note further that if a compliance level were 4 ng/L, an MDL determination of 1.3 ng/L would be sufficient. In such a case, monitoring levels of mercury in blanks against a criterion of 0.2 ng/L would be inconsistent.

Except for those criteria associated with calibration and method blank analyses, the QC acceptance criteria for blank samples included in EPA Method 1631 are identical to those originally proposed in May 1998. EPA received, reviewed, and responded to numerous comments prior to promulgation of EPA Method 1631B in June of 1998. Since promulgation, use of EPA Method 1631 has increased significantly, as has the ability to meet Method QC acceptance criteria. For this reason, EPA did not include revisions to these acceptance criteria in the October 2001 proposed rule, and is not promulgating such revisions in today's final rule. In response to comments on the October 2001 proposed rule, however, EPA is clarifying that the QC acceptance criteria for blank samples may be adjusted ( i.e. , raised) to support measurements at the compliance level (see EPA Method 1631E, Note to Section 9.1.2.1). For example, if the compliance level is 4 ng/L, an appropriate MDL would be 1.3 ng/L, the corresponding lowest calibration standard would be at the ML of 4 ng/L, and appropriate QC acceptance criteria for blank samples would be 1.3 ng/L (bubbler and reagent blanks) or 4 ng/L (method, field, and bottle blanks).

Commenters were supportive of EPA's proposed revision to incorporate automated flow-injection systems into EPA Method 1631. Commenters stated that, without EPA's acknowledgment that these systems are in use, implementation of such systems could be curtailed.

EPA Method 1631, Revision C included bubbler blanks to establish a background for the bubbler system ( i.e. , bubbler, traps, and cold-vapor atomic fluorescence detector). Bubbler blanks, however, are not appropriate for flow-injection systems. Hence, EPA proposed a requirement for analysis of calibration blanks when using flow-injection systems. The proposed QC acceptance criteria and application requirements for the calibration blanks were identical to the existing QC acceptance criteria and application requirements for the bubbler blanks ( i.e. , the mean result of bubbler or calibration blanks is subtracted from results of calibration standards and samples and must be < 0.25 ng/L).

Since proposal, EPA has determined that the term “system” blank is more appropriate for the blank samples associated with flow-injection systems because these blank samples are used to assess contamination during calibration and during analysis of analytical batches. Therefore, EPA has replaced the proposed term “calibration blank” with “system blank” throughout Method 1631E.

Numerous commenters strongly objected to the requirements associated with the system blanks that EPA proposed to accompany flow-injection systems. Commenters stated that bubbler blanks and calibration ( i.e. , system) blanks are not identical in either composition or purpose, and emphasized that it would be inappropriate and impractical to treat these samples as identical. Commenters noted that, unlike bubbler blanks which analyze previously-purged water to measure the level of mercury remaining in the bubbler system, system blanks measure residual mercury in reagent water as well as mercury in the reagents used in the calibration standards and samples. Commenters added that for this reason, the proposed system blank criteria for flow-injection systems are at least twice as restrictive as those placed on the use of bubbler systems.

In response to comments and upon further review of automated flow-injection systems, EPA has revised the proposed requirements associated with system blanks. EPA recognizes that flow injection systems require that reagents are added to all samples including the calibration standards, and has included a criterion in Section 9.4.2 of EPA Method 1631E that system blanks containing levels of mercury equal to or greater than 0.5 ng/L demonstrate that the system is out of control.

Two commenters on the proposed rule stated that EPA should revise the term used for these systems from “Automated Flow-Injection” to “Continuous Flow” throughout EPA Method 1631. Although EPA agrees with these commenters that “Continuous Flow” is descriptive of the flow-injection systems used for determination of mercury in EPA Method 1631, it is a generic term that includes other systems such as sequential injection, sequential flow, and bead injection systems. EPA believes that the system described in EPA Method 1631 is consistent with the definition of a flow injection system, and has retained the proposed “flow-injection” terminology throughout EPA Method 1631E.

Twelve commenters submitted comments regarding the proposed requirement to use either glass or fluoropolymer containers for collection of samples for measurement of mercury using EPA Method 1631. Commenters generally emphasized support for the performance-based nature of sample container selection to preclude unnecessary expense and allow for development of future materials. However, most commenters also expressed preference for fluoropolymer, glass, or fluoropolymer-lined glass containers for sample collection and preparation, particularly because of the possibility for some forms of mercury to move in or out of containers composed of other materials.

Four commenters on the proposed rule requested that EPA Method 1631 be revised to allow collection of samples in high density polyethylene (HDPE) containers if the samples are shipped to the laboratory for preservation and transferred to fluoropolymer containers within 48 hours. These commenters submitted identical data comparing summary results of samples collected using fluoropolymer sample bottles to samples collected using HDPE sample bottles to support this request. These data are included in Section V.E.1.10 of the Rulemaking Record. EPA has reviewed these data, and notes that although the results of the composite samples collected using either container type do not demonstrate a significant trend in mercury increase or loss, the results of the grab samples indicate a consistent increase in mercury concentration, ranging from 15 to 240 percent, in samples collected using HDPE containers.

EPA recognizes the concern that some forms of mercury can move in or out of containers composed of materials other than fluoropolymer or glass, and believes this concern is emphasized by commenters requesting that samples collected using HDPE containers be allowed only if the samples are transferred to fluoropolymer containers within 48 hours. In response to comments, and in recognition of current Method implementation practices, EPA is including a requirement in EPA Method 1631E that only fluoropolymer or glass containers be used for collection of samples to avoid artificial increases in mercury levels prior to measurement.

EPA proposed to include a carryover test in Method 1631 to determine the concentration at which greater than 0.2 ng/L mercury would be carried into the subsequent sample (see draft EPA Method 1631D, Section 4.3.8.1). EPA also proposed to require that each time a laboratory analyzes a sample containing the concentration of mercury determined to result in 0.2 ng/L carryover, the laboratory must run a bubbler or calibration blank to ensure carryover does not affect the results of the analysis of the subsequent samples.

Commenters generally supported incorporation of a carryover test to identify and control contamination from carryover that can result from analysis of samples containing high levels of mercury. Commenters also supported the proposed requirement for analysis of a blank sample following a sample containing a high level of mercury to demonstrate that the analytical system is clean. Several commenters, however, noted that the proposed standard for determining carryover ( i.e. , the level at which the analytical system will carry greater than 0.2 ng/L of Hg into a succeeding bubbler or calibration blank) is inappropriate because measurements below the ML of 0.5 ng/L are unreliable.

EPA has reviewed these comments and agrees with commenters' concerns regarding this performance standard. EPA recognizes that the carryover test is designed to target samples containing levels of mercury that could cause carryover, and believes that a performance standard of 0.5 ng/L is appropriate for the purposes of this test. EPA also believes, however, that in order to ensure data quality at the low levels of detection achievable by EPA Method 1631, levels of mercury no greater than 0.2 ng/L should be permitted to be carried over into succeeding samples. For this reason, EPA is requiring that a bubbler blank or system blank be analyzed following a sample containing a level of mercury that is one-half or greater than the level identified in the carryover test. Specifically, EPA is requiring that when a sample is analyzed that contains one-half or greater of the level of mercury that has been determined to result in 0.5 ng/L carryover, a blank must be analyzed to demonstrate no carryover at the 0.2 ng/L level (see Section 4.3.8.1 of EPA Method 1631E). For example, if the carryover test determines that samples containing 150 ng/L result in carryover greater than 0.5 ng/L, then the laboratory must analyze a blank sample following analysis of any sample containing more than 75 ng/L mercury.

EPA received additional comments presenting other concerns related to the carryover test. Commenters noted that it is unnecessary to require analysts to order samples from the lowest to the highest concentration. Commenters stated that analysts will define the order of samples according to information made available to them, and that there are other factors besides mercury concentration that are important in determining the order of samples. Commenters also noted that EPA should clarify that blanks should be run on the same bubbler used to run the high-concentration sample and that the requirements for the carryover test were not included in procedures for implementation of flow injection systems. EPA acknowledges that analysts often are not aware of the concentration levels of mercury contained in samples and that analysts may wish to order samples from least complex matrix to most complex matrix ( e.g. , ambient water to influent). For this reason, EPA has removed the requirement, and is instead recommending that samples known or suspected to contain the lowest concentration of mercury should be analyzed first followed by samples containing higher levels. EPA also has clarified that a bubbler blank should be analyzed using the same bubbler as that used to analyze the high-concentration sample and has added Section 11.2.2.3 to EPA Method 1631E to clarify that the carryover test and associated blank analysis are required.

Several commenters requested revisions and clarifications to the Method that were already addressed in the Guidance or were beyond the scope of the proposed rule. Specifically, EPA received comments requesting the inclusion of all QC acceptance criteria into a single table in Method 1631; clarification of site-specific frequency requirements associated with MS/MSD samples; additional recommendations for sample filtration, clean techniques, and sample handling procedures; and approval of EPA Method 245.7: Mercury in Water by Cold Vapor Atomic Fluorescence Spectrometry.

Following promulgation of today's rule, the Agency plans to revise the Guidance to reflect today's final rule and to incorporate further clarification of Method procedures. EPA also has completed a study to validate Method 245.7 in multiple laboratories and is planning to continue efforts towards approval of this additional test procedure.

EPA reviewed all the additional recommendations and comments and has provided responses to each in the Comment Response Document.

Under Executive Order 12866 (58 FR 51735 (October 4, 1993)), the Agency must determine whether the regulatory action is “significant” and therefore subject to Office of Management and Budget (OMB) review and the requirements of the Executive Order. The Executive 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.

It has been determined that this rule is not a “significant regulatory action” under the terms of Executive Order 12866 and is therefore not subject to OMB review.

The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements 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.

For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A small business as defined by the U.S. Small Business Administration definitions at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

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. Today's rule promulgates a revised version of an already approved EPA Method to improve and clarify method procedures. Today's rule also promulgates an amendment to Table II at 40 CFR 136.3(e) to provide consistency with previously approved requirements in EPA Method 1631 and with method revisions promulgated today for collection, preservation, and storage of samples for determination of mercury using Method 1631.

Overall, the costs of these revisions are minimal. While some of the revisions may increase cost ( e.g. , quality control requirements), other revisions will offset any increases and provide flexibility to lower the overall analytical costs ( e.g. , use of new, less expensive equipment). Many of the laboratories that analyze for mercury are already implementing the additional requirements, further minimizing any potential cost increases. EPA estimates that any costs associated with the additional requirements will be alleviated or eliminated by the additional flexibility. Therefore, EPA believes that this rule will not have a significant economic impact on a substantial number of small entities.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. L. 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, Tribal, and local 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 of 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 the notification of 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 mandate (under the regulatory provisions of Title II of the UMRA) for State, Tribal, and local governments or the private sector in any one year. This rule imposes no enforceable duty on any State, local or Tribal governments or the private sector. This rule promulgates revisions to a previously approved method for measuring mercury in wastewater. This rule also revises Table II at 40 CFR 136.3(e) to clarify requirements for sample collection, preservation, and storage, and to make these requirements consistent with previously approved requirements in EPA Method 1631 and with today's promulgated method revisions. Thus, today's rule is not subject to sections 202 and 205 of the UMRA. For the same reasons, EPA has also determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. Thus, today's rule also is not subject to the requirements of section 203 of the UMRA.

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. It does not impose any information collection, reporting or record keeping requirements. This action revises a currently approved test method for use in water monitoring programs but does not add additional burden nor specifically require the use of the test method. 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 previoulsy 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 numbers for EPA's regulations are listed in 40 CFR Part 9 and 48 CFR Chapter 15.

As noted in the proposed rule, Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Pub. L. 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. , material specifications, test methods, sampling procedures, business practices) that are developed or adopted by voluntary consensus standard bodies (VCSBs). The NTTAA directs EPA to provide Congress, through the Office of Management and Budget (OMB), explanations when the Agency decides not to use available and applicable voluntary consensus standards.

This rulemaking involves technical standards. Therefore, the Agency conducted a search to identify potentially applicable voluntary consensus standards. However, EPA identified no such standards for the measurement of mercury at water quality criteria levels, and none were brought to our attention in comments. Therefore, EPA has decided to promulgate EPA Method 1631, Revision E: Mercury in Water by Oxidation, Purge and Trap, and Cold Vapor Atomic Fluorescence Spectrometry.

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 Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. This rule is not subject to Executive Order 13045 because it is neither “economically significant” as defined in Executive Order 12866, nor does it concern an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children.

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 final 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. Today's rule promulgates EPA Method 1631, Revision E to replace an already approved version of the method for measuring mercury at low levels for compliance monitoring under the Clean Water Act and provide additional flexibility for use of currently available technologies. The costs of this rule for State and local governments are minimal. Thus, Executive Order 13132 does not apply to this rule.

Executive Order 13175, titled “Consultation and Coordination With Indian Tribal Governments” (65 FR 67249, November 9, 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 final rule does not have Tribal implications. It will not have substantial direct effects on Tribal governments, on the relationship between the Federal government and Indian Tribes, or on the distribution of power and responsibilities between the Federal government and Indian Tribes, as specified in Executive Order 13175. Today's rule promulgates EPA Method 1631, Revision E to replace an already approved version of the method for measuring mercury at low levels for compliance monitoring under the Clean Water Act, and provide additional flexibility for use of currently available technologies. The costs of this rule for Tribal governments are minimal. Thus, Executive Order 13175 does not apply to this rule.

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of 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). This rule will be effective on November 29, 2002.

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.

Executive Order 12866 directs each agency to write its rules in plain language. Readable regulations help the public find requirements quickly and understand them easily. Plain language increases compliance, strengthens enforcement, and decreases mistakes, frustration, phone calls, appeals, and distrust of government. EPA made every effort to write this preamble to the final rule in as clear, concise, and unambiguous manner as possible. Specifically, EPA used active voice and avoided the use of technical terms except when necessary. EPA solicited but received no comments on the Plain Language aspects of this rule.

The only regulated entities affected by today's rule are the 300 public water systems selected for Aeromonas monitoring. Use of the remaining methods approved in this action is voluntary. If, however, one of these methods is selected to support compliance monitoring, then compliance with the procedures specified in the method is required. A nationally representative sample of 120 large community and non-transient non-community water systems serving more than 10,000 persons is required to monitor for Aeromonas under the current UCMR. In addition, a nationally representative sample of 180 small community and non-transient non-community systems serving 10,000 or fewer persons is also required to monitor for Aeromonas. States, Territories, and Tribes with primacy to administer the regulatory program for public water systems under the Safe Drinking Water Act, sometimes conduct analyses to measure for contaminants in water samples and are thus affected by this action. Categories and entities potentially regulated by this action include the following:

This 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 of that could potentially be regulated by this action. Other types of entities not listed in the table could also be regulated. To determine whether your facility is potentially regulated by this action concerning the monitoring for Aeromonas, you should carefully examine the applicability criteria in §§ 141.35 and 141.40 of the Code of Federal Regulations (CFR). A listing of both the large and small systems selected to perform Aeromonas monitoring is available at http://www.epa.gov/safewater/standard/ucmr/systems.html. To determine whether your facility is potentially regulated by this action concerning the use of EPA Methods 515.4 or 531.2 or the additional industry-developed methods being approved, you should carefully examine the applicability criteria in §§ 141.21, 141.23, 141.24 and 141.74 of the CFR. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

1. EPA has established an official public docket for this action under Docket ID No. W-01-13. The official public docket consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the public docket does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public docket is the collection of materials that is available for public viewing at the Water Docket, EPA, 1301 Constitution Avenue, NW., EPA West, Room B-102, Washington, DC. This Docket Facility is open from 8:30 a.m. to 4:30 p.m. Eastern Time, Monday through Friday, excluding legal holidays. The Docket telephone number is (202) 566-2426.

2. You may access this Federal Register document electronically through the EPA Internet under the “Federal Register” listings at http://www.epa.gov/fedrgstr/. An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at http://www.epa.gov/edocket/ to view public comments, access the index listing of the contents of the official public docket, or access those documents in the public docket that are available electronically. Once in the system, select “Quick Search,” then key in the appropriate docket identification number. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in section B.1.

The Safe Drinking Water Act (SDWA) section 1445(a)(2), as amended in 1996, requires EPA to establish criteria for a program to monitor unregulated contaminants and to publish a list of contaminants to be monitored. To meet these requirements, EPA published the Revisions to the Unregulated Contaminant Monitoring Regulation (UCMR) for Public Water Systems (in 64 FR 50555, September 17, 1999) which substantially revised the previous Unregulated Contaminant Monitoring Program, codified at 40 CFR 141.40. The September 1999 UCMR requires monitoring for three lists of contaminants. EPA subsequently published supplements to the September 1999 rule which included approved analytical methods for conducting analyses of List 1 and selected List 2 contaminants (65 FR 11372, March 2, 2000 and 66 FR 2273, January 11, 2001) and technical corrections and other supplemental information (66 FR 27215, May 16, 2001 and 66 FR 46221, September 4, 2001). The January 11, 2001 rule specified the requirements for Aeromonas monitoring in the UCMR; however, an analytical method for the analysis of Aeromonas was not approved as part of that final rule. Today's rule amends the UCMR to specify a method and an associated Minimum Reporting Level (MRL) for monitoring Aeromonas on List 2.

The SDWA, as amended in 1996, requires EPA to promulgate national primary drinking water regulations (NPDWRs) which specify maximum contaminant levels (MCLs) or treatment techniques for drinking water contaminants (SDWA section 1412 (42 U.S.C. 300g-1)). NPDWRs apply to public water systems pursuant to SDWA section 1401 (42 U.S.C. 300f). According to SDWA section 1401(1)(D), NPDWRs include “criteria and procedures to assure a supply of drinking water which dependably complies with such maximum contaminant levels, including acceptable methods for quality control and testing procedures.” In addition, SDWA section 1445(a) authorizes the Administrator to establish regulations for monitoring to assist in determining whether persons are acting in compliance with the requirements of the SDWA. EPA's promulgation of analytical methods is authorized under these sections of the SDWA, as well as the general rulemaking authority in SDWA section 1450(a), (42 U.S.C. 300j-9(a)).

Prior actions (66 FR 2273, January 11, 2001; and 66 FR 46221, September 4, 2001), specify the methods to be used for analysis of List 2 chemicals. In today's action, EPA is approving the use of EPA Method 1605 for the analysis of Aeromonas as specified in List 2 of Table 1 with an MRL of 0.2 Colony Forming Units (CFU)/100 mL.

Today's action also approves EPA Method 515.4 for the determination of 2,4-D (as acid, salts and esters), 2,4,5-TP (Silvex), dinoseb, pentachlorophenol, picloram and dalapon; EPA Method 531.2 for the determination of carbofuran and oxamyl; and an additional industry-developed method for the determination of atrazine in drinking water using an immunoassay-based technology and colorimetric determination, in accordance with § 141.24(e), to support monitoring required under § 141.24(h). Today's rule also approves six additional industry-developed methods: a method using a micro-scale hard distillation apparatus followed by colorimetric determination of total cyanide and a method using an ultra-violet digester system for the determination of total and available cyanide, to support monitoring required under § 141.23 (k)(1); a method for the determination of the presence or absence of total coliforms and E. coli in drinking waters using a liquid culture, and a membrane filter method for the determination of total coliforms and E. coli using a membrane filter enzyme-substrate procedure, for monitoring required under § 141.21; and a method for the determination of heterotrophic bacteria, and a laser based nephelometric method for the determination of turbidity, for monitoring required under § 141.74. With respect to the eighth industry-developed method proposed on March 7, 2002, EPA is deferring a decision on its approval until additional clarifying information from the vendor is evaluated.

In addition, the Presence-Absence (P-A) Coliform Test listed in the total coliform methods table was inadvertently identified as Method 9221. As proposed on March 7, 2002, this has been corrected to 9221 D. Also, detection limits for “Cyanide” were added in the “Detection Limits for Inorganic Contaminants” table for the two cyanide methods, and minor editorial corrections were made.

The actions taken in this final rule were proposed in the Federal Register published on March 7, 2002 (67 FR 10532, March 7, 2002). Twenty-six sets of comments were received concerning this proposal. Those comments which have resulted in EPA modifying what was proposed on March 7, 2002 are discussed in summary form below. More detailed responses to these comments, and to all other comments, are contained in “Public Comment and Responses for the Unregulated Contaminant Monitoring Regulation: Approval of Analytical Method for Aeromonas. National Primary and Secondary Drinking Water Regulations: Approval of Analytical Methods for Chemical and Microbiological Contaminants' which is available in Docket ID No. W-01-13. See Section B. Availability of Related Information for information on contacting the official public docket.

In this final version of the rule, EPA has decided to provide the full titles of the methods approved in this action in footnotes 17 and 18 to the table at § 141.21(k)(1), the footnote in § 141.24(e)(1), and footnotes 11 and 12 to the table at § 141.74(a)(1). Each of these titles were included in the discussions of each method detailed in the proposal to this regulation, published in the Federal Register on March 7, 2002 (67 FR 10532, March 7, 2002). These titles were also on the cover of each method, all of which were available in the Water Docket for this regulation.

Section 553 of the Administrative Procedure Act, 5 U.S.C. 553(b)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary, or contrary to the public interest, the agency may issue a rule without providing prior notice and an opportunity for public comment. EPA is publishing several rule changes related to today's final determination. First, the address for the Water Docket has been updated in § 141.24(e)(1) and in the text accompanying the tables at §§ 141.21(f)(3), 141.23(k)(1), 141.40(a)(3) and 141.74(a)(1) to conform to the Water Docket's new address. Second, the address for the Water Resource Center has been corrected in footnote 6 to the table in § 141.21(f)(3). Finally, the address for the National Technical Information Service was added in footnote 6 to the table at § 141.23(k)(1). EPA has determined that there is “good cause” for making these rule changes final without prior proposal and opportunity for comment because these rule changes have no substantive impact and merely correct or replace outdated CFR text. Thus, notice and public procedure are unnecessary. EPA finds that this constitutes “good cause” under 5 U.S.C. 553(b)(B). For the same reasons, EPA is making these rule changes effective upon publication. 5 U.S.C. 553(d)(3).

EPA has received and is reviewing clarifying information concerning the evaluation of the Colitag® Test. Thus, EPA is not taking final action on this method at this time. EPA will respond to all comments regarding this method in a future action.

No comments were received that would warrant delaying final action concerning: EPA Method 515.4 for the determination of 2,4-D (as acid, salts and esters), 2,4,5-TP (Silvex), dinoseb, pentachlorophenol, picloram and dalapon; EPA Method 531.2 for the determination of carbofuran and oxamyl; Syngenta AG-625 for the determination of atrazine; QuikChem 10-204-00-1-X or Kelada 01 for the determination of cyanide; Readycult” Coliforms 100 Presence/Absence Test and Membrane Filter Technique using Chromocult” Coliform Agar for the determination of total coliforms and E. coli ; SimPlate for the determination of heterotrophic bacteria; or Hach FilterTrak 10133 for the determination of turbidity. Therefore, these methods are approved for drinking water compliance monitoring as proposed.

One commenter suggested that the entries for cyanide in both of the tables located in § 141.23 were confusing. This commenter suggested that the tables be reordered, so that the analytical methods would be listed in the same order in both tables. This commenter also noted that the footnotes listing whether the method was for the determination of free or total cyanide were in error. In addition, this commenter noted that the detection limit listed for the Kelada 01 method was in error.

EPA agrees with the commenter. The tables in § 141.23 have been reordered, putting the analytical methods listed in the same order. The Agency intends to propose changes to the footnotes listing whether the method was for the determination of free or total cyanide in a future action. The detection limit for the Kelada 01 method has been corrected.

As a result of today's action, laboratories wishing to analyze samples for Aeromonas under the UCMR must use EPA Method 1605. EPA has previously specified, in § 141.40 (a)(5)(ii)(G)( 3 ) (66 FR 2273, January 11, 2001), that Aeromonas analyses must be performed by laboratories certified under § 141.28 for compliance analyses of coliform indicator bacteria using an EPA approved membrane filtration procedure. Because of differences between EPA Method 1605 and existing membrane filtration methods for coliform indicator bacteria, laboratories performing EPA Method 1605 must also participate in proficiency testing (PT) studies to be conducted by EPA. Laboratories wishing to be approved to use Method 1605 for this monitoring should submit a “request to participate” letter to EPA and will be asked to analyze 10 samples for Aeromonas using Method 1605. Within 10 days of this rule being signed by the EPA Administrator, EPA will notify each large public water system selected to perform Aeromonas monitoring of the need for their laboratory to submit this “request to participate” letter. EPA has established 30 days following the publication of the final rule as the latest date by which it will be able to accept the “request to participate” letter due to the very short time left before the beginning of the monitoring program (January 2003). The “request to participate” letter should be mailed to: Technical Support Center Aeromonas PT Coordinator, EPA, 26 West Martin Luther King Drive, Cincinnati, Ohio 45268. Upon completion of the Aeromonas PT Program, EPA will provide each successful laboratory with an approval letter identifying the laboratory by name and the approval date. This letter, and a copy of the laboratory's certification under § 141.28 for compliance analysis of coliform indicator bacteria using an EPA approved membrane filtration procedure, may then be presented to any Public Water System (PWS) as evidence of laboratory approval for Aeromonas analysis supporting the UCMR. Laboratory approval is contingent upon the laboratory having and maintaining certification to perform drinking water compliance monitoring using an approved coliform membrane filtration method. EPA will post a list of the laboratories that have successfully completed each PT study at http//www.epa.gov/safewater/standard/ucmr/aprvlabs.html.

All large and small systems selected for the Screening Survey will be notified by their State Drinking Water Authority or EPA at least 90 days before the dates established for collecting and submitting UCMR field samples to determine the presence of Aeromonas. The PWSs selected to conduct Aeromonas monitoring are listed at http//www.epa.gov/safewater/standard/ucmr/systems.html. Large systems must send samples to approved laboratories and then report the results to EPA as specified in § 141.35. All shipping and analytical costs incurred by monitoring requirements for small systems will be paid by EPA; however, small systems will be responsible for collecting these samples.

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

It has been determined that this final rule is not a “significant regulatory action” under the terms of Executive Order 12866 and is therefore not subject to OMB review.

The Office of Management and Budget (OMB) has approved the information collection requirements in this rule under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB control number 2040-0204. An Information Collection Request (ICR) document has been prepared by EPA (ICR No. 1896.03) and a copy may be obtained from Susan Auby by mail at Collection Strategies Division; U.S. Environmental Protection Agency (2822); 1200 Pennsylvania Avenue, NW, Washington, DC 20460; by e-mail at: auby.susan@epa.gov ; or by calling (202) 566-1672. The information requirements are not effective until OMB approves them.

The information to be collected pursuant to today's final rule fulfills the statutory requirements of section 1445(a)(2) of the SDWA, as amended in 1996. The data to be collected will describe the source water, location, and test results for samples taken from PWSs. Reporting is mandatory. § 141.35. The data are not subject to confidentiality protection. The cost estimates described below for Aeromonas monitoring are attributed to laboratory fees, shipping costs, and some minimal labor burden for reading of requirements and for collecting samples. For large systems, labor burden estimates also consider activities related to reporting of results to EPA's UCMR database.

Average annual non-labor costs for each large system during the three-year ICR period of 2002-2004 are estimated to be $197. Each large and small system is required to collect Aeromonas samples an average of 2 times per year for the 2002-2004 period. EPA will incur no additional labor costs for implementation of today's final rule. The Agency's annual non-labor costs for the ICR period are estimated to be $50,310. These non-labor costs are solely attributed to the cost of sample testing and sample kit shipping for the 180 small systems. Annual costs and burdens are detailed in the following tables. A detailed discussion of these costs was presented in the Federal Register published on March 7, 2002 (67 FR 10532, March 7, 2002).

Today's rule also approves EPA Methods 515.4 and 531.2 to support monitoring already required under Phase II/V monitoring (§ 141.24), and approves seven additional industry-developed analytical methods. This part of today's final rule merely allows for the use of additional standardized methods, offering systems and their laboratories further operational flexibility. Thus, EPA believes that there is no cost or burden to public water systems associated with the addition of these additional methods. In addition, because State adoption of analytical methods is voluntary, no costs are estimated for States related to the additional analytical methods that are included in today's final rule.

Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and use 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.

The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements 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.

The RFA provides default definitions for each type of small entity. It also authorizes an agency to use alternative definitions for each category of small entity, “which are appropriate to the activities of the agency” after proposing the alternative definition(s) in the Federal Register and taking comment. 5 U.S.C. 601(3)-(5). In addition to the above, to establish an alternative small business definition, agencies must consult with the Small Business Administration's (SBA) Chief Counsel for Advocacy.

For purposes of assessing the impacts of today's rule on small entities, EPA considered small entities to be public water systems serving 10,000 persons or fewer. This is the cut-off level specified by Congress in the 1996 Amendments to the SDWA for small system flexibility provisions. In accordance with the RFA requirements, EPA proposed using this alternative definition in the Federal Register , (63 FR 7620, February 13, 1998) requested comment, consulted with SBA, and expressed its intention to use the alternative definition for all future drinking water regulations in the Consumer Confidence Reports regulation (63 FR 44511, August 19, 1998). As stated in that final rule, the alternative definition would be applied to this regulation as well.

After considering the economic impacts of today's final rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities.

As for the UCMR, published on September 17, 1999 (64 FR 50555), EPA analyzed separately the impact on small privately and publicly owned water systems because of the different economic characteristics of these ownership types. For publicly owned systems, EPA used the “revenue test,” which compares a system's annual costs attributed to the rule with the system's annual revenues. EPA used a “sales test” for privately owned systems, which involves the analogous comparison of UCMR-related costs to a privately owned system's sales. Because EPA does not know the ownership types of the systems selected for Aeromonas monitoring, the Agency assumes that the distribution of the national representative sample of small systems will reflect the proportions of publicly and privately owned systems in the national inventory (as estimated by EPA's 1995 Community Water System Survey, http://www.epa.gov/safewater/cwssvr.html ). The estimated distribution of the sample for today's final rule, categorized by ownership type, source water, and system size, is presented in the following table.

The basis for the UCMR RFA certification for today's final rule, which approves Method 1605 for the analysis of Aeromonas, was determined by evaluating the total cost as a percentage of system revenues/sales. In the worst-case-scenario, the smallest system size category ( i.e. , 500 and under) is estimated to have revenues/sales of approximately $80,000. The total cost attributable to Aeromonas monitoring for these 55 systems represents less than 0.2 percent of their annual revenue/sales. The impact for larger systems will be even less significant. EPA specifically structured the rule to avoid significantly affecting small entities by assuming all costs for laboratory analyses, shipping, and quality control for small entities. EPA incurs the entirety of the non-labor costs associated with Aeromonas monitoring, or 89 percent of all costs. Small systems only incur labor costs associated with the collection of Aeromonas samples and for reading about their sampling requirements, with an total labor cost per system of UCMR implementation of $101.50.

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, local, and Tribal governments and the private sector. Under UMRA section 202, 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, UMRA section 205 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 of 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 UMRA section 203 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.

EPA has determined that today's final rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and Tribal governments, in the aggregate, or for the private sector in any one year. The only costs resulting from today's rule are those associated with the Aeromonas screening survey. EPA estimates that the total cost for State, local, and Tribal governments, and the private sector for one year of List 2 Screening Survey monitoring for Aeromonas (in 2003) is approximately $247,320, of which EPA will pay $150,930 or approximately 61 percent. The total costs not payed by EPA are $96,390 for the one year of Aeromonas monitoring (2003). State drinking water programs are assumed to incur no additional costs associated with the Aeromonas Screening Survey component of the UCMR. No costs are estimated/incurred for the other methods included in this final rule since they represent additional methods that public water systems may elect to use but that are not required. This rule does not withdraw earlier versions of methods, and there is no corresponding increase in expenditure or burden. Thus, today's final rule is not subject to the requirements of UMRA sections 202 and 205.

EPA has determined that this final rule contains no regulatory requirements that might significantly or uniquely affect small governments because EPA will pay for the reasonable costs of testing for the small PWSs required to sample and test for Aeromonas under this final rule, including those owned and operated by small governments. The only costs that small systems will incur are those attributed to collecting the Aeromonas samples and packing them for shipping to the laboratory (EPA will also pay for shipping). These costs are minimal, and are neither significant nor unique. For the reasons stated above, no costs are estimated/incurred for the other methods. Thus, today's rule is not subject to the requirements of UMRA section 203.

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 final 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. The objective of this final rule is to specify approved analytical methods, thereby allowing Aeromonas to be included in the UCMR Screening Survey program and approving EPA Methods 515.4 and 531.2 and seven additional industry-developed methods that public water systems may use to conduct analyses previously required. The cost to State and local governments is minimal, and the rule does not preempt State law. Thus, Executive Order 13132 does not apply to this rule. In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA specifically solicited comment on the proposed rule from State and local officials. No comments were received that concerned issues covered by Executive Order 13132.

Executive Order 13175, titled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 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 responsiblitities between the Federal government and Indian tribes.”

This final rule does not have Tribal implications. It will not have substantial direct effects on Tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. The objective of this final rule is to specify approved analytical methods, thereby allowing Aeromonas to be included in the UCMR Screening Survey program and approving EPA Methods 515.4, 531.2 and seven additional industry-developed methods that public water systems may use to conduct analyses previously required. Only one small Indian Tribal system was selected for Aeromonas monitoring. Since this utility will be receiving sampling assistance from the State of Montana and EPA will pay for all shipping and analysis costs, the cost to the Tribal government will be minimal. The rule does not preempt Tribal law. Thus, Executive Order 13175 does not apply to this rule. Moreover, in the spirit of Executive Order 13175, and consistent with EPA policy to promote communications between EPA and Tribal governments, EPA specifically solicited comment on the proposed rule from tribal officials. No comments concerning Tribal issues were received.

Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (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 Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

This final rule is not subject to Executive Order 13045 because it is not “economically significant” as defined under Executive Order 12866. Further, this final rule does not concern an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children.

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

As noted in the proposed rule, section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section12(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 involves technical standards. Therefore, the Agency conducted a search to identify potentially applicable voluntary consensus standards. EPA identified no voluntary consensus standards for Aeromonas. Therefore, EPA has approved only EPA Method 1605 for Aeromonas monitoring.

Concerning the approval of EPA Method 515.4, while the Agency identified two new voluntary consensus methods (American Society for Testing and Materials (ASTM) D5317-98, and SM 6640 B) for the chlorinated acids as being potentially applicable, they are not included in this rule. EPA has decided not to approve SM 6640 B because the use of this voluntary consensus standard would have been impractical due to significant shortcomings in the sample preparation and quality control sections of the method instructions. Section 1b of Method SM 6640 B states that the alkaline wash detailed in section 4b2 is optional. The hydrolysis that occurs during this step is essential to the analysis of the esters of many of the analytes. Therefore, this step is necessary and cannot be optional. In addition, the method specifies that the quality control limits for laboratory fortified blanks are to be based upon plus or minus three times the standard deviation of the mean recovery of the analytes, as determined in each laboratory. Therefore, this method permits unacceptably large control limits which may include 0 percent recovery. ASTM D5317-98 specifies acceptance windows for the initial demonstration of proficiency for laboratory fortified blank samples that are as small as 0 percent to as large as 223 percent recovery for picloram, with tighter criteria for other regulated contaminants. Therefore, this method permits unacceptably large control limits which include 0 percent recovery. Since SM 6640 B has significant shortcomings in the sample preparation and quality control sections and D5317-98 has unacceptably large quality control limits use of these methods for drinking water analysis is impractical. Therefore, EPA is approving only EPA Method 515.4 for the chlorinated acids at this time.

Concerning the approval of EPA Method 531.2, while the Agency identified two new voluntary consensus methods (Standard Method 6610, 20th Edition, and Standard Method 6610, 20th Supplemental Edition) as being potentially applicable for the analysis of carbamates, the Agency is not approving them in this rulemaking. Standard Method 6610, 20th Edition has recently been approved for compliance monitoring. Standard Method 6610, 20th Supplemental Edition permits the use of a strong acid, hydrochloric acid (HCL), as a preservative. The preservatives in all of the other approved EPA and Standard Methods procedures for these analytes are weak acids that adjust the pH to a specific value based upon the pKa of the preservative. The use of HCL would require accurate determinations of the pH of the sample in the field and could be subject to considerable error and possible changes in pH upon storage. Although not specifically observed for oxamyl or carbofuran during the development of similar methods, structurally similar pesticides have been shown to degrade over time when kept at pH 3. Therefore, approval of this method is impractical because it specifies the use of a strong acid (HCL) when positive control of the pH is critical. Therefore, EPA is approving only EPA Method 531.2 for determining oxamyl and carbofuran.

The seven other analytical methods being approved in this regulation are additional analytical methods for use in drinking water compliance monitoring, submitted to EPA by industry. These industry-developed methods will supplement existing approved methods, some of which are voluntary consensus standards.

Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations'' (February 11, 1994), focuses Federal attention on the environmental and human health conditions of minority and low-income populations with the goal of achieving environmental protection for all communities. This regulation adds new analytic methods to part 141. It does not withdraw any currently approved methods nor does it add or alter any current monitoring requirement. The purpose of this regulation is to provide additional analytical methods for drinking water utilities to use to meet the currently existing monitoring requirements. EPA has determined that there are no environmental justice issues in this rulemaking.

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 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). This rule will be effective on November 29, 2002.

Section 553 of the Administrative Procedure Act, 5 U.S.C. 553(b)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary, or contrary to the public interest, the agency may issue a rule without providing prior notice and an opportunity for public comment. EPA is publishing several rule changes related to today's action that were not included in the proposal. First, the address for the Water Docket has been corrected in § 141.24(e)(1) and in the text accompanying the tables at §§ 141.21(f)(3), 141.23(k)(1), 141.40(a)(3) and 141.74(a)(1). Second, the address for the Water Resource Center has been corrected in footnote 6 to the table in § 141.21(f)(3). Finally, the address for the National Technical Information Service was added in footnote 6 to the table at § 141.23(k)(1). EPA has determined that there is “good cause” for making these rule changes final without prior proposal and opportunity for comment because these rule changes have no substantive impact and merely correct or replace outdated CFR text. Thus, notice and public procedure are unnecessary. EPA finds that this constitutes “good cause” under 5 U.S.C. 553(b)(B). For the same reasons, EPA is making these rule changes effective upon publication. 5 U.S.C. 553(d)(3).

Executive Order 12866 calls for each agency to write its rules in plain language. Readable regulations help the public find requirements quickly and understand them easily. They increase compliance, strengthen enforcement, and decrease mistakes, frustration, phone calls, appeals, and distrust of government. EPA made every effort to write this preamble to the final rule in as clear, concise, and unambiguous manner as possible. Today's final rule language is largely in a table format consistent with the format of the CFR sections being amended.

The fishery for coastal migratory pelagic fish (king mackerel, Spanish mackerel, cero, cobia, little tunny, dolphin, and, in the Gulf of Mexico only, bluefish) is managed under the Fishery Management Plan for the Coastal Migratory Pelagic Resources of the Gulf of Mexico and South Atlantic (FMP). The FMP was prepared by the Gulf of Mexico and South Atlantic Fishery Management Councils (Councils) and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

Based on the Councils' recommended total allowable catch and the allocation ratios in the FMP, NMFS implemented a commercial quota for the Gulf of Mexico migratory group of king mackerel in the western zone of 1.01 million lb (0.46 million kg) (66 FR 17368, March 30, 2001).

Under 50 CFR 622.43(a), NMFS is required to close any segment of the king mackerel commercial fishery when its quota has been reached, or is projected to be reached, by filing a notification at the Office of the Federal Register . NMFS has determined that the commercial quota of 1.01 million lb (0.46 million kg) for Gulf group king mackerel in the western zone will be reached on October 24, 2002. Accordingly, the commercial fishery for Gulf group king mackerel in the western zone is closed effective 12 noon, local time, October 25, 2002, through June 30, 2003, the end of the fishing year. The boundary between the eastern and western zones is 87°31′06”W. long.,

Except for a person aboard a charter vessel or headboat, during the closure, no person aboard a vessel for which a commercial permit for king mackerel has been issued may fish for Gulf group king mackerel in the EEZ in the closed zones or subzones. A person aboard a vessel that has a valid charter vessel/headboat permit for coastal migratory pelagic fish may continue to retain king mackerel in or from the closed zones or subzones under the bag and possession limits set forth in 50 CFR 622.39(c)(1)(ii) and (c)(2), provided the vessel is operating as a charter vessel or headboat. A charter vessel or headboat that also has a commercial king mackerel permit is considered to be operating as a charter vessel or headboat when it carries a passenger who pays a fee or when there are more than three persons aboard, including operator and crew.

During the closure, king mackerel from the closed zones or subzones taken in the EEZ, including those harvested under the bag and possession limits, may not be purchased or sold. This prohibition does not apply to trade in king mackerel from the closed zones or subzones that were harvested, landed ashore, and sold prior to the closure and were held in cold storage by a dealer or processor.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, finds that the need to immediately implement this action to close the fishery constitutes good cause to waive the requirements to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(3)(B), as such procedures would be unnecessary and contrary to the public interest. Similarly, there is a need to implement these measures in a timely fashion (manner) to prevent an overrun of the commercial quota of Gulf group king mackerel, given the capacity of the fishing fleet to harvest the quota quickly. Any delay in implementing this action would be impractical and contrary to the Magnuson-Stevens Act, the FMP, and the public interest. NMFS finds for good cause that the implementation of this action cannot be delayed for 30 days. Accordingly, under 5 U.S.C. 553(d), a delay in the effective date is waived.

This action is taken under 50 CFR 622.43(a) and is exempt from review under Executive Order 12866.

This final rule is available on the Government Printing Office's website at http://www.access.gpo.gov/su_docs/aces/aces140.html.

On June 24, 2002, NMFS published a proposed rule (67 FR 42525) based on a recommendation of the Pacific Fishery Management Council (Council), under the authority of the Pacific Coast Groundfish Fishery Management Plan (FMP) and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). NMFS requested public comments on the proposed rule through July 24, 2002. No comments were received. NMFS issues this final rule to amend tier qualifications for the limited entry, fixed gear, primary sablefish fishery to include sablefish landings taken under the provisions of an exempted fishing permit (EFP) from 1984-1985 with setnet gear north of 38° N. lat. The background and rationale for this rule are discussed in the preamble to the proposed rule published on June 24, 2002 (67 FR 42525). Additional information is available in the EA/RIR/IRFA prepared by the Council for this action (see ADDRESSES ). Detailed information regarding the management history of the limited entry, fixed gear, sablefish-endorsed fishery, including the 3-tier program is available in the preamble to the proposed rule for that program at 63 FR 19878, April 22, 1998.

During 1984-1985, some vessels that had historically participated in the pot or longline sablefish fishery chose instead to participate in an EFP to test sablefish catchability with setnet gear north of 38° N. lat. If those vessels had not participated in the setnet EFP and had fished for sablefish with pot or longline gear during 1984-1985 as usual, the EFP vessels may have qualified for a higher tier assignment.

So as not to discourage future participation in EFPs, the Council recommended that NMFS include EFP setnet landings from 1984-1987 in the qualifying requirements for tier assignment for those fixed gear vessels that had already qualified for a sablefish endorsement. However, NMFS did not issue any setnet EFPs after 1985. Therefore, NMFS will amend the regulations at 50 CFR part 660 to include landings of sablefish taken with setnet gear north of 38° N. lat. under the provisions of an EFP issued by NMFS in 1984-1985 when determining tier qualifications for permits that already have a sablefish endorsement.

NMFS will make technical corrections to 50 CFR part 660 Subpart A, Subpart B, Subpart C, Subpart D, Subpart E, Subpart F, Subpart G, and Subpart H to correct an outdated title of an agency official.

NMFS will also make technical corrections to the groundfish regulations at 50 CFR part 660. The first correction will add clarifying language to § 660.323(a)(4)(vi) to connect activities authorized under other paragraphs, such that if a whiting reapportionment authorized under § 660.323(a)(4)(iv) were to occur, the re-opening of primary whiting season described at § 660.323(a)(3)(i) is included in the list of Federal actions to be announced at § 660.323(a)(4)(vi). The second correction will update the title of an agency official referenced in § 660.324(d) and § 660.350(b)(3). The third correction will amend a cross reference in § 660.324(f), and § 660.325(d)(2) and (e)(1). These corrections are technical amendments to the groundfish regulations and will not change the effect of the regulations on fisheries entities or resources.

No comments were received during the comment period for the proposed rule (67 FR 42525, June 24, 2002), which ended July 24, 2002.

This final rule includes two minor changes to the regulatory text from the proposed rule. In § 660.334, paragraph (d)(3)(ii), the last sentence was replaced with a sentence specifying what is meant by “application.” The replacement sentence reads, “The application shall consist of a written letter stating the applicant's circumstances, requesting action, be signed by the applicant, and submitted along with the relevant documentation (fish tickets) in support of the application for a change in tier status.” In § 660.334, paragraph (d)(3)(iii), the word “certificate” was replaced with the word “permit”.

Under 5 U.S.C. 553 (d)(1), the Assistant Administrator for Fisheries, NOAA waives the 30-day delay in effectiveness for this rule as it relieves a restriction. This rule is intended to recognize historical sablefish landings made by current primary season participants. This rule relieves a restriction by removing an inequity that has been in place since 1998 due to the tier qualification requirements established for the original tier assignments. This restriction is preventing those sablefish-endorsed permit owners who participated in the setnet EFP from 1984-1985 from using their setnet EFP sablefish landings during this period to qualify for tier assignments. This restriction has kept some vessels from possibly qualifying for a higher tier assignment and has thus restricted their ability to land more sablefish each year since 1998. This rule relieves the restriction by allowing sablefish-endorsed permit owners who participated in setnet EFPs during 1984-1985 to submit those setnet EFP sablefish landings to qualify for a higher tier designation. Delaying effectiveness of this rule would unnecessarily perpetuate the inequity by not allowing fishermen who qualify for a higher tier assignment access to increased sablefish landings associated with the higher tier during the 2002 primary season. The primary sablefish season for 2002 is from April 1 - October 31. The 30-day delay in effectiveness would not allow fishermen adequate time to apply for a tier upgrade based on setnet EFP sablefish landings and would not allow NMFS time to process that application before the end of the 2002 primary season.

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

NMFS prepared a FRFA describing the impact of this action on small entities. The IRFA was summarized in the proposed rule on June 24, 2002 (67 FR 42525). The following is the summary of the FRFA.

Because the Council omitted setnet landings made under EFPs from the qualifying requirements for the 3-tier limited entry fixed gear sablefish fishery, this regulatory amendment is intended to recognize those historical sablefish landings made by current primary season participants. Qualifying requirements under subsequent amendments to the limited entry fixed gear sablefish fishery were low enough that the issue of whether to include setnet EFP landings did not come up. After implementation of the 3-tier program, the issue of whether to include setnet landings to qualify for tier assignment was brought to the Council's attention through an appeal process provided for in the 3-tier program's regulations.

In the case of the setnet fishery north of 38° N. lat., some vessels that had historically participated in the sablefish fishery chose instead to participate in an EFP to test sablefish catchability with setnet gear north of 38° N. lat. If those vessels had not participated in the setnet EFP and had fished for sablefish with pot or longline gear during 1984-1985 as usual, the vessels may have qualified for higher tier assignments. It is inequitable to exclude setnet EFP landings in the tier qualifications for a vessel that historically participated in the fixed gear sablefish fishery and could have qualified for a higher tier had it not participated in the EFP.

In addition, those who participated in the EFPs with setnet gear believed they were investing in the future of the fixed gear fishery and took part in the fishery with Council consent. If, in determining the level of a permit's qualification for harvest privileges the Council and NMFS had decided to disallow landings taken under the setnet EFPs, they could have discouraged fishers from taking part in experimental fisheries in the future. A public policy that discourages participation in EFPs would inhibit useful innovation in the fishery.

The comment period on the proposed rule (67 FR 42525, June 24, 2002) for this action ended on July 24, 2002. The agency did not receive any public comments on the proposed rule or the IRFA during the comment period.

This rule will apply to owners of limited entry fixed gear sablefish permits that have a catch history that includes sablefish fishing with setnet gear under an experimental fishing permit. While two owners qualify for the provisions under this rule, only one is expected to have sufficient setnet landings to move his permit to a higher sablefish tier. The other owner already has the highest sablefish tier, Tier 1, and could not increase his tier assignment by including setnet EFP landings in his qualifications. All other limited entry fixed gear sablefish permit owners will be modestly affected by a shift of sablefish allocation toward the one owner with setnet EFP landings history.

The only reporting or recordkeeping requirement associated with this rule is a one-time application process requesting that setnet EFP landings be included in sablefish tier qualifications. The application consists of a letter requesting action together with any relevant evidence, in this case fish tickets, to be submitted to NMFS Sustainable Fisheries Division by the party wishing to qualify for a higher tier based on setnet EFP landings. The application process for a tier upgrade will be open for a window period starting when the final rule is published until December 31, 2002.

Compliance requirements do not go beyond general compliance requirements for operating in the Pacific coast primary sablefish fishery. The primary sablefish fishery has been managed under the 3-tier system since 1998, so the concept and the compliance requirements associated with the concept are well understood. No specialized skills are needed for meeting these compliance requirements.

The range of alternatives considered to count setnet EFP sablefish landings toward tier qualifications were from giving vessels no credit for setnet landings (no action); partial credit for the landings, or 100 percent credit for the landings (adopted action). There is no apparent rationale to guide the selection of the partial credit approach. Therefore, the partial credit approach risked being arbitrary and capricious and intermediate options were not analyzed. The intermediate alternatives considered but not analyzed included allowing vessels with setnet landings to qualify for a higher tier for a temporary period of time or creating an intermediate tier level for which vessels with setnet landings might qualify. The provision of higher levels of access for a temporary period has been used in the past as a way of reducing the negative effects of disruption in the fishery while small businesses make a transition to new restrictions (e.g., the “B” permits that were provided in Amendment 6 and grandfather provisions in Amendment 14). However, in this case, vessels have been operating under the three-tier system since 1998, and have likely already made transitions. Additionally, creating a temporary higher tier doesn't address, over the long-term, the issue of unfairness to historical fixed gear sablefish fishermen who chose to participate in the setnet EFP instead and were penalized when the tier system was created. Thus, a temporary higher tier might still discourage future participation in EFPs. Therefore, the intermediate alternative of a temporary higher tier does not address the purpose and need of the proposed action. Similarly, creation of an intermediate tier level to provide some accommodation for vessels with setnet landings would present a problem similar to that of giving partial credit for setnet landings, (i.e., identification of a rational basis for setting the level of harvest for the intermediate tier). Creation of a new intermediate tier would also make the management system more complex.

The expected net effects between no action and the adopted action are primarily reallocational in nature. Under the adopted action, the amount of reallocation is less than three quarters of one percent of the allocation to the primary fixed gear sablefish fishery, with less than one quarter of one percent moving between gear types (from pot to longline). The permits for some vessels may be reassigned to higher tiers, resulting in a reduction in the cumulative limits for all permits in all tiers. None of the alternatives considered would change the amount of fixed gear sablefish harvested or change managers' ability to control harvest. The adopted alternative will not adversely impact the sablefish stock, other species, or the ocean environment. This action is being proposed to address fairness and equity considerations and to avoid discouraging future innovation through EFPs (innovation may directly contribute to meeting the objectives of the FMP and Magnuson-Stevens Act national standard guidelines). It was for these reasons that NMFS and the Council adopted the action to include setnet EFP sablefish landings in tier qualifications, which will be implemented through this final rule. A copy of the FRFA is available from NMFS (see ADDRESSES ).

This rule contains a collection-of-information requirement that can only apply to two individuals according to the requirements of the rule that applicants are sablefish-endorsed permit owners who participated in setnet EFPs between 1984-1985. Therefore, because this rule applies to less than 10 people, it is not subject to the requirements of the Paperwork Reduction Act.