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Citation: 69 Fed. Reg. 67221 2004

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(mostprotective) confidence level, "moderate use forbathing" for the 82% confidence level, "light use for bathing" for the 90% confidence 

### level, and "infrequent use for bathing" for the 95% confidence level. Note that the lowest confidence level corresponds tothe highest level ofprotection because it leads to a more precautionary judgment
to treat the waterbody as exceeding the

mean criterion, even though there is less statistical confidence that this isthe case. EPA assigned the lowest single sample maximum to designated bathing beach areas because ahigh degree of caution should be used to evaluate the
status of such areas, giving greater weight to ameasured single value above the geometric mean, eventhough the statistical significance ofthis single
measurement may be weak. EPA believes this is appropriate because

more people are likely to become ill at heavily used areas ifthey exceed the criteria. The 1986 bacteria criteria document described bathingbeach areas

as those areas that are "frequently lifeguard protected, provide parking and other public access and are heavily used by the public." The document does not specifically describe in greater detail the potential use frequency differences of "moderate," "lightly used," and "infrequently used" full body contact recreation waters.

TABLE 1.-1986 CRITERIA FOR INDICATORS FOR BACTERIOLOGICAL DENSITIES

Acceptable swim- Steady state Single sample maximum allowable density4 5
ming associated geometric gastroenteritis rate mean indi- Designated beach Moderate full body Lightly used full Infrequently used

per 1000 swim- cator area (upper 75% contact recreation recreation (upper recreation (upper
mers density C.L.) (upper 82% C.L.) 90% C.L.) 95% C.L.)

Freshwater Enterococci

........... 33/100 m l

... 61 78 107 151 E. coli

................... 8 126/100 ml 2 235 298 409 575 Marine Water Enterococci

........... 19 35/100ml 3

... 104 158 276 501

Notes: 1 Calculated to nearest whole number using equation: (mean enterococci density) = antilog1 o((illness rate/1000 people + 6.28)/9.40).
2Calculated to nearest whole number using equation: (mean E. coildensity) = antiloglo ((illness rate/1000 people + 11.74)/9.40). 3 Calculated to nearest whole number using equation: (mean enterococci density) = antiloglo ((illness rate/1 000 people -0.20)/12.17). 4Single sample limit = antilogo (log10 indicator geometric mean density/100 ml + (factor determined from areas under the normal probability
curve for the assumed level of probability * log10 standard deviation)).

The appropriate factorsfor the indicated one sided confidence levelsare: 75% C.L.-.675 82% C.L.-.935 90% C.L.-1.28 95% C.L.-1.65. 5 Based on the observed log standard deviations during the EPA studies: 0.4 for freshwater E. coil and enterococci; and 0.7 for marine water enterococci. Each jurisdiction may establish its own standard deviation for its conditions which would then vary the single sample limit.

III. EPA's Proposed Rule and Solicitation ofComment

A. July2004Proposed Rule

On July 9, 2004, EPA published a proposal entitled "Water Quality Standards for Coastal and GreatLakes Recreation Waters" (see 69 FR 41720). At thattime, EPAproposed to promulgate E.coliand enterococci standards for coastal recreation waters in States that had not adopted water quality standards for those waters that

are as protective ofhuman health as EPA's 1986 bacteria criteria.

EPA proposed a geometric mean of 126/100 ml forE. coliin fresh coastal recreation waters and a geometric mean of35/100 ml for enterococci in marine coastal recreation waters. EPA also proposed four different single sample maximums inboth fresh and marine coastal recreation waters. Each single sample maximum was assigned to a category ofcoastal recreation water based onintensity ofuse. EPAproposed
to interpret the single sample maximums as maximum values that would not be allowed to be exceeded, but requested comment onvarious other interpretations. EPA did not propose particular waters to which a specific single sample maximum would apply; rather, EPA proposed that States and Territories would determine which single sample maximum would apply to each ofits coastal recreation waters. The criteria values for fresh and marine coastal recreation waters are the same values that are found in the 1986 bacteria criteria document.

EPA did not include coastal or Great Lakes States andTerritories in the proposed ruleiftheir current standards
met each offive criteria: the standards

are based onEPA's 1986 recommended pathogen indicators; the standards are derived from a scientifically-defensible methodology linked quantitatively to an acceptable risk level under Clean Water Act section 303(i); the standards include appropriate single sample maximums; the standards donot address fecal contamination from non-human sources in away inconsistent withthe 1986 bacteria criteria; and EPA approved the standards. Ifa State or Territory met all five criteria, EPAproposed to not include that State or Territory in the rule.1
B.PublicComments

The comment period forthis rule closed on August 9, 2004. EPA received 55 comments on the proposed rule from

avariety ofsources, including academic associations, environmental groups, municipal wastewater associations, industry, State agencies, local governments, andprivate citizens. Most ofthe comments focused on the following issues: choice ofpathogen indicator, promulgation ofa geometric

mean and four single sample maximums for the indicators, use ofthe single sample maximum, intensity ofuse categories ofcoastal recreation waters, intrastate vs. interstate determinations ofuse intensity, State calculation ofsitespecific single sample maximums, and addressing non-human sources of bacteria. This preamble includes a general summary ofpublic comments in

1Inthe case ofWashington State,EPA has determined that a fecal coliform standard of 14/100 ml for marine waters is "as protective as" EPA's 1986 bacteria criteria. (See sectionV.A.1 ofthis preamble.) 

### 6722167222 Federal Register/Vol. 69, No. 220/Tuesday, November 16, 2004/Rules and Regulations

the discussions ofthe various issues addressed here. EPA has prepared a "Comment Response Document" that includes responses to comments submitted onthe proposed rule, which is in the docket for today's rule.
IV. CriteriaThatEPA IsPromulgating Today

A. ScopeoftheRule

EPA ispromulgating the rule to apply,

asproposed, to Great Lakes and marine coastal recreation waters (including coastal estuaries) designated by a State

orTerritory under Clean Water Act 303(c) for swimming, bathing, surfing,

orsimilar water contact activities. As explained in the preamble to the proposed rule (69 FR 41723), the requirements ofthe BEACH Act are limited to "coastal recreation waters," which are defined in Clean Water Act section 502(21) as the Great Lakes and marine coastal recreation waters (including coastal estuaries) that are designated under Clean Water Act section 303(c) by a State for use for swimming, bathing, surfing, or similar
water contact activities. The definition explicitly excludes "inland waters or waters upstream ofthe mouth ofa river

orstream having an unimpaired natural connection with the open sea." EPA interprets Clean Water Act section 502(21) to apply only to those Great Lakes waters that are designated for swimming, bathing, surfing, or similar
water contact activities, consistent with the purpose ofthe BEACH Act toprotect the public from the health risks associated with swimming in polluted
water.

The BEACH Act clearly envisioned and intended that States, Territories, and authorized Tribes with coastal recreation waters adopt into their water quality standards bacteria criteria as protective ofhuman health as EPA's 1986bacteria criteria. Under EPA's
water quality standards regulations at 40 CFR Part 131, States, Territories, and authorized Tribes have broad discretion
to designate specific uses to specific
waters. They are not required to designate all waters for swimming, bathing, surfing, or similar water contact activities (i.e.,primary contact recreation), as long as they have complied with the requirements ofthe Clean Water Act and EPA's implementing regulations for designating uses. Today's rule applies onlyto those waters designated by a State or Territory for swimming, bathing, surfing, or similar water contact activities, not to waters designated for

uses that only involve incidental
contact. However, States, Territories, and authorized Tribes are to continue to work towards the goal ofachieving full attainment ofClean Water Act section 101(a)uses ("fishable/swimmable") in
waters that do not currently attain such

uses. Further, any waters with designated uses that donot include the

uses specified in Clean Water Act section 101(a)(2) must be re-examined everythree years to determine ifany

new information has become available (40 CFR 131.20(a)). Ifsuch new information indicates thatthe uses specified in Clean Water Act section 101(a)(2) are attainable, the State, Territory, or authorized Tribe is required to revise its water quality standards accordingly. EPA expects States, Territories, and authorized Tribes to continue this process and revise their water quality standards where appropriate. States, Territories, and authorized Tribes may remove a designated use thatis not an existing

use ifit conducts a use attainability analysis to demonstrate that the designated use isnot attainable (40 CFR 131.10(g)).

EPA received few comments on the scope ofthe rule. One commenter suggested thatthe rule should not apply
to State waters outside ofthe areas where swimming normally occurs, citing as an example Hawaii's water quality standards, which are consistent with EPA's 1986 bacteria criteria but apply onlyto those swimming waters within 300 meters of shore. This
commenter also suggested thatthe criteria should onlyhave to apply at depths ofless than 150 feet. EPA does
not find these comments persuasive in light ofthe clear language ofClean Water Act sections 303(i) and 502(21), which together require the adoption of criteria for all ofthe coastal or Great Lakes waters designated bythe State for

use for swimming, bathing, surfing, or similar water contact activities even if,

as afactual matter, the waters designated for swimming arenot frequently ortypically used for swimming.

One commenter expressed concern that the rule could establish abinding precedent for EPA's review ofpathogen criteria for inland waters that do not fall within the definition ofa coastal recreation water. As discussed above, section 303(i) ofthe Clean Water Act does not apply to inland waters other than the Great Lakes because such
waters are explicitly excluded from the definition of "coastal recreation waters" in section 502(21) ofthe Clean Water Act. For all otherwaters (i.e., waters that

are not coastal recreation waters), section 303(c) ofthe Clean Water Act andEPA's implementing regulations at 40 CFR part 131 require States, Territories, and authorized Tribes to adopt criteria that are scientifically defensible and sufficient to protect the designated uses ofthose waters. When EPAreviews a State's, Territory's or authorized Tribe's new or revised water quality standards, EPA applies its regulations at 40 CFR 131.5 and 131.6. EPA's decision on future State or Territorial submissions will be based on the information supporting those submissions. EPA's decisions in today's rule should notbe considered as binding on States and Territories adopting bacteria criteria for inland
waters other than the Great Lakes.

B. Criteria forPathogenIndicators

1. Selection ofPathogen Indicator

For States and Territories covered by today's rule, EPA ispromulgating water quality criteria using the pathogen indicators ofenterococci for marine
waters and both enterococci and E.coli for freshwaters. EPAinterprets Clean WaterAct section 303(i)(1)(A) to require States andTerritories to adopt and submit water quality criteria for enterococci in marine waters and either enterococci orE.coli in freshwaters because itrequires States and Territories
to submit criteria "for the pathogens and pathogen indicators for which the Administrator has published criteria under section 304(a)." EPA's 1986 bacteria criteria document is the relevant Clean WaterAct section 304(a) criteria referred to in Clean Water Act section 303(i)(1)(A). Itrecommends the

use ofenterococci in marine waters and Ecoli orenterococci in fresh waters for the protection ofprimary contact recreation. Clean Water Act section 303(i)(2)(A) requires EPAto promptly propose regulations for the State setting forth revised or new water quality standards for pathogens andpathogen indicators described in Clean Water Act section 303(i)(1)(A) for coastal recreation waters ofthe State for those States that fail to adopt criteria that are

as protective ofhuman health as the criteria referenced in section 303(i)(1)(A).

In the proposal (69 FR 41727), EPA proposed to adopt only E.colifor freshwaters because mostofthe States and Territories that had adopted or were in the process ofadopting the 1986 bacteria criteria had chosen to use E. coliinstead ofenterococci. However, EPA also solicited comment on whether
to promulgate criteria based onboth indicators forfreshwater and to allow States andTerritories to choose which indicatorto apply toits coastal recreation waters at the time ofFederal Register/Vol. 69, No. 220/Tuesday, November 16, 2004/Rules and Regulations

implementation. EPA received
comments from the New York Department ofEnvironmental Conservation (DEC) and the Pennsylvania Department of Environmental Protection (DEP) requesting EPAto do so. Both ofthese State agencies have responsibility for promulgating State water quality standards. New YorkDEC explained that the New YorkDepartment ofHealth had recently adopted regulations adding both E.coli and enterococci as the criteria for its freshwater bathing beaches, and thatthe New York DEC

was in theprocess ofdeciding which of the two indicators itwould adopt for its
water quality standards in the Great Lakes. Consequently, New YorkDEC requested thatEPA's final rule include values for both indicators and allow the State to select either at the time of implementation. Pennsylvania DEP explained thatthe Pennsylvania Department ofHealth had adopted E. colicriteria for public bathingbeaches, but also requested thatEPA promulgate

afinal rule allowing Great Lakes States to choose either E.colior enterococci criteria atthe time ofimplementation. Pennsylvania DEP offered no reason for its request. None ofthe other States included in the proposal with fresh coastal recreation waters commented on this aspect ofthe proposal.

As requested by these States, EPA is promulgating criteria for both indicators and allowing New York and Pennsylvania determine which indicator to apply for each waterbody. EPA also determined thatit is reasonable to extend this flexibility to all ofthe Great Lakes States covered by this rule. Accordingly, EPAhas added the freshwater criteria values for enterococci to the table in 40 CFR 131.41(c)(1) as well as afootnote tothe table explicitly recognizing that the State may decide which indicator, E. colior enterococci, willbe the applicable criterion for its freshwater coastal recreation water (i.e.,which criteria apply to the Great Lakes waters within the State'sjurisdiction). Until a State makes that determination, E.coli will be the applicable indicator. EPA is providing this flexibility to all Great Lakes States in the rulebecause the GreatLakes States have ahistory of cooperating to protect the Great Lakes
resource, andmay find a need to agree

on a consistent pathogen indicator for the GreatLakes. Because both theE. coii and enterococci freshwater criteria in the 1986 bacteria criteria have the same illness rate they provide equal protection against acute gastrointestinal illness. In light ofthese considerations, EPA does notwant to create a barrier to this cooperation bypromulgating only

one ofthe two freshwater criteria in

some Great Lakes States and both indicators in other Great Lakes States.
2.Bacteria Criteria Values

EPA ispromulgating a geometric

mean of35/100 ml for enterococci in marine coastal recreation waters and four different single sample maximums, which vary formarine coastal recreation waters based on intensity ofuse as shown inTable 2.These are the same values as in the 1986 bacteria criteria document and in the proposed rule.

TABLE 2.-AMBIENT MARINE WATER QUALITY CRITERIA FOR BACTERIA

C Single sample maximum (per 100 ml)

A B C1 C2 C3 C4 Indicator Geometric mean Designated bath- coastal recreation Light use coastal Infrequent use o erat recreation waters coastal recreation ing beach waters (90%confidence waters (750 confidence (82% confidence ( ee (95% confidence level) level) level) level)

Enterococci

........................... 35/100 mla

. ........................... 104b 158b 276b 501 b

Footnotes to table in paragraph (c)(2): aThis value is for use with analytical methods 1106.1 or 1600 or any equivalent method that measures viable bacteria. bCalculated using the following: single sample maximum = geometric mean * 10^(confidence level factor * log standard deviation), where the confidence level factor is: 75%: 0.68; 82%: 0.94; 90%: 1.28; 95%: 1.65.The log standard deviation from EPA's epidemiological studies is 0.7.

For fresh coastal recreation waters, EPA is also promulgating a geometric

mean of126/100 mlfor E. coli and a geometric mean of33/100 ml for enterococci with four different single sample maximums, which vary based

onintensity ofuse. As described above, onlythe criteria for one ofthese indicators will apply in freshwaters at the choice ofthe State. These values are shown in Table 3, and are the same values asin the 1986 bacteria criteria document. ForE.coli, these values are the same asthose thatEPA proposed. EPAis also promulgating criteria for enterococci in freshwaterbased on the request oftwo Great Lakes States and usedthe values from the 1986 bacteria criteria document for these enterococci criteria.

TABLE 3.-AMBIENT FRESHWATER QUALITY CRITERIA FOR BACTERIA

C Single sample maximum (per 100 ml)

A B C1 C2 03 C4 Indicatord Geometric mean Designated bath- Moderate use Light use coastal Infrequent use coastal recreation recreation waters coastal recreation (75% confidence waters (90%confidence waters level) (82% confidence level) (95% confidence level) level)

E. coil

.................................... 126/100 mla

. ......................... b235 b298 b409 b575
Enterococci

........................... 33/100 mlc

. ........................... b61 b78 b107 b151

Footnotes to table in paragraph (c)(1): 

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aThis value is for use with analytical methods 1103.1, 1603, or 1604 or any equivalent method that measures viable bacteria. bCalculated using the following: single sample maximum = geometric mean * 10A(confidence level factor * log standard deviation), where the confidence level factor is: 75%: 0.68; 82%: 0.94; 90%: 1.28; 95%: 1.65.The log standard deviation from EPA's epidemiological studies is 0.4.

cThis value is for use with analytical methods 1106.1 or 1600 or any equivalent method that measures viable bacteria. dThe State may determine which of these indicators applies to its fresh coastal recreation waters. Until a State makes that determination, E. coilwill be the applicable indicator.

In proposed 40 CFR 131.41(c), EPA included footnotes to the geometric

mean values for E.coli and enterococci stating that "[t]his value isfor use with [specified] analytical methods * * * or any equivalent viable method." The specified methods are based on measurement ofviable bacteria. New analytical methods that rely on genetic material for measurement may yield different results that are not appropriately calibrated to the numeric criteria in today's rule. To address this
concern, EPA isidentifying, as in the proposal, the specific methods that must be used to apply the bacteria criteria.

In today's rule, EPA is also making
two minor changes to this aspect ofthe proposal. First, EPA had incorrectly identified the analytical methods for enterococci asbeing for E.coli andthe analytical methods for E.colias being for enterococci, and is correcting this technical error in the footnotes in the final rule. Second, EPAhas revised the footnotes to explain more clearly what the methods are. The footnotes state: "This value is for use with [specific methods] or any equivalent method that

measures viable bacteria."

EPA notes that today's rule does not specifythe duration over which the geometric mean is calculated. The criteria in the tables at 40 CFR 131.41(c)

are identical to those in table 4 ofthe 1986bacteria criteria document, which does not specify the duration for computing the geometric mean. The 1986bacteria criteria document discusses the duration over which the

mean is calculated in two places. The first is in the discussion ofthebasis for the criteria (page six). Here, EPA calculated the geometric mean bacteria density over a summer swimming

season (recreation season). The second place is in the summary ofthe criteria (page 16) where EPA stated that "[b]ased on astatistically sufficient number ofsamples (generally not less than 5 samples equally spaced over a 30-day period), the geometric
mean.* * *" EPA considers this statement in the 1986bacteria criteria document to provide guidance on how

aregulatory agency could compute the geometric mean, and not as a definition ofthe specific period over which the

mean must be computed. Forthe geometric mean to be only computed

over a 30-day period would mean that regulatory agencies would need to sample more than once a month, which is contrary tothe guidance on monitoring provided in the 1986 bacteria criteria document. EPA expects from current practice by States and Territories that they will compute the geometric mean on either a monthly or recreation seasonbasis.

EPA is not specifying in the final rule how the averaging period for the geometric must be applied. EPA recommends thatthe averaging period be applied as a "rolling" or "running"
average. EPA expects that most States will in fact apply the averaging period

as arolling average; however, EPA also recognizes that itwould be technically appropriate to apply the averaging period on a set basis such as monthly

orrecreation season. EPAtherefore has concluded that itis appropriate to allow the States to exercise discretion in deciding howto apply the averaging period for the geometric mean.
3.Use ofthe Single Sample Maximum

EPA ispromulgating the single sample maximum values thatit proposed without change, but is clarifying its expectations with regard to how these values could be used in the
context ofbeach notification and closure decisions, and in the context of the implementation ofother Clean Water Act programs. EPA expects that the single sample maximum values would be used for making beach notification and closure decisions. EPA recognizes, however, that States and Territories alsouse criteria in their
water quality standards for other
purposes under the Clean Water Act in order to protect and improve water quality. Otherthan in the beach notification and closure decision context, the geometric mean is the more relevant value for ensuring that appropriate actions are taken to protect and improve water quality because it is

amore reliable measure, being less subject to random variation, and more directly linked tothe underlying studies

onwhich the 1986 bacteria criteria were based. Nevertheless, the single sample maximum can play arole in identifying potential pollution episodes, especially in waters that areprone to short-term spikes in bacteria concentrations, e.g., waters thatmay be affected by a combined sewer overflow outfall. Having identified that a water is prone to short-term spikes in bacteria concentrations due to pollution episodes, States and Territories have significant flexibility in how they address those episodes consistent with the Clean Water Act and implementing regulations. (Notethat additional guidance onmaking water quality standard attainment status determinations maybe foundin EPA's guidance to States on integrated reporting ofwater quality for sections 303(d) and 305(b) purposes.)

EPA received considerable comment

on this topic. Some comments addressed the issue ofwhether the single sample maximum should be part ofthe criteria that applies in all applications, including beach closure, waterbody assessment, Total Maximum DailyLoad establishment, and National Pollutant Discharge Elimination System permitting decisions, orinstead was only designed for beach notification and closure decisions. Most commenters expressed their interpretation ofthe 1986 bacteria criteria document as discussing the single sample maximum onlyin the context ofmaking beach decisions based on limited data. Several ofthese commenters argue thatthe geometric mean criterion was included in the 1986 bacteria criteria document for protection against acute gastrointestinal illness in other contexts, and thatthe single samplemaximum

was included as atool to implement the criteria inbeach monitoring situations, and therefore, was not necessary to provide protection in other contexts. Other commenters asserted thatthe single sample maximum should be used for all Clean Water Actpurposes.

EPA notes thatthe 1986 bacteria criteria document clearly identifies the single sample maximum values as part ofthe criteria, in addition to the geometric meanvalues. Therefore, consistent with section 303(i)(2)(A) of the Clean Water Act, EPA is promulgating them today. EPA recognizes that the single sample maximum discussion in the 1986 bacteria criteria document refers only to beach monitoring, and does not discuss how or whether the single sample maximum should be implemented for other Clean WaterAct applications, such as establishing Total Maximum DailyLoads or National Pollutant Discharge Elimination System permit limitations. EPA agrees thatthe single sample maximum values in the criteriaFederal Register/Vol. 69, No. 220/Tuesday, November 16, 2004/Rules and Regulations

are best used for making beach notification and closure decisions. However, as noted above, they may, but need not, also play a role in implementing other Clean Water Act programs. Except in the beach notification and closure context, EPA expects that States will determine how
to use the single sample maximum criteria in the context oftheir broader programs implementing the Clean Water Act.

For beach monitoring andbeach notification and closure decisions, beach managers frequently need to make beach decisions based on one orvery few data points. Thus, having a trigger level for a single sample value enables beach managers to make an immediate decision for the protection ofpublic health at beaches. The beach manager will frequently not be able to obtain sufficient samples to compute a geometric mean for the purposes of making a decision to close abeach or issue abeach advisory. Ofthe 2,823 beaches reporting information to EPAin 2002, 65% reported that pathogen levels

were monitored atleast once per week (EPA'sBeach WatchProgram: 2002 SwimmingSeason,EPA 823-F-03-007, May 2003, http://www.epa.govl waterscience/beaches/beachwatch2003- newformat.pdf).This means that at 35% ofthebeaches, the beach managers had fewer than four samples each month for making decisions to open or close the beach and in many cases only had one sample in any week.Furthermore, beach management programs need tobe able
to respond rapidly to short-term changes in water quality. Because a geometric

mean provides information pertaining to water quality that looks backwards in time, itis not necessarily useful in determining whether abeach is safe for swimming on a particular day.

EPA's NationalBeach Guidanceand RequiredPerformanceCriteria for Grants(EPA-823-B-02-004, June 2002) requires States and Territories receiving Clean Water Act section 406 implementation grants to either immediately issue a public notification
or, ifthere are reasons to doubt the accuracy ofthe first sample, resample when any sample surpasses a water quality standard at beaches. Although this requirement pertains only to the States and Territories receiving these grants, given that the States and Territories covered by this rule receive Clean Water Act section 406 implementation grants, itreflects the actions that States and Territories will be expected totake when a sample shows an exceedance ofthe applicable single sample maximum in today's rule. (EPAnotes that all 35 eligible coastal States andTerritories received grants in 2003, andmost have received these grants in 2004.) In other words, States and Territories will use a single sample maximum totrigger anotification or closure action at beaches; whether the action taken is an advisory or a closure depends on the decision rules established by the State, Territory or local beachmanagement authority, although the NationalBeach Guidance andRequiredPerformanceCriteria for Grantsrequires the State or Territory to provide a notification ofthe exceedance. Using a single sample maximum is especially important for beaches that are infrequently monitored orprone to short-term spikes in bacteria concentrations, e.g., waters thatmay be affected by combined sewer overflow outfalls. Thus, consistent with the 1986 bacteria criteria document, EPA expects that States and Territories would apply the single sample maximums for making beach notification decisions as values that ifexceeded would trigger a notification or closure action atthe beach.

Numerous commenters said that application ofthe single sample maximum values in the criteria as never-to-be-surpassed limitations in other contexts could lead to consequences which were not contemplated inthe 1986 bacteria criteria document, including, for example, Total Maximum Daily Loads andNational Pollutant Discharge Elimination System permit limitations which mightbe technologically and economically unattainable at a particular location. EPA agrees that the 1986 bacteria criteria document did not discuss using the single sample maximum as a never-to-be-surpassed value for allimplementation applications under the Clean Water Act.

In developing the 1986 bacteria criteria document, EPA derived single sample maximums as upper percentiles ofthe frequency distributions around the geometric mean. The 1986 bacteria criteria documentrecognizes that there will be instances where the concentration ofbacteria in one or more individual samples will be higher than the acceptable geometric mean concentration. This is to be expected when dealing with water quality criteria expressed as average concentrations

over a period oftime. For example, in

awaterbody with a 30-day average concentration exactly at the water quality criterion, it can be expected that approximately halfofthe samples collected will have a concentration above the criterion concentration (e.g., 126/100 ml for E.coli),while the other halfofthe samples will have lower concentrations. Thus, thatthe value of

one sample is greater than the numerical value ofthe geometric mean criterion, or

eventhe numerical value ofthe single sample maximum, does not necessarily indicate thatthe geometric mean criterion has actually been exceeded. Furthermore, the single sample maximum values in the 1986 bacteria criteria document were not developed

as acute criteria; rather, they were developed as a statistical construction to allow decision makers to make informed decisions to open or close beaches based

on small data sets. This does not mean single sample maximums serve no purpose outside ofbeach notification decisions. Forexample, they maygive States andTerritories the ability to make waterbody assessments where they have limited data for a waterbody. However, the single sample maximums were not designed to provide a further reduction in the design illness level provided for by the geometric mean criterion.

Based on the derivation ofthe single sample maximums as percentiles of a distribution around the geometric mean, using the single sample maximums as values notto be surpassed for all Clean WaterAct applications, even when the data setis large, could impart a level of protection much more stringent than intended bythe 1986bacteria criteria document. For example, in marine
waters the geometric mean criterion for enterococci is 35/100 ml, and the single sample maximum is 104/100 ml at designated bathing beach waters based

on the 75thpercentile ofthe distribution ofindividual values around the mean. Ifthat single sample maximum were used as avalue-not-tobe-surpassed, it wouldbecome a maximum value and all other values in the statistical distribution ofindividual
measurements would haveto be less thanthe maximum. EPA typicallyuses the 99th percentile ofa distribution to derive regulatory maximums. Assuming

a waterbody hadthe same standard deviation in concentrations ofbacteria employed in deriving the single sample maximums (e.g., 0.7 for marine waters), the waterbody geometric mean needed
to keep the waterbody concentration below 104/100 ml 99% ofthe time wouldbe 2/100 ml.This wouldbe far

more stringent than the level of protection provided by the actual geometric mean criterion for enterococci of35/100 ml. Therefore, EPAintends that States and Territories should retain the discretion to use single sample maximum values as they deem appropriate in the context ofClean WaterAct implementation programs other thanbeach notification and

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closure, consistent with the Clean Water Act and its implementing regulations.

The final rule does not constrain States and Territories flexibility in how they use the single sample maximum values in the context ofClean Water Act implementation programs such as Total Maximum Daily Loads and National Pollutant Discharge Elimination System permit requirements, as long as the geometric mean criteria for E.coli and enterococci are met. The flexibility afforded to States and Territories in applying the single sample maximum values in the National Pollutant Discharge Elimination System permitting program does not mean that maximum daily or seven-day average permit limits forbacteria are inappropriate for National Pollutant Discharge Elimination System permits. EPA notes that maximum daily and 7- day average effluent limits can be calculated based on 30-day average conditions and an understanding of effluentvariability. See Section 5.4.4 of EPA's TechnicalSupportDocument for WaterQuality-basedToxics Control (EPA-505-2-90-001, March 1991). (Theseprocedures are based on statistical methodologies similar to those employed in deriving the single sample maximums in the 1986 water quality criteria forbacteria.) EPA's recommendation thatthe single sample maximum values in the 1986 bacteria criteria document should be used primarily for makingbeach notification and closure decisions does not constrain States' use ofmaximum daily permit limits in accordance with current State permitting procedures.

EPA received afew comments about the specific use ofsingle sample maximums in making waterbody
assessment decisions, for example, in the development ofClean Water Act section 305(b) reports ordeveloping section 303(d) lists. One commenter statedthat the single sample maximum shouldnot be used solely as the means for deciding ifa waterbody was impaired. Another commenter stated that one sample shouldnot be used to characterize a waterbody. Yet another
commenter suggested thatthe single sample maximum only be used when there were insufficient data to compute

ageometric mean.

In general, EPA agrees with these
comments. As discussed above, EPA recognizes the utility ofsingle sample maximums where there are insufficient data (generally fewer than five samples

over a given period)to compute a geometric mean for the purposes of assessing waterbodies, and expects that States and Territories will use single sample maximums in these instances. While itis farpreferable for States and Territories to obtain more robust data for making decisions about waterbody impairments (the 1986 bacteria criteria document recommends determining the geometric mean using generally not less than 5 samples equally spaced over a 30-day period), EPA recognizes that in

some instances States and Territories will have limited data and may decide
to use the single sample maximums or other similarly derived statistical
constructs for making waterbody impairment decisions.

4. Intensity ofUse Categories ofCoastal Recreation Waters

EPA ispromulgating the same intensity ofuse categories ofcoastal recreation waters as in theproposal, specifically, the four categories of
waters with a corresponding single sample maximum as described in the 1986 bacteria criteria document. Only

one single sample maximum applies to each category ofcoastal recreation
water: designated bathing beach waters, moderate use coastal recreation waters, light use coastal recreation waters, and infrequent use coastal recreation waters. EPA is also promulgating the definitions ofthe categories as proposed. By providing definitions for the four categories, EPA provides clear guidance
to States and Territories and information for the public to identify the category in which each coastal recreation water belongs based on its intensity ofuse for primary contact recreation.

EPA does not have sufficient information regarding frequency ofuse ofeach specific coastal recreation water covered by this rule to list all those
waters in therule according to the four categories defined in 40 CFR 131.41(b). Therefore, EPA does not list individual coastal recreation waters byintensity of

use category. EPA recommends that States andTerritories evaluate existing

use information andidentify which individual coastalrecreation waters belong to each category andmake this information publicly available (e.g., on

a State's or Territory's website). As explained in the preamble to the proposed rule (69 FR 41726), States and Territories could use their existing beach tiering process for BEACH Act implementation grants as asource of information for determining frequency in categorizing a coastal recreation
water for purposes ofdetermining the applicable single sample maximum.

Today's rule does not require that States andTerritories apply the definitions at 40 CFR 131.41(b) such that the State orTerritory finds atleast

one water for each ofthe four categories ofwaters. A State or Territory could, at its discretion, apply the single sample maximum for designated bathing beaches (thelowest single sample maximum)to allits coastal recreation
waters because this approach would be

more protective ofhuman health than the structure for single sample maximums in 40 CFR 131.41(b) and (c). Thus, a State or Territory thathad commented that it preferred thatEPA promulgate only one category ofwaters could exercise its discretion and apply the single sample maximum for designated bathing beaches to all ofits
waters. Alternatively, a State or Territory may choose to place their coastal recreation waters in only two of the four single sample maximum categories, such as the 75% confidence level single sample maximum for designated bathing beaches and the 95% confidence level single sample maximum for all other coastal recreation waters, ifthe recreational usage ofthe
waters matches the definitions at40 CFR 131.41(b). This approach would be appropriate ifthe State or Territory determined thatthe "infrequent use" definition was the most appropriate categorization for its coastal recreation
waters that were not identified as designated bathing beaches. Although the rule does not specify which State
waters belong in which use category, the definitions in the rulemust be used to determine which single sample maximum would apply to aparticular coastal recreation water.

A number ofcomments requested that EPApromulgate only the 75% confidence level criterion for all coastal recreation waters because having only

one single sample maximum would provide for consistency in all coastal recreation waters, andprovide the same level (and highest level) ofprotection to all users ofcoastal recreation waters, no matter whatthe use intensity ofthat particular water mightbe.

EPA declines to take this approach in today's rule. EPA acknowledges the

reasons expressed inthe comments. However, EPAbelieves this would be

more restrictive than necessary to

ensure thatthe promulgated water quality criteria are as protective of human health as the 1986 bacteria criteria document, which provides single sample maximums for four categories ofwaters. Thus, such an approach wouldunnecessarily restrict the flexibility of States andTerritories to determine when to impose standards

more protective than EPA's 1986 bacteria criteria. EPA normally defers to

a State's or Territory's decision onwhat criteria apply to protect a designated use subject to the State or TerritoryFederal Register/Vol. 69, No. 220/Tuesday, November 16, 2004/Rules and Regulations

providing information to show thatthe
water quality criteria are sufficient to protect the designated uses, and for coastal recreation waters, that the water quality criteria are as protective of human health as the criteria for the pathogen or pathogen indicators that EPA has published. EPA does not consider the benefits ofidentical standards in the States and Territories covered by this rule to outweigh the negative effects ofunnecessarily constraining the flexibility thatthe Clean Water Act and EPA's rules give States and Territories in establishing
water quality standards, particularly because there is already variation in the single sample maximums in use among States and Territories that are not covered by today's rule.

5.Intrastate vs. Interstate Determinations ofUse Intensity

In today's final rule, as in the proposal, single sample maximums apply to categories ofwaters based on intensity ofuse. These categories are based onintrastate comparisons of frequency ofuse (i.e.,relative to the otherwaters within that State or Territory). Using this approach, a State

orTerritory will identify its designated bathing beach waters first and then evaluate all otherwaters in comparison
to those waters. However, today's rule does not require that a State or Territory

use all fourcategories ofintensity of

use. Rather, EPA expects that States and Territories will first identify portions of
waters as designated bathing beaches based onthe factors listed in 40 CFR 131.41(b)(2) and then categorize the remaining waters based on their intensity ofuse relative to those beaches. In interpreting the phrase "heavily used," EPA expects States will make reasonable judgments about the level ofuse at a givenbeach. EPA does
not intend that States should exclude heavily used waters from the designated bathing beach category merely because they can identify otherbeaches, either within the State or in other States, that

are more heavily used.

While several commenters supported intrastate comparison ofintensity of
use, others suggested using an interstate comparison ofintensity ofuse because beach use varies significantly across States and Territories. While EPA recognizes thatbeach use intensity varies significantly across the nation, EPA does not agree that interstate comparisons are the best approach for categorizing use intensity. An interstate approach could result in some States or Territories comparing their beaches only
to the most heavily usedbeaches in the nation and determining that they have no beaches warranting protection at the 75% confidence level. Rather, States
and Territories will need to evaluate the intensity ofuse oftheir own beaches, independent ofbeaches in the rest ofthe nation, and assign thebeaches to categories based on the definitions provided in 40 CFR 131.41(b). This does
not mean that there is any minimum number or percentage ofbeaches that
must be placed in the designated bathing beach category. Rather, States shouldidentify those beaches, ifany, in the State which satisfy the criteria for this category andthen assign the remaining waters to one or more ofthe lower intensity ofuse categories as appropriate. Intrastate comparison of

use will allow States andTerritories the flexibility to provide the level of protection that is appropriate to visitors
to beaches with different intensities of

use.

In today's rule, EPAis also making a minor change to this aspect ofthe proposed rule. The Agency added text to the definition of "designated bathing beach" in 40 CFR 131.41(b)(2) to provide expressly that the determination of"heavy use" is based

on an evaluation ofuse within the State, which is consistent with the above discussion.
6. State Calculation ofSite-Specific Single Sample Maximums

EPA ispromulgating, as proposed, default single sample maximums based

onthe 75, 82, 90, and 95% confidence levels, alongwith the equation to calculate site-specific single sample maximums. EPA calculated the values for the single sample maximums in tables 2 and 3using the standard deviations observed duringthe EPA epidemiological studies. The Agency recognizes that standard deviations observed in EPA's epidemiological studies may not coincide with thatfor

aparticular waterbody. States and Territories may decide to collect data to calculate site-specific standard deviations. To compute the site-specific log standard deviation in a statistically meaningful way as explained in the preamble to theproposed rule (69 FR 41727), today's rulerequires that the States andTerritories collect atleast 30 samples in asingle recreation season (see 40 CFR 131.41(c)(3)). Ifthis requirement is met,the State or Territory may use the resulting sitespecific standard deviation to calculate

a corresponding single sample maximum.

EPA considers thatthe calculation of site-specific single sample maximums as specified in 40 CFR 131.41(c)(3) provides enough detail on the calculation that States andTerritories

can implement the provision oftherule without needing to adoptit as a sitespecific water quality criterion. As a result, States and Territories do not need EPA review and approval under 40 CFR Part 131 in their application of40 CFR 131.41(c)(3).

All commenters that addressed this issue supported EPA'sproposal to require 30 samples to derive a sitespecific standard deviation; however,

one commenter stated that States and Territories shouldbe allowed to collect the samples over tworecreation seasons ifthere were not significant differences inbacteria concentrations over the twoyear period.The commenter explained that States and Territories may find it difficult to collect 30 samples in one recreation season. EPA recognizes the difficulty in collecting the required number of samples over a single recreation season, but the Agency has nonetheless concluded that collecting this data during a single seasonis necessary in order to capture the variability inherent in bacteria concentrations at a site over the period ofa single season without introducing additional variability from extreme weather conditions such as drought or El Nifio conditions. Using 30 samples

over more than one recreation season could affect the outcome ofthe single sample maximum such thatit may not be asprotective ofhuman health as EPA's 1986 bacteria criteria.

7.Addressing Non-Human Sources of Bacteria

EPA is adopting the approach preferred in the proposal for addressing non-human sources ofbacteria. In today's rule, EPA added footnote "e" to 40 CFR 131.41(c)(1) and footnote "c" to 40 CFR 131.41(c)(2) to describe this approach for addressing non-human

sources ofbacteria. The footnotes state: "These values apply to [E.colior enterococci] regardless oforigin unless

a sanitary survey shows that sources of the indicator bacteria are non-human and an epidemiological study shows thatthe indicator densities are not indicative ofa human health risk." Specifically, States andTerritories must apply the E. coli and enterococci criteria
to all coastal recreation waters. If, however, sanitary surveys and epidemiological studies show the

sources ofthe indicator bacteria to be non-human and the indicator densities do notindicate ahuman health risk, thenit isreasonable for the State or Territory to not consider those sources offecal contamination in determining whether the standard isbeing attained. Thisis the approach taken in the 1986 

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bacteria criteria document. Itwould be reasonable for a State or Territory to use existing epidemiological studies rather than conduct new or independent epidemiological studies for every waterbody ifitis scientifically appropriate to do so.

EPA also anticipates that a State or Territory thathas conducted a sanitary survey and an epidemiological study to show thatthe sources ofthe indicator bacteria in a waterbody are non-human andthat the indicator densities do not indicate ahealth risk tothose swimming in the waters, will apply the criteria in today's rule where a change in circumstances affecting the waterbody makes it appropriate to do so. For example, the criteria would apply to a waterbody in which there is a subsequent sewer line break or other later occurrence that results in the introduction in the waterbody of bacteria that is a human health risk to those using the waters for primary
contact recreation.

EPA ispromulgating this approach because Clean Water Act section 303(i)(2)(A) requires EPAto propose criteria which are "as protective of human health as" EPA's 1986bacteria criteria in caseswhere a State or Territory has failed to do so. While EPA's scientific understanding of pathogens and pathogen indicators has evolved since 1986, data characterizing the public health risk associated with non-human sources is still too limited for the Agency to promulgate another approach.

Almost halfofthe commenters addressed some or all ofthe approaches
to exempting non-human sources of fecal contamination described in the proposed rule (69 FR 41729-41731). Several commenters expressed support for EPA's preferred approach. EPA agrees that the criteria should apply unless sanitary surveys and epidemiological studies show the

sources ofthe indicatorbacteria to be non-human and thatthe indicator densities are not indicative ofa human health risk.This is the approach taken in the 1986 bacteria criteria document.

Some commenters expressed a preference for not allowing any exclusion ofnon-human sources from the criteria. They emphasized the significance ofthe human health risk associated with any type offecal contamination and asserted thatthis approach would be most protective of human health. EPA does not agree that this approach is necessary for States to adopt ifan epidemiological study demonstrates that non-human sources donot pose a risk to human health at

agiven waterbody. Several commenters supported a nonhuman source exclusion based on sanitary surveys only. In general, these
commenters expressed concern about the cost ofepidemiological studies, especially in areas where evidence of human fecal contamination was absent. EPA has found the scientific understanding ofthe human health risks associated with non-human sources of fecal contamination is still too incomplete to promulgate this option.In the proposed rule (69 FR 41730-41731), EPA cited several instances where studies have attributed disease outbreaks to non-human sources offecal contamination. Giventhe potential human health risk from non-human

sources offecal contamination, EPA concludes thatthis option would not be

asprotective ofhuman health as the 1986 bacteria criteria.

Some commenters supported exclusion ofbacteria from wildlife

sources from the criteria because wildlife sources may pose less ofa risk
to human health than human sources or domestic animal andlivestock sources. Other commenters raised issues with the reliability ofcurrent bacteria source tracking methods that may be needed to support this exclusion. EPAfinds the scientific understanding ofthe human health risks associated with wildlife

sources offecal contamination still too incomplete to support promulgation of this option. Once again, EPA concludes that this option is not as protective as the 1986 bacteria criteria.

Many commenters expressed the need for more research on non-human

sources. Commenters emphasized two major areas ofneeded research: research

onbacterial source tracking methods to better distinguishbetween different types ofbacteria contamination and research onthe health risks associated with different types ofnon-human fecal contamination. EPA expects to conduct research in these areas as time and

resources allow. EPA also encourages others to continue to conductresearch in these areas.
C.ApplicabilityofToday'sRule

1.Applies in Addition to Any State/ Territorial Criteria

EPA ispromulgating the rule as proposed with respect tothe interaction oftoday's criteria with existing State and Territorial water quality criteria. Under today's rule, the promulgated criteria donot replace existing bacteria criteria for coastalrecreation waters already adoptedby States and Territories (andfor those adopted after May 30, 2000, approved by EPA). Rather, today's promulgated criteria apply forClean WaterAct purposes in addition to any existing State or Territorial criteria already applicable to those waters. This will ensure that, where commercial shellfishing and primary contact recreation occur in the

same coastal recreation waters, both

uses will be adequately protected by existing State andTerritorial standards (whichgenerally still use fecal coliform) and the new standards for either E.coli

or enterococci. States and Territories may also continue to use existing criteria forfecal coliform to supplement the new indicators for the purposes of waterbody assessment and other purposes where ambient data are needed. The dual sets ofbacteria criteria also will enable regulatory decisions and actions to continue while collecting data forthe newly adopted E.colior enterococci criteria. For States and Territories included in today's rule, EPA expects that States and Territories will be actively collecting data onE.coli and/or enterococci and working to incorporate E.coli and/or enterococci
water quality criteria into their water quality programs, e.g., National Pollutant Discharge Elimination System, Clean WaterAct section 305(b), and Clean WaterAct section 303(d)
programs. As they accomplish this, States andTerritories mayphase out theiruse offecal coliform as a supplemental indicatorto protect primary contact recreation. While EPA
cannot remove or revise existing State or Territorial standards, EPAbelieves that itwould not be an efficient use of

resources for States and Territories to base Clean Water Act actions related to protection ofprimary contact recreation

onboth fecal coliform and the new, preferred indicators. However, ifStates believe their existing standards are as protective as the criteria in today's rule, they may submit data to EPA to support this determination, and ifEPA then determines that the State standards are atleast as protective as the criteria in today's rule, EPA willwithdraw the Federal criteria for that State. (See section V.C.) States andTerritories are encouraged to expeditiously revise their
water quality standards to remove fecal coliform criteria as an indicator for primary contact recreation where ithas been replaced by the new indicators in theirimplementation ofthe Clean Water Act. Today's rule also provides in 40 CFR 131.41(d)(1) that newEPAapproved bacteria criteria in State or Territorial water quality standards become the effective Clean Water Act criteria upon their approval, replacing the criteria in today's rule.Federal Register/Vol. 69, No. 220/Tuesday, November 16, 2004/Rules and Regulations

EPA received very few comments on this topic. All commenters addressing this topic supported EPA's proposal that

once EPA approves a State's or Territory's standards asbeing as protective ofhuman health as EPA's 1986bacteria criteria, the EPA-approved bacteria criteria in State or Territorial
water quality standards would become effective for Clean Water Act purposes andEPA's promulgated criteria would

no longer apply. EPA will still remove the State or Territory from 40 CFR 131.41, but any delay in that process would not delay the approved State criteria from becoming the sole applicable criteria for Clean Water Act purposes.
2.Role ofState/Territorial General Rules ofApplicability

Today's rule, like theproposal, makes today's criteria subject to States' and Territories' general rules ofapplicability in the same way and to the same extent

as are otherFederally-adopted orStateadopted numeric criteria. EPAreceived

afew comments on this topic and these generally pertained tomixing zones. One commenter suggested that the final rule prohibit the use ofmixing zones to comply with today's criteria. The
commenter said thatthe use ofmixing

zones would not be as protective of human health as the 1986 bacteria criteria. Another commenter supported allowing States to apply their existing mixing zone provisions.

EPA appreciates the concerns of
commenters regarding human health risks ofexposure to fecal contamination within mixing zones. However, EPA has determined that the Agency's existing guidance provides sufficient direction to permitting authorities as they implement State or Territorial mixing

zone policies. EPA's WaterQuality Standards Handbook:SecondEdition (EPA-823-B-94-005a, August 1994) as well as EPA's TechnicalSupport DocumentforWaterQualityBased Toxics Control(EPA-505-2-90-001, March 1991) advise against the use of mixing zones where the location may pose a significant health risk. These documents stress the importance of determining the appropriate placement and size ofmixing zones depending on the potential effects to human health andthe environment. As a result, EPA is not prohibiting the application of mixing zones in the final rule in cases where they wouldbe allowed under existing State and Territorial programs.
D. ComplianceSchedules

Where a State or Territory does not have a regulation thatis in effect for Clean Water Act purposes authorizing compliance schedules for water qualitybased effluent limits, EPAproposed to authorize, but not require, the permit issuing authority to include compliance schedules in permits under appropriate circumstances. EPA also proposed that ifa State or Territory has a regulation in effect authorizing compliance schedules for Clean Water Act purposes then that compliance schedule regulation could be used in implementing the water quality standards in this rule; it would notbe affected by the final rule. Because EPA recognizes that a State or Territory without aregulation authorizing compliance schedules may not want such aregulation, in the preamble tothe proposed rule, EPA asked such Statesto notify EPA prior topromulgation. No State orTerritory notified EPAthat it does not want the abilityto use the compliance schedule provision in today's rule. Therefore, EPAis not including in today's final rule any regulatory text identifying States or Territories that do not want a compliance schedule provision for their standards.

EPA received several comments in support ofthe allowance for compliance schedules. One commenter requested that EPAremove the requirement that a permittee request a compliance schedule; this commenter believed that the permitting authority could determine whether the permittee needed time to comply with the new effluent limitation based onthe criterion. EPA disagrees thatit needs to make this change because the rule does
not impose a requirement for a request. The rule at 40 CFR 131.41(f)(3) provides permittees with the opportunity to request a compliance schedule where the permittee reasonably believes itwill be infeasible to immediately achieve the

new limitation, but it does not require them to do so. The permitting authority alsohas the discretion to suggest the need for compliance schedules as part ofthepermit even ifthe permittee does
not initiate a request for one. One commenter supported the definition ofanew pathogen discharger. Another commenter requested clarification thatthe definition does not apply to relocated combined sewer overflow outfalls. EPA agrees thatthe definition does not apply to relocated combined sewer overflow outfalls. The rule at40 CFR 131.41(f)(2) does not authorize compliance schedules for new pathogen dischargers because EPA recognizes that a new discharger could design and build a new treatment system, which will meet the new water quality-based requirements more efficiently (69 FR 41736). However, a relocated combined sewer overflow outfall is not a new discharge, rather it is an existing discharge being released at

an alternate location. The relocating of the outfall does not necessarily provide

an opportunity for the discharger to apply additional controls orreduce pathogen loads to the extent anticipated for anew pathogen discharger. EPA's Combined Sewer Overflow Control Policy, published onApril 11, 1994, recommends that Long Term Control Plans consider relocating overflow away from sensitive areas wherever physically possible and economically achievable (59 FR 18688, 18692). In today's final rule, EPA has added textto the definition ofa "new pathogen discharger" in 40 CFR 131.41(b)(6) to provide expressly that "[i]t does not include relocation ofexisting combined

sewer overflow outfalls."

Many commenters addressed the length ofthe compliance schedule. Some commenters supported capping the length ofthe compliance schedule at fiveyears, while one commenter suggested that three years should be sufficient. Other commenters suggested that compliance schedules longer than fiveyears maybe necessary, orthat the rule should not specify the length ofa compliance schedule, but rather allow the permitting authority to exercise discretion in determining how much timeis necessary for each discharger. Finally, several commenters noted that combined sewer overflow systems may need compliance schedules longer than fiveyears, and thatthe compliance schedule provision ofthe rule should be consistent with EPA's Combined Sewer Overflow Control Policy and the requirements ofClean Water Act section 402(q).

EPA has determined that five years is

a reasonable limit onthe length ofa compliance schedule within a National Pollutant Discharge Elimination System permit. EPA expects thatmost continuous dischargers will look to optimize their existing disinfection treatment, and that five years is sufficient time to do so. As discussed in section VIII, EPAbelieves that experiences from facilities with bacteria effluent limits that are currently meeting the E.coliand enterococci criteria, as well as the current fecal coliform criteria, suggest that disinfection processes canbe upgraded or adjusted
to produce the levels ofbacteria necessary for compliance with the rule. EPAhas usedfive years for compliance schedules where permittees were expected to design, construct, and operate new treatment processes, and
notjust optimize their current treatment. (See 40 CFR 131.38(e)(6) and 

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40 CFR Part 132, Appendix F, Procedure 9.B.1.)

EPA does not regard the five-year cap

on compliance schedules as inconsistent with either EPA's Combined Sewer Overflow Control Policy or Clean Water Act section 402(q). Section 402(q)requires that National Pollutant Discharge Elimination System permits conform to EPA's Combined Sewer Overflow Control Policypublished on April 11, 1994 (59 FR 18688). EPA's Combined Sewer Overflow Control Policy recommends thatpermittees develop a construction and financing schedule for implementation ofcombined sewer overflow controls (59 FR 18694). The Combined Sewer Overflow Control Policy recommends that permitting (and
water quality standards setting) authorities include, in an appropriate enforceable mechanism, compliance dates, on the soonest practicable schedule, for requirements to implement Long Term Control Plans (59 FR 18696). In addition, permits need to include water quality-based effluent limits requiring compliance by no later than the date allowed under the water quality standards that apply. The Combined Sewer Overflow Control Policy itselfdoes not require compliance schedules in water quality standards (or otherwise constrain the authority ofwater quality standard setting agencies). Finally, the Combined Sewer Overflow Control Policy recommends, in cases where water quality standards donot allow compliance schedules and the permittee cannot, on the effective date ofthe permit, comply with effluent limitations established in the permit, that the compliance schedule be placed in a judicial order for major permittees (59 FR 18697). EPA recognizes that combined sewer overflow systems often need more than five years to meet the requirements ofthe Clean Water Act. In these situations, the permitting authority can provide sufficient time for the combined sewer overflow system to complyby using the enforceable mechanisms identified in the Combined Sewer Overflow Control Policy.

Finally, in today's final rule, EPAis making two corrections tothe proposed
rule at 40 CFR 131.41(f)(3)-(4) to refer
to paragraph (c) as theparagraph containing the water quality criteria for bacteria. V. EPA Review of State andTerritorial Standards

A. HowDidEPADecide Which States andTerritoriesTo Includein Today's Rule?

EPA evaluated the water quality standards for bacteria for all 35 coastal States andTerritories with coastal recreation waters to determine whether the water quality standards for such
waters are as protective ofhuman health

asthe 1986 bacteria criteria document,

asrequired by Clean Water Act section 303(i)(1)(A). Ifa State's orTerritory's approved water quality standards for bacteria for coastal recreation waters are

asprotective ofhuman health as the 1986 bacteria criteria as ofthe signature date oftoday's rule, EPA is not including the State orTerritory in the promulgated rule.

EPA described the five considerations used to evaluate the State and Territorial water quality standards in detail in the proposed rule (69 FR 41728-41731). Today, EPA uses the

same five considerations to evaluate State andTerritorial water quality standards for inclusion in the final rule. The following five sections summarize the considerations.

1.Are the standards based on EPA's recommended indicators ofE.coli and enterococci aspathogen indicators for freshwaters and enterococci for marine waters?

As discussed in section IV.B.1 ofthe preamble to today's rule, EPA is promulgating water quality criteria for E.coliand enterococci for use as standards for State and Territorial coastal andGreat Lakes recreation
waters. These arethe indicator bacteria for which EPA published criteria in the 1986 bacteria criteria document.

EPA received anumber of comments asserting that a fecal coliform water quality criterion of 14/100 ml for the protection ofa shellfishing use should generally be as protective ofhuman health as the enterococci criterion of35/ 100 ml. Some ofthese commenters referenced the statement in the 1986 bacteria criteria document that EPA selected the value ofthe enterococci criterion to be no more protective of human health than the then current fecal coliform criterion of200/100 ml for recreation protection in support of their argument that ifthere is equal protection between the 1986 bacteria criteria and afecal coliform value of 200/100 ml, then afecal coliform value of14/100 ml shouldbe evenmore protective ofhuman health than an enterococci value of35/100 ml for marine waters. EPA disagrees thatthis statement in the 1986 bacteria criteria document provides a basis for determining that a fecal coliform criterion of 14/100 ml is "as protective as" an enterococci criterion of 35/100 ml.EPA explicitly acknowledged in the 1986 bacteria criteria document that these illness rates for fecal coliform

were only approximations, but were the best available estimates. (The fecal coliform criteria were developed long before EPA calculated the corresponding estimated illness rates.) EPAused these estimated illness rates for one purpose: to select illness rates for the enterococci and E.colicriteria in marine and fresh waters that would be least likely to cause a change in the stringency ofthe water quality standards for bacteria. However, that discussion in the 1986 bacteria criteria document mustbe considered along with the purpose ofthe 1986 bacteria criteria document: to recommend that States replace their fecal coliform criteria forrecreation with enterococci

orE.colicriteria because studies showed low correlation between fecal coliform densities andillness rates. In EPA'sview, it would not be reasonable
to rely on the equivocal discussion regarding the after-the-fact approximation of an illness rate forfecal coliform in light ofthe unequivocal conclusion ofthe entire document: That the fecal coliform criteria for recreation is not a reliable indicator ofillness to swimmers.

One commenter, theWashington Department ofEcology, supplied EPA with recently-collected ambient water monitoring data for both fecal coliform and enterococci, and stated that the data for enterococci andfecal coliform, when compared to each other, show that, in Washington State coastal recreation waters, when fecal coliform concentrations were at 14/100 ml or less (alevel substantially below the 200/100 ml level thatEPA recommended prior to 1986), the enterococci concentrations

were almost always at 35/100 ml orless. The State currently has a fecal coliform criterion of 14/100 ml as ageometric

mean and 43/100 ml as a value not to be exceeded more than 10% ofthe time for its Class AA andA waters, which for marine waters are the only classes with primary recreation uses. The data submitted toEPA are from 37 locations in the King County area ofthe Puget Sound for the years 1995 through 2004, 155 locations in the Kitsap County area ofthe Puget Sound andits embayments for early 1997, and 36 locations across the Puget Sound, Strait ofJuan de Fuca, and two Pacific Ocean embayments fromNovember 2000 through July 2001.Federal Register/Vol. 69, No. 220/Tuesday, November 16, 2004/Rules and Regulations

EPA reviewed the data provided by the Washington Department ofEcology. EPA analyzed the data that were collected from stations located close to shore and within the upper two meters ofdepth,because these are the areas where people mostfrequently swim. EPA also excluded datathat the State identified as invalid. From these data, there are 3535 samples withboth fecal coliform and enterococci bacterial
counts. From these samples, EPA calculated 241 summertime geometric

means for both fecal coliform and enterococci for the data from King County. EPA could not calculate summertime geometric means for the otherlocations because there were insufficient datain these data sets to do SO.

These geometric mean calculations show that, for King County, the attainment ofthe State's current fecal coliform geometric mean criterion of 14/ 100 ml always assures attainment ofan enterococci geometric mean of 35/100 ml. Further, there were 67 of 191 relevant occasions (35% ofthe time) when the State's fecal coliform geometric mean criterion was exceeded but the geometric mean enterococci criterion was not.

The data also show that attainment of the State's current fecal coliform criterion also ensures attainment ofthe enterococci 75th percentile single sample maximum criterion (04/100 ml) in 99% ofthe samples collected at all locations in Washington. Of 2194 relevant datapoints, the State's upper bound fecal coliform criterion of43/100 ml assures attainment ofthe Federal enterococci 75th percentile single sample maximum criterion on 2166 occasions. Finally, there were 570 of 2736 relevant occasions (21% ofthe samples) when use ofthe State's fecal coliform criterion couldbe used to close

abeach or issue an advisorybut the Federal enterococci criterion (expressed

as a single sample maximum) would not support closure oran advisory. Based

onthis analysis, EPA agrees that the dataprovided by the State of Washington for the Puget Sound, Strait ofJuan de Fuca, and the Pacific Ocean embayments shows that use ofthe State's 14/100 ml fecal coliform criterion is as protective ofhuman health as the 1986bacteria criteria for the State ofWashington.

In the proposed rule, EPA solicited
comment on its interpretation that Clean Water Act section 303(i) requires States and Territories to adopt criteria for E. colior enterococci to comply withthe provisions ofthat section. Section 303(i)(1)(A) requires that States and Territories submit criteria "* * * for the pathogens andpathogen indicators for which the Administrator has published criteria under section 304(a)."
EPA's Ambient WaterQualityCriteria forBacteria-1 986is considered tobe the Clean Water Act section 304(a) criteria referred to in Clean Water Act section 303(i)(1)(A). The Ambient Water QualityCriteria forBacteria-1 986 stronglyrecommended the use ofE.coli and enterococci aspathogen indicators for fresh waters and strongly recommended enterococci for marine
waters.

Clean WaterAct section 303(i)(2)(A) requires EPA to propose water quality standards regulations for a State "[i]f a State fails to adopt water quality criteria and standards * * *that areas protectiveofhumanhealthas the criteria for pathogens and pathogen indicators for coastalrecreation waters published by the Administrator * * * (emphasis added). EPA solicited
comment onwhether section 303(i)(2)(A) could be read to require that EPA need onlypromulgate for a State or Territory ifthe State or Territory failed
to adopt any criteria (notnecessarily E. colior enterococci) that were as protective ofhuman health as EPA's 1986 bacteria criteria. In otherwords, EPA solicited comment on whether it

was required to promulgate E.colior enterococci under section 303(i)(2)(A) in situations where aState orTerritory adopted alow fecal coliform criterion for protection ofprimary contact recreation that was demonstrated to provide protection equal to the protection provided by EPA's 1986 bacteria criteria. EPAhas reconsidered its interpretation andbelieves that there is some ambiguity in section 303(i)(2)(A) and that given this ambiguity that it shouldinterpret section 303(i)(2)(A) as allowing EPA to approve standards based on other indicators provided they are as protective asEPA's 1986 bacteria criteria because this approach is most consistent with the purposes ofthe Clean Water Act. Thus, EPAis taking the position that EPAis not required to promulgate E.colior enterococci criteria ifa State demonstrates that other criteria, based on other bacteria indicators, are as protective ofhuman health as EPA's 1986 bacteria criteria. That is, ifa State or Territory adopts criteria, even though they are not for E. colior enterococci, that are demonstrated to be as protective of human health as EPA's 1986bacteria criteria, section 303(i)(2)(A) does not require EPA topromulgate criteria for E. colior enterococci. Promulgation of criteria for E.coli or enterococci in that situation would not provide any greater level ofpublic health protection. Protection ofpublic health was Congress'sprimary intent in enacting the BEACH Act. Therefore, ifa State or Territory can show that in waters in which the State orTerritory intends to protect primary contact recreation uses with its criteria for fecal coliform, that suchuses will be protected at alevel equal to or greater than the protection providedby EPA's 1986bacteria criteria for enterococci andE.coli,EPA does not believe Congress intended EPA to promulgate water quality criteria for pathogens or pathogen indicators for those waters inthat State or Territory where this has been demonstrated. The facts presented bythe Washington Department ofEcology highlight the reasonableness ofthis interpretation.

In addition, EPA considers itto be an appropriate exercise ofFederal discretion totake this approach with Washington State. Congress intended through Clean WaterAct section 303(c)
to give States the paramount role in weighing any available credible information for establishing water quality standards that are protective of the designated uses oftheir waters. Congress maintained this same approach inClean WaterAct section 303(i) bygiving States the responsibility
to adopt water quality standards for protecting human health, with EPA's role being to promulgate standards for those States thathad not adopted standards as protective ofhuman health

as the 1986 bacteria criteria. This interpretation is supported bythe legislative history ofClean Water Act section 303(i). Forexample, S. Rep. No. 106-366 states in the section-by-section analysis ofthe Act:

These provisions are consistent withthe applicable requirements ofthe Clean Water Act and specifically section 303(c) and the regulations implementing that section. States mustincorporate into their waterquality standards, water quality criteria for pathogens and pathogen indicators that are at least asprotective ofhuman health as criteria EPA publishes under section 304(a). The State's criteria may be asprotective asthose ofEPA without beingnumerically equivalent. However, ifa State adopts criteria differingfrom those published byEPA,the State has aduty to defend the criteria from

a scientific perspective. EPA's approval or disapproval ofthe criteria isbasedupon the information provided bythe State. (S.Rep. No. 106-366, at 4 (2000)).
EPAbelieves thatthis language demonstrates Congress's intent that section 303(i) be interpreted within the broader context ofsection 303, and that section 303(i) not be interpreted to preclude a State's adopting alternative criteria from those published byEPA 

### 6723167232 Federal Register/Vol. 69, No. 220/Tuesday, November 16, 2004/Rules and Regulations

under section 304(a), provided thatthe State demonstrates (and EPA agrees) that the alternative criteria are as protective ofhuman health as EPA's published criteria.

H. Rep. No. 106-98 has similar language in its section-by-section analysis as follows:

The Committee intends thatthe legal standardfor determining when a State water quality standard isconsistent withthe applicable requirements ofthe Clean Water Act be governed bythe existing requirements ofsection 303(c) ofthe Clean Water Act, and the regulations implementing that section. This standard has beeninterpreted to mean that State water quality criteria mustbe at least as protective ofhumanhealth as EPA's water quality criteria. Thus, a State must incorporate into itswater quality standards water quality criteria for pathogens and pathogen indicators that are at least as protective as criteria thatEPAhas published under section 304(a), includingEPA's 1986 criteria forenterococcus and Escherichia coli. (H. Rep. No. 106-98, at 8 (1999)).
Here again, EPAbelieves Congress is clarifying its intent that State criteria to be approvable under section 303(i),
must be at least as protective as EPA's 1986bacteria criteria, but not necessarily the same as the 1986 criteria.

With respect to the State of Washington, EPAlooked at the process that the State took in reviewing its fecal coliform standards for protecting recreation uses in marine waters. The State did this as part ofits triennial review ofwater quality standards. The State undertook amulti-year process starting in the summer of 1996 and finishing in 2003. In this period, the State convened a multi-stakeholder technical workgroup to examine the technical merits ofthe State's bacteria criteria, and documented the technical andpolicy issues evaluated bythe work-group and itspredecessor (see http://www.ecy.wa.gov/pubs/ 0010072.pdj).The State used this information to focus discussions with

numerous advisory panels both internal and external to theWashington Department ofEcology. The State held

aformal 60-day public review and
commentperiod on proposed revisions
to its water quality standards (including adoption ofEPA's recommended enterococci criteria for Class AA and Class A marine waters), and as part of the public notification process, directly mailed outapproximately 3320 announcements, 550 email announcements, and 621 CDs to potential interested citizens, regulated businesses, governmental officials, and
every city, county, and Tribe in the State. The State conducted eight public workshops and hearings regarding proposed changes toits standards at locations across the State. Finally, the State made all documents available to the public at itsWeb site at http://www. ecy.wa.gov/programs/wq/swqs/ supporting-docs/supporting-docs.htm].

Based onthe input from the various stakeholders in the State andthe paired monitoring data for fecal coliform and enterococci, the State concluded that its fecal coliform criteria for marine waters is protective ofthe recreation use in these waters, and alsois at least as protective ofhuman health as EPA's 1986 bacteria criteria. Many stakeholders in Washington share this conclusion, as expressed in the public
comments by many stakeholders on the State's proposed water quality standards (see http://www.ecy.wa.gov/programsl wq/swqs/supportingdocs! public comments.htm])and comments by a Puget Sound public interest group and aNorthern Pacific Ocean shellfish group on EPA's proposed rule. Given this conclusion, the State and some stakeholders were concerned thatthe State adoption ofthe enterococci standard and the attendant new monitoring thatthis would entail would limit the State's ability to monitor as comprehensively for fecal coliform asit does currently andthus provide the maximum assurance thatits waters are meeting itsprotective 14/100 ml fecal coliform standard. However, this rule does not require monitoring.

As discussed previously in this preamble, EPAreviewed the State's data and determined that it shows thatthe State's fecal coliform criterion is as protective asthe 1986 bacteria criteria. Accordingly, EPA considers it appropriate and consistent with Congressional intent to exclude Washington from today's Federal promulgation because the State has fully
met its obligations under the Clean Water Act using afull and openpublic process and is ensuring protection of human health in the coastal recreation
waters ofWashington.

EPA considers its analysis ofthe data provided by the State ofWashington to onlybe relevant to the State's waters. EPA does not agree that the Washington data show thatuse ofa fecal coliform criterion of4/100 ml is as protective of human health as the 1986 bacteria criteria for any other coastal recreation
waters in the United States because the conditions ofthe Washington State
waters may differ from waters ofother States. The relationship between fecal coliform and enterococci in the data provided by theWashington Department ofEcology is an empirical relationship, andreflects the conditions ofthe water from which the samples were collected. EPA cannot determine without water-specific data the extentto which the Washington State waters where the samples were collected are representative ofother waters in other parts ofthe United States. The Washington data reflect the pathogen

sources in that area, the local rainfall which has an effect on pathogen loadings, the tidal flushing in the waters, and the temperature ofthe
waters. Further, as noted above, the legislative history indicates that any State wishing to adopt criteria other thanthose in the 1986 bacteria criteria document, "has a duty to defend the criteria from a scientific perspective" and specifically to demonstrate that they are as protective ofhuman health

as EPA's 1986 bacteria criteria.

No other comments received by EPA included the type and amount of information thatEPA views as necessary to demonstrate that fecal coliform criteria (or any other pathogen indicator) in any other State or Territory

are as protective ofhuman health as the 1986 bacteria criteria. However, if following promulgation ofthis rule,

some other State orTerritory provides data toEPA sufficient to make this demonstration, EPAwill approve such other criteria as meeting the requirements ofsection 303(i) and withdraw today's Federal criteria from that State's coastal recreation waters. EPA cautions, however, that given the focus ofthe BEACH Act on the specific indicators in EPA's 1986 bacteria criteria document, there is a substantial burden ofprooffor States wishing to adopt criteria based on alternative indicators. EPAbelieves thatboth the process and quantity ofinformation and data providedby Washington State in makingthis determination may provide guidance to any other State that wished
to make a similar showing.

2.Are the Standards for E.coli and Enterococci Derived From a Scientifically-Defensible Methodology ThatLinks Them Quantitatively to an Acceptable RiskLevel Under Clean WaterAct Section 303(i)?

As discussed in section IV.B.2 ofthe preamble to today's rule, EPA is promulgating water quality criteria that correspond to an illness rate of0.8% for swimmers in freshwater and 1.9% for swimmers in marine waters. In deciding which States and Territories have already adopted water quality criteria as protective ofhuman health as these criteria, EPA considered an illness rate of1.0% of swimmers to be as protective

as the 1986 bacteria criteria in determining whether to include a State

or Territory in the rule. EPA explainedFederal Register/Vol. 69, No. 220/Tuesday, November 16, 2004/Rules and Regulations

its reasons for this consideration in the proposed rule (69 FR 41724-41725). EPA would consider State or Territorial bacterial criteria for fresh coastal recreation waters to not be as protective ofhuman health ifthe risk level ofthe criteria was above 1.0%.

Some commenters addressed this topic. Ofthese, a majority agreed with EPA that a 1.0% illness rate in swimmers in freshwater is as protective ofhuman health as the 1986bacteria criteria for different reasons. One
commenter said that a 1.0% illness rate would result in only a small increase in risk ofillness and that would still be below therisk ofillness in marine
waters. Another commenter stated that the difference between 0.8% and 1.0%

was well within the inherent variability in the criteria. One commenter expressed support for the 1.0% risk level but only ifEPA had examined and analyzed all available updated epidemiological data in identifying an acceptable risk level. As explained in the proposal (69 FR 41724-41725), EPA conducted an external peerreview of EPA's analysis ofthe epidemiological data from EPA's bacteriological studies

onwhich the 1986 bacteria criteria document isbased.

Of the commenters who did not agree that the 1.0% illness rate was as protective ofhuman health ofthe 1986 bacteria criteria, most argued thatthere is no logical reason to allow for different acceptable illness rates in marine and freshwater. One commenter said thatthe increase from 0.8% to 1.0% in freshwater would increase the incidence ofgastrointestinal illness by 25%. Three
commenters believed thatthe illness
rate for freshwater should be 0.8%, while one commenter felt thatEPA shouldpromulgate additional geometric

mean and single sample maximum values relative to otherrisk levels. EPA disagrees that it should only consider an illness rate of0.8% to be as protective ofhuman health as the 1986bacteria criteria document. As explained in the proposal, EPA does not see any a priori

reason torequire a greater level of protection for freshwaters than for marine waters, which account for the
vast majority ofswimming days in coastal recreation waters subject to section 303(i) ofthe Clean Water Act. See the proposed rule (69 FR 41724) for further discussion ofEPA's reasoning.

3.Do the Standards Include Appropriate Single Sample Maximums for All Coastal Recreation Waters?

As discussed in sections IV.B.3 and IV.B.4 ofthe preamble to today's rule, EPA ispromulgating water quality criteria that include separate single sample maximums for fourcategories of
waters based on intensity ofuse, which allows the State orTerritory to assign
waters to the four use intensity categories. In determining whether existing State orTerritorial water quality standards for coastal recreation
waters are as protective ofhuman health

asEPA's 1986 bacteria criteria, EPA determined whether the water quality standards include a single sample maximum for all coastal recreation
waters and ifdesignated bathing beaches have a single sample maximum based on atleast the 75% confidence level. EPA considers this approach to be

asprotective as the 1986 bacteria criteria and also consistent with the criteria as discussed in section IV.B of the preamble to today's rule. EPA included in the rule any State or Territory that does not cover all coastal recreation waters with asingle sample maximum and that for designated bathing beaches does not have a single sample maximum based on at leastthe 75% confidence level. EPA does not expect a State or Territory to use allfour ofthe use categories identified in the criteria document for its standards to be
atleast as protective as the 1986 bacteria criteria. For example, a State that applied the 75% confidence based maximum to allwaters would clearly be

asprotective as the 1986 bacteria criteria, even though it would only have

a single use category.

Most commenters agreed with this approach. Those that disagreed withit commented that the single sample maximum should not be a part ofthe
water quality criteria but rather available for use as an implementation tool for monitoring atbeaches. EPA addressed these comments in sections IV.B.3 andIV.B.4 oftoday's preamble.

EPA notes that all ofthe 35 coastal and Great Lakes States and Territories have identified coastalrecreation waters where there are beaches or similar points of access (National Listof Beaches,EPA-823-R-04-004, 69 FR 24597, May 4, 2004). Also, all 35 of these States andTerritories have received Clean Water Act section 406 grants since 2002 for monitoring and notification ofbeach advisories or closures at beaches adjacent to coastal recreation waters. Today's rule specifies that the highest use category with a single sample maximum based on the 75% confidence level applies to all beaches meeting the definition of designated bathing beaches in 40 CFR 131.41(b)(2) ("** * coastal recreation
waters that, during the recreation season

are heavily-used (based on an evaluation ofuse within the State) and
may have: a lifeguard, bathhouse facilities, or public parking for beach access") and that the other use categories apply to loweruse waters accordingly. Based on the applications for CleanWater Act section 406 grants, EPA expects that many coastal and Great Lakes States will have at least

somebeaches inthe higher use categories.

4.Do the Standards Exempt Fecal Contamination From Non-Human Sources?

For the reasons discussed in section IV.B.7 ofthe preamble to today's rule, EPAis promulgating the exemption for non-human sources expressed in the 1986 bacteria criteria document. EPA is including in today's rule those States and Territories for which the criteria include exemptions for non-human

sources that are inconsistent with the exemption provision in the criteria document, as promulgated in today's final rule. EPA addressed comments on this issue in section IV.B.7ofthe preamble to this rule.
5.Has EPA Approved the Standards?

Under section 303(i)(1)(A) ofthe Clean WaterAct, States and Territories
must adopt water quality standards as protective ofhuman health as EPA's 1986 bacteria criteria. Moreover, under 40 CFR 131.21, EPA must approve State

or Territorial water quality standards adopted after May 30, 2000, in order for those standards to be in effect for Clean WaterAct purposes. Therefore, EPA
must have approved State and Territorial standards for enterococci or E.coli adopted after May 30, 2000, as consistent with Clean WaterAct section 303(i) in order forEPA to exclude the State orTerritory from the final rule. State and Territorial standards adopted prior to May 30, 2000, that are consistent with Clean WaterAct section 303(i) are in effect for Clean Water Act purposes even without explicitEPA approval.

B. Which StatesandTerritories Are Includedin Today'sRule?

The proposed rule contains a Stateby-State summary ofthe status ofeach State orTerritory (69FR 41731-41735). EPA did notinclude any Tribes in the proposal because although there are Federally-recognized Tribes located
next to either coastal or Great Lakes waters, none ofthose Tribes have coastal recreation waters as defined in 40 CFR 131.41(b)(1). (See 69 FR 41735.)

Today, EPA ispromulgating arule thatis identical with respect tothe
water quality criteria values to what EPAproposed. While there were some changes in other provisions ofthe rule, 

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none ofthese affected EPA's determination with regard to specific States. Therefore, EPAis not excluding
any other States from the final rule based onchanges in theprovisions of the final rule.

Table 4 contains a summary ofthe
status ofeach ofthe 35 States and Territories under today's rule. EPA considered three possible reasons for a change in a State's or Territory's status from that described in the proposal: (1) Since the publication oftheproposed rule, the State or Territory may have adopted (andEPA approved) water quality standards that are as protective ofhuman health as the 1986bacteria criteria; (2)the State's or Territory's
water quality standards may nowbe viewed as being as protective ofhuman health in lightofEPA's final decision with respect tothe application of the single sample maximum in the final rule; and (3)new information submitted following publication oftheproposal
may have caused EPA to reassess its previous determination. During the period between publication ofthe proposal and the final rule, four StatesDelaware, Hawaii, Maryland, and South Carolina-and the Commonwealth of the Northern Mariana Islands adopted revised water quality criteria for pathogens. In addition, the State of Washington provided information that caused EPA toreassess its determination asto whether the State's fecal coliform criterion of 14/100 ml is

asprotective ofhuman health as the 1986bacteria criteria. Below, EPA describes the status ofthese States and Territory and provides an update on the
status of several other States working to adopt water quality standards, as described in thepreamble to the proposed rule.

TABLE 4.-CATEGORIZATION OF 35 STATES/TERRITORIES WITH COASTAL RECREATION WATERS

Not subject to 40 Subject to 40 CFR

CFR 131.41 131.41

Alabama American Samoa Connecticut Delaware1 Guam Indiana Michigan New Hampshire New Jersey Northern Mariana Islands1 South Carolina 1 Texas Virginia Washington 1 Alaska California Florida Georgia Hawaii Illinois Louisiana Maine Maryland Massachusetts

Minnesota Mississippi New York North Carolina TABLE 4.-CATEGORIZATION OF 35 STATES/TERRITORIES WITH COASTAL RECREATION WATERS-Continued

Not subject to 40 Subject to 40 CFR

CFR 131.41 131.41

Ohio Oregon Pennsylvania Puerto Rico Rhode Island Virgin Islands Wisconsin

1These States were removed from 40 CFR 131.41 following publication of the proposed rule.
Commonwealth ofthe Northern Mariana Islands

The Attorney General for the Commonwealth ofthe Northern Mariana Islands certified the adoption of revisions to their water quality standards on September 30, 2004. These revisions add single sample maximum standards of 104/100 ml for Class AA
waters and 276/100 mlfor Class A
waters in the Commonwealth ofthe Northern Mariana Islands. Along with the bacteria standards that Commonwealth ofthe Northern Mariana Islands adopted andEPA approved in 1997, the revised standards will fully satisfy the requirements ofthe Clean Water Act. On October 28, 2004, EPA approved the revised standards and the Commonwealth ofthe Northern Mariana Islands is not included in the rule.

Delaware

On September 17, 2004, Delaware submitted to EPA newly adopted criteria for allits coastal recreation
waters. The State's criteria specify a geometric mean of35/100 ml and a single sample maximum of 104/100 ml for enterococci for allprimary contact recreation marine waters. Delaware's regulations also limitthe application of the criteria when the bacteria comes from wildlife sources. The State has submitted documentation to EPAin support ofits source tracking methodology for bacteria, together with epidemiological work on illness rates from bacteria ofwildlife origin. The State uses the source information to apply afactor to bacteria from wildlife

sources that accounts for illness risk from suchbacteria. EPAreviewed the submitted criteria in accordance with this rule and onNovember 4, 2004, approved the specific numeric criteria

asmeeting therequirements ofboth sections 303(c) and 303(i) ofthe Clean Water Act. EPAis discussing the State's methodology for source tracking with the State and isreviewing itto determine whether it meets the requirements ofthe Clean WaterAct and this rule. Until EPA approves this limitation,for purposes ofthe Clean WaterAct, Delaware's bacteria criteria for primary contact recreation apply to enterococci bacteria regardless ofthe

source. As a result,Delaware is not included in today's rule.

Hawaii

On September 21, 2004, Hawaii adoptedbacteria criteria forits coastal estuaries, and a single sample maximum for coastal waters within 300 meters (1000 feet) ofthe shore. The criteria are for enterococci andhave ageometric

mean of33/100 ml and a single sample maximum of89/100 ml in coastal estuaries. These newly adopted criteria also contain a single sample maximum of100/100 ml in coastal waters within 300 meters from shore to complement the existing geometric mean for coastal
waters. On October 28, 2004, EPA approved these criteria. However, Hawaii still has no numeric criteria protecting State waters beyond 300
meters from shore, although these
waters are designated for recreation in the State's water quality standards. Therefore, EPA is including Hawaii in this rulebut only forthe lack ofcriteria in State waters beyond 300meters from shore. Maryland

OnJuly 5, 2004, Maryland adopted

new criteria for all its coastal recreation
waters. These criteria specify a geometric mean of 35/100 ml enterococci for allrecreation waters and
atleast a single sample maximum of 104/100 ml for those waters that are designated natural bathing areas under the State regulations. EPA is reviewing these criteria in accordance with this rule and is consulting with the State regarding the intent and meaning ofthe State regulations. EPA and Maryland have not concluded discussions ofthe applicability ofthe State criteria. Because Maryland does not yet have approved criteria, EPA is including Maryland in this rule. IfEPA determines thatMaryland's standards comply with Clean WaterAct 303(i), they will become immediately effective for Clean WaterAct purposes, as specified in 40 CFR 131.41(d)(1).

South Carolina

OnJune 25, 2004, South Carolina adopted criteria for all ofits coastal recreation waters consistent with EPA's 1986 bacteria criteria. The criteria are for enterococci andhave ageometric

mean of 35/100 ml, a single sampleFederal Register/Vol. 69, No. 220/Tuesday, November 16, 2004/Rules and Regulations

maximum of 104/100 ml for coastal
waters designated by South Carolina as Classes SFH (Shellfish Harvesting) and SA, and a single sample maximum of 501/100ml for coastal waters designated by South Carolina as Class SB. However, the South Carolina water quality standard delays the applicability ofthe enterococci criteria for permit effluent limits until suchtime that EPA publishes analytical methods for enterococci in effluents. On October 7, 2004, EPA disapproved part ofthe South Carolina standards and approved the remainder ofthe standards that pertain to pathogens and pathogen indicators. EPA considers the approved
water quality standards to be as protective ofhuman health as EPA's 1986bacteria criteria, and South Carolina is not included in the rule. Washington

The Washington Department of Ecology submitted data consisting of paired samples offecal coliform and enterococci measurements collected in Puget Sound, the Strait ofJuan de Fuca, andthe Pacific Ocean embayments. The Department ofEcology considers this information as sufficient to demonstrate that use ofthe State's fecal coliform criterion of14/100 ml ensures that enterococci concentrations are below the 1986 bacteria criteria, and requested that EPA consider the State's fecal coliform criterion tobe asprotective of human health as the 1986 bacteria criteria. As discussed in section V.A.1 of the preamble, EPA reviewed these data andhas determined thatthe Washington fecal coliform criterion of 14/100 ml is

asprotective ofhuman health as the 1986bacteria criteria. The Washington fecal coliform criterion applies to all marine waters with primary contact recreation use, and thus applies to all coastal recreation waters. Therefore, Washington is not included in the rule.

Maine

EPA is also making a minor change with respect to including Maine in today's final rule. As explained in the preamble to theproposal (69 FR 41733), EPA intended to exclude Maine's Class SAwaters from coverage under the rule; however, EPAfailed to listMaine's Class SAwaters as excluded in the regulatory text of40 CFR 131.41(e)(2). EPA has corrected this omission in today's final rule.

Other States

EPA identified two other States or Territories that, atthe time ofproposal, intended to adopt EPA's 1986bacteria criteria by September 30, 2004. These

were Illinois and the Virgin Islands. However, neither Illinois nor the Virgin Islands adoptedthe criteria and received EPA approval as ofthe signature oftoday's rule.

C. UnderWhat ConditionsWill States andTerritories BeRemoved From Today'sRule?

State andTerritorial standards for bacteria approved byEPA pursuant to Clean Water Act sections 303(c) and 303(i) will be in effect for Clean Water Act purposes, and the Federal criteria for 40 CFR 131.41 will no longer apply. EPA recognizes that once it approves the water quality standards ofthe State

orTerritory, the Code ofFederal Regulations will still include a reference
to the State in 40 CFR 131.41 until EPA formally withdraws the State or Territory from the Federal rule, and thereby the Code ofFederal Regulations. However, the State and Territorial standards for bacteria approved by EPA pursuant to Clean Water Act sections 303(c) and 303(i) will be in effect for Clean Water Act purposes (andnot the Federal criteria at 40 CFR 131.41) between the time EPA approves the State standards and formal withdrawal ofthe State orTerritory from therule.

A State or Territory may adopt and submitpartial water quality standards for EPA's review and approval under today's rule. EPA envisions two types of partial water quality standards submittals with different results. Ifa State adopts and submits water quality standards that meet all therequirements discussed in today's rule but the standards apply only to aportion ofthe State's coastal recreation waters, EPA expects to approve the State standards for the coastal recreation waters to which they apply, and today's Federal standards would continue to apply to all coastal recreation waters that are not addressed in the submittal. The combination ofthe approved State and Federal standards serve to meet the requirements ofClean Water Act section 303(i). Ifa State adopts and submits standards for all ofits coastal recreation
waters but the standards do not satisfy all ofthe considerations described in today's rule asnecessary for EPAto make a determination thatthe State standards are as protective ofhuman health as the 1986 bacteria criteria, EPA expects to disapprove the entire submittal and today's Federal standards would continue to apply to the State's coastal recreation waters. For example,

a State might adopt water quality standards that contain only ageometric

mean for marine waters of35/100 ml for enterococci andnot a single sample maximum provision. Thiswould not be sufficient to satisfy section 303(i). EPA anticipates that itwould be administratively unworkable to approve State standards in piecemeal fashion and to supplement piecemeal State standards with components oftoday's rule, as in the example ofa State that adopts a State geometric meanbut must still retain aFederal single sample maximum for its coastalrecreation
waters.

VI.Response to Additional Significant Public Comments

EPA has prepared a Comment Response Document, which addresses the comments that EPAreceived andis included in the docketfor today's rule. Below, EPAprovides a summary ofits
responses to four additional categories ofsignificant comments.
A. 1986BacteriaCriteria
Some commenters raised concerns about EPA's 1986 bacteria criteria. The bulk ofthe comments questioned the reliability ofthe studies onwhich EPA based the criteria. Some remarked that the studies evaluated inthe criteria document did not appropriately select
test sitesbecause the test sites were all located on the East Coast and therefore may not represent conditions on the West Coast; the test sites had only one

source ofpollution (human); and no control siteswere used. In addition,
commenters characterized the data as anecdotal rather than clinical in nature (e.g.,blood and stool samples) and suggested that the studies did not

ensure thatthe reported illnesses were due to pathogens relating to bathing in the water. Others questioned EPA's chosen risk levels. One commenter suggested other possible indicators. Others commented onthe lack ofEPA follow-up epidemiological studies since 1986.

EPA acknowledges these comments, but notes thatClean WaterAct section 303(i) requires States and Territories with coastal recreation waters to adopt
water quality criteria for bacteria as protective ofhuman health as the criteria publishedby EPA underClean WaterAct section 304(a). Section 303(i)

was added tothe Clean Water Act in 2000 by the BEACH Act. Atthe time the BEACHAct was enacted, the current Clean WaterAct section 304(a) criteria

were EPA's 1986bacteria criteria because these are EPA's only currently recommended bacteria criteria for protection ofprimary contact recreation
waters. The legislative history makes it clear thatCongress recognized that EPA's 1986 bacteria criteria have flaws, but alsothat Congress wanted Statesto adopt standards based on themby April 10, 2004, despite those flaws, 

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presumably because Congress thought the 1986 bacteria criteria are better than what it characterized as "outdated" criteria used by some States. (See H. Rep. No. 106-98, at6 (1999); see generally S. Rep. No. 106-366 (2000) and H. Rep. No. 106-98.)

EPA had reviewed its original studies supporting its recommended 1986 water quality criteria forbacteria and the literature on human health research conducted since EPA completed the original studies ofhealth effects associated with swimming in marine and freshwater, as discussed on pages 10-13 ofthe ImplementationGuidance forAmbient WaterQualityCriteria for Bacteria(EPA-823-B-02-003, May 2002 Draft)

. Based on these reviews, EPA has confirmed that the 1986 EPA recommended water quality criteria for bacteria are protective ofhuman health against acute gastrointestinal illness.

The epidemiological studies used to develop the criteria were themselves peer reviewed. The marine studies were peer reviewed in the Journal ofthe American Public Health Association. EPA's Office ofResearch and Development reviewed the freshwater studies. The Harvard School ofPublic Health evaluated the epidemiology test protocol for both fresh and marine studies, and the University ofPittsburgh Center for Excellence provided an independent review ofthe results ofthe epidemiology studies. Finally, the 1986 bacteria criteria were reviewed by the public when EPA published a Federal Register notice concerning the criteria (49FR 21987, May 24, 1984).

While Congress directed in Clean Water Act section 303(i) that,by April 9, 2004, States and Territories adopt criteria asprotective as EPA's current criteria, Congress alsorecognized that "EPA's 1986 criteria need to be updated
to improve the scientific basis for identifying pathogens in coastal waters." S. Rep. No. 106-366, at 2. To address this concern, Congress amended Clean Water Act section 304(a) to require EPA to "publish [within five years ofenactment ofthe BEACH Act]

new orrevised water quality criteria for pathogens and pathogen indicators (including a revised list oftesting methods, as appropriate), based on the results ofthe studies conducted * * * for the purpose ofprotecting human health in coastal recreation waters." See Clean Water Act section 304(a)(9). Thus, while Congress recognized that the 1986 bacteria criteria need improvement, Congress still required States and Territories to adopt water quality standards as protective ofhuman health

as the 1986 bacteria criteria. EPAis currently conducting epidemiological studies onpotential health risks resulting from exposure to pathogens or pathogen indicators in coastal recreation waters, asrequired under this section of the Clean Water Act. Once EPA publishes these new criteria, EPA expects that States and Territories will begin to adopt water quality standards

asprotective ofhuman health as the

new criteria for coastal and Great Lakes recreation waters, asrequired byClean Water Act section 303(i)(1)(B).

B. Economics
Some commenters noted that, ifthe rule imposes single sample maximums

as "not-to-be-exceeded" values, the geometric mean component ofthe criteria would be significantly different from the geometric mean values in most State current fecal coliform bacteria criteria for recreation. Forfecal coliform criteria to protect recreational uses, most State criteria include a geometric

mean value and athreshold value not to be exceeded in more than 10% ofthe samples. Some commenters state that there will be a substantial cost difference to regulated entities ifthe rule imposes single sample maximums for E.coli or enterococci as "not-to-be exceeded" values, noting thatEPA's economic analysis in theproposal does
not address the cost ofcontrolling discharges from combined sewer overflows, sanitary sewer overflows, and municipal separate storm sewer systems to meet such single sample maximums, andthat EPA's cost estimates for controlling these sources in otherregulatory and policy actions

are not based on a single sample maximum as a never-to-be exceeded criterion for Clean Water Act purposes.

Today's rule does not treat single sample maximums as a requirement that
may never be exceeded in all instances. Single sample maximums are values that indicate, with a certain degree of confidence, that awaterbody may exceed the geometric mean. The State

can collect additional data on a receiving water ifitbelieves that the violation ofthe single sample maximum does not indicate violation ofthe geometric mean, as described in the preamble to today's rule.

For its economic analysis, EPA evaluated the potential controls for publicly owned treatment plants and industrial facilities likely to discharge bacteria to meetpermit limits based on the single sample maximums asneverto-be exceeded values to provide a conservatively high estimate of cost. In reality, States and Territories have flexibility in implementing the criteria in National Pollutant Discharge Elimination System permits. EPA also assumed that none ofthe States covered by the rule had adoptedE.coli or enterococci as the applicable water quality standard whereas several ofthe States in today's rule have water quality standards for E.colior enterococci already in place for some oftheir coastal recreation waters. This also led to a higher estimate ofcost than may actually be incurred. EPA addresses discharges ofbacteria from municipal separate storm sewers, combined sewer overflows, sanitary sewer overflows, and nonpoint sources (e.g., agriculture)
to coastal waters in existingregulations and policies, and has tallied potential control costs to comply with those regulations and policies as part of analyses for those actions. In general, the best management practices or treatment controls for wet weather discharges that are designed to meet fecal coliform standards in awaterbody

are alsothe best management practices

or treatment controls used to address E. coliand enterococci. Because ofthe substantial variability in bacterial indicators and the site-specific effectiveness ofcontrol measures, EPA is not able to determine atthis time if additional measures willultimately be necessary to meet criteria based on the

new indicators. Compliance with pathogen standards isbest achieved through an adaptive management approach based on cost-effective management practices and control

measures coupled with on-going monitoring and revision ofcontrol plans

as necessary.
C.AnalyticalMethods

EPA received a few comments on the topic of analytical methods. One
commenter expressed concern thatEPA has not published EPA-approved analytical methods for measuring enterococci andE.coli in effluent. EPA recognizes that it has not yet published analytical methods for measuring enterococci andE.coli in effluents. EPA published its methods for measuring enterococci andE.coli in ambient
waters on July 21, 2003, and isnow in the process ofproposing methods for measuring these pathogen indicators in effluent. EPAhas completed its interlaboratory study ofmethod 1600for enterococci and method 1603 for E.coli in secondary treated effluents, and has determined thatthe variability found in this study support publication ofa proposed method for effluents. EPA is moving expeditiously to promulgate these methods.

Three commenters noted that the inter-laboratory study for enterococci andE.colimethods discussed above did
not address pulp andpaper effluents,Federal Register/Vol. 69, No. 220/Tuesday, November 16, 2004/Rules and Regulations

andthat these effluents are suspected of containingE.coli and enterococci independent offecal matter. As a result, the commenters suggest that EPA complete validation studies of enterococci andE.colimethods for pulp andpaper effluentsbefore requiring States to implement the criteria in National Pollutant Discharge Elimination System permits for pulp andpaper facilities. EPA disagrees that it must complete additional validation studies before States use the criteria for permits. EPAhas completed its interlaboratory validation for EPA Methods 1600 and 1603 for effluents, and is in the process ofproposing these methods. In addition, EPA is currently completing its inter-laboratory validation for EPA Methods 1103.1 and 1106.1 in effluents, and intends to propose them after the validation process is completed. EPA did not specifically use pulp and paper effluent matrices in the study. EPA method validation studies typically include several representative matrices and are not intended to include every potential effluent matrix to which a method may be applicable. In addition, EPA notes that its National Pollutant Discharge Elimination System regulations do not require that compliance monitoring for National Pollutant Discharge Elimination System permits be based on EPA-approved methods. 40 CFR 122.41(j)(4) provides that monitoring results must be conducted according to test procedures approved under 40 CFR Part 136 unless othertest procedures havebeen specified in the permit. States implementing the criteria in National Pollutant Discharge Elimination System permits may thus specify some other analytical method that thepermittee is
to use for compliance monitoring. Of
course, any such method must be scientifically defensible, which usually

means that ithas been tested and verified by some other recognized standard setting or method development body. Permittees whobelieve that a particular method is not appropriate or reliable for their effluent may present documentation ofthis concern to the permitting authority for consideration in determining compliance monitoring requirements.

D.Effective Date

Section 553 ofthe Administrative Procedure Act provides that a substantive rule shall be published not less than 30 days before its effective date, except under certain circumstances. EPA is promulgating today's rule with an effective date of30 days after publication in the Federal Register in order to make the water quality criteria effective as soon as possible and available for use in assessing beach safety and for other Clean Water Act purposes. This will

serve to protect human health at coastal recreation waters.

EPA received two comments onthis issue. One commenter requested that EPA delay promulgating the rule until July 2005 and another commenter suggested thatEPA delay the effective date for 90 days so thata State could complete its own promulgation ofwater quality standards based onthe 1986 bacteria criteria. EPA disagrees thatit should allow more than 30 days because this would delay the time at which States andTerritories will begin using today's water quality criteriato govern decisions about opening and closing beaches and for other Clean Water Act purposes. EPAunderstands the interest ofthe commenters in having their State standards serve as the effective standards for Clean Water Act purposes. Ifa State adopts, andEPA approves, standards satisfying Clean Water Act section 303(i) shortly after the effective date ofthis rule, the State criteria will immediately replace the criteria in today's rule for Clean Water Act
purposes within the State, consistent with 40 CFR 131.41(d)(i). EPA does not expect that a short window during which Federal standards are in effect will unduly disrupt on-going State
water quality standards programs. Therefore, EPA is making the rule effective 30 days after publication in the Federal Register.

VII. Alternative Regulatory Approaches andImplementation Mechanisms

States and Territories have considerable discretion in designating

uses. A State or Territory may find that changes in use designations are warranted. EPA will review any new or revised use designations adopted by States orTerritories for coastal recreation waters covered bythis rule to determine ifthe standards meet the requirements ofthe Clean Water Act and implementing regulations. In adopting recreation uses, the States and Territories may wish to consider additional categories ofrecreation uses. If States and Territories change the designated use ofawaterbody consistent with Clean Water Act section 303(c) andthe regulations at40 CFR Part 131, suchthat they are no longer designated for swimming, bathing, surfing, or similar water contact activities, then the waterbody would not be covered by the Clean Water Act definition of "coastal recreation waters"

orthis rule. EPA reminds the States and Territories that they must conductuse attainability analyses asrequired by 40 CFR 131.10(g) when adopting water quality standards that do not include the uses specified in Clean Water Act section 101(a)(2) orwith subcategories ofthe designated uses specified in Clean WaterAct section 101(a)(2) thatrequire less stringent criteria (see 40 CFR 131.10(j)), than those currently in effect.

VIII.Economic Analysis

These water quality standards may

serve as abasis for development of National Pollutant Discharge Elimination System permit limits.Many ofthe affected jurisdictions (i.e.,States and Territories) are the National Pollutant Discharge Elimination System permitting authorities, which retain considerable discretion in implementing standards. EPA evaluated the potential
costs to National Pollutant Discharge Elimination System dischargers in affected jurisdictions associated with State and Territorial implementation of today's standards. This analysis is documented in "'Economic Analysis for Final Water Quality Standards for Coastal Recreation Waters,"' which can be foundin the record for this rulemaking.

Any National Pollutant Discharge Elimination System-permitted facility that discharges to waterbodies affected by this rule could potentially incur compliance costs. The types ofaffected facilities mayinclude industrial facilities and publicly owned treatment works (POTWs) discharging sanitary
wastewater to surface waters (i.e.,point sources). In addition, EPA addresses discharges ofbacteria from municipal separate storm sewer systems, combined

sewer overflows, and sanitary sewer overflows to coastal waters in existing regulations and policies, and has tallied potential control costs as part ofthe analyses for those actions. EPA expects that States and municipalities will continue to use the same types of controls to come into compliance with the revised criteria as are currently used for compliance with existing regulations and policies. Available evidence suggests that ifdischarges are controlled in such away that fecal coliform criteria

are met, it is likely that enterococci and E.coli criteria would alsobe met, and there would not be an increase in impaired waters, resultingin additional Total Maximum Daily Loads, though not enough is known about the relationship between sources, controls, and the various indicators to conclude this with
any certainty at this time. EPA did not evaluate the costs ofthis ruleto Concentrated Animal Feeding 

### 6723767238 Federal Register/Vol. 69, No. 220/Tuesday, November 16, 2004/Rules and Regulations

Operations because the regulations for Concentrated Animal Feeding Operations prohibit discharges except in unusual circumstances (i.e.,very large storms) and therefore those entities are unlikely to incur any additional costs as

aresult oftoday's rule. EPA did not evaluate the potential for costs to nonpoint sources, such as agricultural runoff. Finally, EPA did not attempt to quantify the potential benefits ofthe rule.

EPA recognizes that a State or Territory may decide torequire controls for nonpoint sources (e.g., agricultural runoff). However, itis difficult to model and evaluate the potential costs impacts ofthis rule tothose sources because they are intermittent, highly variable, and occur under different hydrologic or climatic conditions than continuous discharges from industrial and municipal facilities, which EPA evaluates under critical low flow or droughtconditions. Also, data on instream and discharge levels ofbacteria after States have implemented controls
to meet current water quality standards based onfecal coliform are not available. Therefore, trying to determine which sources would not achieve standards based on E.colior enterococci after complying with existing regulations and policies may not be possible, andwould be extremely time andresource intensive. Finally, it is likely that controls needed to meet existing criteria (assumed for the purpose ofcosting to be fecal coliform for all States covered by therule) would also address water quality problems indicated by criteria for E.coli or enterococci.

A. IdentifyingAffected Facilities

EPA identified approximately 734 point source facilities that may be affected by therule. Ofthese potentially affected facilities, 306 are classified as major dischargers, and 428 are minor dischargers. EPA did not include general permit facilities in its analysis because data for such facilities are extremely limited, and flows are usually negligible. Furthermore, EPA could not determine ifany ofthese facilities with general permits actually discharge to the affected water bodies because facility location information is not available in EPA'sPermit Compliance System database.

Ofthe facilities located in jurisdictions included in the rule, EPA evaluated that subset offacilities with individual permits that discharge within
two miles ofcoastal waters orthe Great Lakes. EPA identified these facilities by relating facility information to the potentially affected waters using Geographic Information System software. EPA also assumed that only
wastewater treatment plants orfacilities with similar effluent characteristics (i.e., facilities having the potential to discharge bacteria inthe form offecal matter) maybe affected. Forthose facilities forwhich latitude/longitude data are not included in the Permit Compliance System,EPA included only facilities forwhich the receiving waterbody name inthe Permit Compliance System indicates a coastal
water (e.g., Pacific Ocean, Lake Erie). Table 5summarizes these potentially affected facilities by type and category.

TABLE 5.-POTENTIALLY AFFECTED FACILITIES 1

Number of Facilities
Category Minor Total Major 2 Municipal Other 3

Coastal

........................................................................................................... 242 233 100 575 Great Lakes

.................................................................................................. 64 75 20 159

Total

.......................................................................................................... 306 308 120 734
1Facilities from States and Territories included in the rule that discharge within two miles of coastal waters or the Great Lakes. 2 No major industrial facilities are affected by the rule. However, 4 other facilities (SIC codes 9711 and 9999) are included because their
names indicate that they are wastewater treatment plants.

3 Includes the following standard industrial classifications: eating places (5812), drinking places (5813), operators of nonresidential buildings (6512), operators of apartment buildings (6513), operators of dwellings other than apartment buildings (6514), operators of residential mobile home sites (6515), hotels and motels (7011), recreational vehicle parks and campsites (7033), organization hotels and lodging houses (7041), physical fitness facilities (7991), amusement and recreation services (7999), skilled nursing care facilities (8051), general medical and surgical hospitals (8062), elementary and secondary schools (8211), colleges, universities, and professional schools (8221), civic, social, and fraternal associations (8641), private households (8811). Also includes the following SICs if the facility name suggests that they may discharge sanitary waste: operative builders (1531), sanitary services, not elsewhere classified (4959), real estate agents and managers (6531), business associations (8611), religious organizations (8661), services not elsewhere classified (8999), air and water resource and solid waste management (9511), national security (9711), and nonclassifiable establishments (9999).

B. Method forEstimatingPotential ComplianceCosts

To estimate costs, EPA evaluated the 15 major municipal facilities with design flows greater than 120 mgd, thus ensuring thatthe facilities with the potential for the largest costs wouldbe evaluated. For the remaining facilities, EPA evaluated a sample offacilities to represent discharger type and category.

The Permit Compliance System does
not contain E.colior enterococci effluent data for any ofthe sample facilities. Therefore, to evaluate potential costs associated withthe E. colicriteria, EPA assumed that 100% of the fecal coliform measured at the sample facilities is E.colibecause E.coli is a type offecal coliform. EPA assumed that all potentially affected facilities need effluent limits that are required to meet both the applicable geometric

mean and single sample maximum values promulgated in today's rule. Based onthe last 3years ofdata, EPA thus estimated that facilities with
average monthly effluent levels exceeding ageometric mean of126/100 ml, ormaximum daily levels exceeding 235/100 ml, would most likely need
treatment controls to meetpotential permit limits based on today's rule. Enterococci are fecal bacteria inthe fecal streptococcus group, and their relationship to fecal coliform bacteria is uncertain. Therefore, for coastal facilities, EPA used data and information in the literature regarding the ratio offecal coliform to enterococci in untreated sewage, and the inactivation ofboth ofthese bacteria at minimum disinfection levels, to identify the concentrations offecal coliform (as related to enterococci) thatmay indicate

a need for controls. Data in the literature indicate thatthe ratio offecal coliform
to fecal streptococcus in untreated
sewage ranges from about 4 to 28. EPAFederal Register/Vol. 69, No. 220/Tuesday, November 16, 2004/Rules and Regulations

used the mostconservative (i.e.,erring

onthe side ofoverestimating costs) ratio of4 (i.e.,fecal coliform levels are 4 times fecal streptococcus levels) to estimate the fecal coliform levels at which facilities would need treatment to comply with the enterococci criteria. A ratio of4 translates to fecal coliform levels of 140 fecal coliform per 100 ml (4 * 35 = 140/100 ml); however, for consistency with the Great Lakes analysis, EPA estimated costsbased on meeting a more stringent value of 126 fecal coliform per 100 ml. In addition, EPA assumed that coastal facilities with maximum fecal coliform effluentvalues exceeding 235 colonies per 100 ml would need treatment controls (even though 235/4 = 59,which is more stringent than the single sample maximum value of 104 in the final rule).

Experiences from fourfacilities currently having effluent limitations to meetE.coli and enterococci criteria, as well as the current fecal coliform criteria, suggest that chlorination processes canbe upgraded or adjusted
to treat the levels ofbacteria necessary for compliance with effluent limitations based ontoday's rule. Therefore, EPA estimated that optimization ofexisting disinfection processes would enable the sample facilities to comply with the rule. Process optimization usually involves process analysis and process modifications, andEPA's cost estimates include both capital and operating and maintenance costs.

C.Results

Based onthe results for the 15 facilities with flows greater than 120 mgd, and extrapolating the sample results to theremaining potentially affected facilities, EPA estimated a total annual cost ofapproximately $20 million ($13 million for coastal facilities, and $7 million for Great Lakes facilities). EPA estimates that approximately 70 major and 20 minor permittees could incur control costs as
aresult ofpermit modifications to include limitsbased on the criteria in today's rule.

IX. Statutory and Executive Order Reviews

A. Executive Order12866:Regulatory PlanningandReview

Under Executive Order 12866 (58 FR 51735, October4, 1993), the Agency
must determine whether the regulatory action is "significant" and therefore subject to Office ofManagement and Budget (OMB) review andthe requirements ofthe Executive Order. The Order defines "significant regulatory action" as one that islikely
to result in a rule thatmay: (1)Have an annual effect on the
economy of$100 million ormore or adversely affect in a material way the economy, a sector ofthe 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

orplanned byanother agency;

(3)Materially alter thebudgetary impact ofentitlements, grants, user fees,

orloan programs or therights and obligations ofrecipients thereof; or

(4) Raise novel legal or policy issues arising out oflegal mandates, the President's priorities, orthe principles
setforth in the Executive Order.

Pursuant to the terms ofExecutive Order 12866, ithas been determined that this rule is a "significant regulatory action." As such, this action was submitted to OMB for review. Changes made in response to OMB suggestions or recommendations are documented in the public record.

B. Paperwork ReductionAct
This action does not impose an information collection burden under the provisions ofthe Paperwork Reduction Act (44 U.S.C. 3501 etseq.). Itdoes not include any information collection, reporting, orrecord-keeping requirements.

Burden means the total time, effort or financial resources expended bypersons to generate, maintain, retain, ordisclose

orprovide information to or for a Federal agency. This includes the time needed toreview instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, andverifying information, processing and maintaining information, and disclosing andproviding 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; andtransmit orotherwise disclose the information.

An agency may not conduct or sponsor, and a person is not required to respond to a collection ofinformation unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR Part 9.

C.RegulatoryFlexibility Act
The Regulatory Flexibility Act (RFA),

as amended bythe Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5U.S.C. 601 etseq., 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 thatthe rule will not have asignificant economic impact on a substantial number of small entities. Small entities include smallbusinesses, small organizations and smallgovernmental jurisdictions.

For purposes of assessing the impacts oftoday's rule on small entities, small entity is defined as: (1)A small business according to RFA default definitions for smallbusiness (based on Small Business Administration size standards); (2)a small governmental jurisdiction thatis a government ofa city, county, town, school district or special district with a population ofless than 50,000; and (3)

a small organization thatis any not-forprofit enterprise which is independently owned and operated andis not dominant in its field.

After considering the economic impacts oftoday's rule on small entities, Icertify thatthis actionwill not have a significant economic impact on a substantial number ofsmall entities. As discussed below, these water quality standards do not directly apply to any discharger, including small entities.

Clean Water Act section 303(i)(2)(A) requires that ifa State orTerritory fails
to adopt water quality criteria and standards in accordance with paragraph (1)(A) that are asprotective ofhuman health as the criteria for pathogen indicators for coastalrecreation waters publishedby the Administrator, the Administrator shall promptly propose regulations for the State orTerritory setting forth revised ornew water quality standards forpathogen indicators described in paragraph (1)(A) for coastal recreation waters ofthe State

or Territory. These State standards (or EPA-promulgated standards) are implemented through various water quality control programs including the National Pollutant Discharge Elimination System program, which limits discharges to navigable waters except in compliance with a National Pollutant Discharge Elimination System permit. The Clean Water Act requires that all National Pollutant Discharge Elimination System permits include any limits on discharges that are necessary to meet applicable water quality standards.

In cases in which a discharger (including a small entity)is discharging pathogens into waters subject tothese standards, the permitting authority will 

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need to determine whether the discharge is or maybe discharged at a level which will cause, contribute to, or have the reasonable potential to cause
an exceedance ofthe applicable water quality standard. In making that determination, thepermitting authority would need to consider the factors listed in 40 CFR 122.44(d)(1)(ii). Whether apermitting authority will need torequire a water quality-based effluent limitdepends on the analysis of these factors, which will varybased on the specific facts ofeach permit decision. Based onthat analysis, ifthe permitting authority finds that the discharger causes, contributes to, or has the reasonable potential to cause an exceedance ofthe applicable water quality standard, after the application of any required technology-based effluent limits, then the permitting authority will need toimpose a water qualitybased effluent limitto meet the applicable water quality standard. (See Clean Water Act section 301(b)(1)(C); 40 CFR 122.44(d).) Therefore, as a practical matter, today's rule may or may not necessitate a change in the permit, depending on the specific circumstances. While the Clean Water Act and its implementing regulations may trigger the need for new or revised discharge limits based on the water quality standards in today's rule to be placed on small entities in some cases, the standards themselves do not directly apply to any discharger, including small entities.

In the "Economic Analysis for Final Water Quality Standards for Coastal Recreation Waters," EPA presents an analysis which supports a conclusion that today's rule will likely affect only

afew small entities. (See the docket for today's rule.)

D. UnfundedMandatesReformAct

Title II ofthe 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. The definition of"State" for the purposes ofthe Unfunded Mandates Reform Act includes "a territory or possession ofthe United States." Under section 202 ofthe Unfunded Mandates Reform Act, EPA generally must prepare
awritten statement, including a costbenefit analysis, for proposed and final rules with "Federal mandates" that may result in expenditures to State, local, and Tribal governments, in the aggregate, orto theprivate sector, of $100 million or more in any one year. Before promulgating an EPArule for which a written statement is needed, section 205 ofthe Unfunded Mandates Reform Act generally requires EPA to identify and consider areasonable number ofregulatory alternatives and adopt the least costly, mostcosteffective or least burdensome alternative that achieves the objectives ofthe 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

orleast burdensome alternative ifthe Administrator publishes with the final rule an explanation ofwhy 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 ofthe Unfunded Mandates Reform Act a small government agency plan.The plan must provide for notifying potentially affected smallgovernments, enabling officials of affected small governments to have meaningful andtimely input in the development ofEPAregulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

Today's rule contains no Federal mandates (underthe regulatory provisions ofTitle II ofthe Unfunded Mandates Reform Act) that may result in expenditures to State, local and Tribal governments, orthe private sector, in the aggregate of$100 million ormore in any one year. Therefore, this rule isnot subject to the requirements of sections 202 and 205 ofthe Unfunded Mandates Reform Act.

EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. Thus, this rule is
not subject tothe requirements of section 203 ofthe Unfunded Mandates Reform Act.

E.Executive Order13132:Federalism

Executive Order 13132, entitled "Federalism" (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure "meaningful and timely inputby State and local officials in the development of regulatory policies thathave Federalism implications." "Policies that have Federalism implications" is defined in the Executive Order to include regulations thathave "substantial direct effects onthe States, onthe relationship between the national government and the States, or onthe distribution of power and responsibilities among the various levels ofgovernment." This final rule does nothave Federalism implications. It will not have substantial direct effects onthe States, on the relationship between the national government andthe States, or

on the distribution ofpower and responsibilities among the various levels ofgovernment, as specified in Executive Order 13132. EPA's authority and responsibility to promulgate Federal water quality standards when State standards do not meet the requirements ofthe Clean WaterAct is well established and hasbeen used on various occasions in the past. The final rule does not substantially affect the relationship ofEPA and the States and Territories, or the distribution ofpower
or responsibilities between EPA and the various levels ofgovernment. The final rule does not alter the States' or Territories' considerable discretion in implementing these water quality standards. Further, this rule does not preclude the States and Territories from adopting water quality standards that
meet the requirements ofthe Clean WaterAct, either before or after promulgation ofthe final rule, thus eliminating the need for Federal standards. Thus, Executive Order 13132 does not apply to this rule.

Although Executive Order 13132 does
not apply to this rule, inthe spirit of Executive Order 13132 and consistent with EPA's policy to promote communication between EPA and State and local governments, EPA did consult with representatives ofthe States and Territories subject to Clean Water Act section 303(i) in developing this rule. Prior to this rulemaking action, EPA had

numerous phone calls, meetings and exchanges ofwritten correspondence with the States to discuss EPA's

concerns with the States' bacteria criteria, compliance with the BEACH Act, and the Federal rulemaking process. InJune 2000, EPA and the Association ofState and Interstate Water Pollution Control Administrators (ASIWPCA) established a State/EPA Work Group on Water Quality Standards, composed ofselected senior State andEPA managers, to provide input to EPA onwater quality standards issues. The group has met approximately three timesper year since then, beginning with a meeting in September 2000. At every meeting the
group has discussed the scientific, programmatic, and policy aspects of bacteria criteria forboth coastal and non-coastal recreation waters, and has provideduseful inputto EPA onthese topics. Members ofthis group, together with other interested State participants, have also served as an ad-hoc workFederal Register/Vol. 69, No. 220/Tuesday, November 16, 2004/Rules and Regulations

group since 2001 to assist EPAin developing draft detailed scientific and policy guidance (Implementation Guidance forAmbient WaterQuality Criteria forBacteria(EPA-823-B-02- 003, May 2002 Draft)) concerning adoption and implementation ofEPA's recommended criteria forbacteria. Today's final rule reflects State and Territorial input, and EPAhas responded to State and Territorial
comment on various topics in the preamble to today's rule and in the Comment Response Document, which is part oftherecord for this rule.

F.Executive Order13175:Consultation andCoordinationWithIndian Tribal Governments

Executive Order 13175, entitled "Consultation and Coordination with Indian Tribal Governments" (65 FR 67249, November 6, 2000), requires EPA
to develop an accountable process to

ensure "meaningful and timely inputby tribal officials in the development of regulatory policies thathave tribal implications."

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 ofpower and responsibilities between the Federal government and Indian Tribes, as specified in Executive Order 13175. There are four authorized Indian Tribes with coastal or Great Lakes waters; however, theyhave not yet adopted
water quality standards, and therefore, have no designated coastal recreation
waters within theirjurisdiction. These Tribes are therefore not subject to today's rule. Thus, Executive Order 13175 does not apply to this rule.

EPA has contacted those Tribes identified ashaving coastal or Great Lakes waters to inform them ofthe potential future impact this could have

onTribal waters.
G.Executive Order13045:Protectionof ChildrenFromEnvironmentalHealth Risks andSafetyRisks

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 tobe "economically significant" as defined under Executive Order 12866, and (2)concerns an environmental health or safety risk that EPA has reason tobelieve 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 rule on children, and explain why the regulation is preferable to other potentially effective andreasonably feasible alternatives considered bythe Agency.

This rule is not subject to the Executive Order because itis not economically significant as defined in Executive Order 12866, and because the Agency does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. As explained in section II.B ofthe preamble
to today's rule, EPA developed the
water quality criteria promulgated in today's rule based onconcentrations of E.coliand enterococci from EPAsponsored epidemiological studies reflecting all reported illnesses, including those ofchildren. In the marine and freshwater studies, the range ofthe number of children under age 10

was between 15% and 25% ofthe 

### total study population. Children in the age range 10 to 19years old made up a slightly higher percentage ofthe study population. During the studies, information on gastroenteritis, respiratory symptoms, and other symptoms were collected for all participants, including children. EPA designed the 1986 bacteria criteria to protect all age groups.
H. Executive Order13211:ActionsThat Significantly Affect EnergySupply, Distribution,or Use

This rule is not a "significant energy action" as defined in Executive Order 13211, "Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, orUse" (66 FR 28355, May 22, 2001) because itis not likely to have

a significant adverse effect onthe supply, distribution, or use ofenergy. EPA estimates that compliance with the final rule will create a negligible increase in nationwide energy consumption for point source facilities discharging to coastal recreation waters in affected States. In section VIII, EPA presented its estimated incremental
coststo permitted facilities as a result of the final rule. Some ofthese costs include energy use associated with increased maintenance ofdisinfection tanks. EPA estimates thatthe increased
energy use from these activities would be about 99,000 kilowatt hours. Net production by electric power generation facilities in the United States in 2002

was 3,858,452 million kilowatt hours (EnergyInformation Administration, Department ofEnergy, http:// www.eia.doe.gov/neic/quickfacts/ quickelectric.htm).EPA estimates that the additional energy requirements of EPA's rule areinsignificant (i.e., 0.000003% ofnational energy generation).

L NationalTechnology Transfer and AdvancementAct

As noted in theproposal, section 12(d) ofthe National Technology Transfer and Advancement Act of1995 ("NTTAA"), Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs EPAto 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 EPAto provide Congress, through OMB, explanations when the Agency decides
notto use available and applicable voluntary consensus standards.

While ambient water quality criteria maybe considered technical standards, EPAis not aware ofany voluntary

consensus standards relating to bacteria criteria toprotect human health and

none were brought to our attention in
comments onthe proposed rule. Furthermore, even ifthere were such voluntary consensus standards, the BEACHAct specifically directs EPA to promulgate Federal standards based on its own bacteria criteria, in accordance with Clean Water Act section 304(a), in

cases where States failto do so. Therefore, EPA is not considering the

use of any voluntary consensus standards.

J.Congressional ReviewAct
The Congressional Review Act, 5 U.S.C. 801 etseq., as added by the Small Business Regulatory Enforcement Fairness Act of1996, generally provides thatbefore a rule may take effect, the agency promulgating the rule must submit a rulereport, which includes a copy ofthe rule, to each House ofthe Congress and to the Comptroller General ofthe United States. EPAwill submit a report containing this rule and other required information to the U.S. Senate, the U.S. House ofRepresentatives, and the Comptroller General ofthe United States prior to publication ofthe 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 willbe effective December 16, 2004.

List ofSubjects in 40 CFR Part131

Environmental protection, Intergovernmental relations, Reporting 

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andrecordkeeping requirements, Water pollution control.

Dated: November 8,2004. Michael 0.Leavitt, Administrator.

* Forthereasons setoutin the preamble, 40 CFR part 131 is amended as follows:

PART 131-WATER QUALITY
STANDARDS



### m1.The authority citation for part 131 continues to read as follows:

Authority: 33 U.S.C. 1251 etseq. Subpart D-[Amended]

* 2.Section 131.41 is added to Subpart D to read as follows: §131.41 Bacteriologicalcriteriaforthose states notcomplyingwith Clean Water Act section 303(i)(1)(A). (a) Scope.This sectionis a promulgation ofthe Clean Water Act section 304(a) criteria for bacteria for coastal recreation waters in specific States. Itis not a general promulgation ofthe Clean Water Act section 304(a) criteria for bacteria. This section also contains a compliance schedule provision. (b)Definitions.(1) CoastalRecreation Waters are the Great Lakes andmarine coastal waters (including coastal estuaries) that are designated under section 303(c) ofthe Clean Water Act for

use for swimming, bathing, surfing, or similar water contact activities. Coastal recreation waters do not include inland
waters or waters upstream from the mouth of ariver or stream having an unimpaired natural connection with the open sea.

(2)Designatedbathingbeachwaters

are those coastal recreation waters that, duringthe recreation season, are heavily-used (basedupon an evaluation ofuse within the State) and may have:

alifeguard, bathhouse facilities, or public parking for beach access. States may include any other waters in this category even ifthe waters do not meet these criteria. (3)Moderateusecoastalrecreation
watersare those coastal recreation
waters that are not designated bathing beach waters but typically, during the recreation season, are used byat least halfofthe number ofpeople as at typical designated bathing beach waters within the State. Statesmay also include light use or infrequent use coastal recreation waters in this category. (4) Light usecoastalrecreationwaters

are those coastal recreation waters that

are not designated bathing beach waters but typically, during the recreation
season, are used byless than halfofthe number ofpeople as at typical designated bathing beach waters within the State, but are more than infrequently used. States may also include infrequent

use coastal recreation waters inthis category.

(5)Infrequentusecoastalrecreation
watersare those coastal recreation
waters that are rarely or occasionally used.

(6) Newpathogendischarger for the purposes ofthis section means any building, structure, facility, or installation from which there is ormay be a discharge ofpathogens, the construction ofwhich commenced on or after December 16, 2004. It does not include relocation ofexisting combined

sewer overflow outfalls.

(7) Existing pathogendischarger for the purposes ofthis section means any discharger thatis not a new pathogen discharger.

(c) EPA's section304(a)ambient
waterqualitycriteria forbacteria. (1)Freshwaters:

C Single sample maximum (per 100 ml)

A B C1 C2 C3 C4 Indicatord Geometric mean Designated bath- costal recreation Light use coastal Infrequent use oerat recreation waters coastal recreation ing beach waters (90%confidence waters (750 confidence (82% confidence ( ee (95% confidence level) level) level) level)

E. coi

.................................. 126/100 mila

. ........................ b235 b298 b409 b575 Enterococcie

........................ 33/100 mlc

. ........................... b61 b78 b107 b151

Footnotes to table in paragraph (c)(1):
a. This value is for use with analytical methods 1103.1, 1603, or 1604 or any equivalent method that measures viable bacteria. b. Calculated using the following: single sample maximum = geometric mean * 10^(confidence level factor * log standard deviation), where the confidence level factor is: 75%: 0.68; 82%: 0.94; 90%: 1.28; 95%: 1.65.The log standard deviation from EPA's epidemiological studies is 0.4.

c. This value is for use with analytical methods 1106.1 or 1600 or any equivalent method that measures viable bacteria. d. The State may determine which of these indicators applies to its freshwater coastal recreation waters. Until a State makes that determination, E.coil will be the applicable indicator.

e. These values apply to E. coil or enterococci regardless of origin unless a sanitary survey shows that sources of the indicator bacteria are non-human and an epidemiological study shows that the indicator densities are not indicative of a human health risk.

(2) Marine waters:

C Single sample maximum (per 100 ml)

A B C1 C2 03 C4 Indicator Geometric mean Designated bath- Moderate ight use coastal Infrequent use esingnate beah coastal recreation Lion uses coastal recreation ing beach waes recreation watersats (75% confidence watenrs (90%confidence watenrs level) (82%confidence level) (95%confidence level) level)

Enterococcic

......................... 35/100 mla

............................ b104 b158 b276 b501

Footnotes to table in paragraph (c)(2):
a. This value is for use with analytical methods 1106.1 or 1600 or any equivalent method that measures viable bacteria.Federal Register/Vol. 69, No. 220/Tuesday, November 16, 2004/Rules and Regulations

b. Calculated using the following: single sample maximum = geometric mean * 10A(confidence level factor * log standard deviation), where the confidence level factor is: 75%: 0.68; 82%: 0.94; 90%: 1.28; 95%: 1.65.The log standard deviation from EPA's epidemiological studies is 0.7.

c. These values applyto enterococci regardless of origin unless a sanitary survey shows that sources of the indicator bacteria are non-human and an epidemiological study shows that the indicator densities are not indicative of a human health risk.

(3)As an alternative to the single sample maximum in paragraph (c)(1) or (c)(2) ofthis section, States may use a site-specific log standard deviation to calculate a single sample maximum for individual coastal recreation waters, but
must use at least 30 samples from a single recreation season to do so.

(d)Applicability.(1)The criteria in paragraph (c) ofthis section apply to the coastal recreation waters ofthe States identified in paragraph (e) ofthis section and apply concurrently with any ambientrecreational water criteria adopted by the State, except for those coastal recreation waters where State regulations determined byEPA tomeet the requirements ofClean Water Act section 303(i) apply, in which case the State's criteria for those coastal recreation waters will apply and not the criteria in paragraph (c) ofthis section.

(2)The criteria established in this section are subject tothe State's general rules of applicability in the same way andto the same extent as are other Federally-adopted and State-adopted numeric criteria when applied to the

same use classifications.

(e)Applicabilityto specific jurisdictions. (1)The criteria in paragraph (c)(1) ofthis section apply to fresh coastal recreation waters ofthe following States: Illinois, Minnesota, New York, Ohio, Pennsylvania, Wisconsin. (2)The criteria in paragraph (c)(2) of this section apply to marine coastal recreation waters ofthe following States: Alaska, California (except for coastal recreation waters within the jurisdiction ofRegional Board 4), Florida, Georgia, Hawaii (except for coastal recreation waters within 300
meters ofthe shoreline), Louisiana, Maine (except for SA waters and SB and SCwaters with human sources offecal contamination), Maryland, Massachusetts, Mississippi, New York, North Carolina, Oregon, Puerto Rico (except for waters classified byPuerto Rico asintensely used for primary
contact recreation and for those waters included in § 131.40), Rhode Island, United States Virgin Islands. (f)Schedules ofcompliance.(1)This paragraph (f)applies to any State that does not have a regulation in effect for Clean Water Act purposes that authorizes compliance schedules for National Pollutant Discharge Elimination System permit limitations needed tomeet the criteria in paragraph (c) ofthis section. All dischargers shall promptly comply with any new or more restrictive water quality-based effluent limitations based on the water quality criteria setforth in this section.

(2)When a permit issued on or after December 16, 2004, to anew pathogen discharger as defined in paragraph (b) of this section contains water qualitybased effluent limitations based on water quality criteria setforth in paragraph (c) ofthis section, the permittee shall comply with such water quality-based effluent limitations upon the commencement ofthe discharge. (3)Where an existing pathogen discharger reasonably believes thatit will be infeasible to comply immediately with anew ormore restrictive water quality-based effluent limitations based on the water quality criteria setforth in paragraph (c) ofthis section, the discharger may request approval from the permit issuing authority for a schedule ofcompliance.

(4) A compliance schedule for an existing pathogen discharger shall require compliance with water qualitybased effluent limitations based on water quality criteria setforth in paragraph (c) ofthis section as soon as possible, taking into account the discharger's abilityto achieve compliance with such water qualitybased effluent limitations. (5)Ifthe schedule ofcompliance for

an existing pathogen discharger exceeds

one year from the date ofpermit issuance, reissuance or modification, the schedule shall set forth interim requirements and dates for their achievement. The period between dates ofcompletion for each requirement may not exceed one year.

Ifthe time necessary for completion of any requirement is more than one year and the requirement isnot readily divisible into stages for completion, the permit shall require, at a minimum, specified dates for annual submission of
progress reports on the status ofinterim requirements.

(6) In no event shall the permit issuing authority approve a schedule of compliance for an existingpathogen discharge which exceeds five years from the date ofpermit issuance, reissuance,

or modification, whichever is sooner.

(7)Ifa schedule ofcompliance exceeds the term ofa permit, interim permit limits effective duringthe permit shall be included in the permit and addressed in the permit's fact sheet or statement ofbasis. The administrative record for the permit shall reflect final permit limits and final compliance dates. Final compliance dates for final permit limits,which do not occur during the term ofthepermit, must

occur within five years from the date of issuance, reissuance or modification of the permit which initiates the compliance schedule. [FR Doc. 04-25303 Filed 11-15-04; 8:45 am]

BILLING CODE 6560-50-P 

### 67243

## Tuesday,

November 16, 2004



# Part III


# Department of Labor

Employment Standards Administration

Office of Federal Contract Compliance Programs; Interpreting Nondiscrimination Requirements of Executive Order 11246 With Respect to Systemic Compensation Discrimination; Guidelines for SelfEvaluation of Compensation Practices for Compliance With Nondiscrimination Requirements of Executive Order 11246 With Respect to Systemic Compensation Discrimination; Notices 

## ........................Federal Register/Vol. 69, No. 220/Tuesday, November 16, 2004/Notices

DEPARTMENT OF LABOR
Employment Standards Administration

Officeof Federal Contract Compliance Programs; Interpreting Nondiscrimination Requirements of Executive Order 11246 With Respect to Systemic Compensation Discrimination, Notice
AGENCY: Office ofFederal Contract Compliance Programs, Employment Standards Administration, Department ofLabor.

ACTION: Notice ofproposed standards for systemic compensation discrimination under Executive Order 11246; request for comments.

SUMMARY: The Office ofFederal Contract Compliance Programs requests comments on proposed standards for systemic compensation discrimination under Executive Order 11246. DATES: Comments mustbe submittedby the following dates:

Hard Copy: Your comments mustbe postmarked by December 16, 2004.

Facsimile: Your comments must be
sent byDecember 16, 2004. ADDRESSES: Comments should be submitted to Joseph DuBray,Jr., Director, Division ofPolicy, Planning and Program Development, OFCCP. Electronic mail isthe preferred method for submittal ofcomments. Comments by electronic mail must be clearly identified aspertaining to the notice interpreting nondiscrimination requirements ofExecutive Order 11246 with respect to systemic compensation discrimination, and sent to ofccppublic@dol.gov.As a convenience to commenters, public comments transmitted by facsimile (FAX) machine will be accepted. The telephone number ofthe FAX receiver is (202) 693-1304. To assure access tothe FAX equipment, onlypublic comments of six or fewer pages will be accepted via FAX transmittal. Where necessary, hard copies ofcomments, clearly identified

aspertaining to the notice ofproposed standards and methodologies for evaluating contractors' and subcontractors' compensation practices, may alsobe delivered to Joseph DuBray, Jr., Director, Division ofPolicy, Planning and Program Development, OFCCP, Room C-3325, 200 Constitution Avenue, NW., Washington, DC 20210. Because ofdelays in mail delivery, OFCCP suggests that commenters planning to submitcomments via U.S. Mail place those comments in the mail well before the deadline by which
comments must be received. Receipt of submissions will notbe acknowledged, except thatthe sender may request confirmation ofreceipt by calling OFCCP at (202) 693-0102 (voice), or (202) 693-1308 (TTY).
FOR FURTHER INFORMATION CONTACT: Joseph DuBray, Jr., Director, Division of Policy, Planning and Program Development, OFCCP, Room C-3325, 200 Constitution Avenue, NW., Washington, DC 20210. Telephone (202) 693-0102 (voice), or (202) 693-1308 (TTY). Copies ofthis notice in alternative formats may be obtainedby calling (202) 693-0102 (voice), or (202) 693-1308 (TTY). The alternative formats available are large print, electronic file

on computer disk, and audiotape. The Notice is available on the Internet at http://www.dol.gov/esa. SUPPLEMENTARY INFORMATION:

I. Introduction

A. OFCCPComplianceReviewsFocus

on Systemic Compensation Discrimination

The Department ofLabor's Office of Federal Contract Compliance Programs (OFCCP) enforces Executive Order 11246, which prohibits covered federal
contractors and subcontractors from making employment decisions onthe basis ofrace, color, national origin, religion, or sex.' OFCCP conducts compliance reviews
to determine whether covered
contractors have been engaging in workplace discrimination prohibited by E.O. 11246. As part ofits compliance review process, OFCCP investigates whether contractors' paypractices are discriminatory.

OFCCP compliance reviews typically produce cases that involve allegations of systemic discrimination, not discrimination against aparticular individual employee. OFCCP systemic compensation discrimination cases typically areproven under a disparate

1TheAdministrative Review Board, and, before its creation, the Secretary ofLabor, have turned to Title VII standards for determining compliance with the nondiscrimination requirements ofE.O. 11246. See, e.g., OFCCP v. GreenwoodMills,Inc., 89-OFC039, ARB Final Decision and Order, December 20, 2002, at 5; OFCCP v. Honeywell, 77-OFCCP-3, Secretary of LaborDecision and Order on Mediation, June 2, 1993, at 14and 16, Secretary of Labor Decision and Remand Order,March 2, 1994. The EEOC has issued guidance on compensation discrimination inthe form ofa chapter in the EEOC Compliance Manual on "Compensation Discrimination." EEOC Directive No. 915.003 (Dec. 5, 2000). EEOC is the agency with primary enforcement responsibility for Title VII and its reasonable interpretations ofTitle VII are given

some deference by the courts. See Gen.Elec. Co.v. Gilbert,429 U.S. 125, 141-42 (1976). E.O. 11246 has been amended several times since its original promulgation. For ease ofreference, "E.O. 11246"

or "Executive Order 11246" as used hereinafter refers to Executive Order 11246, as amended. treatment, pattern or practice theory of discrimination.2 The burdens of persuasion necessary to succeed on a discrimination claim differ depending

on whether the case involves allegations ofa pattern or practice ofdiscrimination

or allegations that a particular individual was subjected to discrimination. In a case involving alleged discrimination against a particular individual, the plaintiffmust establish by a preponderance ofthe evidence thatthe employer made the challenged employment decision because ofthe individual's race, color, religion, sex, or national origin. United StatesPostalServiceBd. ofGovernorsv. Aikens, 460 U.S. 711, 715 (1983). In a pattern or practice case, "plaintiffs must "establish by a preponderance ofthe evidence thatracial discrimination was the company's standard operating procedure-the regular rather than the unusual practice." Teamstersv. United States,431 U.S. 324, 336 (1977)." Bazemorev. Friday, 478 U.S. 385, 398 (1986).

In addition to differences inthe burdens ofpersuasion asbetween cases involving alleged discrimination against

a particular individual and an alleged pattern or practice of discrimination, the burdens ofproduction necessary to survive amotion for summary disposition are different between the
two types ofcases. In both types of
cases, a plaintiffbears the initial burden ofpresenting a prima facie case of discrimination. There is no precise set ofrequirements for a plaintiff's prima facie case. '"The facts necessarily will vary in title VII cases, andthe specification * * * ofthe primafacie proofrequired from [a plaintiff] is not necessarily applicable in everyrespect to differing factual circumstances.'" Int'lBhd.ofTeamstersv. UnitedStates, 431 U.S. 324, 358 (1977) (quoting McDonnell Douglas, 411 U.S. at 802 n. 13). "The importance ofMcDonnell Douglas lies, notin its specification of the discrete elements ofthe proofthere required, but in itsrecognition ofthe general principle that any TitleVII plaintiffmust carry the initial burden of offering evidence adequate to create an inference that an employment decision

was based on a discriminatory criterion illegalunder [Title VII]." Teamsters, 431 U.S. at 358.

In an individual case, the plaintiff typicallymust rely on evidence pertaining to his or her own circumstances to establish aprima facie

2Theterm "systemic compensation discrimination" usedhereinafter references compensation discrimination under a disparate treatment, pattern or practice theory of discrimination. 

### 67246Federal Register/Vol. 69, No. 220/Tuesday, November 16, 2004/Notices

case ofdiscrimination. The prima facie

case creates a presumption of discrimination thatthe employer may rebut by articulating a legitimate nondiscriminatory reason for the alleged discriminatory employment decision. McDonnellDouglasCorp.v. Green,411 U.S. 792, 802 (1973). The employer
must produce admissible evidence ofa legitimate, nondiscriminatory reason for the challenged employment decision. TexasDep'tofCommunityAffairs V. Burdine,450 U.S. 248, 254 (1981). "Th[e] [employer's] burden is one of production, not persuasion; 'it can involve no credibility assessment.'" Reeves v. SandersonPlumbing Products,Inc., 530 U.S. 133, 142 (2000) (quoting St.Mary'sHonorCenterv. Hicks, 509 U.S. 502, 509 (1993)). Once the employer articulates a legitimate nondiscriminatory reason for the challenged employment decision, the plaintiffis afforded the opportunity to prove that the employer's articulated

reason is a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; Reeves, 530 U.S. at 142. "Proof thatthe [employer's] explanation isunworthy of credence is simply one form of circumstantial evidence thatis probative ofintentional discrimination. * * *" Reeves, 530 U.S. at 147. "Other evidence thatmay be relevant to any showing ofpretext includes * * * [the employer's] general policy and practice with respect to minority employment. * * * On the latter point, statistics as to [the employer's] employment policy and practice may be helpful to a determination ofwhether [the employer's actions] * * * conformed to

ageneral pattern ofdiscrimination * * *" McDonnell Douglas, 411 U.S. at 804-05.

In apattern or practice case, the plaintiffs' "initial burden is to demonstrate thatunlawful discrimination hasbeen a regular procedure or policy followed by an employer. * * *" Teamsters, 431 U.S.
at 360. "The burden then shifts to the employer to defeat the prima facie showing ofa pattern or practice by demonstrating that the [plaintiffs'] proof is either inaccurate or insignificant." Id. "The employer's defense must,of
course, be designed tomeet the prima facie case ofthe [plaintiffs] * * * " which typically focuses on "a pattern of discriminatory decisionmaking." Id., at 360 n.46. However, there are no "particular limits on the type of evidence an employer may use." Id.

Despite these differences in the burdens ofpersuasion and production, however, once the plaintiffhas offered evidence thatis sufficient to establish a prima facie case, and the employer has produced evidence thatis sufficient to rebut the prima facie case, then the factfinder must decide whether plaintiffs have demonstrated discrimination by apreponderance of the evidence. "[O]ur decision in United StatesPostalServiceBoardofGovernors

v.Aikens, 460 U.S. 711 (1983), although
not decided in the context ofa patternand-practice case, makes clear that ifthe defendants have not succeeded in having a case dismissed on the ground that plaintiffs have failed to establish a prima faciecase, andhave responded to the plaintiffs' proofby offering evidence oftheir own, the factfinder then must decide whether the plaintiffs have demonstrated apattern orpractice of discrimination by apreponderance of the evidence. This isbecause the only issue to be decided at thatpoint is whether the plaintiffs have actually proved discrimination. Id., at 715." Bazemore, 478 U.S. at 398.

B. OFCCP HasNotIssuedSignificant InterpretiveGuidanceon Systemic CompensationDiscriminationUnder Executive Order11246

In 1970, the Department ofLabor published "Sex Discrimination Guidelines," codified at 41 CFR Part 60- 20, which included asection (60-20.5)

on "[d]iscriminatory wages." 35 FR 8888 (June 9, 1970). The Sex Discrimination Guidelines (SDG) donot provide specific standards for determining systemic compensation discrimination for OFCCP or a contractor. 3Rather, the SDG provide that "[t]he employer's wages (sic) schedules must not be related to or based onthe sex ofthe employees," and contains a short "note" thatreferences the "more obvious cases of discrimination * * *where employees ofdifferent sexes are paid different
wages onjobs which require substantially equal skill, effort and responsibility and are performed under similar working conditions." 41 CFR 60-20.5(a) (2004). OFCCP has not promulgated any definitive interpretation ofthe SDG, nor has a

3Bycontrast to sex-based compensation discrimination, GFCCP has published regulations providing specific guidance withrespect to hiring discrimination. Thus, GFCCP is a signatory to the Uniform Guidelines on Employee Selection Procedures (UGESP), which provide formal guidance as to how OFCCP evaluates contractors' selection procedures to determine compliance with E.O. 11246. See 41 CFR Part 60-3. Before being published as a final rule, 43 Fed. Reg. 38290 (August 25, 1978), UGESP was published in the Federal Register as a proposedrule and subject to public comment. See 42 Fed. Reg. 65542 (December 30, 1977). definitive interpretation arisen through longstanding agency practice. 4

Instead, OFCCP has provided only a general policy statement about compensation discrimination in the preamble to a May 4, 2000 Notice of Proposed Rulemaking (NPRM). Inthe May 4, 2000NPRM, OFCCP formally expressed the Department ofLabor's policy regarding compensation analysis:

More recently, an additional objective ofthe proposed revision has been to advance the Department ofLabor's goal ofpay equity; that is, ensuring that employees are compensated equally for performing equal work.

65 FR 26089 (May 4, 2000). This statedpolicy was reflected in several significant settlements in systemic compensation discrimination

cases inwhich OFCCP relied on sophisticated multiple regression analyses to remedy an alleged violation ofE.O. 11246. OFCCP has not, however, published formal guidance providing any interpretation ofE.O. 11246 with respect to systemic compensation discrimination.

C. OFCCP's InformalApproachesto Systemic CompensationDiscrimination in theLate 1990sInvolved the Controversial"PayGradeTheory"

In the late-1990s several OFCCP regions began to use a controversial "grade theory" approach to compensation discrimination analysis. 5

The basic unit of analysis under the grade theory is the pay grade or pay range. Under this theory, itis assumed that employees are similarly situated with respect to evaluating compensation decisions regarding such employees if the contractor has placed theirjobs in the same pay grade:

By the very act ofcreating agrade level system, where each employee has approximately the same potential to

move from the minimum to the maximum ofhis/hergrade range dependent upon performance, the employer has recognized that certain jobs are essentially similar in terms of skill, effort and responsibility.

"Systemic Compensation Analysis: AnInvestigatory Approach" (hereinafter "SCA"), at 5. Alater paper, "Update on Systemic Compensation Analysis" (hereinafter, "Update"), also described this pay grade assumption:

4Theproposed standards contained inthis Notice

areintended to provide definitive interpretations of both the SDG and E.O. 11246 with respect to systemic compensation discrimination, regardless ofthe specific basis (e.g., sex, race, national origin, etc.) ofthe discrimination.

5Although used in practice by several OFCCP regions for several years, the grade theory was never formally adoptedby GFCCP. 

### 67247Federal Register/Vol. 69, No. 220/Tuesday, November 16, 2004/Notices

Where we determine that each employee in a salary grade system has the same opportunity, subject to performance, to move to the maximum
rate ofthe salary grade range without a change injob title, webelieve the employer * * *has already identified certainjobs ashaving similar value to the organization.

Update, at6.6 After identifying employees in the

same pay grade, one version ofthe grade theory method called for a comparison ofthe median compensation ofmales

versus females, and minorities versus non-minorities in each pay grade. SCA,
at6; Update, at 7.Ifthere was a "significant" difference (although "significant" was not defined) in median compensation between males/ females or minorities/non-minorities within agiven pay grade, then the next step was to assess whether this disparity is explained by median or average differences in other factors, such as time in grade, prior experience, education, andperformance. SCA, at 7; Update, at 11. However, this method did not use tests of statistical significance in determining whether a pattern of compensation discrimination exists. Ifa "pattern" ofpay disparities (although "pattern" was not defined) emerged not explicable by analysis ofmedian or average differences in time in grade, prior experience, orother factors, OFCCP alleged thatthe contractor violated the nondiscrimination requirements ofE.O. 11246. Update, at 15.

In another version ofthe grade theory method used by some OFCCP regions in the late 1990s, 7the pay grade was included as a factor in a regression model thattypically covered all exempt employees in the workplace within a single, "pooled" regression. The regression typically included factors such as time in grade, experience, and education. This method did rely on tests ofstatistical significance, although rarely did OFCCP develop anecdotal evidence to support the statistical analysis under this method.

D. The PayGradeTheoryIs Inconsistent With Title VII Standards

OFCCP has discontinued using these
pay grade methods because the agency has determined thatthe methods' principal assumptions related to pay

6OFCCP officials informally distributed the SCA

and the Update in the late 1990's. They were not published by OFCCP nor did they bear any indication offormal agency approval, e.g., they

were not printed on OFCCP letterhead.

7 This method was not described in materials made available to the general public. The method

was used primarily in OFCCP's Southeast Region. grade orpay range do not comport with Title VII standards as to whether employees are similarly situated. OFCCP recognizes that, with respect to compensation discrimination, similarity injob content, skills and qualifications involved in the job, andresponsibility level are crucial determinants of whether employees are similarly situated under Title VII. See, e.g., EEOC Compliance Manual on "Compensation Discrimination," EEOC Directive No. 915.003 (Dec. 5, 2000), at 10-5 to 10- 8 [hereinafter referenced as "CMCD"] 8; Block v. Kwal-Howells,Inc.,No. 03- 1101, 2004 WL 296976, at *2-*4 (10th Cir. Feb. 17, 2004); Williamsv. GalvestonInd.Sch. Dist.,No. 03-40436, 78 Fed. Appx. 946, 949-50, 2003 WL 22426852 (5th Cir. Oct. 23, 2003); Verweyv. IllinoisColl. ofOptometry,43 Fed. Appx. 996, 2002 WL 1836507, at *4 (7thCir. Aug. 9, 2002); Langv. Kohl's FoodStores,Inc., 219 F.3d 919, 922-23 (7thCir. 2002); Rodriguezv. SmithKline Beecham, 224 F.3d 1, 8 (1st Cir. 2000); Cowardv.ADTSec.Sys., Inc., 140 F.3d 271, 274 (D.C. Cir. 1998);Aman v. Cort Furniture Rental Corp.,85 F.3d 1078, 1087 (3d Cir. 1996); Spraguev. Thorn Americas,Inc., 129 F.3d 1355, 1362 (luthCir. 1997); Tomkav. SeilerCorp., 66 F.3d 1295, 1310-11 (2dCir. 1995), abrogated on other grounds by BurlingtonIndus.,Inc.v. Ellerth,524 U.S. 742 (1998); Mulhallv.Advance Sec., Inc., 19 F.3d 586, 598 (11th Cir. 1994); Brinkley-Obuv. Hughes Training, Inc., 36 F.3d 336, 343 (4th Cir. 1994); Mirandav. B&B Cash GroceryStore, Inc., 975 F.2d 1518, 1526-31 (11th Cir. 1992); EEOCv. Sears,Roebuck &Co., 839 F.2d 302, 243-53 (7thCir. 1988); Marcouxv. Stateof Maine,797 F.2d 1100, 1107 (1st Cir. 1986); Eastlandv. Tennessee ValleyAuth., 704F.2d 613, 624-25 (llth Cir. 1983); Woodwardv. UnitedParcelServ., Inc., 306 F. Supp.2d 567, 574-75 (D. S.C. 2004); Lawton v. Sunoco,Inc., No. 01-2784, 2002 WL 1585582, at *7 (E.D. Pa. Jul 17, 2002); Stroupv.J.L. Clark,No. 99C50029, 2001 WL 114404, at *6 (N.D. Ill. Feb. 2, 2001); Donaldsonv.Microsoft Corp.,205 F.R.D. 558, 563 (W.D. Wash. 2001); Dobbs-Weinsteinv. Vanderbilt Univ., 1 F. Supp.2d 783, 803-04 (M.D. Tenn. 1998); Beardv. Whitley Co. REMC, 656 F. Supp. 1461, 1471-72 (N.D. Ind. 1987); Dalleyv.Michigan Blue Cross/BlueShield,Inc., 612 F. Supp. 1444, 1451-52 (E.D. Mich. 1985); EEOCv.KendallofDallas,Inc., No. TY8 As noted in footnote 1, supra.,the EEOC is the

agency with primary enforcement responsibility for Title VII, and itsreasonable interpretations of Title VII are given some deference by the courts. See GeneralElec. Co.v. Gilbert,429 U.S. 125, 141-42 (1976). 80-441-CA, 1984 WL 978, at *9-*12 (E.D. Tex. Mar. 8, 1984); Presseisenv. SwarthmoreColl., 442 F. Supp. 593, 615-19 (E.D. Pa. 1977), aff'd 582 F.2d 1275 (3dCir. 1978)(Table).

Contrary to these standards, the grade theory assumed that employers' preexisting job-groupings, such as pay grades orpay ranges, are absolute indicia of similarity in employees' job content, skills and qualifications involvedin thejob, andresponsibility level. While all ofthe courts in the above string cite have implicitly rejected the grade theory by emphasizing the importance offacts about the work employees actually perform, several of these courts have expressly rejected the proposition that apay grade offers absolute indicia of similarity injob content, qualifications and skills involvedin thejob, andresponsibility level. See Williams, 78 Fed. Appx. at 949 n. 9; CortFurniture, 85 F.3d at 1087; Woodward, 306F. Supp.2d at 574-75. The facts about employees' actual work activities, the skills and qualifications involved in thejob, and responsibility levels in a particular case may, of course, happen to coincide with the employer's pay grade orpay range, but the crucial determinant ofwhether the employees are similarly situated is their actual work activities, not the fact thatthe employees have been placed in the same pay grade or range.

In practice, utilization ofthe grade theory (as defined by the discussion above) resulted in groupings of employees performing dissimilar work. Indeed, as noted above, this approach

was described by some as "identify[ing] certain jobs as having similar value to the organization." Update at 6. To evaluate discrimination based on the "value" or "worth" ofworkto the employer constitutes the comparable worththeory ofcompensation discrimination which hasbeen widely discredited by the courts. SeeAmerican FederationofState,County,and MunicipalEmployeesv. Stateof Washington, 770F.2d 1401, 1404 (9th Cir. 1985)("The comparable worth theory, as developed in the case before
us, postulates that sex-based wage discrimination exists ifemployees injob classifications occupied primarily by

women are paidless than employees in job classifications filled primarily by
men, ifthejobs are ofequal value to the employer, though otherwise dissimilar."); Colbyv.

## f.C.PenneyCo., 811 F.2d 1119, 1125-26 (7th Cir. 1987)(describing comparable worth theory as "bas[ing] liability on the fact thatthe[] employer paid higher wages to workers injob classifications predominantly occupied bymen than to 

### 67248Federal Register/Vol. 69, No. 220/Tuesday, November 16, 2004/Notices

workers injob classifications predominantly occupied bywomen, though itpaid the same wages tomen and women within each classification"); AmericanNursesAssociationv. Illinois, 783 F.2d 716, 720-22 (7thCir. 1986)(considering plaintiffs "charge that the state pays workers in predominantly male job classifications a higher wage notjustified by any difference in the relative worth ofthe predominantly male and thepredominantly female jobs in the state's roster.");Lemons v. City andCountyofDenver,620 F.2d 228, 229 (10th Cir. 1980)("In summary, the suitisbased on theproposition that

nurses are underpaid in City positions, and in the community, in comparison with other and different jobs which they
assert are ofequal worth tothe employer."); Christensenv. Iowa,563 F.2d 353, 354-56 (8th Cir. 1977)("Appellants, who are clerical employees at UNI, argue thatUNI's practice ofpaying male plant workers

more than female clerical workers of similar seniority, where the jobs are of equal value to UNI, constitutes sex discrimination andviolates Title VII");

seealso CountyofWashingtonv. Gunther,452 U.S. 161, 165 (1981)("Respondents" claim is not based onthe controversial concept of 'comparable worth' under which plaintiffs might claim increased compensation on the basis of a comparison ofthe intrinsic worth or difficulty oftheirjob with that ofother jobs in the same organization or community." [footnotes omitted]); Gunther, 452 U.S. at 203 (Rehnquist,J., dissenting)(''The opinion does not endorse the so-called 'comparable worth' theory: though the Court does
not indicate how a plaintiffmight establish a prima facie case under Title VII, the Court does suggest that allegations ofunequal pay for unequal, but comparable, work will not state a claim on which reliefmay be granted. The Court, for example, repeatedly emphasizes thatthis is not a case where plaintiffs ask the court to compare the value ofdissimilar jobs or to quantify the effect ofsex discrimination on wage rates."); Judith Olans Brown etal., Equal Pay for Jobs ofComparable Worth: An Analysis ofthe Rhetoric, 21 Harv. C.R.- C.L. Rev. 127, 129 (1986)(" 'Comparable worth' means that workers, regardless of their sex, should earn equal pay for work ofcomparable value to their

common employer

.... The basic premise ofcomparable worth theory is that women shouldbe able to substantiate a claim for equal wages by showing thattheirjobs and those of male workers are ofequal value totheir common employer."); Hydee R. Feldstein, Comment, Sex-Based Wage DiscriminationClaimsAfter Countyof Washingtonv. Gunther,81 Colum. L. Rev. 1333, 1333 (1981)(noting comparable worth "theory holds that employees performing work ofequal value, even ifthe work they do is different, should receive the same wages.").

Based onthese considerations, the Department interprets E.O. 11246 and the SDG as not permitting the grade theory approach to systemic compensation discrimination. Instead, the Department interprets E.O. 11246 andthe SDG as prohibiting systemic compensation discrimination involving dissimilar treatment ofindividuals who

are similarly situated, based on similarity in workperformed, skills and qualifications involvedin the job, and responsibility levels.

E. TheDepartmentHasDecidedTo Promulgate InterpretiveGuidanceon Systemic CompensationDiscrimination To GuideAgency OfficialsandCovered Contractors andSubcontractors
The Department ofLabor has decided
to formally propose detailed standards interpreting E.G. 11246 andthe SDG with respect to systemic compensation discrimination and to solicitpublic
comment onthe proposed standards. This interpretive guidance also will provide standards andmethods for OFCCP evaluations ofcontractors' compensation practices during compliance reviews. This will ensure that agency personnel and covered federal contractors and subcontractors understand the substantive standards for systemic compensation discrimination under E.O. 11246. The Department believes that contractors and subcontractors aremore likely to comply withE.O. 11246 ifthey understand the substantive standards which determine whether there is systemic compensation discrimination prohibited by E.G. 11246. Further,
agency officials will have a stronger basis for pursuing investigations of possible systemic compensation discrimination because ofthe transparency anduniformity provided by these standards. Finally, the Department will have the benefit of commentary from allinterested parties in developing final guidelines.

These proposed standards are intended to govern OFCCP's analysis of contractors' compensation practices, and in particular, OFCCP's determination ofwhether a contractor has engaged in systemic compensation discrimination. In addition,these proposed standards are intended to constitute a definitive interpretation of the SDG and E.O. 11246 with respect to systemic compensation discrimination.

II.Discussion ofthe Proposed Standards

OFCCP proposes to adopt standards for interpreting E.O. 11246 andthe SDG with respect to systemic compensation discrimination. The systemic compensation discrimination analysis

as set forth in these proposed standards has two major characteristics: (1)the determination ofemployees who are "similarly situated" forpurposes of comparing contractor pay decisions will focus on the similarity ofthe work performed, the levels ofresponsibility, and the skills and qualifications involvedin the positions; and (2) the analysis will rely on a statistical technique known as multiple regression.

Under OFCCP's proposed standard, employees are similarly situated with respect topay decisions where the employees perform similar work, have similar responsibility levels, and occupy positions involving similar qualifications and skills. See discussion and cases cited under Section ID,
supra.9

The determination ofwhether employees are similarly situated must be based onthe actual facts about the workperformed, the responsibility level ofthe employees, andwhether the positions involve similar skills and qualifications. The employer's preexisting groupings developed and maintained for other purposes, such as jobfamilies or affirmative action program jobgroups, mayprovide some indication ofsimilarity in work, responsibility level, and skills and qualifications. However, these preexisting groupings are not dispositive, and OFCCP will not assume thatthese groupings involve groupings ofsimilarly situated employees. For example, it cannot be assumed that employees are similarly situated merely because they share the same pay grade

9Federal courts disagree on whether the Equal PayAct's standardof "substantial equality" applies
to gender-based pay discrimination claims under Title VII, absent direct evidence of discrimination. See, e.g., Contiv. UniversalEnter.,Inc., 50 Fed. Appx. 690, 2002 WL 31108827, at *7 (6th Cir. Sept. 20, 2002); Clarkv. Johnson &Higgins,181 F.3d 100, 1999 WL 357804, at *3-*4 (6th Cir. May 28, 1999)(Text in Westlaw); Loyd v. Phillips Bros., Inc., 25 F.3d 518, 525 (7th Cir. 1994); EEOCv. Sears, Roebuck &Co., 839 F.2d 302, 243-53 (7th Cir. 1988); Merrillv. S. Methodist Univ., 806 F.2d 600, 606 (5thCr. 1986); McKee v.Bi-StateDev.Agency, 801 F.2d 1014, 1019 (8thCir. 1986); Plemerv. Parsons- Gilbane,713 F.2d 1127, 1133-34 (5thCir. 1983); see alsoCMCD, at 10-6 n.18. Because an OFCCP enforcement action maybe subject to APA review in a federal court that does not adopt the "similarly situated" standard, OFCCP will consult withthe Office ofthe Solicitor to address this issue

on a case by case basis. 

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orrange, or because their pay can progress to the top ofa pay grade or range without changing jobs. 1 0 Thus, OFCCP will investigate whether such preexisting groupings doin fact group employees whoperform similar work, and whose positions involve similar skills, qualifications, and responsibility levels, by looking atjob descriptions and conducting employee interviews. Based on sufficient empirical data (e.g., job descriptions and employee interviews), OFCCP will determine which employees are in fact similarly situated.

In addition to similarity in work performed, skills and qualifications, and responsibility levels, systemic compensation discrimination under E.O. 11246 requires thatthe comparison take into account legitimate factors that affect compensation. In order to account for the influence of such legitimate factors on compensation, a statistical analysis known as "multiple regression," must be used. Multiple regression is explained as follows:

Multiple regression analysis is a statistical tool forunderstanding therelationship between two or more variables. Multiple regression involves avariable tobe explained-called the dependent variableand additional explanatory variables that are thought toproduce orbe associated with changes in the dependent variable. For example, amultipleregression analysis might estimate the effect ofthe number of years ofwork on salary. Salary would bethe dependent variable tobe explained; years of experience would be the explanatory variable. Multiple regression analysis is sometimeswell suited tothe analysis ofdata about competing theories in whichthere are severalpossible explanations for the relationship among anumber ofexplanatory variables. Multiple regression typically uses
a single dependent variable and several explanatory variables to assess the statistical datapertinent tothese theories.In a case alleging sex discrimination in salaries, for example, amultipleregression analysis would examine not only sex,but also other explanatory variables of interest, suchas education and experience. The employerdefendant might use multipleregression to argue that salary isa function ofthe employee's education and experience, and the employee-plaintiff mightargue that salaryis also afunction of theindividual's

sex. Daniel L. Rubenfeld, Reference Guide

onMultiple Regression, in Federal Judicial Center, Reference Manual on Scientific Evidence, at 181 (2d ed. 2000).

The multiple regression model must include those factors that are important
to howthe contractor in practice makes

10Inthis respect, OFCCP will notrely on the grade theory assumptions discussed supra.,at Sections IC and ID. pay decisions. "Such factors could include the employees' education, work experience with previous employers, seniority in the job, time in a particular salary grade, performance ratings, and others." CMCD, at 10-18. OFCCP generally will attempt tobuild the regression model in such away that controls for the factors thatthe investigation reveals are important to the employer's pay decisions, but also allows the agency to assess how the employers' pay decisions affectmost employees. One factor that must be controlled for in the regression model is categories or groupings ofjobs that are similarly situated based onthe analysis ofjob similarity noted above (i.e., similarity in the content ofthe work employees perform, and similarity in the skills, qualifications, and responsibility levels ofthe positions the employees occupy). This will ensure that the analysis compares the treatment ofemployees who are in fact similarly situated.

In addition, OFCCP will investigate the facts ofeach particular case to

ensure that factors included in the regression are legitimate and are not themselves influenced byunlawful discrimination, which is often discussed in caselaw as a factor "tainted" by discrimination. However, OFCCP will
not automatically presume that a factor is tainted without initially investigating the facts oftheparticular case. OFCCP will determine whether afactor is tainted by evaluating proofof discrimination withrespect to that factor, but not based on the fact thatthe factor has an influence on the outcome ofa regression model thatincludes the factor. See, e.g.,Morganv. UnitedParcel Serviceof America,Inc., 380 F.3d 459, 470 (8th Cir. 2004) ("Plaintiffs" only evidence ofdiscrimination in pastpay is the apparent correlation between race and center-manager base pay duringthe class period. But thatcorrelation iswhat Plaintiffs have evidence ofonlyby omitting pastpay. They have no evidence, statistical or otherwise, that past pay disparities were racially discriminatory. This sort of bootstrapping cannot create an inference ofdiscrimination with regard to either class-period basepay or pastpay."); Smith v.Xerox Corp., 196 F.3d 358, 371

n. 11 (2dCir. 1999) ("Absentevidence tending to show that the CAF scores

were tainted they should have been included in a multiple regression analysis in an effort to eliminate a relatively poor performance compared
to coworkers as a cause ofeach plaintiff's termination. Certainly, performance is afactor Xerox was permitted to consider in deciding whom
to retain."); Ottavianiv. State Univ. of New York, 875 F.2d 365, 325 (2d Cir. 1988) ("The question to be resolved, then, in cases involving the use of academic rank factors, is whether rank is

tainted by discrimination atthe particular institution charged with violating Title VII. Although appellants reiterate on appeal their claim that rank
atNew Paltz was tainted, it is clear that the districtjudge accepted and considered evidence from the parties on both sides ofthis issue, andthat she rejected the plaintiffs' contentions on this point.At trial, the plaintiffs failed
to adduce any significant statistical evidence ofdiscrimination as torank.
As the district court statedin its opinion, the plaintiffs' studies ofrank, rank at hire, and waiting timefor promotion 'were mere compilations of data' which neither accounted for important factors relevant to assignment ofrank and promotion, 'nor demonstrated that observed differences

were statistically significant.' Ottaviani, 679 F.Supp. at 306. The defendants, on the other hand, offered persuasive objective evidence to demonstrate that there was no discrimination in either placement into initial rank orpromotion
atNew Paltz between 1973 and 1984, and the district court chose to credit the defendants' evidence. Upon review of the record, we cannot state thatthe court's rulings in this regard were clearly erroneous."); CMCD, at 10-18 (discussing use ofperformance rating in multiple regression analysis for assessing systemic compensation discrimination).

The factors that influence pay decisions may not bear the same relationship to compensation for all categories ofjobs inthe employer's workforce. For example, performance
may have a more significant influence

on compensation for a high-level executive, than for technicians or service workers. This issue must be addressed through either oftwo methods. One method is to perform separate regressions for each category of jobs in which the relationship between the factors and compensation is similar (while including category factors in each regression that control for groupings ofemployees who are similarly situated based onwork performed, responsibility level, and skills and qualifications). Ifseparate regressions by categories ofjobs would
notpermit OFCCP to assess the way the contractor's compensation practices impact on a significant number of employees, OFCCP may perform a "pooled" regression, which combines 

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these categories ofjobs into a single regression (while including an OFCCPdeveloped category factor in the "pooled" regression that controls for groupings ofemployees who are similarly situated based on work performed, responsibility level, and skills and qualifications). However, ifa pooled regression isused, the regression
must include appropriate "interaction terms" I"in the pooled regression to account for differences in the effects of certain factors by job category. OFCCP will run statistical tests generally accepted in the statistics profession (e.g., the "Chow test"), to determine which interaction terms shouldbe included in the pooled regression analysis.

Systemic compensation discrimination under E.O. 11246 must be based ondisparities that are "statistically significant," i.e., those that could not be expected to have occurred by chance. "While not intending to suggest that 'precise calculations of statistical significance are necessary in employing statistical proof,' the Supreme Courthas stated that "a fluctuation ofmore than two or three standard deviations would undercut the hypothesis that decisions were being made randomly with respect to [a protected trait]." HazelwoodSch. Dist.

v. UnitedStates,433 U.S. 299, 311 n.17 (1977)." CMCD, at 10-14 n.32. To

ensure uniformity and predictability, OFCCP will conclude that a compensation disparity is statistically significant under these standards ifit is significant at alevel oftwo or more standard deviations, based on measures ofstatistical significance that are generally accepted in the statistics profession.

OFCCP will seldom make a finding of systemic discrimination based on statistical analysis alone, but will obtain anecdotal evidence to support the statistical evidence. See, e.g., Teamsters, 431 U.S. at 338-39 ("The Government bolstered its statistical evidence with the testimony ofindividuals who recounted over 40 specific instances of discrimination. * * * The individuals who testified about their personal experiences with the company brought the cold numbers convincingly to life."); Bazemore, 478 U.S. at 473 (noting that statistics were supportedby "evidence consisting ofindividual comparisons

11

An "interaction term" is a factor used inthe regression model whose value is the result ofa combination ofsubfactors, which allowsthe factor
to varybased on the combined effect ofthe subfactors. For example, a performance byjob level interaction term would allow performance to have

a different impact on compensation depending on thejob level. between salaries ofblacks and whites similarly situated"); Morgan, 380 F.3d at 471 ("One ofthe most important flaws in Plaintiffs" case is thatthey adduced

no individual testimony regarding intentional discrimination. As mentioned above, Plaintiffs' purported anecdotal evidence was insufficient for the working-conditions claim, and we

see none with regard topay. Although such evidence is not required, the failure to adduce it "'reinforces the doubt arising from the questions about validity ofthe statistical evidence.'" EEOCv.Sears,Roebuck &Co., 839 F.2d 302, 311 (7th Cir. 1988) (quoting Griffin

v. Boardof Regents, 795 F.2d 1281, 1292 (7th Cir. 1986))"); Dukesv. WalMartStores,Inc., 22 F.R.D. 137, 165-66 (N.D. Cal. 2004) ("[P]laintiffshave submitted * * * 114 declarations from class members around the country * * *. [who will] testify to being paid
less than similarly situated men, andbeing subjected to various individual sexist acts."); Bakewellv. StephenF.Austin Univ., 975 F. Supp. 858, 905-06 (E.D. Tex. 1996) ("The paucity of anecdotal evidence of discrimination severely diminishes plaintiffs' contention thata pattern or practice of salary discrimination against female faculty members prevails at SFA."); see also CMCD, at 10-13 n.30 ("Acause finding of systemic discrimination should rarely be based

on statistics alone.").

In order to equip OFCCP to conduct statistical analysis necessary for evaluating whether there is systemic compensation discrimination, the agency has created aDivision of Statistical Analysis andhired expertlevel statisticians to staffthis new unit.

III. Proposed Standards

Standards forSystemic Compensation DiscriminationUnder Executive Order 11246

1.As used herein, "systemic compensation discrimination" is discrimination under a pattern or practice theory ofdisparate treatment. 2.Employees are similarly situated under these standards ifthey are similar with respect tothe work they perform, their responsibility level, and the skills and qualifications involved in their positions. In determining whether employees are similarly situated under these standards, actual facts regarding employees' work activities, responsibility, and skills and qualifications are determinative. Preexisting groupings, such as pay grades orAAPjob groups, are not controlling; rather, such groupings may be relevant onlyto the extentthat they do in fact group employees with similar work, skills and qualifications and responsibility levels. To determine whether such preexisting groups are relevant one must evaluate and compare information obtained fromjob descriptions and from employee interviews. The determination that employees are similarly situated may notbe based on the fact that the
contractor or subcontractor has grouped employees into a particular grouping, such as apay grade or pay range, or that employees' pay can progress to the top ofthe pay grade or range based on performance or without changing jobs. Rather, such preexisting groupings must in fact group employees who perform similar work, and who occupy positions involving similar skills, qualifications, and responsibility levels, which may be determined onlyby understanding employees' actual work activities.

3. Systemic compensation discrimination exists where there are statistically significant compensation disparities between similarly situated employees (asdefined in Paragraph 2, above), after takinginto account legitimate factors which influence compensation. Such legitimate factors may include education, experience, performance, productivity, location, etc. The determination ofwhether there are statistically significant compensation disparities between similarly situated employees after taking into account such legitimate factors must be based on

a multipleregression analysis.

4. Acompensation disparity is statistically significant underthese standards ifit is significant at alevel of
two ormore standard deviations, based

on measures ofstatistical significance that are generally accepted in the statistics profession.

5. Ifa pooled regression model is used, this must be accompanied by statistical tests generally accepted in the statistics profession (e.g., the "Chow test"), to determine which interaction
terms should be included in the pooled regression model.
Standards forOFCCP Evaluationof Contractors'CompensationPractices

1. OFCCP will investigate contractors' and subcontractors' compensation practices to determine whether the
contractor or subcontractor has engaged in systemic compensation discrimination under these standards. OFCCP will issue aNotice ofViolations alleging systemic discrimination with respect to compensation practices based only onthese standards.

2. OFCCP will make afinding of systemic compensation discrimination in those cases where there is anecdotal 

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evidence ofdiscrimination (as discussed in Paragraph 6, below, which notes that, except in unusual cases, OFCCP will not issue a Notice ofViolation (NOV) alleging systemic compensation discrimination without providing anecdotal evidence to support OFCCP's statistical analysis) and where there exists astatistically significant (as defined in Paragraph 4, below) compensation disparity based on a multiple regression analysis that compares similarly situated employees (as defined in Paragraph 3,below) and controls for factors that OFCCP's investigation reveal were used in making pay decisions. OFCCP may reject inclusion ofsuch a factor upon proofthatthe factor was actually tainted by the employer's discrimination. OFCCP will attach the results ofthe regression analysis to, and summarize the anecdotal evidence in, the Notice of Violations issued to the contractor or subcontractor.

3.Employees are similarly situated under these standards ifthey are similar with respect tothe workthey perform, their responsibility level, and the skills and qualifications involved in their positions. In determining whether employees are similarly situated under these standards, OFCCP will collect and rely on actual facts regarding employees' work activities, responsibility, and skills and qualifications. In addition, OFCCP will investigate whether preexisting groupings, such aspay grades or AAP job groups, do in fact group employees with similar work, skills and qualifications and responsibility levels, by evaluating and comparing information obtained fromjob descriptions and from employee interviews. OFCCP will not base its determination that employees are similarly situated on the fact that the
contractor or subcontractor has grouped employees into a particular grouping, such as a pay grade or pay range, or that employees' pay can progress tothe top ofthepay grade or rangebased on performance or without changing jobs. Rather, OFCCP will investigate whether suchpreexisting groupings do in fact
group employees who perform similar work, andwho occupy positions involving similar skills, qualifications, andresponsibility levels,by looking at job descriptions and conducting employee interviews.

4. A compensation disparity is statistically significant under these standards ifit is significant at a level of
two ormore standard deviations, based

onmeasures of statistical significance that are generally accepted in the statistics profession. 5. OFCCP will determine whether a pooled regression model is appropriate based ontwo factors: (a) The objective
to include at least 80% ofthe employees (inthe workforce subject to OFCCP's compliance review)in someregression analysis; and (b)whether there are enough incumbent employees in a particular regression toproduce statistically meaningful results. Ifa pooled regression isrequired, OFCCP will conduct statistical tests generally accepted in the statistics profession (e.g., the "Chow test"), to determine which interaction terms shouldbe included in the pooled regression model. 6. In determining whether aviolation has occurred, OFCCP will consider whether there is anecdotal evidence of compensation discrimination, in addition to statistically significant compensation disparities. Except in unusual cases, OFCCP will not issue a Notice ofViolation (NOV) alleging systemic compensation discrimination without providing anecdotal evidence to support OFCCP's statistical analysis. In unusual cases, OFCCP may assert a systemic discrimination violation based only on anecdotal evidence, ifsuch evidence presents a pattern or practice ofcompensation discrimination.

7. OFCCP will also assert a compensation discrimination violation ifthe contractor establishes compensation rates forjobs (not for particular employees) that are occupied predominantly by women or minorities that are significantly lower than rates established forjobs occupied predominantly by men ornonminorities, where the evidence establishes thatthe contractor made the job wage-rate decisions based on the
sex, race or ethnicity ofthe incumbent employees thatpredominate in eachjob. Such evidence ofdiscriminatory intent may consist ofthe fact that the
contractor adopted a market survey to determine the wage rate for thejobs, but established the wage rate for the predominantly female orminority job lower than what that market survey specified for that job, while establishing for the predominantly male ornonminority job the full market rate specified under the same market survey.

Signed at Washington, DC this 10th dayof November, 2004. Victoria A. Lipnic,
AssistantSecretary fortheEmployment Standards Administration. Charles E. James, Sr., DeputyAssistantSecretaryfor Federal ContractCompliance. [FR Doc. 04-25401 Filed 11-15-04; 8:45 am]

BILLING CODE 4510-CM-P DEPARTMENT OF LABOR
Employment Standards Administration

Officeof Federal Contract Compliance Programs; Guidelines for SelfEvaluation of Compensation Practices for Compliance With Nondiscrimination Requirements of Executive Order 11246With Respect to Systemic Compensation Discrimination, Notice

AGENCY: Office ofFederal Contract Compliance Programs, Employment Standards Administration, Department ofLabor.

ACTION: Notice ofproposed guidelines for self-evaluation of compensation practices for compliance with Executive Order 11246 with respect to systemic compensation discrimination; request for comments.

SUMMARY: The Office ofFederal Contract Compliance Programs requests comments onproposed guidelines for self-evaluation ofcompensation practices for compliance with Executive Order 11246 with respect to systemic compensation discrimination. DATES: Comments must be submitted by the following dates:

HardCopy:Your comments must be postmarked by December 16, 2004.

Facsimile: Your comments must be
sent by December 16, 2004. ADDRESSES: Comments should be submitted toJoseph DuBray, Jr., Director, Division ofPolicy, Planning and Program Development, OFCCP. Electronic mail is the preferred method for submittal ofcomments. Comments by electronic mailmust be clearly identified as pertaining to the notice of guidelines for self-evaluation of compensation practices for compliance with nondiscrimination requirements of Executive Order 11246 with respect to systemic compensation discrimination, and sent to ofccp-public@dol.gov.As a convenience to commenters, public
comments transmitted by facsimile (FAX) machine will be accepted. The telephone number ofthe FAX receiver is (202) 693-1304. To assure access to the FAX equipment, only public
comments ofsix orfewer pages will be accepted via FAX transmittal. Where
necessary, hard copies of comments, clearly identified as pertaining to the notice ofproposed standards and methodologies for evaluating contractors' and subcontractors' compensation practices, may also be delivered to Joseph DuBray, Jr., Director, Division ofPolicy, Planning and Program Development, OFCCP, Room C-3325, 200 Constitution Avenue, NW., 

### 67252Federal Register/Vol. 69, No. 220/Tuesday, November 16, 2004/Notices

Washington, DC 20210. Because of delays in mail delivery, OFCCP suggests that commenters planning to submit
comments via U.S. Mail place those
comments in the mail well before the deadline bywhich comments mustbe received. Receipt ofsubmissions will
not be acknowledged, except that the sendermay request confirmation of receipt by calling OFCCP at (202) 693- 0102 (voice), or (202) 693-1308 (TTY). FOR FURTHER INFORMATION CONTACT: Joseph DuBray, Jr., Director, Division of Policy, Planning and Program Development, OFCCP, Room C-3325, 200 Constitution Avenue, NW., Washington, DC 20210. Telephone (202) 693-0102 (voice), or (202) 693-1308 (TTY). Copies ofthis notice in alternative formats may be obtained by calling (202) 693-0102 (voice), or (202) 693-1308 (TTY). The alternative formats available are large print, electronic file

on computer disk, and audiotape. The Notice is available on the Internet at http://www.dol.gov/esa.
SUPPLEMENTARY INFORMATION: OnMay 4, 2000, OFCCP proposed substantial revisions to affirmative action program requirements. 65 FR 26089 (May 4, 2000). As OFCCP explained in the preamble to these May 4, 2000 proposed revisions:

More recently, an additional objective of the proposed revision has been to advance the Department ofLabor's goal ofpay equity; that is,ensuring that employees are compensated equally for performing equal work. * * * This NPRM encourages contractors to analyze their own compensation packages to ensure that all their employees arebeing paidfairly.

65 FR 26089 (May 4, 2000).

On November 13, 2000, OFCCP published aFinal Rule adopting many oftheproposed revisions to the regulatory requirements for written affirmative action programs. 65 FR 68022 (Nov. 13, 2000). OFCCP adopted

arequirement that covered contractors evaluate their "[c]ompensation system(s) to determine whether there

are gender-, race- or ethnicity-based disparities." 65 FR 68046 (Nov. 13, 2000) (referencing 41 CFR 60- 2.17(b)(3)).

OFCCP received many comments in
response to the Proposed Rule on this compensation self-evaluation requirement. As explained in the Preamble to the November 13, 2000 Final Rule:

Many ofthe comments focused on the requirement to review compensation systems,with several commenters asserting that OFCCP does nothave authority to enforce equal pay concerns, that analysis of compensation systems is not requiredbythe current regulations, that compensation analyses impose an additional burden, orthat OFCCP didnot specify thetypes of analyses it would find acceptable. Commenters also expressed confusion abouthow the information gained from [the compensation analysis] shouldbe used bycontractors, and how the contractor's actions will be evaluated byOFCCP.
65 FR 68036 (Nov. 13, 2000).

OFCCP responded tothese
commenters inthe Preamble to the November 13, 2000 Final Rule: "[C]ontractors have the ability to choose

atype ofcompensation analyses that will determine whether there are gender-, race-, orethnicity-based disparities." 65 FR 68036 (Nov. 13, 2000).

OFCCPhas not, however, provided guidance to contractors orto OFCCP personnel on suggested techniques for compliance with this compensation selfevaluation requirement. This Directive is intended to provide suggested techniques for complying with the compensation self-evaluation requirement, although compliance with this Directive is not required for compliance with Section 60-2.17(b)(3). OFCCP has included an incentive for contractors to adoptvoluntarily the general standards outlined in this Directive. Specifically, ifa contractor, in good faith, reasonably implements the general standards outlined herein, OFCCP will coordinate its compliance monitoring activities withthe contractor's self-evaluation approach. However, compliance with this Directive is not the onlyway to comply with Section 6-2.17(b)(3).

While developing these guidelines for conducting compensation selfevaluations, OFCCP recognizes the risk ofliability that an employer faces when making corrective compensation adjustments under a self-evaluation
process. For example, female or minority employees may bring claims based onthe theory thatthe employer's

own self-evaluation study established that the employer engaged in discrimination or thatthe employer did
not make sufficient compensation adjustments toremedy the discrimination. See, e.g., Cullenv. IndianaUniv., 338 F.3d 693, 701-04 (7thCir. 2003)(female professor sued university alleging compensation discrimination and basing her claim, in part, on university's pay equity study). Similarly, male ornon-minority employees may sue the employer alleging violation ofTitle VII because the employer gave salary adjustments to female orminority employees under the compensation self-evaluation. See, e.g., Rudenbuschv. Hughes,313 F.3d 506, 515-16 (9th Cir. 2002)(employer's selfaudit, regression analysis was not technically sufficient to foreclose male professor's discrimination claim against the employer); Maitland v. Univ. of Minn., 155 F.3d 1013, 1016-18 (8th Cir. 1998)(same); Smith v. Virginia Commonwealth Univ., 84 F.3d 672, 676-77 (4th Cir. 1996)(same). OFCCP has attempted to provide guidelines that

are technically sufficient to withstand judicial scrutiny, so that contractors do
notface potential liability for implementing a robust and effective self-evaluation process.

Proposed Guidelines: Proposed Guidelines for SelfEvaluation ofCompensation Practices for Compliance With Executive Order 11246 WithRespect to Systemic Compensation Discrimination

L Guidelines

OFCCP will continue to permit
contractors to choose their own form of compensation self-evaluation techniques to comply with 41 CFR 60- 2.17(b)(3). However, as an incentive for
contractors to implement a compensation self-evaluation system that conforms to the general standards outlined in this Notice, OFCCP will deem a contractor in compliance with Section 60-2.17(b)(3) and coordinate its compliance monitoring activities as explained in Section II ofthis Notice, if the contractor's compensation selfevaluation system meets the following general standards:

A. The self-evaluation isperformed by groupings ofemployees that are similarly situated, referenced hereinafter as "Similarly Situated Employee Groupings," or "SSEGs." Employees may be placed into the same SSEG ifthey are "similarly situated'; thatis, ifthe workthey perform is similar in content, responsibility, and requisite skill and qualifications. Employees may not be grouped in an SSEG for purposes ofthis Notice unless the workperformed, responsibility level, and requisite skill and qualifications involved in their positions are actually similar,regardless ofany employer-created designation, such asjob title, job classification, pay grade or range, etc. The fact that an employer has grouped employees into a particular pay grade or range does not necessarily mean that these employees

are similarly situated; the determining factors are whether the employees are performing similar work,have similar responsibility level, and occupy positions involving similar skills and qualifications. 

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B. The contractor must make a reasonable attempt to produce SSEGs that are large enough for meaningful statistical analysis. In general, SSEGs should contain at least 30 employees overall, and contain five or more incumbents who are members ofeither ofthe following pairs: male/female or minority/non-minority. In certain cases, small numbers ofemployees will notbe sufficiently similarly situated to other employees topermit them to be grouped in an SSEG. Such employees maybe eliminated from the statistical evaluation process; however, the
contractor isexpected to conduct aselfevaluation ofpay decisions related to such employees using non-statistical methods. Further, the contractor's statistical analyses must encompass a significant majority ofthe employees in the particular affirmative action
program orworkplace. Where the statistical analyses do not encompass at least 80% ofthe employees in the affirmative action program or workplace, OFCCP will carefully scrutinize the statistical analyses and associated non-statistical selfevaluations.

C. On an annualbasis, the contractor must perform some type of statistical analysis that evaluates SSEGs (as defined in Section IAofthis Notice) and
accounts for factors that legitimately affect the compensation ofthe members ofthe SSEGs under the contractor's compensation system, such as experience, education, performance, productivity, location, etc. For
contractors with 250 or more employees, the statistical analysis must be multiple regression analyses. The
contractor must ensure that any factor within the contractor's control thatis included in the analysis is not itself subject to discrimination, although such

afactor may be included unless there is evidence thatthe factor actually was subject to discrimination. Correlation between such a factor and a protected characteristic does not automatically disqualify the factor, ifthe employer has implemented formal standards to constrain subjective decisionmaking. The analysis must include tests of statistical significance that are generally recognized as appropriate in the statistics profession.

D. The contractor must investigate any statistically significant compensation disparities producedby the self-evaluation analyses thatit has developed. OFCCP considers an identified disparity tobe statistically significant ifthe significance level ofthe disparity istwo or more standard deviations from a zero disparity level.1 The contractor must adequately determine whether such statistical disparities are explained bylegitimate factors or otherwise are not the product ofunlawful discrimination. Ifthe statistical disparities cannot be explained, the contractor must provide appropriate remedies. The remedies that

are appropriate will depend onthe time period in which the disparities emerged. For the initial implementation ofthe compensation self-evaluation system, the contractor may have to make adjustments based on both current disparities andprior disparities. OFCCP

uses a two-year window for backpay corrections. For periodic iterations of the self-evaluation system after the initial implementation, the remedy would involve correcting current disparities. Through the sources of information available to OFCCP under Section IE ofthis Notice, OFCCP will carefully evaluate whether the
contractor has properly investigated such disparities andhas adequately corrected any disparities that are not explained bylegitimate factors.

E. The contractor must contemporaneously create andretain the following documents and data: (1)Documents necessary to explain andjustify its decisions with respect to SSEGs, exclusion ofcertain employees, factors included in the statistical analyses, andthe form ofthe statistical analyses. Such documents must be retained throughout the period in which OFCCP would deem the contractor's compensation practices in compliance with Executive Order 11246, as described in Section IIB ofthis Notice;

(2)The dataused in the statistical analyses and the results ofthe statistical analyses for two years from the date that the statistical analyses areperformed; (3)The data and documents explaining theresults ofthe nonstatistical methods that the contractor used to evaluate pay decisions ofthose employees who were eliminated from the statistical evaluation process, which
must be retained throughout the period in which OFCCP would deem the contractor's compensation practices in

1This significance level roughly translates to a measured absolute disparity thatis more than two times the standard error of the estimatedvalue. Kaye, David H. and Freedman, David A. (2000), Reference Manual on Scientific Evidence Second Edition, Federal Judicial Center, Washington, DC, p. 124, note 138. Using a two-tailed test, a statistically significant disparity is a disparity with a significance level of 0.05 or less (subject to the consideration ofwhat is a meaningful difference). This criterion means that, e.g., a disparity in the pay between males and females being either positive or negative, would have a less than a 1-in-20 chance of occurrence unrelated to potential discrimination. compliance with Executive Order 11246, as described in Section IIB of this Notice;

(4) Documentation as to any follow-up investigation into statistically significant disparities, the conclusions ofsuch investigation, and any pay adjustments made to remedy such disparities. These documents must be retained for a period oftwo years from the date thatthe follow-up investigation isperformed.

F. The contractor must make all ofthe documents and data referenced in Section IE available to OFCCP during a compliance review. OFCCP may also review any personnel records and conduct any employee interviews necessary to determine the accuracy of any representation made bythe
contractor in such documentation or data.

II. Procedure

Ifthe contractor's compensation selfevaluation system meets the standards
set forth in Section I ofthis Notice, OFCCP will coordinate its compliance monitoring activities as follows:

A. During a compliance review, OFCCP will assess whether the contractor's compensation selfevaluation system comports with the general standards outlined in Section I ofthis Notice.

B. Ifthe contractor's compensation self-evaluation system reasonably meets the general standards outlined in Section I ofthis Notice, OFCCP will consider the contractor's compensation practices tobe in compliance with Executive Order 11246. However, OFCCP may suggest inwriting thatthe
contractor make prospective modifications to improve the selfevaluation system's conformity with the general standards outlined in Section I ofthis Notice, where OFCCP concludes thatthe self-evaluation system is only marginally reasonable under these guidelines; thereafter, during future compliance reviews, OFCCP will assess whether the contractor made the suggested changes in determining the contractor's prospective compliance with E.O. 11246. If, during a future compliance review, OFCCP determines thatthe contractor has not made the changes that OFCCP suggested during the prior compliance review, the contractor's self-evaluation system will

no longer be deemed to comport with the general standards outlined in Section I ofthis Notice.

C. OFCCP may review the documents and data setforth in Section IE to determine whether the contractor's compensation self-evaluation system reasonably meets the general standards 67254Federal Register/Vol. 69, No. 220/Tuesday, November 16, 2004/Notices

outlined in this Notice and, if applicable, whether the contractor reasonably made the changes that OFCCP suggested during a prior compliance review.

D. OFCCP personnel will direct technical issues about whether a contractor's self-evaluation system meets the general standards outlined in Section Iofthis Notice to OFCCP's Director ofStatistical Analysis in the National Office, orhis or her designee.

E. Alternative Compliance Certification: OFCCP understands that

some contractors may take the position, based onadvice ofcounsel, that their compensation self-evaluation is subject
to certain protections from disclosure, such as the attorney client privilege or attorney work product doctrine, and that these protections wouldbe waived ifthe contractor disclosed the selfevaluation. OFCCP does not take any position as tothe applicability ofsuch protections in the context ofa compensation self-evaluation. However, to avoid protracted legal disputes over the applicability of suchprotections, OFCCP will permit the contractor to certify its compliance with 41 CFR 60- 2.17(b)(3) in lieu ofproducing the methodology or results ofits compensation self-evaluation analyses
to OFCCP during a compliance review. The certification must be in writing, signed by a duly authorized officer of the contractor under penalty ofperjury, andthe certification must state thatthe
contractor has performed a compensation self-evaluation with respect to the affirmative action program

orworkplace at issue, at the direction of counsel, andthat counsel has advised the contractor that the compensation self-evaluation analyses andresults are subject to the attorney-client privilege and/orthe attorney work product doctrine. Because in such an instance OFCCP cannot evaluate the contractor's compliance with the general standards outlined in Section I ofthis Notice, a contractor that opts for this compliance certification alternative will not be entitled tothe coordination outlined in Section IIB ofthis Directive. That is,
contractors that optfor this alternative compliance certification do not receive the benefit ofOFCCP coordination of
agency compliance monitoring activities. Thus, for contractors that elect only to certify compliance with Section 60-2.17(b)(3), OFCCP will evaluate their compensation practices without regard to the analysis or results oftheir compensation self-evaluation systems.

Signed at Washington, DC this 10th dayof November, 2004. VictoriaA. Lipnic, AssistantSecretary fortheEmployment Standards Administration. CharlesE.James, Sr., DeputyAssistantSecretary forFederal ContractCompliance. [FR Doc. 04-25402 Filed 11-15-04; 8:45 am]

BILLING CODE 4510-CM-P 

### 67255

## Tuesday,

November 16, 2004



# Part IV



# Department of Transportation

Federal Aviation Administration

14 CFR Part 61
Second-in-Command Pilot Type Rating; Proposed Rule . . sFederal Register/Vol. 69, No. 220/Tuesday, November 16, 2004/Proposed Rules

DEPARTMENT OFTRANSPORTATION

Federal Aviation Administration

14 CFR Part 61 [Docket No. FAA-2004-19630; Notice No. 04-14]
RIN2120-AI38

Second-in-Command PilotType Rating

ACTION: Notice ofproposed rulemaking (NPRM).

SUMMARY: The FAAproposes to establish a second-in-command (SIC) pilot type rating for those persons who complete therequired SIC training. The purpose ofthis proposal is to conform the FAA pilot typerating requirements
to the International Civil Aviation Organization (ICAO) pilot type rating standards and alleviate the difference that the FAA currently has on file with ICAO. The intended effect ofthis proposal isto allow U.S. flight crews to continue to operate in international airspace without the threat ofbeing grounded for not holding the appropriate pilot type rating. DATES: Sendyour comments to reach us by December 16, 2004. ADDRESSES: Youmay send comments identified by Docket Number FAA2004-using any ofthe following methods:

* DOT Docket Web site: Go to http://dms.dot.govand followthe instructions for sending your comments electronically.

* Government-wide rulemaking Web site: Go to http://www.regulations.gov and follow the instructions for sending
your comments electronically.

* Mail: Docket Management Facility; U.S. Department ofTransportation, 400 Seventh Street, SW., NassifBuilding, Room PL-401, Washington, DC 20590- 001.



### * Fax: 1-202-493-2251. * Hand Delivery: Room PL-401 on the plaza level ofthe NassifBuilding, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5p.m., Monday through Friday, except Federal holidays.

For more information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document.

Privacy:We will post all comments

we receive, without change, to http:// dms.dot.gov,including any personal information you provide. Formore information, see the Privacy Act discussion in the SUPPLEMENTARY INFORMATION section ofthis document.

Docket:To read background documents orcomments received, go to http://dms.dot.govat any time or to Room PL-401 onthe plaza level ofthe NassifBuilding, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: John Lynch, Certification Branch, AFS-840, General Aviation and Commercial Division, Flight Standards Service, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone (202) 267-3844.

CommentsInvited

The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating
to the economic, environmental, energy

orfederalism impacts that might result from adoptingthe proposals in this document. The most helpful comments reference a specific portion ofthe proposal, explain the reason for any recommended change, and include supporting data. We askthatyou send

us two copies ofwritten comments.

All comments received will be filed in the docket. The FAA will develop a report that summarizes each substantive public contact with FAA personnel concerning this proposed rulemaking. The docket is available for public inspection before and after the comment closing date. Ifyou wish toreview the docketin person, go to the address in the ADDRESSES section ofthis preamble between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also review the docket using the Internet at theWeb address in the ADDRESSES section.

Before acting on this proposal, we will consider all comments we receive

on orbefore the closing date for
comments. We will consider comments filed late ifitis possible to do so without incurring expense or delay. We may change this proposal based onthe
comments we receive.

Ifyou want the FAA to acknowledge receipt ofyour comments on this proposal, include with your comments

apre-addressed, stamped postcard that identifies the docketnumber. We will stamp the date onthe postcard and mail

it to you. AvailabilityofRulemakingDocuments

You can get an electronic copy of these rulemaking documents using the Internet through the Office of Rulemaking's Web page athttp:// www.faa.gov/avr/armhome.htmorthe GPO's Web page at http:// www.access.gpo.gov/su docs/aces! aces140/html. You can get a printed copy by sending

a request to: Federal Aviation Administration, Office ofRulemaking, ARM-1, 800 Independence Avenue, SW., Washington, DC 20591; or by telephoning 202/267-9680. Please identify the docket number ofthis rulemaking in yourrequest. SUPPLEMENTARY INFORMATION: Background

The Convention on International Civil Aviation (61 Stat. 1180), which was signed at Chicago, Illinois, onDecember 7, 1944, is an international treaty about aviation that establishes certain principles and arrangements to ensure that international civil aviation develops in a safe and orderly manner and operates soundly and economically. The Member States that have signed the Convention, including the United States, agree to keep theirregulations governing civil aviation, to the greatest possible extent, consistent with those established underthe Convention (article 12). Concerning pilots and flight

crew members, the signatory Member States agree to recognize as valid certificates ofcompetency and licenses issuedby other signatories ifthe requirements for the certificates or licenses are equal to or above the minimum standards established under the Convention (article 33). Ifa signatory Member State finds it impracticable to comply with an international standard or bring its regulations into full accord with an international standard, or adopts regulations differing from an international standard, itmust notify ICAO ofthe difference (article 38).

Currently, the United States has a difference filed with ICAO concerning

our SIC qualification requirements vs. ICAO's type ratings standards for the SIC pilotflight crewmember position (See ICAO Annex 1, paragraphs 2.1.3.2 and 2.1.4.1.A). During recent meetings between FAA and ICAO officials, the FAAhas explained that our SIC qualifications (14 CFR 61.55) require initial and annual recurrent knowledge and flight training for pilots who serve in the SIC pilot crewmember position, whereas the ICAO type rating standard does not.Although ICAO officials understand our difference, they stated thatthe §61.55 SIC pilot familiarization training requirements donot conform to ICAO pilot type ratings standards for the SIC pilotflight crewmember position because the SIC pilot does not actually receive apilot type rating under the existing §61.55 provisions. As a result, foreign civil aviation authorities have putthe FAA andU.S. flight crews on 

### 67258Federal Register/Vol. 69, No. 220/Tuesday, November 16, 2004/Proposed Rules

notice that they intend to enforce the ICAO type rating standards for SIC pilot crewmembers when U.S. flight crews operate in European airspace and in

some Caribbean countries

Discussion ofNPRM

The FAA is proposing to revise 14 CFR §61.5(b)(5) byadding a new subparagraph (iv)that provides for the SIC type rating. The FAA is proposing
to revise 14 CFR §61.55 by adding new paragraphs (a)(3) and (d)that would provide for the issuance of an aircraft type rating for SICprivileges when a person completes the SIC pilot familiarization training set forth in paragraph (b) of 14 CFR §61.55. This NPRM proposes to conform our 14 CFR §61.55 SIC qualification requirements with the ICAO Annex 1, paragraphs 2.1.3.2 and 2.1.4.1.A type rating standards and would eliminate our difference onfile with ICAO. Byissuing

an aircraft type rating for SIC privileges only, the FAA would conform its pilot type rating requirements to the ICAO type rating standards and allow U.S. flight crews to operate internationally unimpeded.

However, the FAA wants it understood that aslong as the person operates within the airspace ofthe United States (as defined in 14 CFR 91.1), a person needn't holdthis proposed SIC pilot type rating. Only when a person operates in international airspace or the airspace ofa foreign country where compliance with the pilot type rating standards ofICAO (i.e., ICAO Annex 1, paragraphs 2.1.3.2 and 2.1.4.1.A) or a foreign civil aviation authority's rule is itmandatory that U.S. pilot flightcrews hold the appropriate pilot type rating. As long as aperson operates within the airspace ofthe United States (as defined in 14 CFR 91.1), thatperson only needs to comply the SIC qualifications and training of 14
CFR 61.55.

In addition,the FAA is proposing to revise 14 CFR 61.55 by adding new paragraph (e). This proposal would provide for the issuance ofa pilottype rating for SIC privileges when a person satisfactorily completes an approved second-in-command training program under parts 121, 125, or 135 in an aircraft that is certificated for operations with a minimum crew ofat least two pilots andthe aircraft's type certificate requires apilot type rating. The FAA believes that the pilot community and aircraft operators will support this NPRM because itwould impose only minor additional costs on some pilots and operators. The FAA intends to issue the SIC pilot type rating according to the following process: 1.The SIC applicant must receive the familiarization training of §61.55(b) from a qualified pilot in command [See §61.31(a)] or an authorized flight instructor who holds the aircraft type rating on his/her pilot certificate [See §61.31(a) and §61.195(b)]. The ground training of§61.55(b)(1) may be given by

an authorized advanced ground instructor [See §61.215(b)], authorized flight instructor, or qualified pilot in command.

2.The person who provides the SIC familiarization training must sign the applicant's logbook ortraining record to verify thatthe training was given. The verification ofthe training must be in accordance with §61.51(h)(2), andbe documented in the SIC applicant's logbook ortraining record with the kind ofground and flight training and
amount oftraining given [See §61.51(h)(2)]. The person who provided the training must sign the SIC applicant's logbook/training record after completion ofeach lesson.

3.The SIC applicant must complete and sign an Airman Certificate and/or Rating Application, FAA Form 8710-1, and submitthe application to an FAA Flight Standards District Office or to an Examiner. The Examiner must have the authority to conductpractical tests for pilot certification.

4. The person(s) who provides the ground andflight familiarization training to the SIC applicant must sign the area ofthe FAA Form 8710-1 identified asthe "Instructor's Recommendation." This signoffis required in this area ofthe form even if

apilot in command who does not hold

aflight instructor certificate provided the training. 5.The SIC applicant must appear in person at an FAA Flight Standards District Office or to an Examiner with his/her logbook/training records and a completed and signed FAA Form 8710-1.

6. The FAA Flight Standards District Office or Examiner reviews the SIC applicant's logbook/training recordto

ensure completion ofthe required training and endorsements. The Aviation Safety Inspector, Aviation Safety Technician, or Examiner would review the applicant's logbook/training record and inform the applicant thatthe SIC Privileges Only limitation may only be removed ifthat applicant completes the appropriate type rating practical test for pilot-in-command qualification. There isno practical test required for the issuance ofthe SIC Privileges Only type rating. 7. The FAA Flight Standards District Office or Examiner completes the application and issues the applicant a temporary pilot certificate for a SIC type rating with the appropriate aircraft type rating with the limitation "SIC Privileges Only." For example, an applicant who accomplishes the §61.55(b) SIC familiarization training in

a Cessna 500 would receive a temporary pilot certificate thatreads as follows:

Commercial Pilot Certificate, Airplane Single Engine Land, Airplane Multiengine Land, Instrument Airplane, CE500 SIC Privileges Only.

8. The FAA Flight Standards District Office forwards the application and newlyissued temporary pilot certificate
to the FAAAirman Certification Branch, AFS-760. Ifthe application is made through an Examiner, the Examiner forwards the application and newly issued temporary pilot certificate to the Examiner'sjurisdictional FAA Flight Standards District Office who sendsthe application and file tothe FAA Airman Certification Branch, AFS-760.

9. The FAA Airman Certification Branch processes the SIC applicant's application and temporary pilot certificate and issues the applicant a permanent pilot certificate.

In addition, a person who satisfactorily completes an approved second-in-command training program underparts 121, 125, or 135 in an aircraft thatis certificated for operations with a minimum crew of atleast two pilots and the aircraft's type certificate requires a pilottype rating is entitled to receive that aircraft type rating for second-in-command privileges. The procedure for issuing a SIC typerating wouldbe asfollows:

1. The SIC applicant must complete

an approved second-in-command training program underparts 121, 125,

or 135 in an aircraftthat is certificated for operations with a minimum crew of
atleast two pilots and the aircraft's type certificate requires a pilot typerating.

2. The person who provides the SIC training must sign the applicant's logbook ortraining record to verify the training was given. The verification of the training must be in accordance with §61.51(h)(2), and be documented in the SIC applicant's logbook ortraining record with the kind ofground and flight training and amount oftraining given [See §61.51(h)(2)]. The person who provided the training must sign the SIC applicant's logbook/training record after completion ofeach lesson.

3. The SIC applicant must complete and sign an Airman Certificate and/or Rating Application, FAA Form 8710-1, and submit the application to an FAA Flight Standards District Office or to an 

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Examiner. The Examiner must have authority to conduct practical tests for pilot certification. A part 121 or part 135 Check Airman cannot review and approve the application unless that person also has examiner authority to conductpractical tests for pilot certification and holds an FAA Letter of Authority.

4. The person(s) who provided the ground andflight training tothe SIC applicant must sign the area ofthe FAA Form 8710-1 identified as the "Instructor's Recommendation." This signoffis required in this area ofFAA Form 8710-1 even ifa pilot in command who does not hold a flight instructor certificate provided the training. 5.The SIC applicant must appear in
person at an FAA Flight Standards District Office or to an Examiner with his/her logbook/training records and a completed and signed FAA Form 8710-1.

6. The FAA Flight Standards District Office or Examiner reviews the SIC applicant's logbook and/or training record for ensuring completion ofthe required training and endorsements. An Aviation Safety Inspector, Aviation Safety Technician, or Examiner reviews the applicant's logbook/training record and informs the applicant thatthe SIC Privileges Only limitation may onlybe removed ifthat applicant completes the appropriate type rating practical test for pilot-in-command qualification. There is no practical test required for the issuance ofthe SIC Privileges Only type rating. 7.The FAA Flight Standards District Office completes the application and issues the applicant a temporary pilot certificate for an SIC type rating with the appropriate aircraft type rating with the limitation "SIC Privileges Only." For example, an applicant who accomplishes SIC training in a Boeing 737 would receive a temporary pilot certificate thatreads as follows:

Commercial Pilot Certificate, Airplane Single Engine Land, Airplane Multiengine Land, Instrument Airplane, B-737 SIC Privileges Only.

8. The FAA Flight Standards District Office forwards the application and newly issued temporary pilot certificate
to the FAA Airman Certification Branch, AFS-760. Ifthe application is made through an Examiner, the Examiner forwards the application and newly issued temporary pilot certificate to the Examiner's jurisdictional FAA Flight Standards District Office who sends the application and file tothe FAA Airman Certification Branch, AFS-760.

9. The FAA Airman Certification Branch processes the SIC applicant's application and temporary pilot certificate and issues the applicant a permanent pilot certificate.

The FAA anticipates that many pilots have already completed their SIC training, whether it was §61.55(b) SIC familiarization training or an approved SIC training program under parts 121, 125, or 135, andwould be making application for an SICpilot type rating based onpast completion of SIC pilot training or apart 125 proficiency check. The procedures for making application for an SIC pilot type rating would basically be the same as previously statedin this document. The only difference would be that applicants who have completed their SIC training prior
to the FAA issuing its final rule for SIC pilot type ratings would be required to show compliance with either the initial

orrecurrent SIC training within the preceding 12 calendar months prior to the month ofapplication for an SIC pilot type rating. The following examples illustrate howthe rule would apply to pilots who have already completed their SIC training:

ExampleNo. 1:The date is January 30, 2005, and thefinal rule for issuing SICpilot type ratings isnowin effect. An airman completed initial § 61.55(b) SIC pilot familiarization training in aCessna 500 on August 6, 1998. The airman last completed recurrent §61.55(b) SIC pilot familiarization training in a Cessna 500 on August 6, 2000. This airman could not apply fora SIC pilot type rating for the CE500 until completing recurrent SIC familiarization training within the 12calendar months before themonth of application.

ExampleNo. 2:The date is January 30, 2005, and thefinal rule for issuing SICpilot type ratings isnowin effect. An airman completedinitial part 121 SIC pilot training in a Boeing 737 on August 6, 1998. The airman has completed recurrent part 121 SIC pilot training in aBoeing 737 every 12 calendar months, including onAugust 13, 2004. Thisairman couldapply for a SIC pilot type rating for theB737 because the recurrent training was completed withinthe 12 calendar months before January 2005.

ExampleNo. 3:The date is January 5, 2005, and thefinal rule for issuing SICpilot type ratings isnowin effect. An airman completeda part 125 SIC proficiency check in a Gulfstream IV on August 6, 1990. The airman next shows completion ofa part 125 SIC proficiency check in aGulfstream IV on January 23, 2004. This airman could apply for an SIC pilot type ratingfor theGulfstream IV because part 125 SIC proficiency check

was completed withinthe 12 calendar months before January 2005.

ExampleNo. 4:The date is January 5, 2005, and thefinal rule for issuing SICpilot type ratings isnowin effect. An airman completed initial § 61.55(b) SIC familiarization in aLear 60 on August 6, 1990. The airman next shows completion of §61.55(b) SIC familiarization training in a Lear 60 on January 23, 2004. This airman could apply foran SIC pilot type rating for theLear 60because therecurrent SIC familiarization training was completed within the 12 calendar monthsbefore January 2005. Paperwork Reduction Act

The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact ofpaperwork and other information collection burdens imposed onthe public. This proposal contains the following additional information collection requirement for pilotswho apply for an SIC pilottype rating. As previously statedin this document, theprimary purpose for this additional information collection requirement is to allow U.S. flight crews to continue to operate in international airspace without the threat ofbeing grounded for not holding the appropriate pilot type rating.

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), the Department of Transportation has submitted the information requirements associated with this proposal to the Office of Management and Budget for its review.

Title:Second-in-Command Pilot Type Rating.

Summary:This proposal would establish an application process using the existing Airman Certificate and/or Rating Application, FAA Form 8710-1, for pilotswho apply for an SICpilot type rating for the reasons previously stated. This proposal would generate a need for the FAA's Civil Aviation Registry and Flight Standards District Offices to support the processing ofthe FAAForm 8710-1 application and issuing the SIC pilot type rating.

Respondents:The likely respondents
to this proposal are the pilots who will be required to complete and submit the FAAForm 8710-1 application when applying for an SIC pilot type rating. However, as itwas previously stated in this document, the FAAwants it understood that as long as the person operates within the airspace ofthe United States (as defined in 14 CFR 91.1), a person won't be required tohold this proposed SICpilot type rating. Only when a person operates in international airspace or the airspace ofaforeign country where compliance with the pilottype rating standards ofICAO (i.e., ICAO Annex 1,paragraphs 2.1.3.2 and 2.1.4.1.A) or a foreign civil aviation authority's rule is itmandatory that U.S. pilotflightcrews hold the appropriate pilottype rating. As long as a person operates within the airspace ofthe United States (as defined in 14 CFR 91.1), that person only needs to comply 

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the SIC qualifications and training of 14 CFR 61.55.

Frequency: Each pilot who needs to obtain the SICpilot type rating will do

so only once.

AnnualBurdenEstimate:The FAA has no estimate ofthe annual recordkeeping and reporting burden.

The FAA isrequesting information from the public on the following questions:

How many pilots will apply for an SICpilot type rating on an annual basis?

What are the annual burden hours to the public?

What are the annual costs to pilot who willbe applying for an SIC pilot type rating?

What willbe the total impact ofthis proposal?

According to the regulations implementing the Paperwork Reduction Act of 1995, [5 CFR 1320.8(b)(2)(vi)], an agency may not conduct or sponsor, and

aperson is not required to respond to

a collection ofinformation unless it displays a currentlyvalid control number issuedby the Office of Management and Budget (OMB). If approved by OMB, the information collection requirement contained in this NPRM will be incorporated into the
current approval ofthe Airman Certificate and/or Rating Application, FAA Form 8710-1. The approved OMB control number for the Airman Certificate and/or Rating Application, FAA Form 8710-1, is 2120-0021.

Economic Assessment, Regulatory Flexibility Determination, International Trade ImpactAssessment, and Unfunded Mandates Assessment

Proposed changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 directs each Federal agency to propose or adopt a regulation only
upon areasoned determination thatthe benefits ofthe intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 requires agencies
to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (19 U.S.C. 2531-2533) prohibits agencies from setting standards that create unnecessary obstacles tothe foreign

commerce ofthe United States. In developing U.S. standards, this Trade Act requires agencies to consider international standards and, where appropriate, that theybe the basis for U.S. standards. Fourth, the Unfunded Mandates Reform Act of1995 (Pub.L. 104-4) requires agencies to prepare a written assessment ofthe costs, benefits, and other effects ofproposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, orby the private sector, of $100 million or more annually (adjusted for inflation).

For proposals with an expected minimal cost impact, a formal
assessment ofcosts andbenefits is not required. The Department of Transportation Order 2100.5 prescribes policies andprocedures for simplification, analysis, and review of regulations. Ifitis determined thatthe expected impact is so minimal that the proposal does not warrant a full evaluation, a statement is included in the NPRM statingthat the FAA has determined that the expected outcome will have aminimal impact with positive netbenefits.

The FAA's assessment ofthis NPRM indicates that its economic impact will be minimal because it does not propose to significantly change the SIC qualification requirements. The purpose ofthis NPRM is to conform FAA pilot type rating rules with our international obligations to ICAO, so as to remove an outstanding difference between our 14 CFR 61.55 SIC qualification requirements with the ICAO Annex 1, paragraphs 2.1.3.2 abd 2.1.4.1.A type rating standards.

Accordingly, the FAA has determined that there may be minor costs to those pilots who will need the SIC pilot type rating for international flight operations. These costs could include the time required to complete the FAA Form 8710-1 and the time and expense of traveling to an examiner orFAA Flight Standards District Office to file the application. The FAA has determined there may be some benefits toU.S. operators andpilots when conducting flight operations in foreign airspace where aforeign country's civilian aviation authority may enforce ICAO Annex 1,paragraphs 2.1.3.2 and 2.1.4.1.A typerating standards. The FAA has thus determined that this NPRM would have minimal impact with positive netbenefits. We specifically request comments from thepublic on this issue. Regulatory Flexibility Determination

The Regulatory Flexibility Act of1980 (RFA) establishes "as a principle of regulatory issuance that agencies shall endeavor, consistent with the objective oftherule and ofapplicable statutes, to fit regulatory andinformational requirements to the scale ofthe business, organizations, and governmental jurisdictions subject to regulation." To achieve thatprinciple, the RFA requires agencies to solicit and consider flexible regulatory proposals and to explain the rationale for their actions. The RFA covers a widerange of small entities, including small businesses, not-for-profit organizations and small governmental jurisdictions.

Agencies must perform a review to determine whether aproposed or final rule will have a significant economic impact on a substantial number ofsmall entities. Ifthe agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA.

However, ifan agency determines that

a proposed orfinal rule is not expected
to have a significant economic impact

on a substantial number ofsmall entities, section 605(b) ofthe RFA provides thatthe head ofthe agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.

This NPRM imposes minor costs on individuals by requiring U.S. pilots who fly overseas to obtain the SIC pilot type rating. Consequently, the FAA certifies thatthe rule will not have asignificant economic impact on a substantial number of small entities. The FAA solicits comments from the public regarding this determination.

TradeImpactAssessment

The Trade Agreement Act of 1979 prohibits Federal agencies from establishing any standards or engaging in related activities that create unnecessary obstacles to the foreign

commerce ofthe United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration ofinternational standards and, where appropriate, thatthey be the basis for U.S. standards. The FAA has assessed the potential effect ofthis rulemaking and has determined thatit would reduce trade barriers by narrowing the difference between the U.S. and ICAO regulations. The FAA has determined there maybe some benefits to U.S. operators and pilots when conducting flight operations in foreign airspace where a foreign country's civilian aviation authority may enforce ICAO Annex 1,paragraphs 2.1.3.2 and 2.1.4.1.A type rating standards.

Unfunded Mandates Assessment

The Unfunded Mandates Reform Act of1995 (the Act) isintended, among other things, to curb the practice of imposing unfunded Federal mandates

on State, local, and tribal governments. TitleII ofthe Act requires each Federal 

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agency to prepare a written statement assessing the effects of any Federal mandate in aproposed or final agency rule that may result in an expenditure of$100 million or more (adjusted annually for inflation) in any one year by State, local, and tribal governments, in the aggregate, or bythe private sector; such a mandate is deemed to be a "significant regulatory action." The FAA currently uses an inflationadjusted value of $120.7 million in lieu of$100 million.

This NPRM does not contain such a mandate. The requirements ofTitle II of the Act, therefore, do not apply.

Executive Order 13132, Federalism

The FAA has analyzed this proposed rule under the principles and criteria of Executive Order 13132, "Federalism," dated August 4, 1999 (64 FR 43255). We have determined that this action would
not have asubstantial direct effect on the States, on the relationship between the national Government and the States,

oron the distribution ofpower and responsibilities among the various levels ofgovernment, andtherefore would not have federalism implications.

Environmental Analysis

FAA Order 1050.1E identifies FAA actions that are categorically excluded from preparation ofan environmental
assessment or environmental impact
statement under the National Environmental Policy Act in the absence ofextraordinary circumstances. The FAA has determined this proposed rulemaking action qualifies for the categorical exclusion identified in paragraph 307(k) and involves no extraordinary circumstances. This NPRM proposes to allow for the issuance ofpilot type ratings to SIC pilot crewmembers in order to conform the FAA pilot typerating requirements
to the ICAO pilot typeratings standards. Regulations That Significantly Affect Energy Supply, Distribution, orUse

The FAA has analyzed this NPRM under Executive Order 13211, "Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, orUse" (May 18, 2001). We have determined that itis not a "significant energy action" under the executive order because itis not a "significant regulatory action" under Executive Order 12866, and itis not likely to have a significant adverse effect

onthe supply, distribution, oruse of energy.
List ofSubjects in 14 CFRPart61

Aircraft, Airmen, Aviation safety, and Reporting andrecordkeeping requirements.

The Amendment

In consideration ofthe foregoing, the Federal Aviation Administration proposes to amend Chapter H ofTitle 14 Code ofFederal Regulations as follows:

PART 61-CERTIFICATION: PILOTS, FLIGHT INSTRUCTORS, AND GROUND
INSTRUCTORS

1.The authority citation for part 61 continues to read asfollows:

Authority: 49 U.S.C. 106(g), 40113, 44701- 44703,44707,44709-44711,45102-45103, 45301-45302.

2.Amend §61.5 by adding new paragraph (b)(5)(iv)toread as follows:
§61.5 Certificates and ratings issued under this part.

(b) * * * (5) * * * (iv)Second-in-command type rating for aircraft that is certificated for operations with a minimum crew ofat least two pilots.

3.Amend §61.55 byrevising the introductory language ofparagraph (a), revising paragraph (a)(2), adding new paragraph (a)(3); redesignating existing paragraphs (d) through (h)as paragraphs (f)through (j) and adding new paragraphs (d) and (e) to read asfollows:
§61.55 Second-in-command qualifications.

(a)Except as provided in paragraph (e) ofthis section, no person may serve

as a second-in-command ofan aircraft type certificated for more than one required pilot flight crewmember or in operations requiring a second-incommand unless that person holds:

(1) * * * (2)An instrument rating that applies
to the aircraft being flown ifthe flight is under IFR; and

(3)An aircraft type rating for aircraft thatis certificated for operations with a minimum crew ofat leasttwo pilots.

(d) Ifa person complies with the second-in-command familiarization training requirements in paragraph (b) ofthis section in an aircraftthat is certificated for operations with a minimum crew ofat leasttwo pilots and the aircraft's type certificate requires a pilottype rating, then thatperson is entitled toreceive that aircraft type rating for second-in-command privileges.

(e) A person who has satisfactorily completed an approved second-incommand training program under 14 CFR parts 121, 125, or 135 in an aircraft thatis certificated for operations with a minimum crew ofat leasttwo pilots and the aircraft's type certificate requires a pilottype rating, then thatperson is entitled toreceive that aircraft type rating for second-in-command privileges.

Issuedin Washington, DC,on November 9, 2004. JohnM. Allen, ActingDirector, Flight StandardsService. [FR Doc. 04-25415 Filed 11-15-04; 8:45 am]

BILLING CODE 4910-13-U 

### 67262

# Reader Aids Federal Register

Vol. 69, No. 220
Tuesday, November 16, 2004

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FEDERAL REGISTER PAGES AND DATE, NOVEMBER

63317-63438

...................... 1 63439-63916

...................... 2 63917-64244

...................... 3 64245-64474

...................... 4 64475-64636

......................... 5 64637-64828

...................... 8 64829-65052

...................... 9
65053-65366

..................... 10
65367-65514

..................... 12
65515-67040

..................... 15
67041-67262

..................... 16 CFR PARTS AFFECTED DURING NOVEMBER

At the end of each month, the Office of the Federal Register publishes separately a List of CFR Sections Affected (LSA), which lists parts and sections affected by documents published since the revision date ofeach title.

3 CFR
Proclamations: 7838

................................. 6504 1 7839

................................. 65043 7840

................................. 65045 7841

................................. 65047 7842

................................. 65049 7843

................................. 65051 7844

................................. 65511 7845

................................. 65515 Executive Orders: 12170 (See Notice of

November 9, 2004)

............................ 65513 12938 (See Notice of

November 4, 2004)

............................ 64637 13067 (See Notice of

November 1, 2004)

............................ 63915 13094 (See Notice of

November 4, 2004)

............................ 64637 Administrative Orders: Notices: Notice of November 1,

2004

............................. 63915 Notice of November 4,

2004

............................. 64637 Notice of November 9,

2004

............................. 65513 Presidential

Determinations: No. 2005-05 of

October 20, 2004

......... 63917 No. 2005-06 of

October 22, 2004

......... 64475

5 CFR Proposed Rules: 307

................................... 64503

7 CFR
Ch. XXX

........................... 64477 27-52

............................... 65053 301

....................... 64639,67041 3 19

................................... 65053 905

................................... 6464 1 1580

................................. 63317 1775

................................. 65517 1777

................................. 65517 1778

................................. 65517 1780

................................. 65517 1942

................................. 65517 1955

................................. 65520 3570

................................. 65517 4274

................................. 65517 4279

................................. 64829 Proposed Rules: 923

................................... 63958 1260

................................. 65386 1717

................................. 64689 1782

................................. 65546 1951

................................. 65546 1955

................................. 65546 1956

................................. 65546 4280

................................. 65554

8 CFR
215

....................... 64477, 65508 235

....................... 64477, 65508 252

....................... 64477, 65508

9 CFR
71

..................................... 64644 77

..................................... 64644 78

......................... 64245,64644 79

..................................... 64644 80

..................................... 64644 85

..................................... 64644 93

..................................... 64644

10 CFR
74

..................................... 64249 431

................................... 63574 Proposed Rules:
2

....................................... 67070 30

..................................... 67070 40

..................................... 67070 50

..................................... 67070 52

..................................... 67070 63

..................................... 67070 70

..................................... 67070 72

..................................... 67070 73

......................... 64690,67070 76

..................................... 67070 150

................................... 67070

11 CFR

102

................................... 63919 106

................................... 63919 109

................................... 63919

12 CFR

5

....................................... 64478 19

..................................... 65067 509

................................... 64249 Proposed Rules: 615

................................... 67070 617

................................... 67074

13 CFR

105

................................... 63921

14 CFR
25

..................................... 64651 39

........... 63439,63440,63442, 63443,64251,64253,64255, 64482,64653,64832,64835, 64836,64839,64842,64846, 64847,64849,64850,64852, 64854,64856,64858,65520, 65522,65523,65528,65531, 65533,65535,67043,67045,

## ii Federal Register/Vol. 69, No. 220/Tuesday, November 16, 2004/Reader Aids

67047,67050 81

..................................... 63580 41 CFR 5

....................................... 63436 71

........... 64656, 65069, 65367, Proposed Rules: Proposed Rules: 7

....................................... 63436 65368,67052,67215 81

..................................... 63576 51-2

.................................. 65395 23

..................................... 65330 97

......................... 63318,65538 203

................................... 65324 51-3

.................................. 65395 52

..................................... 65330 Proposed Rules: 51-4

.................................. 65395 Ch.2

................................ 65121 39

........... 63336,63960,63962, 26 CFR 204

................................... 65121 63963,63965,63968,64260, 31

..................................... 67054 42 CFR 208

................................... 65121 64262,64263,64504,64506, Proposed Rules: 403

................................... 66236 209

................................... 65121 64510,64513,64515,64517, 1

............. 64546,65108,65555, 405

................................... 66236 212

................ ... 65121 64520, 64523, 64525,64530, 67075 410

................................... 66236 213

................................... 65121 64534,64537,64539,64692, 31

..................................... 67075 411

................................... 66236 215

................................... 65121 64695,64869,64871,65059, 412

................................... 66922 217

................................... 65121
65097,65099,65101,65103, 28 CFR 413

................................... 66922 219

................................... 65121 65105,65388,65391 414

................................... 66236 222

................................... 65121 61

..................................... 67258 0

....................................... 65542 4 18

..................... ....

66236 223

................................... 65121 71

........... 63970,63972,63973, 419

................................... 65682 63974,63975,63976,63978, 29 CFR 424

................................... 66236 225

................................... 65121

65107 4022
................65543 484

.................66236 2

.............................. 65121 382

................. 64364

................................. 65543 486

................................... 66236 23.................65121 45oposed .R..

. 2236 ................................... 65121 382

................... 4 6 404

................................. 6542 486

........................................ 66236

740

.......... 64483,64490,64657 64

..................................... 63456 237

................................... 65121 744

.......... 64657,65368,65539 33 CFR Proposed Rules: 242

................................... 65121 748

................................... 64483 117

......... 63574,64494,64860, 67

..................................... 63338 247

................................... 65121 774

....................... 64483,64490 252

................................... 65121 65369,65371, 67055,67056 45 CFR 253

................................... 65121 Proposed Rules: 165

................................... 65373 732

................................... 65555 402

................................... 64258 Proposed Rules: 736

................................... 65555 403

................................... 64258 98

..................................... 6488 1 49 CFR 740

......................... 65555 744

................................... 65555 Proposed Rules: 46 CFR 40

..................................... 64865 752

................................... 65555 Ch. I
..................... 63979,65555 501171

................................... 64462 764

................................... 65555 110

.......... 64546,64549,64551 501

................................... 64398 172

........................... 64462 772

................................... 65555 117

........... 64553,64875

. .................... 64398 165

................................... 64555 Proposed Rules: 173

.................64462

16 CFR 531

................................... 6398 1 501

................................... 63957
5 41

................................... 63957 603

................................... 63922 36 CFR 47 CFR 571

....................... 64495, 67068 613

................................... 63922 7

....................................... 65348 1

..... ..... .............. 65544 574

................................... 64500 614

................................... 63922 Proposed Rules: 13

..................................... 64664 Proposed Rules: Proposed Rules: 7

....................................... 65556 73

........... 63458,64681,64682, 171

................................... 65294
Ch.I

................................. 64698 1234

................................. 63980 65381,65382,65545 172

................................... 65294 80

..................................... 64664 173

................................... 65294 17 CFR 37 CFR Proposed Rules: 175

................................... 65294 249

................................... 67053 2

....................................... 63320 2

..... ...................65570 229

................................... 63890 Proposed R ules: 7

....................................... 63320 80

..................................... 65570 238

................................... 63890 1

....................................... 648 73 2 7

..................................... 63

459 3 7 9

................................... 6399 7 270

................................... 64816 39 CFR 64

..................................... 6540 1 381

................................... 63997

18 CFR 20

..................................... 63946 73

............ 65118,65119,65120 385

................................... 63997 375

................. 64659 111

................................... 63452 48 CFR 390

................................... 63997 Proposed Rules: 201

................................... 63326 395

................................... 63997 19 CFR 111

................................... 64877.

.................... 63326 571

............................ . 65126 202

......................... 63326 57.

....... 612
10

..................................... 63445 3001

................................. 65563 204

............................. . 63327 1522

................................. 65332
178

................................... 63445 205

................................... 63327 1540

................................. 65258 Proposed Rules: 40 CFR 208

....................... 63327,62328 1542

................ 65258

206

................................... 64541 52

........... 63321,63324,63947, 209

................................... 65088 1544

................................. 65258
207

................................... 64541 64259,64661,64860,65069, 210

................................... 63328 1546

................................. 65258 65375,65378,67058,67060, 212

.......... 63329,62330,65089 1548

................................. 65258 20 CFR 67062 214

................................... 65089
404

................................... 67018 63

..................................... 63452 219

................................... 63328 50 CFR Proposed Rules: 81

......................... 64133,64860 226

................................... 63327 404

....................... 64702,67039 131

.................67218 228

.................65090 300

................. 65382 180

......... 63950,63954,65073, 231

................................... 63331 622

................................... 65092 21 CFR 65081 235

....................... 63327,65091 648

................................... 63460

180

................................... 65540 239

................................... 65381 252

......... 63327,62328,65088, 660

......... 63332,62333,64501, Proposed Rules: 258

................................... 65381 65091 65093
34 1

................................... 63482 27 1

................................... 64

86 1 1804

................................. 63458 6 79

................................... 64683

890

................................... 64266 Proposed Rules: 1815

................................. 63458 Proposed Rules: 52

........... 63981,64703,65117, 1816

................................. 63458 17

............ 64710,64884,64889 22 CFR 65393,65394,67100 1817

................................. 63458 223

................................... 65127
51

..................................... 67053 63

..................................... 63489 1823

.......... ...... 63458 229

................................... 65127 171

................................... 63934 136

....................... 64704,64707 1837

................................. 63458 600

..... ............ 67100 194

................................... 64558 1852

................................. 63458 622

....................... 67104,67106 24 CFR 271

................................... 64880 Proposed Rules: 648

....................... 63341, 63498
5

.............................. 65024 720

.............................. 65565 2

....................................... 63436 679

................................... 67107

### Federal Register/Vol. 69, No. 220/Tuesday, November 16, 2004/Reader Aids iii

REMINDERS The items in this list were editorially compiled as an aid to Federal Register users. Inclusion or exclusion from this list has no legal significance.

RULES GOING INTO EFFECT NOVEMBER 16, 2004

ENVIRONMENTAL PROTECTION AGENCY Air quality implementation

plans; approval and promulgation; various States: California; published 11-16-

04 TREASURY DEPARTMENT Internal Revenue Service Employment taxes and

collection of income taxes at
source: Salary reduction agreement;

definifition and payments; published 11-16-04

COMMENTS DUE NEXT WEEK

AGRICULTURE
DEPARTMENT Agricultural Marketing Service Cotton classing, testing and

standards: Classification services to

growers; 2004 user fees; Open for comments until further notice; published 5-28-04 [FR 04-12138] Onions grown inIdaho and Oregon; import

regulations; comments due by 11-22-04; published 9-22-04 [FR 04- 21238] AGRICULTURE
DEPARTMENT Federal Crop Insurance Corporation Crop insurance regulations:

Nursery crop insurance

provisions; comments due by 11-22-04; published 10-8-04 [FR 04-22740] COMMERCE DEPARTMENT International Trade Administration Antidumping and

countervailing duties: Certification of factual

information during proceedings; comments due by 11-22-04; published 9-22-04 [FR 04- 21209] COMMERCE DEPARTMENT National Oceanic and Atmospheric Administration Fishery conservation and

management: West Coast States and

Western PacificfisheriesWest Coast salmon;

comments due by 11- 22-04; published 11-5- 04 [FR 04-24760] West Coast salmon;

comments due by 11- 26-04; published 11-10- 04 [FR 04-25112] COMMODITY FUTURES TRADING COMMISSION Review of National Futures

Association decisions; comments due by 11-24-04; published 10-25-04 [FR 04- 23828] COURT SERVICES AND OFFENDER SUPERVISION AGENCY FOR THE DISTRICT OF COLUMBIA Semi-annual agenda; Open for

comments until further notice; published 12-22-03 [FR 03-25121] DEFENSE DEPARTMENT Engineers Corps Corps Regulatory Program

and new Historic Preservation Advisory Council regulations; historic properties protection procedures; comments due by 11-26-04; published 9- 27-04 [FR 04-21540] EDUCATION DEPARTMENT Grants:

Credit Enhancement for

Charter School Facilities Program; comments due by 11-22-04; published 10-22-04 [FR 04-23746] ENERGY DEPARTMENT Energy Efficiency and Renewable Energy Office Commercial and industrial

equipment; energy efficiency program: Test procedures and

efficiency standardsCommercial air

conditioners and heat pumps; comments due by 11-22-04; published 10-21-04 [FR 04-17731] Commercial packaged

boilers; Open for comments until further notice; published 10-21- 04 [FR 04-17730] Water heaters, hot water

supply boilers, and unfired hot water storage tanks; comments due by 11- 22-04; published 10-21- 04 [FR 04-17732]
ENERGY DEPARTMENT Federal Energy Regulatory Commission Electric rate and corporate

regulation filings: Virginia Electric & Power

Co. et al.; Open for comments until further notice; published 10-1-03 [FR 03-24818]
ENVIRONMENTAL PROTECTION AGENCY Air pollutants, hazardous;

national emission standards: Pulp and paper industry;

comments due by 11-23- 04; published 11-2-04 [FR 04-24409] Air quality implementation

plans; approval and promulgation; various States; air quality planning purposes; designation of

areas: West Virginia; comments

due by 11-26-04; published 10-27-04 [FR 04-23945] Air quality implementation

plans; approval and promulgation; various States: Maryland; comments due by

11-26-04; published 10- 27-04 [FR 04-23948] Pennsylvania; comments

due by 11-26-04; published 10-27-04 [FR 04-23940] Environmental statements;

availability, etc.: Coastal nonpoint pollution

control programMinnesota and Texas;

Open for comments until further notice; published 10-16-03 [FR 03-26087] Pesticides; tolerances in food,

animal feeds, and raw agricultural commodities: Dimethenamid; comments

due by 11-23-04; published 9-24-04 [FR 04- 21501] Lactofen; comments due by

11-23-04; published 9-24- 04 [FR 04-21500] Penoxsulam; comments due

by 11-23-04; published 9- 24-04 [FR 04-21502] Tebufenozide; comments

due by 11-23-04; published 9-24-04 [FR 04- 21499] Tribenuron methyl;

comments due by 11-22- 04; published 9-22-04 [FR 04-20982] Solid waste: National Environmental

Performance TrackProgramHazardous waste

generator facilities; reporting requirements; correction; comments due by 11-24-04; published 10-25-04 [FR 04-23842] Solid wastes:

National Environmental

Performance TrackProgramHazardous waste

generator facilities; reporting requirements; correction; comments due by 11-24-04; published 10-25-04 [FR 04-23841] Superfund program:

National oil and hazardous

substances contingencyplanNational priorities list

update; comments due by 11-22-04; published 9-23-04 [FR 04-21387] Water pollution; effluent

guidelines for point source categories: Meat and poultry products

processing facilities; Open for comments until further notice; published 9-8-04 [FR 04-12017]
FARM CREDIT ADMINISTRATION Farm credit system:

Loan policies and

operations, etcFarmers' notes; comments

due by 11-24-04; published 10-25-04 [FR 04-23833]

FEDERAL COMMUNICATIONS COMMISSION Common carrier services:

Wireless telecommunications

servicesAdvanced wireless

services; service rules; comments due by 11- 23-04; published 11-2- 04 [FR 04-24433]
HEALTH AND HUMAN SERVICES DEPARTMENT Centers for Medicare & Medicaid Services Medicare:

Physicians referrals to

health care entities with which they have finanncial relationships Correction; comments due

by 11-23-04; published 9-24-04 [FR 04-21206]

### iv Federal Register/Vol. 69, No. 220/Tuesday, November 16, 2004/Reader Aids

HEALTH AND HUMAN SERVICES DEPARTMENT
Food and Drug Administration Reports and guidance

documents; availability, etc.: Evaluating safety of

antimicrobial new animal drugs with regard to their microbiological effects on bacteria of human health
concern; Open for comments until further notice; published 10-27-03 [FR 03-27113] Medical devicesDental noble metal alloys

and base metal alloys; Class II special controls; Open for comments until further notice; published 8-23- 04 [FR 04-19179]
HOMELAND SECURITY
DEPARTMENT Coast Guard Anchorage regulations:

Maryland; Open for

comments until further notice; published 1-14-04 [FR 04-00749] Drawbridge operations:

Iowa and Illinois; comments

due by 11-22-04; published 10-21-04 [FR 04-23545] New Jersey; comments due

by 11-26-04; published 10-12-04 [FR 04-22848] Ports and waterways safety:

Puget Sound, WACaptain of the Port;

security zones; comments due by 11- 26-04; published 10-12- 04 [FR 04-22744]
INTERIOR DEPARTMENT Fish and Wildlife Service Endangered and threatened

species permit applications Recovery plansPaiute cutthroat trout;

Open for comments until further notice; published 9-10-04 [FR 04-20517] Endangered and threatened

species: Critical habitat

designationsSanta Ana sucker;

comments due by 11- 24-04; published 10-25- 04 [FR 04-23968]
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION Acquisition regulations:

Research announcements;

small business subcontracting plans and publication acknowledgement and disclaimers; comments due by 11-26-04; published 9-27-04 [FR 04- 21414] NUCLEAR REGULATORY COMMISSION Environmental statements;

availability, etc.: Fort Wayne State

Developmental Center; Open for comments until further notice; published 5-10-04 [FR 04-10516] POSTAL SERVICE Domestic Mail Manual:

Checks sent at standard

mail postage rates; ancillary service endorsement requirement; comments due by 11-26- 04; published 10-27-04 [FR 04-23647] SMALL BUSINESS ADMINISTRATION Disaster loan areas:

Maine; Open for comments

until further notice; published 2-17-04 [FR 04- 03374] OFFICE OF UNITED STATES TRADE REPRESENTATIVE Trade Representative, Office of United States Generalized System of

Preferences: 2003 Annual Product

Review, 2002 Annual Country Practices Review, and previously deferred product decisions; petitions disposition; Open for comments until further notice; published 7-6-04 [FR 04-15361] TRANSPORTATION
DEPARTMENT Federal Aviation Administration Airports:

Airport noise compatibility

planning; technical amendments; comments due by 11-23-04; published 9-24-04 [FR 04- 21298] Airworthiness directives:

Airbus; comments due by

11-22-04; published 10-7- 04 [FR 04-22565] Boeing; Open for comments

until further notice; published 8-16-04 [FR 04- 18641] General Electric Co.;

comments due by 11-22- 04; published 9-22-04 [FR 04-21275] McDonnell Douglas;

comments due by 11-22- 04; published 10-6-04 [FR 04-22471] New Piper Aircraft, Inc.;

comments due by 11-22- 04; published 9-22-04 [FR 04-21274] Robinson Helicopter Co.;

comments due by 11-22- 04; published 9-22-04 [FR 04-21269] Saab; comments due by 11-

26-04; published 10-27-04 [FR 04-24034] Airworthiness standards:

Special conditionsDassault-Breguet Model

Falcon 10 airplanes; comments due by 11- 22-04; published 10-22- 04 [FR 04-23668] Gulfstream Aerospace

Corp. Model G-1159, G1159A,and G-1159B series airplanes; comments due by 11- 26-04; published 10-26- 04 [FR 04-23861] Class Dairspace; comments

due by 11-25-04; published 9-23-04 [FR 04-21398] Class E airspace; comments

due by 11-22-04; published 10-19-04 [FR 04-23387] TRANSPORTATION
DEPARTMENT Research and Special Programs Administration Hazardous materials:

TransportationHazardous materials for

transportation in commerce; person who offers or offeror; definition; comments due by 11-23-04; published 9-24-04 [FR 04-21535] TREASURY DEPARTMENT Internal Revenue Service Income taxes:

Consolidated return

regulationsSubsidiary stock

disposition; extension of time to elect method for determining allowable loss; cross-reference; comments due by 11- 24-04; published 8-26- 04 [FR 04-19477] Generation-skipping transfer

tax purposes; qualified

severance of trusts; comments due by 11-22- 04; published 8-24-04 [FR 04-19352] Real estate mortgage

investment conduitsInterest-only regular

interest; comments due by 11-23-04; published 8-25-04 [FR 04-19480] Original issue discount accrual; comments due by 11-23-04; published 8-25-04 [FR 04-19479]

LIST OF PUBLIC LAWS

This is a continuing list of public bills from the current session of Congress which have become Federal laws. It may be used in conjunction with "P LU S" (Public Laws Update Service) on 202-741- 6043. This list is also available online at http://

www.archives.govI federaL register/public laws/ public laws.html

The text of laws is not published in the Federal Register but may be ordered in "slip law" (individual pamphlet) form from the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402 (phone, 202-512-1808). The text will also be made available on the Internet from GPO Access at http:// www.gpoaccess.gov/plaws/ index.html. Some laws may not yet be available.

H.R. 4381/P.L. 108-392 To designate the facility of the United States Postal Service located at 2811 Springdale Avenue in Springdale, Arkansas, as the "Harvey and Bernice Jones Post Office Building". (Oct. 30, 2004; 118 Stat. 2245)
H.R. 4471/P.L. 108-393 Homeownership Opportunities for Native Americans Act of 2004 (Oct. 30, 2004; 118 Stat. 2246)
H.R. 4481/P.L. 108-394 Wilson's Creek National Battlefield Boundary Adjustment Act of 2004 (Oct. 30, 2004; 118 Stat. 2247)
H.R. 4556/P.L. 108-395 To designate the facility of the United States Postal Service located at 1115 South Clinton Avenue in Dunn, North Carolina, as the "General William Carey Lee Post Office Building". (Oct. 30, 2004; 118 Stat. 2249)
H.R. 4579/P.L. 108-396 Truman Farm Home Expansion Act (Oct. 30, 2004; 118 Stat. 2250)
H.R. 4618/P.L. 108-397 To designate the facility of the United States Postal Service located at 10 West Prospect Street in Nanuet, New York,Federal Register/Vol. 69, No. 220/Tuesday, November 16, 2004/Reader Aids v

as the "Anthony I. Lombardi Memorial Post Office Building". (Oct. 30, 2004; 118 Stat. 2251)
H.R. 4632/P.L. 108-398 To designate the facility of the United States Postal Service located at 19504 Linden Boulevard in St. Albans, New York, as the "Archie Spigner Post Office Building". (Oct. 30, 2004; 118 Stat. 2252)
H.R. 4731/P.L. 108-399 To amend the Federal Water Pollution Control Act to reauthorize the National Estuary Program. (Oct. 30, 2004; 118 Stat. 2253)
H.R. 4827/P.L. 108-400 To amend the Colorado Canyons National Conservation Area and Black Ridge Canyons Wilderness Act of 2000 to rename the Colorado Canyons National Conservation Area as the Mclnnis Canyons National Conservation Area. (Oct. 30, 2004; 118 Stat. 2254)
H.R. 4917/P.L. 108-401 Federal Regulatory Improvement Act of 2004 (Oct. 30, 2004; 118 Stat. 2255) H.R. 5027/P.L. 108-402
To designate the facility of the United States Postal Service located at 411 Midway Avenue in Mascotte, Florida,

as the "Specialist Eric Ramirez Post Office". (Oct. 30, 2004; 118 Stat. 2257)
H.R. 5039/P.L. 108-403
To designate the facility of the United States Postal Service located at United States Route 1 in Ridgeway, North Carolina,

as the "Eva Holtzman Post Office". (Oct. 30, 2004; 118 Stat. 2258)
H.R. 5051/P.L. 108-404
To designate the facility of the United States Postal Service located at 1001 Williams Street in Ignacio, Colorado, as the "Leonard C. Burch Post Office Building". (Oct. 30, 2004; 118 Stat. 2259)
H.R. 5107/P.L. 108-405 Justice for All Act of 2004 (Oct. 30, 2004; 118 Stat. 2260)
H.R. 5131/P.L. 108-406 Special Olympics Sport and Empowerment Act of 2004 (Oct. 30, 2004; 118 Stat. 2294) H.R. 5133/P.L. 108-407 To designate the facility of the United States Postal Service located at 11110 Sunset Hills Road in Reston, Virginia, as the "Martha Pennino Post Office Building". (Oct. 30, 2004; 118 Stat. 2297)
H.R. 5147/P.L. 108-408 To designate the facility of the United States Postal Service located at 23055 Sherman Way in West Hills, California,

as the "Evan Asa Ashcraft Post Office Building". (Oct. 30, 2004; 118 Stat. 2298)
H.R. 5186/P.L. 108-409 Taxpayer-Teacher Protection Act of 2004 (Oct. 30, 2004; 118 Stat. 2299) H.R. 5294/P.L. 108-410 John F. Kennedy Center Reauthorization Act of 2004 (Oct. 30, 2004; 118 Stat. 2303) S. 129/P.L. 108-411 Federal Workforce Flexibility Act of 2004 (Oct. 30, 2004; 118 Stat. 2305) S. 144/P.L. 108-412 To require the Secretary of Agriculture to establish a program to provide assistance to eligible weed management entities to control or eradicate noxious weeds on public and private land. (Oct. 30, 2004; 118 Stat. 2320)
S. 643/P.L. 108-413
Hibben Center Act (Oct. 30, 2004; 118 Stat. 2325)
S. 1194/P.L. 108-414 Mentally III Offender Treatment and Crime Reduction Act of 2004 (Oct. 30, 2004; 118 Stat. 2327)

Last List November 8, 2004

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