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

(most protective) confidence level, "moderate use for bathing" 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 to the

highest level of protection 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 is the

case. EPA assigned the lowest single

sample maximum to designated bathing

beach areas because a high degree of

caution should be used to evaluate the

status of such areas, giving greater

weight to a measured single value above

the geometric mean, even though the

statistical significance of this single

measurement may be weak. EPA

believes this is appropriate because

more people are likely to become ill at

heavily used areas if they exceed the

criteria. The 1986 bacteria criteria

document described bathing beach 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 density 4 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). 2 Calculated to nearest whole number using equation: (mean E. coil density) = 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). 4 Single 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 factors for the indicated one sided confidence levels are: 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 of Comment

A. July 2004 Proposed Rule

On July 9, 2004, EPA published a

proposal entitled "Water Quality

Standards for Coastal and Great Lakes

Recreation Waters" (see 69 FR 41720).

At that time, EPA proposed to

promulgate E. coli and enterococci

standards for coastal recreation waters

in States that had not adopted water

quality standards for those waters that

are as protective of human health as

EPA's 1986 bacteria criteria.

EPA proposed a geometric mean of

126/100 ml for E. coli in fresh coastal

recreation waters and a geometric mean

of 35/100 ml for enterococci in marine

coastal recreation waters. EPA also

proposed four different single sample

maximums in both fresh and marine

coastal recreation waters. Each single

sample maximum was assigned to a

category of coastal recreation water

based on intensity of use. EPA proposed

to interpret the single sample

maximums as maximum values that

would not be allowed to be exceeded,

but requested comment on various 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 of its 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 and Territories in the

proposed rule if their current standards

met each of five criteria: the standards

are based on EPA'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 do not address fecal

contamination from non-human sources

in a way inconsistent with the 1986

bacteria criteria; and EPA approved the

standards. If a State or Territory met all

five criteria, EPA proposed to not

include that State or Territory in the

rule.1

B. Public Comments

The comment period for this rule

closed on August 9, 2004. EPA received

55 comments on the proposed rule from

a variety of sources, including academic

associations, environmental groups,

municipal wastewater associations,

industry, State agencies, local

governments, and private citizens. Most

of the comments focused on the

following issues: choice of pathogen

indicator, promulgation of a geometric

mean and four single sample maximums

for the indicators, use of the single

sample maximum, intensity of use

categories of coastal recreation waters,

intrastate vs. interstate determinations

of use intensity, State calculation of sitespecific single sample maximums, and

addressing non-human sources of

bacteria. This preamble includes a

general summary of public comments in

1 In the case of Washington 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 section V.A.1 of this

preamble.)

67221
67222 Federal Register/Vol. 69, No. 220/Tuesday, November 16, 2004/Rules and Regulations

the discussions of the various issues

addressed here. EPA has prepared a

"Comment Response Document" that

includes responses to comments

submitted on the proposed rule, which

is in the docket for today's rule.

IV. Criteria That EPA Is Promulgating

Today

A. Scope of the Rule

EPA is promulgating the rule to apply,

as proposed, to Great Lakes and marine

coastal recreation waters (including

coastal estuaries) designated by a State

or Territory under Clean Water Act

303(c) for swimming, bathing, surfing,

or similar water contact activities. As

explained in the preamble to the

proposed rule (69 FR 41723), the

requirements of the 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 of the mouth of a river

or stream 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 of the BEACH Act to protect

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 of human health as EPA's

1986 bacteria 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 of the

Clean Water Act and EPA's

implementing regulations for

designating uses. Today's rule applies

only to 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 of achieving full

attainment of Clean Water Act section

101(a) uses ("fishable/swimmable") in

waters that do not currently attain such

uses. Further, any waters with

designated uses that do not include the

uses specified in Clean Water Act

section 101(a)(2) must be re-examined

every three years to determine if any

new information has become available

(40 CFR 131.20(a)). If such new

information indicates that the 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 that is not an existing

use if it conducts a use attainability

analysis to demonstrate that the

designated use is not attainable (40 CFR

131.10(g)).

EPA received few comments on the

scope of the rule. One commenter

suggested that the rule should not apply

to State waters outside of the 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 only to those swimming waters

within 300 meters of shore. This

commenter also suggested that the

criteria should only have to apply at

depths of less than 150 feet. EPA does

not find these comments persuasive in

light of the clear language of Clean

Water Act sections 303(i) and 502(21),

which together require the adoption of

criteria for all of the coastal or Great

Lakes waters designated by the State for

use for swimming, bathing, surfing, or

similar water contact activities even if,

as a factual matter, the waters

designated for swimming are not

frequently or typically used for

swimming.

One commenter expressed concern

that the rule could establish a binding

precedent for EPA's review of pathogen

criteria for inland waters that do not fall

within the definition of a coastal

recreation water. As discussed above,

section 303(i) of the 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) of the Clean Water

Act. For all other waters (i.e., waters that

are not coastal recreation waters),

section 303(c) of the Clean Water Act

and EPA'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 of those waters. When

EPA reviews 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 not be considered as

binding on States and Territories

adopting bacteria criteria for inland

waters other than the Great Lakes.

B. Criteria for Pathogen Indicators

1. Selection of Pathogen Indicator

For States and Territories covered by

today's rule, EPA is promulgating water

quality criteria using the pathogen

indicators of enterococci for marine

waters and both enterococci and E. coli

for freshwaters. EPA interprets Clean

Water Act section 303(i)(1)(A) to require

States and Territories to adopt and

submit water quality criteria for

enterococci in marine waters and either

enterococci or E. coli in fresh waters

because it requires 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 Water Act section 304(a)

criteria referred to in Clean Water Act

section 303(i)(1)(A). It recommends the

use of enterococci in marine waters and

E coli or enterococci in fresh waters for

the protection of primary contact

recreation. Clean Water Act section

303(i)(2)(A) requires EPA to promptly

propose regulations for the State setting

forth revised or new water quality

standards for pathogens and pathogen

indicators described in Clean Water Act

section 303(i)(1)(A) for coastal

recreation waters of the State for those

States that fail to adopt criteria that are

as protective of human health as the

criteria referenced in section

303(i)(1)(A).

In the proposal (69 FR 41727), EPA

proposed to adopt only E. coli for

freshwaters because most of the States

and Territories that had adopted or were

in the process of adopting the 1986

bacteria criteria had chosen to use E.

coli instead of enterococci. However,

EPA also solicited comment on whether

to promulgate criteria based on both

indicators for freshwater and to allow

States and Territories to choose which

indicator to apply to its coastal

recreation waters at the time of
Federal Register/Vol. 69, No. 220/Tuesday, November 16, 2004/Rules and Regulations

implementation. EPA received

comments from the New York

Department of Environmental

Conservation (DEC) and the

Pennsylvania Department of

Environmental Protection (DEP)

requesting EPA to do so. Both of these

State agencies have responsibility for

promulgating State water quality

standards. New York DEC explained

that the New York Department of Health

had recently adopted regulations adding

both E. coli and enterococci as the

criteria for its freshwater bathing

beaches, and that the New York DEC

was in the process of deciding which of

the two indicators it would adopt for its

water quality standards in the Great

Lakes. Consequently, New York DEC

requested that EPA's final rule include

values for both indicators and allow the

State to select either at the time of

implementation. Pennsylvania DEP

explained that the Pennsylvania

Department of Health had adopted E.

coli criteria for public bathing beaches,

but also requested that EPA promulgate

a final rule allowing Great Lakes States

to choose either E. coli or enterococci

criteria at the time of implementation.

Pennsylvania DEP offered no reason for

its request. None of the other States

included in the proposal with fresh

coastal recreation waters commented on

this aspect of the 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 that it is

reasonable to extend this flexibility to

all of the Great Lakes States covered by

this rule. Accordingly, EPA has added

the freshwater criteria values for

enterococci to the table in 40 CFR

131.41(c)(1) as well as a footnote to the

table explicitly recognizing that the

State may decide which indicator, E.

coli or enterococci, will be the

applicable criterion for its freshwater

coastal recreation water (i.e., which

criteria apply to the Great Lakes waters

within the State's jurisdiction). 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 rule because

the Great Lakes States have a history of

cooperating to protect the Great Lakes

resource, and may find a need to agree

on a consistent pathogen indicator for

the Great Lakes. Because both the E. 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 of these considerations,

EPA does not want to create a barrier to

this cooperation by promulgating only

one of the two freshwater criteria in

some Great Lakes States and both

indicators in other Great Lakes States.

2. Bacteria Criteria Values

EPA is promulgating a geometric

mean of 35/100 ml for enterococci in

marine coastal recreation waters and

four different single sample maximums,

which vary for marine coastal recreation

waters based on intensity of use as

shown in Table 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 m la . ........................... 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.

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 0.7.

For fresh coastal recreation waters,

EPA is also promulgating a geometric

mean of 126/100 ml for E. coli and a

geometric mean of 33/100 ml for

enterococci with four different single

sample maximums, which vary based

on intensity of use. As described above,

only the criteria for one of these

indicators will apply in freshwaters at

the choice of the State. These values are

shown in Table 3, and are the same

values as in the 1986 bacteria criteria

document. For E. coli, these values are

the same as those that EPA proposed.

EPA is also promulgating criteria for

enterococci in freshwater based on the

request of two Great Lakes States and

used the 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 m la . ......................... b235 b298 b409 b575

Enterococci ........................... 33/100 m lc ............................ b61 b78 b107 b151

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

67223
67224 Federal Register/Vol. 69, No. 220/Tuesday, November 16, 2004/Rules and Regulations

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.

coil will 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 is for use with

[specified] analytical methods * * * or

any equivalent viable method." The

specified methods are based on

measurement of viable 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 is identifying, 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 of the

proposal. First, EPA had incorrectly

identified the analytical methods for

enterococci as being for E. coli and the

analytical methods for E. coli as being

for enterococci, and is correcting this

technical error in the footnotes in the

final rule. Second, EPA has 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

specify the 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 of the

1986 bacteria criteria document, which

does not specify the duration for

computing the geometric mean. The

1986 bacteria criteria document

discusses the duration over which the

mean is calculated in two places. The

first is in the discussion of the basis 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 of the criteria

(page 16) where EPA stated that

"[b]ased on a statistically sufficient

number of samples (generally not less

than 5 samples equally spaced over a

30-day period), the geometric

mean.* * *" EPA considers this

statement in the 1986 bacteria criteria

document to provide guidance on how

a regulatory agency could compute the

geometric mean, and not as a definition

of the specific period over which the

mean must be computed. For the

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 to the 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 season basis.

EPA is not specifying in the final rule

how the averaging period for the

geometric must be applied. EPA

recommends that the averaging period

be applied as a "rolling" or "running"

average. EPA expects that most States

will in fact apply the averaging period

as a rolling average; however, EPA also

recognizes that it would be technically

appropriate to apply the averaging

period on a set basis such as monthly

or recreation season. EPA therefore has

concluded that it is appropriate to allow

the States to exercise discretion in

deciding how to apply the averaging

period for the geometric mean.

3. Use of the Single Sample Maximum

EPA is promulgating the single

sample maximum values that it

proposed without change, but is

clarifying its expectations with regard to

how these values could be used in the

context of beach notification and

closure decisions, and in the context of

the implementation of other 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 also use criteria in their

water quality standards for other

purposes under the Clean Water Act in

order to protect and improve water

quality. Other than 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

a more reliable measure, being less

subject to random variation, and more

directly linked to the underlying studies

on which the 1986 bacteria criteria were

based. Nevertheless, the single sample

maximum can play a role in identifying

potential pollution episodes, especially

in waters that are prone to short-term

spikes in bacteria concentrations, e.g.,

waters that may 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. (Note that additional

guidance on making water quality

standard attainment status

determinations may be found in EPA's

guidance to States on integrated

reporting of water quality for sections

303(d) and 305(b) purposes.)

EPA received considerable comment

on this topic. Some comments

addressed the issue of whether the

single sample maximum should be part

of the criteria that applies in all

applications, including beach closure,

waterbody assessment, Total Maximum

Daily Load establishment, and National

Pollutant Discharge Elimination System

permitting decisions, or instead was

only designed for beach notification and

closure decisions. Most commenters

expressed their interpretation of the

1986 bacteria criteria document as

discussing the single sample maximum

only in the context of making beach

decisions based on limited data. Several

of these commenters argue that the

geometric mean criterion was included

in the 1986 bacteria criteria document

for protection against acute

gastrointestinal illness in other contexts,

and that the single sample maximum

was included as a tool to implement the

criteria in beach monitoring situations,

and therefore, was not necessary to

provide protection in other contexts.

Other commenters asserted that the

single sample maximum should be used

for all Clean Water Act purposes.

EPA notes that the 1986 bacteria

criteria document clearly identifies the

single sample maximum values as part

of the criteria, in addition to the

geometric mean values. 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 Water Act applications,

such as establishing Total Maximum

Daily Loads or National Pollutant

Discharge Elimination System permit

limitations. EPA agrees that the single

sample maximum values in the criteria
Federal 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 of their broader

programs implementing the Clean Water

Act.

For beach monitoring and beach

notification and closure decisions,

beach managers frequently need to make

beach decisions based on one or very

few data points. Thus, having a trigger

level for a single sample value enables

beach managers to make an immediate

decision for the protection of public

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 a beach or

issue a beach advisory. Of the 2,823

beaches reporting information to EPA in

2002, 65% reported that pathogen levels

were monitored at least once per week

(EPA's Beach Watch Program: 2002

Swimming Season, EPA 823-F-03-007,

May 2003, http://www.epa.govl

waterscience/beaches/beachwatch2003-

newformat.pdf). This means that at 35%

of the beaches, 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 to be 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, it is not necessarily useful in

determining whether a beach is safe for

swimming on a particular day.

EPA's National Beach Guidance and

Required Performance Criteria 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, if there are reasons to doubt the

accuracy of the 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, it reflects the

actions that States and Territories will

be expected to take when a sample

shows an exceedance of the applicable

single sample maximum in today's rule.

(EPA notes that all 35 eligible coastal

States and Territories received grants in

2003, and most have received these

grants in 2004.) In other words, States

and Territories will use a single sample

maximum to trigger a notification 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 beach management authority,

although the National Beach Guidance

and Required Performance Criteria for

Grants requires the State or Territory to

provide a notification of the exceedance.

Using a single sample maximum is

especially important for beaches that are

infrequently monitored or prone to

short-term spikes in bacteria

concentrations, e.g., waters that may 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 if exceeded would trigger a

notification or closure action at the

beach.

Numerous commenters said that

application of the single sample

maximum values in the criteria as

never-to-be-surpassed limitations in

other contexts could lead to

consequences which were not

contemplated in the 1986 bacteria

criteria document, including, for

example, Total Maximum Daily Loads

and National Pollutant Discharge

Elimination System permit limitations

which might be 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 all implementation

applications under the Clean Water Act.

In developing the 1986 bacteria

criteria document, EPA derived single

sample maximums as upper percentiles

of the frequency distributions around

the geometric mean. The 1986 bacteria

criteria document recognizes that there

will be instances where the

concentration of bacteria 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 of time. For example, in

a waterbody with a 30-day average

concentration exactly at the water

quality criterion, it can be expected that

approximately half of the samples

collected will have a concentration

above the criterion concentration (e.g.,

126/100 ml for E. coli), while the other

half of the samples will have lower

concentrations. Thus, that the value of

one sample is greater than the numerical

value of the geometric mean criterion, or

even the numerical value of the single

sample maximum, does not necessarily

indicate that the 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 of beach notification

decisions. For example, they may give

States and Territories 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 of the single

sample maximums as percentiles of a

distribution around the geometric mean,

using the single sample maximums as

values not to be surpassed for all Clean

Water Act applications, even when the

data set is large, could impart a level of

protection much more stringent than

intended by the 1986 bacteria 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 75th percentile of the

distribution of individual values around

the mean. If that single sample

maximum were used as a value-not-tobe-surpassed, it would become a

maximum value and all other values in

the statistical distribution of individual

measurements would have to be less

than the maximum. EPA typically uses

the 99th percentile of a distribution to

derive regulatory maximums. Assuming

a waterbody had the same standard

deviation in concentrations of bacteria

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% of the time

would be 2/100 ml. This would be far

more stringent than the level of

protection provided by the actual

geometric mean criterion for enterococci

of 35/100 ml. Therefore, EPA intends

that States and Territories should retain

the discretion to use single sample

maximum values as they deem

appropriate in the context of Clean

Water Act implementation programs

other than beach 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 of Clean 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 for bacteria 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

effluent variability. See Section 5.4.4 of

EPA's Technical Support Document for

Water Quality-based Toxics Control

(EPA-505-2-90-001, March 1991).

(These procedures are based on

statistical methodologies similar to

those employed in deriving the single

sample maximums in the 1986 water

quality criteria for bacteria.) EPA's

recommendation that the single sample

maximum values in the 1986 bacteria

criteria document should be used

primarily for making beach notification

and closure decisions does not constrain

States' use of maximum daily permit

limits in accordance with current State

permitting procedures.

EPA received a few comments about

the specific use of single sample

maximums in making waterbody

assessment decisions, for example, in

the development of Clean Water Act

section 305(b) reports or developing

section 303(d) lists. One commenter

stated that the single sample maximum

should not be used solely as the means

for deciding if a waterbody was

impaired. Another commenter stated

that one sample should not be used to

characterize a waterbody. Yet another

commenter suggested that the single

sample maximum only be used when

there were insufficient data to compute

a geometric mean.

In general, EPA agrees with these

comments. As discussed above, EPA

recognizes the utility of single 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 it is far preferable 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 of Use Categories of Coastal

Recreation Waters

EPA is promulgating the same

intensity of use categories of coastal

recreation waters as in the proposal,

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 of coastal 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

of the 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 of use for primary contact

recreation.

EPA does not have sufficient

information regarding frequency of use

of each specific coastal recreation water

covered by this rule to list all those

waters in the rule according to the four

categories defined in 40 CFR 131.41(b).

Therefore, EPA does not list individual

coastal recreation waters by intensity of

use category. EPA recommends that

States and Territories evaluate existing

use information and identify which

individual coastal recreation waters

belong to each category and make 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 a source of

information for determining frequency

in categorizing a coastal recreation

water for purposes of determining the

applicable single sample maximum.

Today's rule does not require that

States and Territories apply the

definitions at 40 CFR 131.41(b) such

that the State or Territory finds at least

one water for each of the four categories

of waters. A State or Territory could, at

its discretion, apply the single sample

maximum for designated bathing

beaches (the lowest single sample

maximum) to all its coastal recreation

waters because this approach would be

more protective of human health than

the structure for single sample

maximums in 40 CFR 131.41(b) and (c).

Thus, a State or Territory that had

commented that it preferred that EPA

promulgate only one category of waters

could exercise its discretion and apply

the single sample maximum for

designated bathing beaches to all of its

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, if the recreational usage of the

waters matches the definitions at 40

CFR 131.41(b). This approach would be

appropriate if the State or Territory

determined that the "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 rule must be used to

determine which single sample

maximum would apply to a particular

coastal recreation water.

A number of comments requested that

EPA promulgate 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, and provide the same

level (and highest level) of protection to

all users of coastal recreation waters, no

matter what the use intensity of that

particular water might be.

EPA declines to take this approach in

today's rule. EPA acknowledges the

reasons expressed in the comments.

However, EPA believes this would be

more restrictive than necessary to

ensure that the promulgated water

quality criteria are as protective of

human health as the 1986 bacteria

criteria document, which provides

single sample maximums for four

categories of waters. Thus, such an

approach would unnecessarily restrict

the flexibility of States and Territories 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 on what

criteria apply to protect a designated use

subject to the State or Territory
Federal Register/Vol. 69, No. 220/Tuesday, November 16, 2004/Rules and Regulations

providing information to show that the

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 of identical

standards in the States and Territories

covered by this rule to outweigh the

negative effects of unnecessarily

constraining the flexibility that the

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 of Use Intensity

In today's final rule, as in the

proposal, single sample maximums

apply to categories of waters based on

intensity of use. These categories are

based on intrastate comparisons of

frequency of use (i.e., relative to the

other waters within that State or

Territory). Using this approach, a State

or Territory will identify its designated

bathing beach waters first and then

evaluate all other waters in comparison

to those waters. However, today's rule

does not require that a State or Territory

use all four categories of intensity of

use. Rather, EPA expects that States and

Territories will first identify portions of

waters as designated bathing beaches

based on the factors listed in 40 CFR

131.41(b)(2) and then categorize the

remaining waters based on their

intensity of use relative to those

beaches. In interpreting the phrase

"heavily used," EPA expects States will

make reasonable judgments about the

level of use at a given beach. EPA does

not intend that States should exclude

heavily used waters from the designated

bathing beach category merely because

they can identify other beaches, either

within the State or in other States, that

are more heavily used.

While several commenters supported

intrastate comparison of intensity of

use, others suggested using an interstate

comparison of intensity of use because

beach use varies significantly across

States and Territories. While EPA

recognizes that beach 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 used beaches 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 of use of their own beaches,

independent of beaches in the rest of the

nation, and assign the beaches 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 of beaches that

must be placed in the designated

bathing beach category. Rather, States

should identify those beaches, if any, in

the State which satisfy the criteria for

this category and then assign the

remaining waters to one or more of the

lower intensity of use categories as

appropriate. Intrastate comparison of

use will allow States and Territories the

flexibility to provide the level of

protection that is appropriate to visitors

to beaches with different intensities of

use.

In today's rule, EPA is also making a

minor change to this aspect of the

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 of use within the State,

which is consistent with the above

discussion.

6. State Calculation of Site-Specific

Single Sample Maximums

EPA is promulgating, as proposed,

default single sample maximums based

on the 75, 82, 90, and 95% confidence

levels, along with the equation to

calculate site-specific single sample

maximums. EPA calculated the values

for the single sample maximums in

tables 2 and 3 using the standard

deviations observed during the EPA

epidemiological studies. The Agency

recognizes that standard deviations

observed in EPA's epidemiological

studies may not coincide with that for

a particular 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 the proposed rule (69 FR

41727), today's rule requires that the

States and Territories collect at least 30

samples in a single recreation season

(see 40 CFR 131.41(c)(3)). If this

requirement is met, the State or

Territory may use the resulting sitespecific standard deviation to calculate

a corresponding single sample

maximum.

EPA considers that the calculation of

site-specific single sample maximums as

specified in 40 CFR 131.41(c)(3)

provides enough detail on the

calculation that States and Territories

can implement the provision of the rule

without needing to adopt it 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 of 40

CFR 131.41(c)(3).

All commenters that addressed this

issue supported EPA's proposal to

require 30 samples to derive a sitespecific standard deviation; however,

one commenter stated that States and

Territories should be allowed to collect

the samples over two recreation seasons

if there were not significant differences

in bacteria 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 season is

necessary in order to capture the

variability inherent in bacteria

concentrations at a site over the period

of a 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 of the single

sample maximum such that it may not

be as protective of human 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 of bacteria. 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 of bacteria. The footnotes state:

"These values apply to [E. coli 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."

Specifically, States and Territories must

apply the E. coli and enterococci criteria

to all coastal recreation waters. If,

however, sanitary surveys and

epidemiological studies show the

sources of the indicator bacteria to be

non-human and the indicator densities

do not indicate a human health risk,

then it is reasonable for the State or

Territory to not consider those sources

of fecal contamination in determining

whether the standard is being attained.

This is the approach taken in the 1986

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bacteria criteria document. It would be

reasonable for a State or Territory to use

existing epidemiological studies rather

than conduct new or independent

epidemiological studies for every

waterbody if it is scientifically

appropriate to do so.

EPA also anticipates that a State or

Territory that has conducted a sanitary

survey and an epidemiological study to

show that the sources of the indicator

bacteria in a waterbody are non-human

and that the indicator densities do not

indicate a health risk to those 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 is promulgating this approach

because Clean Water Act section

303(i)(2)(A) requires EPA to propose

criteria which are "as protective of

human health as" EPA's 1986 bacteria

criteria in cases where 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 half of the commenters

addressed some or all of the 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 of the indicator bacteria to be

non-human and that the indicator

densities are not indicative of a human

health risk. This is the approach taken

in the 1986 bacteria criteria document.

Some commenters expressed a

preference for not allowing any

exclusion of non-human sources from

the criteria. They emphasized the

significance of the human health risk

associated with any type of fecal

contamination and asserted that this

approach would be most protective of

human health. EPA does not agree that

this approach is necessary for States to

adopt if an epidemiological study

demonstrates that non-human sources

do not pose a risk to human health at

a given waterbody.

Several commenters supported a nonhuman source exclusion based on

sanitary surveys only. In general, these

commenters expressed concern about

the cost of epidemiological studies,

especially in areas where evidence of

human fecal contamination was absent.

EPA has found the scientific

understanding of the 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 of fecal

contamination. Given the potential

human health risk from non-human

sources of fecal contamination, EPA

concludes that this option would not be

as protective of human health as the

1986 bacteria criteria.

Some commenters supported

exclusion of bacteria from wildlife

sources from the criteria because

wildlife sources may pose less of a risk

to human health than human sources or

domestic animal and livestock sources.

Other commenters raised issues with

the reliability of current bacteria source

tracking methods that may be needed to

support this exclusion. EPA finds the

scientific understanding of the human

health risks associated with wildlife

sources of fecal 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 of needed research: research

on bacterial source tracking methods to

better distinguish between different

types of bacteria contamination and

research on the health risks associated

with different types of non-human fecal

contamination. EPA expects to conduct

research in these areas as time and

resources allow. EPA also encourages

others to continue to conduct research

in these areas.

C. Applicability of Today's Rule

1. Applies in Addition to Any State/

Territorial Criteria

EPA is promulgating the rule as

proposed with respect to the interaction

of today's criteria with existing State

and Territorial water quality criteria.

Under today's rule, the promulgated

criteria do not replace existing bacteria

criteria for coastal recreation waters

already adopted by States and

Territories (and for those adopted after

May 30, 2000, approved by EPA).

Rather, today's promulgated criteria

apply for Clean Water Act 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 and Territorial standards

(which generally still use fecal coliform)

and the new standards for either E. coli

or enterococci. States and Territories

may also continue to use existing

criteria for fecal coliform to supplement

the new indicators for the purposes of

waterbody assessment and other

purposes where ambient data are

needed. The dual sets of bacteria criteria

also will enable regulatory decisions

and actions to continue while collecting

data for the newly adopted E. coli or

enterococci criteria. For States and

Territories included in today's rule, EPA

expects that States and Territories will

be actively collecting data on E. 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 Water Act section 305(b), and

Clean Water Act section 303(d)

programs. As they accomplish this,

States and Territories may phase out

their use of fecal coliform as a

supplemental indicator to protect

primary contact recreation. While EPA

cannot remove or revise existing State or

Territorial standards, EPA believes that

it would not be an efficient use of

resources for States and Territories to

base Clean Water Act actions related to

protection of primary contact recreation

on both fecal coliform and the new,

preferred indicators. However, if States

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 if EPA then

determines that the State standards are

at least as protective as the criteria in

today's rule, EPA will withdraw the

Federal criteria for that State. (See

section V.C.) States and Territories are

encouraged to expeditiously revise their

water quality standards to remove fecal

coliform criteria as an indicator for

primary contact recreation where it has

been replaced by the new indicators in

their implementation of the Clean Water

Act. Today's rule also provides in 40

CFR 131.41(d)(1) that new EPAapproved 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 as being as

protective of human health as EPA's

1986 bacteria criteria, the EPA-approved

bacteria criteria in State or Territorial

water quality standards would become

effective for Clean Water Act purposes

and EPA'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 of State/Territorial General Rules

of Applicability

Today's rule, like the proposal, makes

today's criteria subject to States' and

Territories' general rules of applicability

in the same way and to the same extent

as are other Federally-adopted or Stateadopted numeric criteria. EPA received

a few comments on this topic and these

generally pertained to mixing zones.

One commenter suggested that the final

rule prohibit the use of mixing zones to

comply with today's criteria. The

commenter said that the use of mixing

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 of exposure 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 Water Quality

Standards Handbook: Second Edition

(EPA-823-B-94-005a, August 1994) as

well as EPA's Technical Support

Document for Water Quality Based

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 of mixing zones depending on

the potential effects to human health

and the environment. As a result, EPA

is not prohibiting the application of

mixing zones in the final rule in cases

where they would be allowed under

existing State and Territorial programs.

D. Compliance Schedules

Where a State or Territory does not

have a regulation that is in effect for

Clean Water Act purposes authorizing

compliance schedules for water qualitybased effluent limits, EPA proposed to

authorize, but not require, the permit

issuing authority to include compliance

schedules in permits under appropriate

circumstances. EPA also proposed that

if a 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 not be

affected by the final rule. Because EPA

recognizes that a State or Territory

without a regulation authorizing

compliance schedules may not want

such a regulation, in the preamble to the

proposed rule, EPA asked such States to

notify EPA prior to promulgation. No

State or Territory notified EPA that it

does not want the ability to use the

compliance schedule provision in

today's rule. Therefore, EPA is 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 of the allowance for compliance

schedules. One commenter requested

that EPA remove 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 on the

criterion. EPA disagrees that it 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 it will

be infeasible to immediately achieve the

new limitation, but it does not require

them to do so. The permitting authority

also has the discretion to suggest the

need for compliance schedules as part

of the permit even if the permittee does

not initiate a request for one.

One commenter supported the

definition of a new pathogen discharger.

Another commenter requested

clarification that the definition does not

apply to relocated combined sewer

overflow outfalls. EPA agrees that the

definition does not apply to relocated

combined sewer overflow outfalls. The

rule at 40 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 or reduce

pathogen loads to the extent anticipated

for a new pathogen discharger. EPA's

Combined Sewer Overflow Control

Policy, published on April 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 text to

the definition of a "new pathogen

discharger" in 40 CFR 131.41(b)(6) to

provide expressly that "[i]t does not

include relocation of existing combined

sewer overflow outfalls."

Many commenters addressed the

length of the compliance schedule.

Some commenters supported capping

the length of the compliance schedule at

five years, while one commenter

suggested that three years should be

sufficient. Other commenters suggested

that compliance schedules longer than

five years may be necessary, or that the

rule should not specify the length of a

compliance schedule, but rather allow

the permitting authority to exercise

discretion in determining how much

time is necessary for each discharger.

Finally, several commenters noted that

combined sewer overflow systems may

need compliance schedules longer than

five years, and that the compliance

schedule provision of the rule should be

consistent with EPA's Combined Sewer

Overflow Control Policy and the

requirements of Clean Water Act section

402(q).

EPA has determined that five years is

a reasonable limit on the length of a

compliance schedule within a National

Pollutant Discharge Elimination System

permit. EPA expects that most

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, EPA believes that

experiences from facilities with bacteria

effluent limits that are currently meeting

the E. coli and enterococci criteria, as

well as the current fecal coliform

criteria, suggest that disinfection

processes can be upgraded or adjusted

to produce the levels of bacteria

necessary for compliance with the rule.

EPA has used five years for compliance

schedules where permittees were

expected to design, construct, and

operate new treatment processes, and

not just optimize their current

treatment. (See 40 CFR 131.38(e)(6) and

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67230 Federal Register/Vol. 69, No. 220/Tuesday, November 16, 2004/Rules and Regulations

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 Policy published on April 11,

1994 (59 FR 18688). EPA's Combined

Sewer Overflow Control Policy

recommends that permittees develop a

construction and financing schedule for

implementation of combined 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 itself does not require

compliance schedules in water quality

standards (or otherwise constrain the

authority of water quality standard

setting agencies). Finally, the Combined

Sewer Overflow Control Policy

recommends, in cases where water

quality standards do not allow

compliance schedules and the permittee

cannot, on the effective date of the

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 of the Clean Water Act. In

these situations, the permitting

authority can provide sufficient time for

the combined sewer overflow system to

comply by using the enforceable

mechanisms identified in the Combined

Sewer Overflow Control Policy.

Finally, in today's final rule, EPA is

making two corrections to the proposed

rule at 40 CFR 131.41(f)(3)-(4) to refer

to paragraph (c) as the paragraph

containing the water quality criteria for

bacteria.

V. EPA Review of State and Territorial

Standards

A. How Did EPA Decide Which States

and Territories To Include in Today's

Rule?

EPA evaluated the water quality

standards for bacteria for all 35 coastal

States and Territories with coastal

recreation waters to determine whether

the water quality standards for such

waters are as protective of human health

as the 1986 bacteria criteria document,

as required by Clean Water Act section

303(i)(1)(A). If a State's or Territory's

approved water quality standards for

bacteria for coastal recreation waters are

as protective of human health as the

1986 bacteria criteria as of the signature

date of today's rule, EPA is not

including the State or Territory 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 and Territorial 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 of E. coli and

enterococci as pathogen indicators for

freshwaters and enterococci for marine

waters?

As discussed in section IV.B.1 of the

preamble to today's rule, EPA is

promulgating water quality criteria for

E. coli and enterococci for use as

standards for State and Territorial

coastal and Great Lakes recreation

waters. These are the indicator bacteria

for which EPA published criteria in the

1986 bacteria criteria document.

EPA received a number of comments

asserting that a fecal coliform water

quality criterion of 14/100 ml for the

protection of a shellfishing use should

generally be as protective of human

health as the enterococci criterion of 35/

100 ml. Some of these commenters

referenced the statement in the 1986

bacteria criteria document that EPA

selected the value of the enterococci

criterion to be no more protective of

human health than the then current

fecal coliform criterion of 200/100 ml

for recreation protection in support of

their argument that if there is equal

protection between the 1986 bacteria

criteria and a fecal coliform value of

200/100 ml, then a fecal coliform value

of 14/100 ml should be even more

protective of human health than an

enterococci value of 35/100 ml for

marine waters. EPA disagrees that this

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.)

EPA used these estimated illness rates

for one purpose: to select illness rates

for the enterococci and E. coli criteria in

marine and fresh waters that would be

least likely to cause a change in the

stringency of the water quality

standards for bacteria. However, that

discussion in the 1986 bacteria criteria

document must be considered along

with the purpose of the 1986 bacteria

criteria document: to recommend that

States replace their fecal coliform

criteria for recreation with enterococci

or E. coli criteria because studies

showed low correlation between fecal

coliform densities and illness rates. In

EPA's view, it would not be reasonable

to rely on the equivocal discussion

regarding the after-the-fact

approximation of an illness rate for fecal

coliform in light of the unequivocal

conclusion of the entire document: That

the fecal coliform criteria for recreation

is not a reliable indicator of illness to

swimmers.

One commenter, the Washington

Department of Ecology, supplied EPA

with recently-collected ambient water

monitoring data for both fecal coliform

and enterococci, and stated that the data

for enterococci and fecal 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

(a level substantially below the 200/100

ml level that EPA recommended prior to

1986), the enterococci concentrations

were almost always at 35/100 ml or less.

The State currently has a fecal coliform

criterion of 14/100 ml as a geometric

mean and 43/100 ml as a value not to

be exceeded more than 10% of the time

for its Class AA and A waters, which for

marine waters are the only classes with

primary recreation uses. The data

submitted to EPA are from 37 locations

in the King County area of the Puget

Sound for the years 1995 through 2004,

155 locations in the Kitsap County area

of the Puget Sound and its embayments

for early 1997, and 36 locations across

the Puget Sound, Strait of Juan de Fuca,

and two Pacific Ocean embayments

from November 2000 through July 2001.
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EPA reviewed the data provided by

the Washington Department of Ecology.

EPA analyzed the data that were

collected from stations located close to

shore and within the upper two meters

of depth, because these are the areas

where people most frequently swim.

EPA also excluded data that the State

identified as invalid. From these data,

there are 3535 samples with both 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

other locations because there were

insufficient data in these data sets to do

SO.

These geometric mean calculations

show that, for King County, the

attainment of the State's current fecal

coliform geometric mean criterion of 14/

100 ml always assures attainment of an

enterococci geometric mean of 35/100

ml. Further, there were 67 of 191

relevant occasions (35% of the 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 of the

enterococci 75th percentile single

sample maximum criterion (04/100 ml)

in 99% of the samples collected at all

locations in Washington. Of 2194

relevant data points, the State's upper

bound fecal coliform criterion of 43/100

ml assures attainment of the Federal

enterococci 75th percentile single

sample maximum criterion on 2166

occasions. Finally, there were 570 of

2736 relevant occasions (21% of the

samples) when use of the State's fecal

coliform criterion could be used to close

a beach or issue an advisory but the

Federal enterococci criterion (expressed

as a single sample maximum) would not

support closure or an advisory. Based

on this analysis, EPA agrees that the

data provided by the State of

Washington for the Puget Sound, Strait

of Juan de Fuca, and the Pacific Ocean

embayments shows that use of the

State's 14/100 ml fecal coliform

criterion is as protective of human

health as the 1986 bacteria criteria for

the State of Washington.

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.

coli or enterococci to comply with the

provisions of that section. Section

303(i)(1)(A) requires that States and

Territories submit criteria "* * * for

the pathogens and pathogen indicators

for which the Administrator has

published criteria under section 304(a)."

EPA's Ambient Water Quality Criteria

for Bacteria-1 986 is considered to be

the Clean Water Act section 304(a)

criteria referred to in Clean Water Act

section 303(i)(1)(A). The Ambient Water

Quality Criteria for Bacteria-1 986

strongly recommended the use of E. coli

and enterococci as pathogen indicators

for fresh waters and strongly

recommended enterococci for marine

waters.

Clean Water Act 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 are as

protective of human health as the

criteria for pathogens and pathogen

indicators for coastal recreation waters

published by the Administrator * * *

(emphasis added). EPA solicited

comment on whether section

303(i)(2)(A) could be read to require that

EPA need only promulgate for a State or

Territory if the State or Territory failed

to adopt any criteria (not necessarily E.

coli or enterococci) that were as

protective of human health as EPA's

1986 bacteria criteria. In other words,

EPA solicited comment on whether it

was required to promulgate E. coli or

enterococci under section 303(i)(2)(A) in

situations where a State or Territory

adopted a low fecal coliform criterion

for protection of primary contact

recreation that was demonstrated to

provide protection equal to the

protection provided by EPA's 1986

bacteria criteria. EPA has reconsidered

its interpretation and believes that there

is some ambiguity in section

303(i)(2)(A) and that given this

ambiguity that it should interpret

section 303(i)(2)(A) as allowing EPA to

approve standards based on other

indicators provided they are as

protective as EPA's 1986 bacteria

criteria because this approach is most

consistent with the purposes of the

Clean Water Act. Thus, EPA is taking

the position that EPA is not required to

promulgate E. coli or enterococci criteria

if a State demonstrates that other

criteria, based on other bacteria

indicators, are as protective of human

health as EPA's 1986 bacteria criteria.

That is, if a State or Territory adopts

criteria, even though they are not for E.

coli or enterococci, that are

demonstrated to be as protective of

human health as EPA's 1986 bacteria

criteria, section 303(i)(2)(A) does not

require EPA to promulgate criteria for E.

coli or enterococci. Promulgation of

criteria for E. coli or enterococci in that

situation would not provide any greater

level of public health protection.

Protection of public health was

Congress's primary intent in enacting

the BEACH Act. Therefore, if a State or

Territory can show that in waters in

which the State or Territory intends to

protect primary contact recreation uses

with its criteria for fecal coliform, that

such uses will be protected at a level

equal to or greater than the protection

provided by EPA's 1986 bacteria criteria

for enterococci and E. coli, EPA does not

believe Congress intended EPA to

promulgate water quality criteria for

pathogens or pathogen indicators for

those waters in that State or Territory

where this has been demonstrated. The

facts presented by the Washington

Department of Ecology highlight the

reasonableness of this interpretation.

In addition, EPA considers it to be an

appropriate exercise of Federal

discretion to take this approach with

Washington State. Congress intended

through Clean Water Act 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 of their waters.

Congress maintained this same

approach in Clean Water Act section

303(i) by giving States the responsibility

to adopt water quality standards for

protecting human health, with EPA's

role being to promulgate standards for

those States that had not adopted

standards as protective of human health

as the 1986 bacteria criteria. This

interpretation is supported by the

legislative history of Clean Water Act

section 303(i). For example, S. Rep. No.

106-366 states in the section-by-section

analysis of the Act:

These provisions are consistent with the

applicable requirements of the Clean Water

Act and specifically section 303(c) and the

regulations implementing that section. States

must incorporate into their water quality

standards, water quality criteria for

pathogens and pathogen indicators that are at

least as protective of human health as criteria

EPA publishes under section 304(a). The

State's criteria may be as protective as those

of EPA without being numerically

equivalent. However, if a State adopts criteria

differing from those published by EPA, the

State has a duty to defend the criteria from

a scientific perspective. EPA's approval or disapproval of the criteria is based upon the

information provided by the State. (S. Rep.

No. 106-366, at 4 (2000)).

EPA believes that this language

demonstrates Congress's intent that

section 303(i) be interpreted within the

broader context of section 303, and that

section 303(i) not be interpreted to

preclude a State's adopting alternative

criteria from those published by EPA

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67232 Federal Register/Vol. 69, No. 220/Tuesday, November 16, 2004/Rules and Regulations

under section 304(a), provided that the

State demonstrates (and EPA agrees)

that the alternative criteria are as

protective of human 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 that the legal

standard for determining when a State water

quality standard is consistent with the

applicable requirements of the Clean Water

Act be governed by the existing requirements

of section 303(c) of the Clean Water Act, and

the regulations implementing that section.

This standard has been interpreted to mean

that State water quality criteria must be at

least as protective of human health as EPA's

water quality criteria. Thus, a State must

incorporate into its water quality standards

water quality criteria for pathogens and

pathogen indicators that are at least as protective as criteria that EPA has published

under section 304(a), including EPA's 1986

criteria for enterococcus and Escherichia coli.

(H. Rep. No. 106-98, at 8 (1999)).

Here again, EPA believes Congress is

clarifying its intent that State criteria to

be approvable under section 303(i),

must be at least as protective as EPA's

1986 bacteria criteria, but not

necessarily the same as the 1986

criteria.

With respect to the State of

Washington, EPA looked 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 of its triennial

review of water quality standards. The

State undertook a multi-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 of the State's bacteria

criteria, and documented the technical

and policy issues evaluated by the

work-group and its predecessor (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 the Washington

Department of Ecology. The State held

a formal 60-day public review and

comment period on proposed revisions

to its water quality standards (including

adoption of EPA's recommended

enterococci criteria for Class AA and

Class A marine waters), and as part of

the public notification process, directly

mailed out approximately 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 to its standards at

locations across the State. Finally, the

State made all documents available to

the public at its Web site at http://www.

ecy.wa.gov/programs/wq/swqs/

supporting-docs/supporting-docs.htm].

Based on the input from the various

stakeholders in the State and the paired

monitoring data for fecal coliform and

enterococci, the State concluded that its

fecal coliform criteria for marine waters

is protective of the recreation use in

these waters, and also is at least as

protective of human 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 a Northern Pacific Ocean shellfish

group on EPA's proposed rule. Given

this conclusion, the State and some

stakeholders were concerned that the

State adoption of the enterococci

standard and the attendant new

monitoring that this would entail would

limit the State's ability to monitor as

comprehensively for fecal coliform as it

does currently and thus provide the

maximum assurance that its waters are

meeting its protective 14/100 ml fecal

coliform standard. However, this rule

does not require monitoring.

As discussed previously in this

preamble, EPA reviewed the State's data

and determined that it shows that the

State's fecal coliform criterion is as

protective as the 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 a full and open public

process and is ensuring protection of

human health in the coastal recreation

waters of Washington.

EPA considers its analysis of the data

provided by the State of Washington to

only be relevant to the State's waters.

EPA does not agree that the Washington

data show that use of a fecal coliform

criterion of 4/100 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 of the Washington State

waters may differ from waters of other

States. The relationship between fecal

coliform and enterococci in the data

provided by the Washington

Department of Ecology is an empirical

relationship, and reflects the conditions

of the water from which the samples

were collected. EPA cannot determine

without water-specific data the extent to

which the Washington State waters

where the samples were collected are

representative of other waters in other

parts of the 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 of the

waters. Further, as noted above, the

legislative history indicates that any

State wishing to adopt criteria other

than those 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 of human health

as EPA's 1986 bacteria criteria.

No other comments received by EPA

included the type and amount of

information that EPA views as necessary

to demonstrate that fecal coliform

criteria (or any other pathogen

indicator) in any other State or Territory

are as protective of human health as the

1986 bacteria criteria. However, if

following promulgation of this rule,

some other State or Territory provides

data to EPA sufficient to make this

demonstration, EPA will approve such

other criteria as meeting the

requirements of section 303(i) and

withdraw today's Federal criteria from

that State's coastal recreation waters.

EPA cautions, however, that given the

focus of the BEACH Act on the specific

indicators in EPA's 1986 bacteria

criteria document, there is a substantial

burden of proof for States wishing to

adopt criteria based on alternative

indicators. EPA believes that both the

process and quantity of information and

data provided by Washington State in

making this 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

That Links Them Quantitatively to an

Acceptable Risk Level Under Clean

Water Act Section 303(i)?

As discussed in section IV.B.2 of the

preamble to today's rule, EPA is

promulgating water quality criteria that

correspond to an illness rate of 0.8% 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 of human health as these

criteria, EPA considered an illness rate

of 1.0% of swimmers to be as protective

as the 1986 bacteria criteria in

determining whether to include a State

or Territory in the rule. EPA explained
Federal 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

of human health if the risk level of the

criteria was above 1.0%.

Some commenters addressed this

topic. Of these, a majority agreed with

EPA that a 1.0% illness rate in

swimmers in freshwater is as protective

of human health as the 1986 bacteria

criteria for different reasons. One

commenter said that a 1.0% illness rate

would result in only a small increase in

risk of illness and that would still be

below the risk of illness 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 if EPA 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 peer review of

EPA's analysis of the epidemiological

data from EPA's bacteriological studies

on which the 1986 bacteria criteria

document is based.

Of the commenters who did not agree

that the 1.0% illness rate was as

protective of human health of the 1986

bacteria criteria, most argued that there

is no logical reason to allow for different

acceptable illness rates in marine and

freshwater. One commenter said that the

increase from 0.8% to 1.0% in

freshwater would increase the incidence

of gastrointestinal illness by 25%. Three

commenters believed that the illness

rate for freshwater should be 0.8%,

while one commenter felt that EPA

should promulgate additional geometric

mean and single sample maximum

values relative to other risk levels. EPA

disagrees that it should only consider an

illness rate of 0.8% to be as protective

of human health as the 1986 bacteria

criteria document. As explained in the

proposal, EPA does not see any a priori

reason to require a greater level of

protection for freshwaters than for

marine waters, which account for the

vast majority of swimming days in

coastal recreation waters subject to

section 303(i) of the Clean Water Act.

See the proposed rule (69 FR 41724) for

further discussion of EPA'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 of the preamble to today's rule,

EPA is promulgating water quality

criteria that include separate single

sample maximums for four categories of

waters based on intensity of use, which

allows the State or Territory to assign

waters to the four use intensity

categories. In determining whether

existing State or Territorial water

quality standards for coastal recreation

waters are as protective of human health

as EPA's 1986 bacteria criteria, EPA

determined whether the water quality

standards include a single sample

maximum for all coastal recreation

waters and if designated bathing

beaches have a single sample maximum

based on at least the 75% confidence

level. EPA considers this approach to be

as protective 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 a single sample

maximum and that for designated

bathing beaches does not have a single

sample maximum based on at least the

75% confidence level. EPA does not

expect a State or Territory to use all four

of the use categories identified in the

criteria document for its standards to be

at least as protective as the 1986 bacteria

criteria. For example, a State that

applied the 75% confidence based

maximum to all waters would clearly be

as protective as the 1986 bacteria

criteria, even though it would only have

a single use category.

Most commenters agreed with this

approach. Those that disagreed with it

commented that the single sample

maximum should not be a part of the

water quality criteria but rather

available for use as an implementation

tool for monitoring at beaches. EPA

addressed these comments in sections

IV.B.3 and IV.B.4 of today's preamble.

EPA notes that all of the 35 coastal

and Great Lakes States and Territories

have identified coastal recreation waters

where there are beaches or similar

points of access (National List of

Beaches, EPA-823-R-04-004, 69 FR

24597, May 4, 2004). Also, all 35 of

these States and Territories have

received Clean Water Act section 406

grants since 2002 for monitoring and

notification of beach 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 of use within the State) and

may have: a lifeguard, bathhouse

facilities, or public parking for beach

access") and that the other use

categories apply to lower use waters

accordingly. Based on the applications

for Clean Water Act section 406 grants,

EPA expects that many coastal and

Great Lakes States will have at least

some beaches in the higher use

categories.

4. Do the Standards Exempt Fecal

Contamination From Non-Human

Sources?

For the reasons discussed in section

IV.B.7 of the preamble to today's rule,

EPA is 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. 7 of the

preamble to this rule.

5. Has EPA Approved the Standards?

Under section 303(i)(1)(A) of the

Clean Water Act, States and Territories

must adopt water quality standards as

protective of human 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

Water Act purposes. Therefore, EPA

must have approved State and

Territorial standards for enterococci or

E. coli adopted after May 30, 2000, as

consistent with Clean Water Act section

303(i) in order for EPA to exclude the

State or Territory from the final rule.

State and Territorial standards adopted

prior to May 30, 2000, that are

consistent with Clean Water Act section

303(i) are in effect for Clean Water Act

purposes even without explicit EPA

approval.

B. Which States and Territories Are

Included in Today's Rule?

The proposed rule contains a Stateby-State summary of the status of each

State or Territory (69 FR 41731-41735).

EPA did not include any Tribes in the

proposal because although there are

Federally-recognized Tribes located

next to either coastal or Great Lakes

waters, none of those Tribes have

coastal recreation waters as defined in

40 CFR 131.41(b)(1). (See 69 FR 41735.)

Today, EPA is promulgating a rule

that is identical with respect to the

water quality criteria values to what

EPA proposed. While there were some

changes in other provisions of the rule,

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67234 Federal Register/Vol. 69, No. 220/Tuesday, November 16, 2004/Rules and Regulations

none of these affected EPA's

determination with regard to specific

States. Therefore, EPA is not excluding

any other States from the final rule

based on changes in the provisions of

the final rule.

Table 4 contains a summary of the

status of each of the 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 of the proposed

rule, the State or Territory may have

adopted (and EPA approved) water

quality standards that are as protective

of human health as the 1986 bacteria

criteria; (2) the State's or Territory's

water quality standards may now be

viewed as being as protective of human

health in light of EPA's final decision

with respect to the application of the

single sample maximum in the final

rule; and (3) new information submitted

following publication of the proposal

may have caused EPA to reassess its

previous determination. During the

period between publication of the

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 to reassess its

determination as to whether the State's

fecal coliform criterion of 14/100 ml is

as protective of human health as the

1986 bacteria criteria. Below, EPA

describes the status of these States and

Territory and provides an update on the

status of several other States working to

adopt water quality standards, as

described in the preamble 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 Islands 1

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 of the Northern Mariana

Islands

The Attorney General for the

Commonwealth of the 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 ml for Class A

waters in the Commonwealth of the

Northern Mariana Islands. Along with

the bacteria standards that

Commonwealth of the Northern Mariana

Islands adopted and EPA approved in

1997, the revised standards will fully

satisfy the requirements of the Clean

Water Act. On October 28, 2004, EPA

approved the revised standards and the

Commonwealth of the Northern Mariana

Islands is not included in the rule.

Delaware

On September 17, 2004, Delaware

submitted to EPA newly adopted

criteria for all its coastal recreation

waters. The State's criteria specify a

geometric mean of 35/100 ml and a

single sample maximum of 104/100 ml

for enterococci for all primary contact

recreation marine waters. Delaware's

regulations also limit the application of

the criteria when the bacteria comes

from wildlife sources. The State has

submitted documentation to EPA in

support of its source tracking

methodology for bacteria, together with

epidemiological work on illness rates

from bacteria of wildlife origin. The

State uses the source information to

apply a factor to bacteria from wildlife

sources that accounts for illness risk

from such bacteria. EPA reviewed the

submitted criteria in accordance with

this rule and on November 4, 2004,

approved the specific numeric criteria

as meeting the requirements of both

sections 303(c) and 303(i) of the Clean

Water Act. EPA is discussing the State's

methodology for source tracking with

the State and is reviewing it to

determine whether it meets the

requirements of the Clean Water Act

and this rule. Until EPA approves this

limitation, for purposes of the Clean

Water Act, Delaware's bacteria criteria

for primary contact recreation apply to

enterococci bacteria regardless of the

source. As a result, Delaware is not

included in today's rule.

Hawaii

On September 21, 2004, Hawaii

adopted bacteria criteria for its coastal

estuaries, and a single sample maximum

for coastal waters within 300 meters

(1000 feet) of the shore. The criteria are

for enterococci and have a geometric

mean of 33/100 ml and a single sample

maximum of 89/100 ml in coastal

estuaries. These newly adopted criteria

also contain a single sample maximum

of 100/100 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 rule but only for the lack of criteria

in State waters beyond 300 meters from

shore.

Maryland

On July 5, 2004, Maryland adopted

new criteria for all its coastal recreation

waters. These criteria specify a

geometric mean of 35/100 ml

enterococci for all recreation waters and

at least 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 of the

State regulations. EPA and Maryland

have not concluded discussions of the

applicability of the State criteria.

Because Maryland does not yet have

approved criteria, EPA is including

Maryland in this rule. If EPA determines

that Maryland's standards comply with

Clean Water Act 303(i), they will

become immediately effective for Clean

Water Act purposes, as specified in 40

CFR 131.41(d)(1).

South Carolina

On June 25, 2004, South Carolina

adopted criteria for all of its coastal

recreation waters consistent with EPA's

1986 bacteria criteria. The criteria are

for enterococci and have a geometric

mean of 35/100 ml, a single sample
Federal 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 of the

enterococci criteria for permit effluent

limits until such time that EPA

publishes analytical methods for

enterococci in effluents. On October 7,

2004, EPA disapproved part of the

South Carolina standards and approved

the remainder of the standards that

pertain to pathogens and pathogen

indicators. EPA considers the approved

water quality standards to be as

protective of human health as EPA's

1986 bacteria criteria, and South

Carolina is not included in the rule.

Washington

The Washington Department of

Ecology submitted data consisting of

paired samples of fecal coliform and

enterococci measurements collected in

Puget Sound, the Strait of Juan de Fuca,

and the Pacific Ocean embayments. The

Department of Ecology considers this

information as sufficient to demonstrate

that use of the State's fecal coliform

criterion of 14/100 ml ensures that

enterococci concentrations are below

the 1986 bacteria criteria, and requested

that EPA consider the State's fecal

coliform criterion to be as protective of

human health as the 1986 bacteria

criteria. As discussed in section V.A.1 of

the preamble, EPA reviewed these data

and has determined that the Washington

fecal coliform criterion of 14/100 ml is

as protective of human health as the

1986 bacteria 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 the proposal (69 FR 41733),

EPA intended to exclude Maine's Class

SA waters from coverage under the rule;

however, EPA failed to list Maine's

Class SA waters as excluded in the

regulatory text of 40 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, at the time of proposal,

intended to adopt EPA's 1986 bacteria

criteria by September 30, 2004. These

were Illinois and the Virgin Islands.

However, neither Illinois nor the Virgin

Islands adopted the criteria and

received EPA approval as of the

signature of today's rule.

C. Under What Conditions Will States

and Territories Be Removed From

Today's Rule?

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, and the Federal criteria

for 40 CFR 131.41 will no longer apply.

EPA recognizes that once it approves

the water quality standards of the State

or Territory, the Code of Federal

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 of Federal 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 (and not the

Federal criteria at 40 CFR 131.41)

between the time EPA approves the

State standards and formal withdrawal

of the State or Territory from the rule.

A State or Territory may adopt and

submit partial 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. If a

State adopts and submits water quality

standards that meet all the requirements

discussed in today's rule but the

standards apply only to a portion of the

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 of the approved State and

Federal standards serve to meet the

requirements of Clean Water Act section

303(i). If a State adopts and submits

standards for all of its coastal recreation

waters but the standards do not satisfy

all of the considerations described in

today's rule as necessary for EPA to

make a determination that the State

standards are as protective of human

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 a geometric

mean for marine waters of 35/100 ml for

enterococci and not a single sample

maximum provision. This would not be

sufficient to satisfy section 303(i). EPA

anticipates that it would be

administratively unworkable to approve

State standards in piecemeal fashion

and to supplement piecemeal State

standards with components of today's

rule, as in the example of a State that

adopts a State geometric mean but must

still retain a Federal single sample

maximum for its coastal recreation

waters.

VI. Response to Additional Significant

Public Comments

EPA has prepared a Comment

Response Document, which addresses

the comments that EPA received and is

included in the docket for today's rule.

Below, EPA provides a summary of its

responses to four additional categories

of significant comments.

A. 1986 Bacteria Criteria

Some commenters raised concerns

about EPA's 1986 bacteria criteria. The

bulk of the comments questioned the

reliability of the studies on which EPA

based the criteria. Some remarked that

the studies evaluated in the criteria

document did not appropriately select

test sites because 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 of pollution (human); and no

control sites were 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 that the 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 on the lack of EPA

follow-up epidemiological studies since

1986.

EPA acknowledges these comments,

but notes that Clean Water Act section

303(i) requires States and Territories

with coastal recreation waters to adopt

water quality criteria for bacteria as

protective of human health as the

criteria published by EPA under Clean

Water Act section 304(a). Section 303(i)

was added to the Clean Water Act in

2000 by the BEACH Act. At the time the

BEACH Act was enacted, the current

Clean Water Act section 304(a) criteria

were EPA's 1986 bacteria criteria

because these are EPA's only currently

recommended bacteria criteria for

protection of primary contact recreation

waters. The legislative history makes it

clear that Congress recognized that

EPA's 1986 bacteria criteria have flaws,

but also that Congress wanted States to

adopt standards based on them by 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, at 6 (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 for bacteria and the

literature on human health research

conducted since EPA completed the

original studies of health effects

associated with swimming in marine

and freshwater, as discussed on pages

10-13 of the Implementation Guidance

for Ambient Water Quality Criteria 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 of human 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 of the

American Public Health Association.

EPA's Office of Research and

Development reviewed the freshwater

studies. The Harvard School of Public

Health evaluated the epidemiology test

protocol for both fresh and marine

studies, and the University of Pittsburgh

Center for Excellence provided an

independent review of the results of the

epidemiology studies. Finally, the 1986

bacteria criteria were reviewed by the

public when EPA published a Federal

Register notice concerning the criteria

(49 FR 21987, May 24, 1984).

While Congress directed in Clean

Water Act section 303(i) that, by April

9, 2004, States and Territories adopt

criteria as protective as EPA's current

criteria, Congress also recognized 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 of enactment of the BEACH Act]

new or revised water quality criteria for

pathogens and pathogen indicators

(including a revised list of testing

methods, as appropriate), based on the

results of the studies conducted * * *

for the purpose of protecting 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 of human health

as the 1986 bacteria criteria. EPA is

currently conducting epidemiological

studies on potential health risks

resulting from exposure to pathogens or

pathogen indicators in coastal recreation

waters, as required 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

as protective of human health as the

new criteria for coastal and Great Lakes

recreation waters, as required by Clean

Water Act section 303(i)(1)(B).

B. Economics

Some commenters noted that, if the

rule imposes single sample maximums

as "not-to-be-exceeded" values, the

geometric mean component of the

criteria would be significantly different

from the geometric mean values in most

State current fecal coliform bacteria

criteria for recreation. For fecal coliform

criteria to protect recreational uses,

most State criteria include a geometric

mean value and a threshold value not to

be exceeded in more than 10% of the

samples. Some commenters state that

there will be a substantial cost

difference to regulated entities if the

rule imposes single sample maximums

for E. coli or enterococci as "not-to-be

exceeded" values, noting that EPA's

economic analysis in the proposal does

not address the cost of controlling

discharges from combined sewer

overflows, sanitary sewer overflows,

and municipal separate storm sewer

systems to meet such single sample

maximums, and that EPA's cost

estimates for controlling these sources

in other regulatory 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 a waterbody may

exceed the geometric mean. The State

can collect additional data on a

receiving water if it believes that the

violation of the single sample maximum

does not indicate violation of the

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 meet permit limits based on

the single sample maximums as neverto-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 of the States covered

by the rule had adopted E. coli or

enterococci as the applicable water

quality standard whereas several of the

States in today's rule have water quality

standards for E. coli or enterococci

already in place for some of their coastal

recreation waters. This also led to a

higher estimate of cost than may

actually be incurred. EPA addresses

discharges of bacteria from municipal

separate storm sewers, combined sewer

overflows, sanitary sewer overflows,

and nonpoint sources (e.g., agriculture)

to coastal waters in existing regulations

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 a waterbody

are also the best management practices

or treatment controls used to address E.

coli and enterococci. Because of the

substantial variability in bacterial

indicators and the site-specific

effectiveness of control measures, EPA

is not able to determine at this time if

additional measures will ultimately be

necessary to meet criteria based on the

new indicators. Compliance with

pathogen standards is best achieved

through an adaptive management

approach based on cost-effective

management practices and control

measures coupled with on-going

monitoring and revision of control plans

as necessary.

C. Analytical Methods

EPA received a few comments on the

topic of analytical methods. One

commenter expressed concern that EPA

has not published EPA-approved

analytical methods for measuring

enterococci and E. coli in effluent. EPA

recognizes that it has not yet published

analytical methods for measuring

enterococci and E. coli in effluents. EPA

published its methods for measuring

enterococci and E. coli in ambient

waters on July 21, 2003, and is now in

the process of proposing methods for

measuring these pathogen indicators in

effluent. EPA has completed its interlaboratory study of method 1600 for

enterococci and method 1603 for E. coli

in secondary treated effluents, and has

determined that the variability found in

this study support publication of a

proposed method for effluents. EPA is

moving expeditiously to promulgate

these methods.

Three commenters noted that the

inter-laboratory study for enterococci

and E. coli methods discussed above did

not address pulp and paper effluents,
Federal Register/Vol. 69, No. 220/Tuesday, November 16, 2004/Rules and Regulations

and that these effluents are suspected of

containing E. coli and enterococci

independent of fecal matter. As a result,

the commenters suggest that EPA

complete validation studies of

enterococci and E. coli methods for pulp

and paper effluents before requiring

States to implement the criteria in

National Pollutant Discharge

Elimination System permits for pulp

and paper facilities. EPA disagrees that

it must complete additional validation

studies before States use the criteria for

permits. EPA has completed its interlaboratory validation for EPA Methods

1600 and 1603 for effluents, and is in

the process of proposing 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

other test procedures have been

specified in the permit. States

implementing the criteria in National

Pollutant Discharge Elimination System

permits may thus specify some other

analytical method that the permittee is

to use for compliance monitoring. Of

course, any such method must be

scientifically defensible, which usually

means that it has been tested and

verified by some other recognized

standard setting or method development

body. Permittees who believe that a

particular method is not appropriate or

reliable for their effluent may present

documentation of this concern to the

permitting authority for consideration in

determining compliance monitoring

requirements.

D. Effective Date

Section 553 of the 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 of 30

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 on this

issue. One commenter requested that

EPA delay promulgating the rule until

July 2005 and another commenter

suggested that EPA delay the effective

date for 90 days so that a State could

complete its own promulgation of water

quality standards based on the 1986

bacteria criteria. EPA disagrees that it

should allow more than 30 days because

this would delay the time at which

States and Territories will begin using

today's water quality criteria to govern

decisions about opening and closing

beaches and for other Clean Water Act

purposes. EPA understands the interest

of the commenters in having their State

standards serve as the effective

standards for Clean Water Act purposes.

If a State adopts, and EPA approves,

standards satisfying Clean Water Act

section 303(i) shortly after the effective

date of this 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

and Implementation 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 or Territories for coastal

recreation waters covered by this rule to

determine if the standards meet the

requirements of the Clean Water Act

and implementing regulations. In

adopting recreation uses, the States and

Territories may wish to consider

additional categories of recreation uses.

If States and Territories change the

designated use of a waterbody

consistent with Clean Water Act section

303(c) and the regulations at 40 CFR

Part 131, such that 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"

or this rule.

EPA reminds the States and

Territories that they must conduct use

attainability analyses as required 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) or with subcategories

of the designated uses specified in Clean

Water Act section 101(a)(2) that require

less stringent criteria (see 40 CFR

131.10(j)), than those currently in effect.

VIII. Economic Analysis

These water quality standards may

serve as a basis for development of

National Pollutant Discharge

Elimination System permit limits. Many

of the 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 found in 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 of affected

facilities may include industrial

facilities and publicly owned treatment

works (POTWs) discharging sanitary

wastewater to surface waters (i.e., point

sources). In addition, EPA addresses

discharges of bacteria 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 of the

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 if discharges are controlled

in such a way that fecal coliform criteria

are met, it is likely that enterococci and

E. coli criteria would also be met, and

there would not be an increase in

impaired waters, resulting in 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 of this rule to

Concentrated Animal Feeding

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67238 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

a result of today'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 of the

rule.

EPA recognizes that a State or

Territory may decide to require controls

for nonpoint sources (e.g., agricultural

runoff). However, it is difficult to model

and evaluate the potential costs impacts

of this rule to those 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

drought conditions. Also, data on

instream and discharge levels of bacteria

after States have implemented controls

to meet current water quality standards

based on fecal coliform are not

available. Therefore, trying to determine

which sources would not achieve

standards based on E. coli or enterococci

after complying with existing

regulations and policies may not be

possible, and would be extremely time

and resource intensive. Finally, it is

likely that controls needed to meet

existing criteria (assumed for the

purpose of costing to be fecal coliform

for all States covered by the rule) would

also address water quality problems

indicated by criteria for E. coli or

enterococci.

A. Identifying Affected Facilities

EPA identified approximately 734

point source facilities that may be

affected by the rule. Of these 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 if any of these facilities with

general permits actually discharge to the

affected water bodies because facility

location information is not available in

EPA's Permit Compliance System

database.

Of the facilities located in

jurisdictions included in the rule, EPA

evaluated that subset of facilities with

individual permits that discharge within

two miles of coastal waters or the 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 or facilities

with similar effluent characteristics (i.e.,

facilities having the potential to

discharge bacteria in the form of fecal

matter) may be affected. For those

facilities for which latitude/longitude

data are not included in the Permit

Compliance System, EPA included only

facilities for which the receiving

waterbody name in the Permit

Compliance System indicates a coastal

water (e.g., Pacific Ocean, Lake Erie).

Table 5 summarizes 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

C oastal ........................................................................................................... 242 233 100 575

G reat Lakes .................................................................................................. 64 75 20 159

T o ta l .......................................................................................................... 3 0 6 3 0 8 1 2 0 7 3 4

1 Facilities 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 for Estimating Potential

Compliance Costs

To estimate costs, EPA evaluated the

15 major municipal facilities with

design flows greater than 120 mgd, thus

ensuring that the facilities with the

potential for the largest costs would be

evaluated. For the remaining facilities,

EPA evaluated a sample of facilities to

represent discharger type and category.

The Permit Compliance System does

not contain E. coli or enterococci

effluent data for any of the sample

facilities. Therefore, to evaluate

potential costs associated with the E.

coli criteria, EPA assumed that 100% of

the fecal coliform measured at the

sample facilities is E. coli because E. coli

is a type of fecal 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 on the last 3 years of data, EPA

thus estimated that facilities with

average monthly effluent levels

exceeding a geometric mean of 126/100

ml, or maximum daily levels exceeding

235/100 ml, would most likely need

treatment controls to meet potential

permit limits based on today's rule.

Enterococci are fecal bacteria in the

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 of fecal coliform to enterococci

in untreated sewage, and the

inactivation of both of these bacteria at

minimum disinfection levels, to identify

the concentrations of fecal coliform (as

related to enterococci) that may indicate

a need for controls. Data in the literature

indicate that the ratio of fecal coliform

to fecal streptococcus in untreated

sewage ranges from about 4 to 28. EPA
Federal Register/Vol. 69, No. 220/Tuesday, November 16, 2004/Rules and Regulations

used the most conservative (i.e., erring

on the side of overestimating costs) ratio

of 4 (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 of 4 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 costs based on

meeting a more stringent value of 126

fecal coliform per 100 ml. In addition,

EPA assumed that coastal facilities with

maximum fecal coliform effluent values

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 four facilities

currently having effluent limitations to

meet E. coli and enterococci criteria, as

well as the current fecal coliform

criteria, suggest that chlorination

processes can be upgraded or adjusted

to treat the levels of bacteria necessary

for compliance with effluent limitations

based on today's rule. Therefore, EPA

estimated that optimization of existing

disinfection processes would enable the

sample facilities to comply with the

rule. Process optimization usually

involves process analysis and process

modifications, and EPA's cost estimates

include both capital and operating and

maintenance costs.

C. Results

Based on the results for the 15

facilities with flows greater than 120

mgd, and extrapolating the sample

results to the remaining potentially

affected facilities, EPA estimated a total

annual cost of approximately $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

a result of permit modifications to

include limits based on the criteria in

today's rule.

IX. Statutory and Executive Order

Reviews

A. Executive Order 12866: Regulatory

Planning and Review

Under Executive Order 12866 (58 FR

51735, October 4, 1993), the Agency

must determine whether the regulatory

action is "significant" and therefore

subject to Office of Management and

Budget (OMB) review and the

requirements of the Executive Order.

The Order defines "significant

regulatory action" as one that is likely

to result in a rule that may:

(1) Have an annual effect on the

economy of $100 million or more or

adversely affect in a material way the

economy, a sector of the economy,

productivity, competition, jobs, the

environment, public health or safety, or

State, local, or tribal governments or

communities;

(2) Create a serious inconsistency or

otherwise interfere with an action taken

or planned by another agency;

(3) Materially alter the budgetary

impact of entitlements, grants, user fees,

or loan programs or the rights and

obligations of recipients thereof; or

(4) Raise novel legal or policy issues

arising out of legal mandates, the

President's priorities, or the principles

set forth in the Executive Order.

Pursuant to the terms of Executive

Order 12866, it has been determined

that this rule is 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 Reduction Act

This action does not impose an

information collection burden under the

provisions of the Paperwork Reduction

Act (44 U.S.C. 3501 et seq.). It does not

include any information collection,

reporting, or record-keeping

requirements.

Burden means the total time, effort or

financial resources expended by persons

to generate, maintain, retain, or disclose

or provide information to or for a

Federal agency. This includes the time

needed to review instructions; develop,

acquire, install, and utilize technology

and systems for the purposes of

collecting, validating, and verifying

information, processing and

maintaining information, and disclosing

and providing information; adjust the

existing ways to comply with any

previously applicable instructions and

requirements; train personnel to be able

to respond to a collection of

information; search data sources;

complete and review the collection of

information; and transmit or otherwise

disclose the information.

An agency may not conduct or

sponsor, and a person is not required to

respond to a collection of information

unless it displays a currently valid OMB

control number. The OMB control

numbers for EPA's regulations in 40

CFR are listed in 40 CFR Part 9.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA),

as amended by the Small Business

Regulatory Enforcement Fairness Act of

1996 (SBREFA), 5 U.S.C. 601 et seq.,

generally requires an agency to prepare

a regulatory flexibility analysis of any

rule subject to notice and comment

rulemaking requirements under the

Administrative Procedure Act or any

other statute unless the agency certifies

that the rule will not have a significant

economic impact on a substantial

number of small entities. Small entities

include small businesses, small

organizations and small governmental

jurisdictions.

For purposes of assessing the impacts

of today's rule on small entities, small

entity is defined as: (1) A small business

according to RFA default definitions for

small business (based on Small Business

Administration size standards); (2) a

small governmental jurisdiction that is a

government of a city, county, town,

school district or special district with a

population of less than 50,000; and (3)

a small organization that is any not-forprofit enterprise which is independently

owned and operated and is not

dominant in its field.

After considering the economic

impacts of today's rule on small entities,

I certify that this action will not have a

significant economic impact on a

substantial number of small entities. 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 if a State or Territory fails

to adopt water quality criteria and

standards in accordance with paragraph

(1)(A) that are as protective of human

health as the criteria for pathogen

indicators for coastal recreation waters

published by the Administrator, the

Administrator shall promptly propose

regulations for the State or Territory

setting forth revised or new water

quality standards for pathogen

indicators described in paragraph (1)(A)

for coastal recreation waters of the 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 to these

standards, the permitting authority will

67239
67240 Federal Register/Vol. 69, No. 220/Tuesday, November 16, 2004/Rules and Regulations

need to determine whether the

discharge is or may be discharged at a

level which will cause, contribute to, or

have the reasonable potential to cause

an exceedance of the applicable water

quality standard. In making that

determination, the permitting authority

would need to consider the factors

listed in 40 CFR 122.44(d)(1)(ii).

Whether a permitting authority will

need to require a water quality-based

effluent limit depends on the analysis of

these factors, which will vary based on

the specific facts of each permit

decision. Based on that analysis, if the

permitting authority finds that the

discharger causes, contributes to, or has

the reasonable potential to cause an

exceedance of the applicable water

quality standard, after the application of

any required technology-based effluent

limits, then the permitting authority

will need to impose a water qualitybased effluent limit to 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

a few small entities. (See the docket for

today's rule.)

D. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates

Reform Act of 1995 (UMRA), Public

Law 104-4, establishes requirements for

Federal agencies to assess the effects of

their regulatory actions on State, local,

and Tribal governments and the private

sector. The definition of "State" for the

purposes of the Unfunded Mandates

Reform Act includes "a territory or

possession of the United States." Under

section 202 of the Unfunded Mandates

Reform Act, EPA generally must prepare

a written 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, or to the private sector, of

$100 million or more in any one year.

Before promulgating an EPA rule for

which a written statement is needed,

section 205 of the Unfunded Mandates

Reform Act generally requires EPA to

identify and consider a reasonable

number of regulatory alternatives and

adopt the least costly, most costeffective or least burdensome alternative

that achieves the objectives of the rule.

The provisions of section 205 do not

apply when they are inconsistent with

applicable law. Moreover, section 205

allows EPA to adopt an alternative other

than the least costly, most cost-effective

or least burdensome alternative if the

Administrator publishes with the final

rule an explanation of why that

alternative was not adopted. Before EPA

establishes any regulatory requirements

that may significantly or uniquely affect

small governments, including Tribal

governments, it must have developed

under section 203 of the Unfunded

Mandates Reform Act a small

government agency plan. The plan must

provide for notifying potentially

affected small governments, enabling

officials of affected small governments

to have meaningful and timely input in

the development of EPA regulatory

proposals with significant Federal

intergovernmental mandates, and

informing, educating, and advising

small governments on compliance with

the regulatory requirements.

Today's rule contains no Federal

mandates (under the regulatory

provisions of Title II of the Unfunded

Mandates Reform Act) that may result in

expenditures to State, local and Tribal

governments, or the private sector, in

the aggregate of $100 million or more in

any one year. Therefore, this rule is not

subject to the requirements of sections

202 and 205 of the 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 to the requirements of

section 203 of the Unfunded Mandates

Reform Act.

E. Executive Order 13132: Federalism

Executive Order 13132, entitled

"Federalism" (64 FR 43255, August 10,

1999), requires EPA to develop an

accountable process to ensure "meaningful and timely input by State

and local officials in the development of

regulatory policies that have Federalism

implications." "Policies that have

Federalism implications" is defined in

the Executive Order to include

regulations that have "substantial direct

effects on the States, on the relationship

between the national government and

the States, or on the distribution of

power and responsibilities among the

various levels of government."

This final rule does not have

Federalism implications. It will not

have substantial direct effects on the

States, on the relationship between the

national government and the States, or

on the distribution of power and

responsibilities among the various

levels of government, as specified in

Executive Order 13132. EPA's authority

and responsibility to promulgate

Federal water quality standards when

State standards do not meet the

requirements of the Clean Water Act is

well established and has been used on

various occasions in the past. The final

rule does not substantially affect the

relationship of EPA and the States and

Territories, or the distribution of power

or responsibilities between EPA and the

various levels of government. 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 of the Clean

Water Act, either before or after

promulgation of the 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, in the 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 of the 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 of written correspondence

with the States to discuss EPA's

concerns with the States' bacteria

criteria, compliance with the BEACH

Act, and the Federal rulemaking

process. In June 2000, EPA and the

Association of State and Interstate Water

Pollution Control Administrators

(ASIWPCA) established a State/EPA

Work Group on Water Quality

Standards, composed of selected senior

State and EPA managers, to provide

input to EPA on water quality standards

issues. The group has met

approximately three times per 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 for both coastal and

non-coastal recreation waters, and has

provided useful input to EPA on these

topics. Members of this group, together

with other interested State participants,

have also served as an ad-hoc work
Federal Register/Vol. 69, No. 220/Tuesday, November 16, 2004/Rules and Regulations

group since 2001 to assist EPA in

developing draft detailed scientific and

policy guidance (Implementation

Guidance for Ambient Water Quality

Criteria for Bacteria (EPA-823-B-02-

003, May 2002 Draft)) concerning

adoption and implementation of EPA's

recommended criteria for bacteria.

Today's final rule reflects State and

Territorial input, and EPA has

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 of the record for this rule.

F. Executive Order 13175: Consultation

and Coordination With Indian Tribal

Governments

Executive Order 13175, entitled

"Consultation and Coordination with

Indian Tribal Governments" (65 FR

67249, November 6, 2000), requires EPA

to develop an accountable process to

ensure "meaningful and timely input by

tribal officials in the development of

regulatory policies that have tribal

implications."

This final rule does not have Tribal

implications. It will not have substantial

direct effects on Tribal governments, on

the relationship between the Federal

government and Indian Tribes, or on the

distribution of power and

responsibilities between the Federal

government and Indian Tribes, as

specified in Executive Order 13175.

There are four authorized Indian Tribes

with coastal or Great Lakes waters;

however, they have not yet adopted

water quality standards, and therefore,

have no designated coastal recreation

waters within their jurisdiction. 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 as having coastal or Great

Lakes waters to inform them of the

potential future impact this could have

on Tribal waters.

G. Executive Order 13045: Protection of

Children From Environmental Health

Risks and Safety Risks

Executive Order 13045: "Protection of

Children from Environmental Health

Risks and Safety Risks" (62 FR 19885,

April 23, 1997) applies to any rule that:

(1) is determined to be "economically

significant" as defined under Executive

Order 12866, and (2) concerns an

environmental health or safety risk that

EPA has reason to believe may have a

disproportionate effect on children. If

the regulatory action meets both criteria,

the Agency must evaluate the

environmental health or safety effects of

the rule on children, and explain why

the regulation is preferable to other

potentially effective and reasonably

feasible alternatives considered by the

Agency.

This rule is not subject to the

Executive Order because it is 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 of the preamble

to today's rule, EPA developed the

water quality criteria promulgated in

today's rule based on concentrations of

E. coli and enterococci from EPAsponsored epidemiological studies

reflecting all reported illnesses,

including those of children. In the

marine and freshwater studies, the range

of the number of children under age 10

was between 15% and 25% of the total

study population. Children in the age

range 10 to 19 years old made up a

slightly higher percentage of the 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 Order 13211:Actions That

Significantly Affect Energy Supply,

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, or Use" (66 FR 28355, May

22, 2001) because it is not likely to have

a significant adverse effect on the

supply, distribution, or use of energy.

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

costs to permitted facilities as a result of

the final rule. Some of these costs

include energy use associated with

increased maintenance of disinfection

tanks. EPA estimates that the 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

(Energy Information Administration,

Department of Energy, http://

www.eia.doe.gov/neic/quickfacts/

quickelectric.htm). EPA estimates that

the additional energy requirements of

EPA's rule are insignificant (i.e.,

0.000003% of national energy

generation).

L National Technology Transfer and

Advancement Act

As noted in the proposal, section

12(d) of the National Technology

Transfer and Advancement Act of 1995

("NTTAA"), Public Law 104-113,

section 12(d) (15 U.S.C. 272 note)

directs EPA to use voluntary consensus

standards in its regulatory activities

unless to do so would be inconsistent

with applicable law or otherwise

impractical. Voluntary consensus

standards are technical standards (e.g.,

materials specifications, test methods,

sampling procedures, and business

practices) that are developed or adopted

by voluntary consensus standards

bodies. The NTTAA directs EPA to

provide Congress, through OMB,

explanations when the Agency decides

not to use available and applicable

voluntary consensus standards.

While ambient water quality criteria

may be considered technical standards,

EPA is not aware of any voluntary

consensus standards relating to bacteria

criteria to protect human health and

none were brought to our attention in

comments on the proposed rule.

Furthermore, even if there were such

voluntary consensus standards, the

BEACH Act 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 fail to do so.

Therefore, EPA is not considering the

use of any voluntary consensus

standards.

J. Congressional Review Act

The Congressional Review Act, 5

U.S.C. 801 et seq., as added by the Small

Business Regulatory Enforcement

Fairness Act of 1996, generally provides

that before a rule may take effect, the

agency promulgating the rule must

submit a rule report, which includes a

copy of the rule, to each House of the

Congress and to the Comptroller General

of the United States. EPA will submit a

report containing this rule and other

required information to the U.S. Senate,

the U.S. House of Representatives, and

the Comptroller General of the United

States prior to publication of the rule in

the Federal Register. A "major rule"

cannot take effect until 60 days after it

is published in the Federal Register.

This action is not a "major rule" as

defined by 5 U.S.C. 804(2). This rule

will be effective December 16, 2004.

List of Subjects in 40 CFR Part 131

Environmental protection,

Intergovernmental relations, Reporting

67241
67242 Federal Register/Vol. 69, No. 220/Tuesday, November 16, 2004/Rules and Regulations

and recordkeeping requirements, Water

pollution control.

Dated: November 8, 2004.

Michael 0. Leavitt,

Administrator.

* For the reasons set out in the preamble,

40 CFR part 131 is amended as follows:

PART 131-WATER QUALITY

STANDARDS

m 1. The authority citation for part 131

continues to read as follows:

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

Subpart D-[Amended]

* 2. Section 131.41 is added to Subpart

D to read as follows:

§ 131.41 Bacteriological criteria for those

states not complying with Clean Water Act

section 303(i)(1)(A).

(a) Scope. This section is a

promulgation of the Clean Water Act

section 304(a) criteria for bacteria for

coastal recreation waters in specific

States. It is not a general promulgation

of the Clean Water Act section 304(a)

criteria for bacteria. This section also

contains a compliance schedule

provision.

(b) Definitions. (1) Coastal Recreation

Waters are the Great Lakes and marine

coastal waters (including coastal

estuaries) that are designated under

section 303(c) of the 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 a river or stream having an

unimpaired natural connection with the

open sea.

(2) Designated bathing beach waters

are those coastal recreation waters that,

during the recreation season, are

heavily-used (based upon an evaluation

of use within the State) and may have:

a lifeguard, bathhouse facilities, or

public parking for beach access. States

may include any other waters in this

category even if the waters do not meet

these criteria.

(3) Moderate use coastal recreation

waters are those coastal recreation

waters that are not designated bathing

beach waters but typically, during the

recreation season, are used by at least

half of the number of people as at

typical designated bathing beach waters

within the State. States may also

include light use or infrequent use

coastal recreation waters in this

category.

(4) Light use coastal recreation waters

are those coastal recreation waters that

are not designated bathing beach waters

but typically, during the recreation

season, are used by less than half of the

number of people 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 in this

category.

(5) Infrequent use coastal recreation

waters are those coastal recreation

waters that are rarely or occasionally

used.

(6) New pathogen discharger for the

purposes of this section means any

building, structure, facility, or

installation from which there is or may

be a discharge of pathogens, the

construction of which commenced on or

after December 16, 2004. It does not

include relocation of existing combined

sewer overflow outfalls.

(7) Existing pathogen discharger for

the purposes of this section means any

discharger that is not a new pathogen

discharger.

(c) EPA's section 304(a) ambient

water quality criteria for bacteria.

(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 m ila . ........................ b235 b298 b409 b575

Enterococcie ........................ 33/100 m lc ........................... . 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 m l a ............................ b 104 b 158 b 276 b 501

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 apply to 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) of this 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) of this section apply to the

coastal recreation waters of the States

identified in paragraph (e) of this

section and apply concurrently with any

ambient recreational water criteria

adopted by the State, except for those

coastal recreation waters where State

regulations determined by EPA to meet

the requirements of Clean 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) of this section.

(2) The criteria established in this

section are subject to the State's general

rules of applicability in the same way

and to the same extent as are other

Federally-adopted and State-adopted

numeric criteria when applied to the

same use classifications.

(e) Applicability to specific

jurisdictions. (1) The criteria in

paragraph (c)(1) of this section apply to

fresh coastal recreation waters of the

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 of the following

States: Alaska, California (except for

coastal recreation waters within the

jurisdiction of Regional Board 4),

Florida, Georgia, Hawaii (except for

coastal recreation waters within 300

meters of the shoreline), Louisiana,

Maine (except for SA waters and SB and

SC waters with human sources of fecal

contamination), Maryland,

Massachusetts, Mississippi, New York,

North Carolina, Oregon, Puerto Rico

(except for waters classified by Puerto

Rico as intensely used for primary

contact recreation and for those waters

included in § 131.40), Rhode Island,

United States Virgin Islands.

(f) Schedules of compliance. (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 to meet the criteria in paragraph

(c) of this section. All dischargers shall

promptly comply with any new or more

restrictive water quality-based effluent

limitations based on the water quality

criteria set forth in this section.

(2) When a permit issued on or after

December 16, 2004, to a new pathogen

discharger as defined in paragraph (b) of

this section contains water qualitybased effluent limitations based on

water quality criteria set forth in

paragraph (c) of this section, the

permittee shall comply with such water

quality-based effluent limitations upon

the commencement of the discharge.

(3) Where an existing pathogen

discharger reasonably believes that it

will be infeasible to comply

immediately with a new or more

restrictive water quality-based effluent

limitations based on the water quality

criteria set forth in paragraph (c) of this

section, the discharger may request

approval from the permit issuing

authority for a schedule of compliance.

(4) A compliance schedule for an

existing pathogen discharger shall

require compliance with water qualitybased effluent limitations based on

water quality criteria set forth in

paragraph (c) of this section as soon as

possible, taking into account the

discharger's ability to achieve

compliance with such water qualitybased effluent limitations.

(5) If the schedule of compliance for

an existing pathogen discharger exceeds

one year from the date of permit

issuance, reissuance or modification,

the schedule shall set forth interim

requirements and dates for their

achievement. The period between dates

of completion for each requirement may

not exceed one year.

If the time necessary for completion of

any requirement is more than one year

and the requirement is not readily

divisible into stages for completion, the

permit shall require, at a minimum,

specified dates for annual submission of

progress reports on the status of interim

requirements.

(6) In no event shall the permit

issuing authority approve a schedule of

compliance for an existing pathogen

discharge which exceeds five years from

the date of permit issuance, reissuance,

or modification, whichever is sooner.

(7) If a schedule of compliance

exceeds the term of a permit, interim

permit limits effective during the permit

shall be included in the permit and

addressed in the permit's fact sheet or

statement of basis. 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 of the permit, 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

Office of Federal Contract Compliance

Programs; Interpreting

Nondiscrimination Requirements of

Executive Order 11246 With Respect to

Systemic Compensation

Discrimination, Notice

AGENCY: Office of Federal Contract

Compliance Programs, Employment

Standards Administration, Department

of Labor.

ACTION: Notice of proposed standards for

systemic compensation discrimination

under Executive Order 11246; request

for comments.

SUMMARY: The Office of Federal Contract

Compliance Programs requests

comments on proposed standards for

systemic compensation discrimination

under Executive Order 11246.

DATES: Comments must be submitted by

the following dates:

Hard Copy: Your comments must be

postmarked by December 16, 2004.

Facsimile: Your comments must be

sent by December 16, 2004.

ADDRESSES: Comments should be

submitted to Joseph DuBray, Jr.,

Director, Division of Policy, Planning

and Program Development, OFCCP.

Electronic mail is the preferred method

for submittal of comments. Comments

by electronic mail must be clearly

identified as pertaining to the notice

interpreting nondiscrimination

requirements of Executive 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

of the FAX receiver is (202) 693-1304.

To assure access to the FAX equipment,

only public comments of six or fewer

pages will be accepted via FAX

transmittal. Where necessary, hard

copies of comments, clearly identified

as pertaining to the notice of proposed

standards and methodologies for

evaluating contractors' and

subcontractors' compensation practices,

may also be delivered to Joseph DuBray,

Jr., Director, Division of Policy,

Planning and Program Development,

OFCCP, Room C-3325, 200 Constitution

Avenue, NW., 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 by which

comments must be received. Receipt of

submissions will not be acknowledged,

except that the sender may 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 of this 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:

I. Introduction

A. OFCCP Compliance Reviews Focus

on Systemic Compensation

Discrimination

The Department of Labor's Office of

Federal Contract Compliance Programs

(OFCCP) enforces Executive Order

11246, which prohibits covered federal

contractors and subcontractors from

making employment decisions on the

basis of race, 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 of its compliance

review process, OFCCP investigates

whether contractors' pay practices are

discriminatory.

OFCCP compliance reviews typically

produce cases that involve allegations of

systemic discrimination, not

discrimination against a particular

individual employee. OFCCP systemic

compensation discrimination cases

typically are proven under a disparate

1 The Administrative Review Board, and, before

its creation, the Secretary of Labor, have turned to

Title VII standards for determining compliance with

the nondiscrimination requirements of E.O. 11246.

See, e.g., OFCCP v. Greenwood Mills, Inc., 89-OFC039, ARB Final Decision and Order, December 20,

2002, at 5; OFCCP v. Honeywell, 77-OFCCP-3,

Secretary of Labor Decision and Order on

Mediation, June 2, 1993, at 14 and 16, Secretary of

Labor Decision and Remand Order, March 2, 1994.

The EEOC has issued guidance on compensation

discrimination in the form of a 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 of Title 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 of reference, "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

of a pattern or practice of discrimination

or allegations that a particular

individual was subjected to

discrimination. In a case involving

alleged discrimination against a

particular individual, the plaintiff must

establish by a preponderance of the

evidence that the employer made the

challenged employment decision

because of the individual's race, color,

religion, sex, or national origin. United

States Postal Service Bd. of Governors v.

Aikens, 460 U.S. 711, 715 (1983). In a

pattern or practice case, "plaintiffs must

"establish by a preponderance of the

evidence that racial discrimination was

the company's standard operating

procedure-the regular rather than the

unusual practice." Teamsters v. United

States, 431 U.S. 324, 336 (1977)."

Bazemore v. Friday, 478 U.S. 385, 398

(1986).

In addition to differences in the

burdens of persuasion as between cases

involving alleged discrimination against

a particular individual and an alleged

pattern or practice of discrimination, the

burdens of production necessary to

survive a motion for summary

disposition are different between the

two types of cases. In both types of

cases, a plaintiff bears the initial burden

of presenting a prima facie case of

discrimination. There is no precise set

of requirements for a plaintiff's prima

facie case. '"The facts necessarily will

vary in title VII cases, and the

specification * * * of the prima facie

proof required from [a plaintiff] is not

necessarily applicable in every respect

to differing factual circumstances.'"

Int'l Bhd. of Teamsters v. United States,

431 U.S. 324, 358 (1977) (quoting

McDonnell Douglas, 411 U.S. at 802 n.

13). "The importance of McDonnell

Douglas lies, not in its specification of

the discrete elements of the proof there

required, but in its recognition of the

general principle that any Title VII

plaintiff must carry the initial burden of

offering evidence adequate to create an

inference that an employment decision

was based on a discriminatory criterion

illegal under [Title VII]." Teamsters, 431

U.S. at 358.

In an individual case, the plaintiff

typically must rely on evidence

pertaining to his or her own

circumstances to establish a prima facie

2 The term "systemic compensation

discrimination" used hereinafter references

compensation discrimination under a disparate

treatment, pattern or practice theory of

discrimination.

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

case of discrimination. The prima facie

case creates a presumption of

discrimination that the employer may

rebut by articulating a legitimate

nondiscriminatory reason for the alleged

discriminatory employment decision.

McDonnell Douglas Corp. v. Green, 411

U.S. 792, 802 (1973). The employer

must produce admissible evidence of a

legitimate, nondiscriminatory reason for

the challenged employment decision.

Texas Dep't of Community Affairs 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. Sanderson Plumbing

Products, Inc., 530 U.S. 133, 142 (2000)

(quoting St. Mary's Honor Center v.

Hicks, 509 U.S. 502, 509 (1993)). Once

the employer articulates a legitimate

nondiscriminatory reason for the

challenged employment decision, the

plaintiff is 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 that the

[employer's] explanation is unworthy of

credence is simply one form of

circumstantial evidence that is

probative of intentional discrimination.

* * *" Reeves, 530 U.S. at 147. "Other

evidence that may be relevant to any

showing of pretext 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 of whether [the

employer's actions] * * * conformed to

a general pattern of discrimination

* * *" McDonnell Douglas, 411 U.S. at

804-05.

In a pattern or practice case, the

plaintiffs' "initial burden is to

demonstrate that unlawful

discrimination has been 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 of a pattern or practice by

demonstrating that the [plaintiffs'] proof

is either inaccurate or insignificant." Id.

"The employer's defense must, of

course, be designed to meet the prima

facie case of the [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 of persuasion and production,

however, once the plaintiff has offered

evidence that is sufficient to establish a

prima facie case, and the employer has

produced evidence that is sufficient to

rebut the prima facie case, then the

factfinder must decide whether

plaintiffs have demonstrated

discrimination by a preponderance of

the evidence. "[O]ur decision in United

States Postal Service Board of Governors

v. Aikens, 460 U.S. 711 (1983), although

not decided in the context of a patternand-practice case, makes clear that if the

defendants have not succeeded in

having a case dismissed on the ground

that plaintiffs have failed to establish a

prima facie case, and have responded to

the plaintiffs' proof by offering evidence

of their own, the factfinder then must

decide whether the plaintiffs have

demonstrated a pattern or practice of

discrimination by a preponderance of

the evidence. This is because the only

issue to be decided at that point is

whether the plaintiffs have actually

proved discrimination. Id., at 715."

Bazemore, 478 U.S. at 398.

B. OFCCP Has Not Issued Significant

Interpretive Guidance on Systemic

Compensation Discrimination Under

Executive Order 11246

In 1970, the Department of Labor

published "Sex Discrimination

Guidelines," codified at 41 CFR Part 60-

20, which included a section (60-20.5)

on "[d]iscriminatory wages." 35 FR

8888 (June 9, 1970). The Sex

Discrimination Guidelines (SDG) do not

provide specific standards for

determining systemic compensation

discrimination for OFCCP or a

contractor. 3 Rather, the SDG provide

that "[t]he employer's wages (sic)

schedules must not be related to or

based on the sex of the employees," and

contains a short "note" that references

the "more obvious cases of

discrimination * * * where employees

of different sexes are paid different

wages on jobs 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 of the SDG, nor has a

3 By contrast to sex-based compensation

discrimination, GFCCP has published regulations

providing specific guidance with respect 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 proposed rule 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). In the

May 4, 2000 NPRM, OFCCP formally

expressed the Department of Labor's

policy regarding compensation analysis:

More recently, an additional objective

of the proposed revision has been to

advance the Department of Labor's goal

of pay equity; that is, ensuring that

employees are compensated equally for

performing equal work.

65 FR 26089 (May 4, 2000).

This stated policy was reflected in

several significant settlements in

systemic compensation discrimination

cases in which OFCCP relied on

sophisticated multiple regression

analyses to remedy an alleged violation

of E.O. 11246. OFCCP has not, however,

published formal guidance providing

any interpretation of E.O. 11246 with

respect to systemic compensation

discrimination.

C. OFCCP's Informal Approaches to

Systemic Compensation Discrimination

in the Late 1990s Involved the

Controversial "Pay Grade Theory"

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, it is assumed

that employees are similarly situated

with respect to evaluating compensation

decisions regarding such employees if

the contractor has placed their jobs in

the same pay grade:

By the very act of creating a grade

level system, where each employee has

approximately the same potential to

move from the minimum to the

maximum of his/her grade range

dependent upon performance, the

employer has recognized that certain

jobs are essentially similar in terms of

skill, effort and responsibility.

"Systemic Compensation Analysis:

An Investigatory Approach" (hereinafter

"SCA"), at 5. A later paper, "Update on

Systemic Compensation Analysis"

(hereinafter, "Update"), also described

this pay grade assumption:

4 The proposed standards contained in this Notice

are intended to provide definitive interpretations of

both the SDG and E.O. 11246 with respect to

systemic compensation discrimination, regardless

of the specific basis (e.g., sex, race, national origin,

etc.) of the discrimination.

5 Although used in practice by several OFCCP

regions for several years, the grade theory was never

formally adopted by GFCCP.

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Federal 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 of the salary grade range without a

change in job title, we believe the

employer * * * has already identified

certain jobs as having similar value to

the organization.

Update, at 6.6

After identifying employees in the

same pay grade, one version of the grade

theory method called for a comparison

of the median compensation of males

versus females, and minorities versus

non-minorities in each pay grade. SCA,

at 6; Update, at 7. If there was a "significant" difference (although "significant" was not defined) in

median compensation between males/

females or minorities/non-minorities

within a given 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,

and performance. 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. If a "pattern" of pay disparities (although "pattern" was not defined) emerged not

explicable by analysis of median or

average differences in time in grade,

prior experience, or other factors,

OFCCP alleged that the contractor

violated the nondiscrimination

requirements of E.O. 11246. Update, at

15.

In another version of the grade theory

method used by some OFCCP regions in

the late 1990s, 7 the pay grade was

included as a factor in a regression

model that typically 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

of statistical significance, although

rarely did OFCCP develop anecdotal

evidence to support the statistical

analysis under this method.

D. The Pay Grade Theory Is Inconsistent

With Title VII Standards

OFCCP has discontinued using these

pay grade methods because the agency

has determined that the methods'

principal assumptions related to pay

6 OFCCP 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 of formal 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 or pay range do not comport with

Title VII standards as to whether

employees are similarly situated.

OFCCP recognizes that, with respect to

compensation discrimination, similarity

in job content, skills and qualifications

involved in the job, and responsibility

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); Williams v.

Galveston Ind. Sch. Dist., No. 03-40436,

78 Fed. Appx. 946, 949-50, 2003 WL

22426852 (5th Cir. Oct. 23, 2003);

Verweyv. Illinois Coll. of Optometry, 43

Fed. Appx. 996, 2002 WL 1836507, at *4

(7th Cir. Aug. 9, 2002); Lang v. Kohl's

Food Stores, Inc., 219 F.3d 919, 922-23

(7th Cir. 2002); Rodriguez v. SmithKline

Beecham, 224 F.3d 1, 8 (1st Cir. 2000);

Coward v. ADT Sec. 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); Sprague v. Thorn

Americas, Inc., 129 F.3d 1355, 1362

(luth Cir. 1997); Tomka v. Seiler Corp.,

66 F.3d 1295, 1310-11 (2d Cir. 1995),

abrogated on other grounds by

Burlington Indus., Inc. v. Ellerth, 524

U.S. 742 (1998); Mulhall v. Advance

Sec., Inc., 19 F.3d 586, 598 (11th Cir.

1994); Brinkley-Obu v. Hughes Training,

Inc., 36 F.3d 336, 343 (4th Cir. 1994);

Miranda v. B&B Cash Grocery Store,

Inc., 975 F.2d 1518, 1526-31 (11th Cir.

1992); EEOC v. Sears, Roebuck & Co.,

839 F.2d 302, 243-53 (7th Cir. 1988);

Marcoux v. State of Maine, 797 F.2d

1100, 1107 (1st Cir. 1986); Eastlandv.

Tennessee Valley Auth., 704 F.2d 613,

624-25 (llth Cir. 1983); Woodwardv.

United Parcel Serv., 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); Stroup v. J.L. Clark, No.

99C50029, 2001 WL 114404, at *6 (N.D.

Ill. Feb. 2, 2001); Donaldson v. Microsoft

Corp., 205 F.R.D. 558, 563 (W.D. Wash.

2001); Dobbs-Weinstein v. Vanderbilt

Univ., 1 F. Supp.2d 783, 803-04 (M.D.

Tenn. 1998); Beard v. Whitley Co.

REMC, 656 F. Supp. 1461, 1471-72

(N.D. Ind. 1987); Dalleyv. Michigan

Blue Cross/Blue Shield, Inc., 612 F.

Supp. 1444, 1451-52 (E.D. Mich. 1985);

EEOCv. Kendall of Dallas, Inc., No. TY8 As noted in footnote 1, supra., the EEOC is the

agency with primary enforcement responsibility for

Title VII, and its reasonable interpretations of Title

VII are given some deference by the courts. See

General Elec. 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); Presseisen v.

Swarthmore Coll., 442 F. Supp. 593,

615-19 (E.D. Pa. 1977), aff'd 582 F.2d

1275 (3d Cir. 1978)(Table).

Contrary to these standards, the grade

theory assumed that employers' preexisting job-groupings, such as pay

grades or pay ranges, are absolute

indicia of similarity in employees' job

content, skills and qualifications

involved in the job, and responsibility

level. While all of the courts in the

above string cite have implicitly rejected

the grade theory by emphasizing the

importance of facts about the work

employees actually perform, several of

these courts have expressly rejected the

proposition that a pay grade offers

absolute indicia of similarity in job

content, qualifications and skills

involved in the job, and responsibility

level. See Williams, 78 Fed. Appx. at

949 n. 9; Cort Furniture, 85 F.3d at

1087; Woodward, 306 F. Supp.2d at

574-75. The facts about employees'

actual work activities, the skills and

qualifications involved in the job, and

responsibility levels in a particular case

may, of course, happen to coincide with

the employer's pay grade or pay range,

but the crucial determinant of whether

the employees are similarly situated is

their actual work activities, not the fact

that the employees have been placed in

the same pay grade or range.

In practice, utilization of the 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" of work to the

employer constitutes the comparable

worth theory of compensation

discrimination which has been widely

discredited by the courts. See American

Federation of State, County, and

Municipal Employees v. State of

Washington, 770 F.2d 1401, 1404 (9th

Cir. 1985)("The comparable worth

theory, as developed in the case before

us, postulates that sex-based wage

discrimination exists if employees in job

classifications occupied primarily by

women are paid less than employees in

job classifications filled primarily by

men, if the jobs are of equal value to the

employer, though otherwise

dissimilar."); Colbyv. f.C. Penney Co.,

811 F.2d 1119, 1125-26 (7th Cir.

1987)(describing comparable worth

theory as "bas[ing] liability on the fact

that the[] employer paid higher wages to

workers in job classifications

predominantly occupied by men than to

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workers in job classifications

predominantly occupied by women,

though it paid the same wages to men

and women within each classification");

American Nurses Association v. Illinois,

783 F.2d 716, 720-22 (7th Cir.

1986)(considering plaintiffs "charge that

the state pays workers in predominantly

male job classifications a higher wage

not justified by any difference in the

relative worth of the predominantly

male and the predominantly female jobs

in the state's roster."); Lemons v. City

and County of Denver, 620 F.2d 228,

229 (10th Cir. 1980)("In summary, the

suit is based on the proposition that

nurses are underpaid in City positions,

and in the community, in comparison

with other and different jobs which they

assert are of equal worth to the

employer."); Christensen v. Iowa, 563

F.2d 353, 354-56 (8th Cir.

1977) ("Appellants, who are clerical

employees at UNI, argue that UNI's

practice of paying male plant workers

more than female clerical workers of

similar seniority, where the jobs are of

equal value to UNI, constitutes sex

discrimination and violates Title VII");

see also County of Washington v.

Gunther, 452 U.S. 161, 165

(1981)("Respondents" claim is not

based on the controversial concept of

'comparable worth' under which

plaintiffs might claim increased

compensation on the basis of a

comparison of the intrinsic worth or

difficulty of their job with that of other

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 plaintiff might

establish a prima facie case under Title

VII, the Court does suggest that

allegations of unequal pay for unequal,

but comparable, work will not state a

claim on which relief may be granted.

The Court, for example, repeatedly

emphasizes that this is not a case where

plaintiffs ask the court to compare the

value of dissimilar jobs or to quantify

the effect of sex discrimination on wage

rates."); Judith Olans Brown et al., Equal

Pay for Jobs of Comparable Worth: An

Analysis of the 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 of comparable value to their

common employer .... The basic

premise of comparable worth theory is

that women should be able to

substantiate a claim for equal wages by

showing that their jobs and those of

male workers are of equal value to their

common employer."); Hydee R.

Feldstein, Comment, Sex-Based Wage

Discrimination Claims After County of

Washington v. Gunther, 81 Colum. L.

Rev. 1333, 1333 (1981)(noting

comparable worth "theory holds that

employees performing work of equal

value, even if the work they do is

different, should receive the same

wages.").

Based on these 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

and the SDG as prohibiting systemic

compensation discrimination involving

dissimilar treatment of individuals who

are similarly situated, based on

similarity in work performed, skills and

qualifications involved in the job, and

responsibility levels.

E. The Department Has Decided To

Promulgate Interpretive Guidance on

Systemic Compensation Discrimination

To Guide Agency Officials and Covered

Contractors and Subcontractors

The Department of Labor has decided

to formally propose detailed standards

interpreting E.G. 11246 and the SDG

with respect to systemic compensation

discrimination and to solicit public

comment on the proposed standards.

This interpretive guidance also will

provide standards and methods for

OFCCP evaluations of contractors'

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 are more likely to

comply with E.O. 11246 if they

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 of the

transparency and uniformity provided

by these standards. Finally, the

Department will have the benefit of

commentary from all interested 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 of whether 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 of the Proposed Standards

OFCCP proposes to adopt standards

for interpreting E.O. 11246 and the 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 of employees who are "similarly situated" for purposes of

comparing contractor pay decisions will

focus on the similarity of the work

performed, the levels of responsibility,

and the skills and qualifications

involved in 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 to pay 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 of whether

employees are similarly situated must

be based on the actual facts about the

work performed, the responsibility level

of the employees, and whether the

positions involve similar skills and

qualifications. The employer's

preexisting groupings developed and

maintained for other purposes, such as

job families or affirmative action

program job groups, may provide some

indication of similarity in work,

responsibility level, and skills and

qualifications. However, these

preexisting groupings are not

dispositive, and OFCCP will not assume

that these groupings involve groupings

of similarly situated employees. For

example, it cannot be assumed that

employees are similarly situated merely

because they share the same pay grade

9 Federal courts disagree on whether the Equal

Pay Act's standard of "substantial equality" applies

to gender-based pay discrimination claims under

Title VII, absent direct evidence of discrimination.

See, e.g., Conti v. Universal Enter., Inc., 50 Fed.

Appx. 690, 2002 WL 31108827, at *7 (6th Cir. Sept.

20, 2002); Clark v. 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); EEOC v. Sears,

Roebuck & Co., 839 F.2d 302, 243-53 (7th Cir.

1988); Merrill v. S. Methodist Univ., 806 F.2d 600,

606 (5th Cr. 1986); McKee v. Bi-State Dev. Agency,

801 F.2d 1014, 1019 (8th Cir. 1986); Plemerv.

Parsons- Gilbane, 713 F.2d 1127, 1133-34 (5th Cir.

1983); see also CMCD, at 10-6 n.18. Because an

OFCCP enforcement action may be subject to APA

review in a federal court that does not adopt the

"similarly situated" standard, OFCCP will consult

with the Office of the Solicitor to address this issue

on a case by case basis.

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or range, or because their pay can

progress to the top of a pay grade or

range without changing jobs. 10 Thus,

OFCCP will investigate whether such

preexisting groupings do in fact group

employees who perform similar work,

and whose positions involve similar

skills, qualifications, and responsibility

levels, by looking at job 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 that the 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 for understanding the relationship

between two or more variables. Multiple

regression involves a variable to be

explained-called the dependent variableand additional explanatory variables that are thought to produce or be associated with

changes in the dependent variable. For

example, a multiple regression analysis

might estimate the effect of the number of

years of work on salary. Salary would be the

dependent variable to be explained; years of

experience would be the explanatory

variable. Multiple regression analysis is

sometimes well suited to the analysis of data

about competing theories in which there are

several possible explanations for the

relationship among a number of explanatory

variables. Multiple regression typically uses a single dependent variable and several

explanatory variables to assess the statistical

data pertinent to these theories. In a case alleging sex discrimination in salaries, for

example, a multiple regression analysis

would examine not only sex, but also other

explanatory variables of interest, such as

education and experience. The employerdefendant might use multiple regression to

argue that salary is a function of the

employee's education and experience, and

the employee-plaintiff might argue that

salary is also a function of the individual's sex.

Daniel L. Rubenfeld, Reference Guide

on Multiple 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 how the contractor in practice makes

10 In this respect, OFCCP will not rely 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 to build the

regression model in such a way that

controls for the factors that the

investigation reveals are important to

the employer's pay decisions, but also

allows the agency to assess how the

employers' pay decisions affect most

employees. One factor that must be

controlled for in the regression model is

categories or groupings of jobs that are

similarly situated based on the analysis

of job similarity noted above (i.e.,

similarity in the content of the work

employees perform, and similarity in

the skills, qualifications, and

responsibility levels of the positions the

employees occupy). This will ensure

that the analysis compares the treatment

of employees who are in fact similarly

situated.

In addition, OFCCP will investigate

the facts of each particular case to

ensure that factors included in the

regression are legitimate and are not

themselves influenced by unlawful

discrimination, which is often discussed

in case law as a factor "tainted" by

discrimination. However, OFCCP will

not automatically presume that a factor

is tainted without initially investigating

the facts of the particular case. OFCCP

will determine whether a factor is

tainted by evaluating proof of

discrimination with respect to that

factor, but not based on the fact that the

factor has an influence on the outcome

of a regression model that includes the

factor. See, e.g., Morgan v. United Parcel

Service of America, Inc., 380 F.3d 459,

470 (8th Cir. 2004) ("Plaintiffs" only

evidence of discrimination in past pay

is the apparent correlation between race

and center-manager base pay during the

class period. But that correlation is what

Plaintiffs have evidence of only by

omitting past pay. They have no

evidence, statistical or otherwise, that

past pay disparities were racially

discriminatory. This sort of

bootstrapping cannot create an inference

of discrimination with regard to either

class-period base pay or past pay.");

Smith v. Xerox Corp., 196 F.3d 358, 371

n. 11 (2d Cir. 1999) ("Absent evidence

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 of each

plaintiff's termination. Certainly,

performance is a factor Xerox was

permitted to consider in deciding whom

to retain."); Ottaviani v. 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 at the

particular institution charged with

violating Title VII. Although appellants

reiterate on appeal their claim that rank

at New Paltz was tainted, it is clear that

the district judge accepted and

considered evidence from the parties on

both sides of this issue, and that she

rejected the plaintiffs' contentions on

this point. At trial, the plaintiffs failed

to adduce any significant statistical

evidence of discrimination as to rank.

As the district court stated in its

opinion, the plaintiffs' studies of rank,

rank at hire, and waiting time for

promotion 'were mere compilations of

data' which neither accounted for

important factors relevant to assignment

of rank 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 or promotion

at New Paltz between 1973 and 1984,

and the district court chose to credit the

defendants' evidence. Upon review of

the record, we cannot state that the

court's rulings in this regard were

clearly erroneous."); CMCD, at 10-18

(discussing use of performance 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 of jobs in the 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 of two

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 of employees who are

similarly situated based on work

performed, responsibility level, and

skills and qualifications). If separate

regressions by categories of jobs would

not permit 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 of jobs into a single

regression (while including an OFCCPdeveloped category factor in the

"pooled" regression that controls for

groupings of employees who are

similarly situated based on work

performed, responsibility level, and

skills and qualifications). However, if a

pooled regression is used, 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 should be

included in the pooled regression

analysis.

Systemic compensation

discrimination under E.O. 11246 must

be based on disparities 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 Court has stated that "a

fluctuation of more than two or three

standard deviations would undercut the

hypothesis that decisions were being

made randomly with respect to [a

protected trait]." Hazelwood Sch. Dist.

v. United States, 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 if it is

significant at a level of two or more

standard deviations, based on measures

of statistical 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 of individuals 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 supported by "evidence

consisting of individual comparisons

11 An "interaction term" is a factor used in the

regression model whose value is the result of a

combination of subfactors, which allows the factor

to vary based on the combined effect of the

subfactors. For example, a performance by job level

interaction term would allow performance to have

a different impact on compensation depending on

the job level.

between salaries of blacks and whites

similarly situated"); Morgan, 380 F.3d at

471 ("One of the most important flaws

in Plaintiffs" case is that they 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 to pay. Although

such evidence is not required, the

failure to adduce it "'reinforces the

doubt arising from the questions about

validity of the statistical evidence.'"

EEOCv. Sears, Roebuck & Co., 839 F.2d

302, 311 (7th Cir. 1988) (quoting Griffin

v. Board of Regents, 795 F.2d 1281,

1292 (7th Cir. 1986))"); Dukes v. WalMart Stores, Inc., 22 F.R.D. 137, 165-66

(N.D. Cal. 2004) ("[P]laintiffs have

submitted * * * 114 declarations from

class members around the country * * *. [who will] testify to being paid

less than similarly situated men,

and being subjected to various

individual sexist acts."); Bakewell v.

Stephen F. Austin Univ., 975 F. Supp.

858, 905-06 (E.D. Tex. 1996) ("The

paucity of anecdotal evidence of

discrimination severely diminishes

plaintiffs' contention that a pattern or

practice of salary discrimination against

female faculty members prevails at

SFA."); see also CMCD, at 10-13 n.30

("A cause 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 a Division of

Statistical Analysis and hired expertlevel statisticians to staff this new unit.

III. Proposed Standards

Standards for Systemic Compensation

Discrimination Under Executive Order

11246

1. As used herein, "systemic

compensation discrimination" is

discrimination under a pattern or

practice theory of disparate treatment.

2. Employees are similarly situated

under these standards if they are similar

with respect to the 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 or AAP job groups, are not

controlling; rather, such groupings may

be relevant only to the extent that 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 from job

descriptions and from employee

interviews. The determination that

employees are similarly situated may

not be based 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 to the top

of the 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 only by understanding

employees' actual work activities.

3. Systemic compensation

discrimination exists where there are

statistically significant compensation

disparities between similarly situated

employees (as defined in Paragraph 2,

above), after taking into account

legitimate factors which influence

compensation. Such legitimate factors

may include education, experience,

performance, productivity, location, etc.

The determination of whether there are

statistically significant compensation

disparities between similarly situated

employees after taking into account

such legitimate factors must be based on

a multiple regression analysis.

4. A compensation disparity is

statistically significant under these

standards if it is significant at a level of

two or more standard deviations, based

on measures of statistical significance

that are generally accepted in the

statistics profession.

5. If a 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 for OFCCP Evaluation of

Contractors' Compensation Practices

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 a Notice of Violations

alleging systemic discrimination with

respect to compensation practices based

only on these standards.

2. OFCCP will make a finding of

systemic compensation discrimination

in those cases where there is anecdotal

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

evidence of discrimination (as discussed

in Paragraph 6, below, which notes that,

except in unusual cases, OFCCP will not

issue a Notice of Violation (NOV)

alleging systemic compensation

discrimination without providing

anecdotal evidence to support OFCCP's

statistical analysis) and where there

exists a statistically 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 of such a factor upon

proof that the factor was actually tainted

by the employer's discrimination.

OFCCP will attach the results of the

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 if they are similar

with respect to the 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, 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 as pay 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 from job

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 to the top

of the pay grade or range based on

performance or without changing jobs.

Rather, OFCCP will investigate whether

such preexisting groupings do in fact

group employees who perform similar

work, and who occupy positions

involving similar skills, qualifications,

and responsibility levels, by looking at

job descriptions and conducting

employee interviews.

4. A compensation disparity is

statistically significant under these

standards if it is significant at a level of

two or more standard deviations, based

on measures of statistical significance

that are generally accepted in the

statistics profession.

5. OFCCP will determine whether a

pooled regression model is appropriate

based on two factors: (a) The objective

to include at least 80% of the employees

(in the workforce subject to OFCCP's

compliance review) in some regression

analysis; and (b) whether there are

enough incumbent employees in a

particular regression to produce

statistically meaningful results. If a

pooled regression is required, OFCCP

will conduct 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.

6. In determining whether a violation

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 of Violation (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, if such

evidence presents a pattern or practice

of compensation discrimination.

7. OFCCP will also assert a

compensation discrimination violation

if the contractor establishes

compensation rates for jobs (not for

particular employees) that are occupied

predominantly by women or minorities

that are significantly lower than rates

established for jobs occupied

predominantly by men or nonminorities, where the evidence

establishes that the contractor made the

job wage-rate decisions based on the

sex, race or ethnicity of the incumbent

employees that predominate in each job.

Such evidence of discriminatory intent

may consist of the fact that the

contractor adopted a market survey to

determine the wage rate for the jobs, but

established the wage rate for the

predominantly female or minority job

lower than what that market survey

specified for that job, while establishing

for the predominantly male or nonminority job the full market rate

specified under the same market survey.

Signed at Washington, DC this 10th day of

November, 2004.

Victoria A. Lipnic,

Assistant Secretary for the Employment

Standards Administration.

Charles E. James, Sr.,

Deputy Assistant Secretaryfor Federal

Contract Compliance.

[FR Doc. 04-25401 Filed 11-15-04; 8:45 am]

BILLING CODE 4510-CM-P

DEPARTMENT OF LABOR

Employment Standards Administration

Office of Federal Contract Compliance

Programs; Guidelines for SelfEvaluation of Compensation Practices

for Compliance With

Nondiscrimination Requirements of

Executive Order 11246 With Respect to

Systemic Compensation

Discrimination, Notice

AGENCY: Office of Federal Contract

Compliance Programs, Employment

Standards Administration, Department

of Labor.

ACTION: Notice of proposed 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 of Federal Contract

Compliance Programs requests

comments on proposed guidelines for

self-evaluation of compensation

practices for compliance with Executive

Order 11246 with respect to systemic

compensation discrimination.

DATES: Comments must be submitted by

the following dates:

Hard Copy: Your comments must be

postmarked by December 16, 2004.

Facsimile: Your comments must be

sent by December 16, 2004.

ADDRESSES: Comments should be

submitted to Joseph DuBray, Jr.,

Director, Division of Policy, Planning

and Program Development, OFCCP.

Electronic mail is the preferred method

for submittal of comments. Comments

by electronic mail must 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 of the FAX receiver

is (202) 693-1304. To assure access to

the FAX equipment, only public

comments of six or fewer pages will be

accepted via FAX transmittal. Where

necessary, hard copies of comments,

clearly identified as pertaining to the

notice of proposed standards and

methodologies for evaluating

contractors' and subcontractors'

compensation practices, may also be

delivered to Joseph DuBray, Jr., Director,

Division of Policy, Planning and

Program Development, OFCCP, Room

C-3325, 200 Constitution Avenue, NW.,

67252
Federal 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 by which comments must be

received. Receipt of submissions will

not be acknowledged, except that the

sender may 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 of this 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: On May 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 of Labor's goal of pay 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 are being paid fairly.

65 FR 26089 (May 4, 2000).

On November 13, 2000, OFCCP

published a Final Rule adopting many

of the proposed revisions to the

regulatory requirements for written

affirmative action programs. 65 FR

68022 (Nov. 13, 2000). OFCCP adopted

a requirement 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 of the comments focused on the

requirement to review compensation

systems, with several commenters asserting

that OFCCP does not have authority to

enforce equal pay concerns, that analysis of

compensation systems is not required by the

current regulations, that compensation

analyses impose an additional burden, or that

OFCCP did not specify the types of analyses

it would find acceptable. Commenters also

expressed confusion about how the

information gained from [the compensation

analysis] should be used by contractors, and

how the contractor's actions will be

evaluated by OFCCP.

65 FR 68036 (Nov. 13, 2000).

OFCCP responded to these

commenters in the Preamble to the

November 13, 2000 Final Rule:

"[C]ontractors have the ability to choose

a type of compensation analyses that

will determine whether there are

gender-, race-, or ethnicity-based

disparities." 65 FR 68036 (Nov. 13,

2000).

OFCCP has not, however, provided

guidance to contractors or to 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 adopt voluntarily the

general standards outlined in this

Directive. Specifically, if a contractor, in

good faith, reasonably implements the

general standards outlined herein,

OFCCP will coordinate its compliance

monitoring activities with the

contractor's self-evaluation approach.

However, compliance with this

Directive is not the only way to comply

with Section 6-2.17(b)(3).

While developing these guidelines for

conducting compensation selfevaluations, OFCCP recognizes the risk

of liability that an employer faces when

making corrective compensation

adjustments under a self-evaluation

process. For example, female or

minority employees may bring claims

based on the theory that the employer's

own self-evaluation study established

that the employer engaged in

discrimination or that the employer did

not make sufficient compensation

adjustments to remedy the

discrimination. See, e.g., Cullen v.

Indiana Univ., 338 F.3d 693, 701-04

(7th Cir. 2003)(female professor sued

university alleging compensation

discrimination and basing her claim, in

part, on university's pay equity study).

Similarly, male or non-minority

employees may sue the employer

alleging violation of Title VII because

the employer gave salary adjustments to

female or minority employees under the

compensation self-evaluation. See, e.g.,

Rudenbusch v. 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

not face potential liability for

implementing a robust and effective

self-evaluation process.

Proposed Guidelines:

Proposed Guidelines for SelfEvaluation of Compensation Practices

for Compliance With Executive Order

11246 With Respect 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 of this Notice, if

the contractor's compensation selfevaluation system meets the following

general standards:

A. The self-evaluation is performed by

groupings of employees that are

similarly situated, referenced

hereinafter as "Similarly Situated

Employee Groupings," or "SSEGs."

Employees may be placed into the same

SSEG if they are "similarly situated';

that is, if the work they perform is

similar in content, responsibility, and

requisite skill and qualifications.

Employees may not be grouped in an

SSEG for purposes of this Notice unless

the work performed, responsibility

level, and requisite skill and

qualifications involved in their

positions are actually similar, regardless

of any employer-created designation,

such as job 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 of either

of the following pairs: male/female or

minority/non-minority. In certain cases,

small numbers of employees will not be

sufficiently similarly situated to other

employees to permit them to be grouped

in an SSEG. Such employees may be

eliminated from the statistical

evaluation process; however, the

contractor is expected to conduct a selfevaluation of pay decisions related to

such employees using non-statistical

methods. Further, the contractor's

statistical analyses must encompass a

significant majority of the employees in

the particular affirmative action

program or workplace. Where the

statistical analyses do not encompass at

least 80% of the employees in the

affirmative action program or

workplace, OFCCP will carefully

scrutinize the statistical analyses and

associated non-statistical selfevaluations.

C. On an annual basis, the contractor

must perform some type of statistical

analysis that evaluates SSEGs (as

defined in Section IA of this Notice) and

accounts for factors that legitimately

affect the compensation of the members

of the 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 that is

included in the analysis is not itself

subject to discrimination, although such

a factor may be included unless there is

evidence that the factor actually was

subject to discrimination. Correlation

between such a factor and a protected

characteristic does not automatically

disqualify the factor, if the 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 produced by

the self-evaluation analyses that it has

developed. OFCCP considers an

identified disparity to be statistically

significant if the significance level of the

disparity is two or more standard

deviations from a zero disparity level.1

The contractor must adequately

determine whether such statistical

disparities are explained by legitimate

factors or otherwise are not the product

of unlawful discrimination. If the

statistical disparities cannot be

explained, the contractor must provide

appropriate remedies. The remedies that

are appropriate will depend on the time

period in which the disparities emerged.

For the initial implementation of the

compensation self-evaluation system,

the contractor may have to make

adjustments based on both current

disparities and prior disparities. OFCCP

uses a two-year window for back pay

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 of this Notice, OFCCP will

carefully evaluate whether the

contractor has properly investigated

such disparities and has adequately

corrected any disparities that are not

explained by legitimate factors.

E. The contractor must

contemporaneously create and retain

the following documents and data:

(1) Documents necessary to explain

and justify its decisions with respect to

SSEGs, exclusion of certain employees,

factors included in the statistical

analyses, and the form of the 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 of this Notice;

(2) The data used in the statistical

analyses and the results of the statistical

analyses for two years from the date that

the statistical analyses are performed;

(3) The data and documents

explaining the results of the nonstatistical methods that the contractor

used to evaluate pay decisions of those

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

1 This significance level roughly translates to a

measured absolute disparity that is more than two

times the standard error of the estimated value.

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 of what 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

of such investigation, and any pay

adjustments made to remedy such

disparities. These documents must be

retained for a period of two years from

the date that the follow-up investigation

is performed.

F. The contractor must make all of the

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 by the

contractor in such documentation or

data.

II. Procedure

If the contractor's compensation selfevaluation system meets the standards

set forth in Section I of this 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

of this Notice.

B. If the contractor's compensation

self-evaluation system reasonably meets

the general standards outlined in

Section I of this Notice, OFCCP will

consider the contractor's compensation

practices to be in compliance with

Executive Order 11246. However,

OFCCP may suggest in writing that the

contractor make prospective

modifications to improve the selfevaluation system's conformity with the

general standards outlined in Section I

of this Notice, where OFCCP concludes

that the 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

that the 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 of this Notice.

C. OFCCP may review the documents

and data set forth in Section IE to

determine whether the contractor's

compensation self-evaluation system

reasonably meets the general standards

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Federal 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 I of this Notice to OFCCP's

Director of Statistical Analysis in the

National Office, or his or her designee.

E. Alternative Compliance

Certification: OFCCP understands that

some contractors may take the position,

based on advice of counsel, 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 would be waived

if the contractor disclosed the selfevaluation. OFCCP does not take any

position as to the applicability of such

protections in the context of a

compensation self-evaluation. However,

to avoid protracted legal disputes over

the applicability of such protections,

OFCCP will permit the contractor to

certify its compliance with 41 CFR 60-

2.17(b)(3) in lieu of producing the

methodology or results of its

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 of perjury,

and the certification must state that the

contractor has performed a

compensation self-evaluation with

respect to the affirmative action program

or workplace at issue, at the direction of

counsel, and that counsel has advised

the contractor that the compensation

self-evaluation analyses and results are

subject to the attorney-client privilege

and/or the attorney work product

doctrine. Because in such an instance

OFCCP cannot evaluate the contractor's

compliance with the general standards

outlined in Section I of this Notice, a

contractor that opts for this compliance

certification alternative will not be

entitled to the coordination outlined in

Section IIB of this Directive. That is,

contractors that opt for this alternative

compliance certification do not receive

the benefit of OFCCP 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

of their compensation self-evaluation

systems.

Signed at Washington, DC this 10th day of

November, 2004.

Victoria A. Lipnic,

Assistant Secretary for the Employment

Standards Administration.

Charles E. James, Sr.,

Deputy Assistant Secretary for Federal

Contract Compliance.

[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

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

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 61

[Docket No. FAA-2004-19630; Notice No.

04-14]

RIN 2120-AI38

Second-in-Command Pilot Type Rating

ACTION: Notice of proposed rulemaking

(NPRM).

SUMMARY: The FAA proposes to

establish a second-in-command (SIC)

pilot type rating for those persons who

complete the required SIC training. The

purpose of this proposal is to conform

the FAA pilot type rating 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 of this

proposal is to allow U.S. flight crews to

continue to operate in international

airspace without the threat of being

grounded for not holding the

appropriate pilot type rating.

DATES: Send your comments to reach us

by December 16, 2004.

ADDRESSES: You may send comments

identified by Docket Number FAA2004-using any of the following

methods:

* DOT Docket Web site: Go to

http://dms.dot.gov and follow the

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 of Transportation, 400

Seventh Street, SW., Nassif Building,

Room PL-401, Washington, DC 20590-

001.

* Fax: 1-202-493-2251.

* Hand Delivery: Room PL-401 on

the plaza level of the Nassif Building,

400 Seventh Street, SW., Washington,

DC, between 9 a.m. and 5 p.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. For more

information, see the Privacy Act

discussion in the SUPPLEMENTARY

INFORMATION section of this document.

Docket: To read background

documents or comments received, go to

http://dms.dot.gov at any time or to

Room PL-401 on the plaza level of the

Nassif Building, 400 Seventh Street,

SW., Washington, DC, between 9 a.m.

and 5 p.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.

Comments Invited

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

or federalism impacts that might result

from adopting the proposals in this

document. The most helpful comments

reference a specific portion of the

proposal, explain the reason for any

recommended change, and include

supporting data. We ask that you send

us two copies of written 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. If you wish to review the

docket in person, go to the address in

the ADDRESSES section of this 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 the Web address in the

ADDRESSES section.

Before acting on this proposal, we

will consider all comments we receive

on or before the closing date for

comments. We will consider comments

filed late if it is possible to do so

without incurring expense or delay. We

may change this proposal based on the

comments we receive.

If you want the FAA to acknowledge

receipt of your comments on this

proposal, include with your comments

a pre-addressed, stamped postcard that

identifies the docket number. We will

stamp the date on the postcard and mail

it to you.

Availability of Rulemaking Documents

You can get an electronic copy of

these rulemaking documents using the

Internet through the Office of

Rulemaking's Web page at http://

www.faa.gov/avr/armhome.htm or the

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 of Rulemaking,

ARM-1, 800 Independence Avenue,

SW., Washington, DC 20591; or by

telephoning 202/267-9680. Please

identify the docket number of this

rulemaking in your request.

SUPPLEMENTARY INFORMATION:

Background

The Convention on International Civil

Aviation (61 Stat. 1180), which was

signed at Chicago, Illinois, on December

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 their regulations

governing civil aviation, to the greatest

possible extent, consistent with those

established under the Convention

(article 12). Concerning pilots and flight

crew members, the signatory Member

States agree to recognize as valid

certificates of competency and licenses

issued by other signatories if the

requirements for the certificates or

licenses are equal to or above the

minimum standards established under

the Convention (article 33). If a

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, it must notify

ICAO of the 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 pilot flight 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

FAA has 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

that the § 61.55 SIC pilot familiarization

training requirements do not conform to

ICAO pilot type ratings standards for the

SIC pilot flight crewmember position

because the SIC pilot does not actually

receive a pilot type rating under the

existing § 61.55 provisions. As a result,

foreign civil aviation authorities have

put the FAA and U.S. flight crews on

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Federal 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 of NPRM

The FAA is proposing to revise 14

CFR § 61.5(b)(5) by adding 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 SIC privileges 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 on file with ICAO. By issuing

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 as long as the person

operates within the airspace of the

United States (as defined in 14 CFR

91.1), a person needn't hold this

proposed SIC pilot type rating. Only

when a person operates in international

airspace or the airspace of a foreign

country where compliance with the

pilot type rating standards of ICAO (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 it mandatory that U.S.

pilot flightcrews hold the appropriate

pilot type rating. As long as a person

operates within the airspace of the

United States (as defined in 14 CFR

91.1), that person 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 of a pilot type

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 of at least two

pilots and the aircraft's type certificate

requires a pilot type rating. The FAA

believes that the pilot community and

aircraft operators will support this

NPRM because it would 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 or training record to

verify that 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 or training record with the kind

of ground and flight training and

amount of training given [See

§ 61.51(h)(2)]. The person who provided

the training must sign the SIC

applicant's logbook/training record after

completion of each 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

Examiner. The Examiner must have the

authority to conduct practical tests for

pilot certification.

4. The person(s) who provides the

ground and flight familiarization

training to the SIC applicant must sign

the area of the FAA Form 8710-1

identified as the "Instructor's

Recommendation." This signoff is

required in this area of the form even if

a 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/training record to

ensure completion of the 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 that the

SIC Privileges Only limitation may only

be removed if that applicant completes

the appropriate type rating practical test

for pilot-in-command qualification.

There is no practical test required for

the issuance of the 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 that reads 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

newly issued temporary pilot certificate

to the FAA Airman Certification Branch,

AFS-760. If the 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 to the 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

under parts 121, 125, or 135 in an

aircraft that is certificated for operations

with a minimum crew of at least two

pilots and the aircraft's type certificate

requires a pilot type rating is entitled to

receive that aircraft type rating for

second-in-command privileges. The

procedure for issuing a SIC type rating

would be as follows:

1. The SIC applicant must complete

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 of

at least two pilots and the aircraft's type

certificate requires a pilot type rating.

2. The person who provides the SIC

training must sign the applicant's

logbook or training 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 or training

record with the kind of ground and

flight training and amount of training

given [See § 61.51(h)(2)]. The person

who provided the training must sign the

SIC applicant's logbook/training record

after completion of each 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

conduct practical tests for pilot

certification and holds an FAA Letter of

Authority.

4. The person(s) who provided the

ground and flight training to the SIC

applicant must sign the area of the FAA

Form 8710-1 identified as the

"Instructor's Recommendation." This

signoff is required in this area of FAA

Form 8710-1 even if a 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 of the

required training and endorsements. An

Aviation Safety Inspector, Aviation

Safety Technician, or Examiner reviews

the applicant's logbook/training record

and informs the applicant that the SIC

Privileges Only limitation may only be

removed if that applicant completes the

appropriate type rating practical test for

pilot-in-command qualification. There

is no practical test required for the

issuance of the 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 that reads 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. If the 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 to the 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, and would be making

application for an SIC pilot type rating

based on past completion of SIC pilot

training or a part 125 proficiency check.

The procedures for making application

for an SIC pilot type rating would

basically be the same as previously

stated in 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

or recurrent SIC training within the

preceding 12 calendar months prior to

the month of application for an SIC pilot

type rating. The following examples

illustrate how the rule would apply to

pilots who have already completed their

SIC training:

Example No. 1: The date is January 30,

2005, and the final rule for issuing SIC pilot

type ratings is now in effect. An airman

completed initial § 61.55(b) SIC pilot

familiarization training in a Cessna 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 for a SIC pilot

type rating for the CE500 until completing

recurrent SIC familiarization training within

the 12 calendar months before the month of

application.

Example No. 2: The date is January 30,

2005, and the final rule for issuing SIC pilot

type ratings is now in effect. An airman

completed initial part 121 SIC pilot training

in a Boeing 737 on August 6, 1998. The

airman has completed recurrent part 121 SIC

pilot training in a Boeing 737 every 12

calendar months, including on August 13,

2004. This airman could apply for a SIC pilot

type rating for the B737 because the recurrent

training was completed within the 12

calendar months before January 2005.

Example No. 3: The date is January 5,

2005, and the final rule for issuing SIC pilot

type ratings is now in effect. An airman

completed a part 125 SIC proficiency check

in a Gulfstream IV on August 6, 1990. The

airman next shows completion of a part 125

SIC proficiency check in a Gulfstream IV on January 23, 2004. This airman could apply

for an SIC pilot type rating for the Gulfstream

IV because part 125 SIC proficiency check was completed within the 12 calendar

months before January 2005.

Example No. 4: The date is January 5,

2005, and the final rule for issuing SIC pilot

type ratings is now in effect. An airman

completed initial § 61.55(b) SIC

familiarization in a Lear 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 for an SIC pilot type rating for

the Lear 60 because the recurrent SIC

familiarization training was completed

within the 12 calendar months before January

2005.

Paperwork Reduction Act

The Paperwork Reduction Act of 1995

(44 U.S.C. 3507(d)) requires that the

FAA consider the impact of paperwork

and other information collection

burdens imposed on the public. This

proposal contains the following

additional information collection

requirement for pilots who apply for an

SIC pilot type rating. As previously

stated in this document, the primary

purpose for this additional information

collection requirement is to allow U.S.

flight crews to continue to operate in

international airspace without the threat

of being 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 pilots who apply for an SIC pilot

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 of the

FAA Form 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

FAA Form 8710-1 application when

applying for an SIC pilot type rating.

However, as it was previously stated in

this document, the FAA wants it

understood that as long as the person

operates within the airspace of the

United States (as defined in 14 CFR

91.1), a person won't be required to hold

this proposed SIC pilot type rating. Only

when a person operates in international

airspace or the airspace of a foreign

country where compliance with the

pilot type rating standards of ICAO (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 it mandatory that U.S.

pilot flightcrews hold the appropriate

pilot type rating. As long as a person

operates within the airspace of the

United States (as defined in 14 CFR

91.1), that person only needs to comply

67260
Federal Register/Vol. 69, No. 220/Tuesday, November 16, 2004/Proposed Rules

the SIC qualifications and training of 14

CFR 61.55.

Frequency: Each pilot who needs to

obtain the SIC pilot type rating will do

so only once.

Annual Burden Estimate: The FAA

has no estimate of the annual

recordkeeping and reporting burden.

The FAA is requesting information

from the public on the following

questions:

How many pilots will apply for an

SIC pilot type rating on an annual basis?

What are the annual burden hours to

the public?

What are the annual costs to pilot

who will be applying for an SIC pilot

type rating?

What will be the total impact of this

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

a person is not required to respond to

a collection of information unless it

displays a currently valid control

number issued by 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 of the 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 Impact Assessment, 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 a reasoned determination that the

benefits of the 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 to the foreign

commerce of the United States. In

developing U.S. standards, this Trade

Act requires agencies to consider

international standards and, where

appropriate, that they be the basis for

U.S. standards. Fourth, the Unfunded

Mandates Reform Act of 1995 (Pub. L.

104-4) requires agencies to prepare a

written assessment of the costs, benefits,

and other effects of proposed or final

rules that include a Federal mandate

likely to result in the expenditure by

State, local, or tribal governments, in the

aggregate, or by the private sector, of

$100 million or more annually (adjusted

for inflation).

For proposals with an expected

minimal cost impact, a formal

assessment of costs and benefits is not

required. The Department of

Transportation Order 2100.5 prescribes

policies and procedures for

simplification, analysis, and review of

regulations. If it is determined that the

expected impact is so minimal that the

proposal does not warrant a full

evaluation, a statement is included in

the NPRM stating that the FAA has

determined that the expected outcome

will have a minimal impact with

positive net benefits.

The FAA's assessment of this NPRM

indicates that its economic impact will

be minimal because it does not propose

to significantly change the SIC

qualification requirements. The purpose

of this 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 or FAA Flight

Standards District Office to file the

application. The FAA has determined

there may be 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. The

FAA has thus determined that this

NPRM would have minimal impact with

positive net benefits. We specifically

request comments from the public on

this issue.

Regulatory Flexibility Determination

The Regulatory Flexibility Act of 1980

(RFA) establishes "as a principle of

regulatory issuance that agencies shall

endeavor, consistent with the objective

of the rule and of applicable statutes, to

fit regulatory and informational

requirements to the scale of the

business, organizations, and

governmental jurisdictions subject to

regulation." To achieve that principle,

the RFA requires agencies to solicit and

consider flexible regulatory proposals

and to explain the rationale for their

actions. The RFA covers a wide range of

small entities, including small

businesses, not-for-profit organizations

and small governmental jurisdictions.

Agencies must perform a review to

determine whether a proposed or final

rule will have a significant economic

impact on a substantial number of small

entities. If the agency determines that it

will, the agency must prepare a

regulatory flexibility analysis as

described in the RFA.

However, if an agency determines that

a proposed or final rule is not expected

to have a significant economic impact

on a substantial number of small

entities, section 605(b) of the RFA

provides that the head of the 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

that the rule will not have a significant

economic impact on a substantial

number of small entities. The FAA

solicits comments from the public

regarding this determination.

Trade Impact Assessment

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 of the United States.

Legitimate domestic objectives, such as

safety, are not considered unnecessary

obstacles. The statute also requires

consideration of international standards

and, where appropriate, that they be the

basis for U.S. standards. The FAA has

assessed the potential effect of this

rulemaking and has determined that it

would reduce trade barriers by

narrowing the difference between the

U.S. and ICAO regulations. The FAA

has determined there may be 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

of 1995 (the Act) is intended, among

other things, to curb the practice of

imposing unfunded Federal mandates

on State, local, and tribal governments.

Title II of the Act requires each Federal

67261
Federal Register/Vol. 69, No. 220/Tuesday, November 16, 2004/Proposed Rules

agency to prepare a written statement

assessing the effects of any Federal

mandate in a proposed 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 by the 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 of Title 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 a substantial direct effect on

the States, on the relationship between

the national Government and the States,

or on the distribution of power and

responsibilities among the various

levels of government, and therefore

would not have federalism implications.

Environmental Analysis

FAA Order 1050.1E identifies FAA

actions that are categorically excluded

from preparation of an environmental

assessment or environmental impact

statement under the National

Environmental Policy Act in the

absence of extraordinary 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 of pilot type ratings to SIC

pilot crewmembers in order to conform

the FAA pilot type rating requirements

to the ICAO pilot type ratings standards.

Regulations That Significantly Affect

Energy Supply, Distribution, or Use

The FAA has analyzed this NPRM

under Executive Order 13211, "Actions

Concerning Regulations that

Significantly Affect Energy Supply,

Distribution, or Use" (May 18, 2001).

We have determined that it is not a "significant energy action" under the

executive order because it is not a "significant regulatory action" under

Executive Order 12866, and it is not

likely to have a significant adverse effect

on the supply, distribution, or use of

energy.

List of Subjects in 14 CFR Part 61

Aircraft, Airmen, Aviation safety, and

Reporting and recordkeeping

requirements.

The Amendment

In consideration of the foregoing, the

Federal Aviation Administration

proposes to amend Chapter H of Title 14

Code of Federal Regulations as follows:

PART 61-CERTIFICATION: PILOTS,

FLIGHT INSTRUCTORS, AND GROUND

INSTRUCTORS

1. The authority citation for part 61

continues to read as follows:

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) to read 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 of at

least two pilots.

3. Amend § 61.55 by revising the

introductory language of paragraph (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 as follows:

§61.55 Second-in-command

qualifications.

(a) Except as provided in paragraph

(e) of this section, no person may serve

as a second-in-command of an 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 if the flight

is under IFR; and

(3) An aircraft type rating for aircraft

that is certificated for operations with a

minimum crew of at least two pilots.

(d) If a person complies with the

second-in-command familiarization

training requirements in paragraph (b)

of this section in an aircraft that is

certificated for operations with a

minimum crew of at least two pilots and

the aircraft's type certificate requires a

pilot type rating, then that person is

entitled to receive 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

that is certificated for operations with a

minimum crew of at least two pilots and

the aircraft's type certificate requires a

pilot type rating, then that person is

entitled to receive that aircraft type

rating for second-in-command

privileges.

Issued in Washington, DC, on November 9,

2004.

John M. Allen,

Acting Director, Flight Standards Service.

[FR Doc. 04-25415 Filed 11-15-04; 8:45 am]

BILLING CODE 4910-13-U

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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 of each title.

3 CFR

Proclamations:

7838 ................................. 6504 1

7839 ................................. 65043

7840 ................................. 65045

784 1 ................................. 65047

7842 ................................. 65049

7843 ................................. 6505 1

7844 ................................. 655 11

7845 ................................. 655 15

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 ................................... 65 05 3

90 5 ................................... 64 64 1

1580 ................................. 633 17

1775 ................................. 655 17

1777 ................................. 655 17

1778 ................................. 655 17

1780 ................................. 655 17

1942 ................................. 655 17

1955 ................................. 65520

3570 ................................. 655 17

4274 ................................. 655 17

4279 ................................. 64829

Proposed Rules:

923 ................................... 63958

1260 ................................. 65386

17 17 ................................. 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 C FR 5 ....................................... 63436

71 ........... 64656, 65069, 65367, Proposed Rules: Proposed Rules: 7 ....................................... 63436

65368,67052,67215 81 ..................................... 63576 51-2 .................................. 65395 23 ...............................

65330

97 ......................... 633 18,65538 203 ................................... 65324 51-3 .................................. 65395 52 ...............................65330

Proposed Rules: 51-4 .................................. 65395 C h.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

6 1 ..................................... 67258 0 ....................................... 65542 4 18 ..................... .... 66236 223 ..............................65 12 1

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

382 ................... 4 6 404 

45oposed ................................. .R.. . 6542 

2236 

486 ........................................ 66236 ..............................

65 12 1

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 C FR

740 ......................... 65555 744 

752 

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

................................... 65555 Proposed Rules: 46 C FR 40 ...............................

64865

764 ................................... 65555 C h. I ..................... 63979, 65555 501171 ..............................

64462

772 ................................... 65555 

65555 

110 

117 .......... ........... 64546,64549,64551 

64553,64875 501 . ................................... .................... 64398 64398 172 ........................... 64462

165 ................................... 64555 Proposed Rules: 173 ................. 64462

16 C FR 53 1 ................................... 6398 1 501 ..............................

63957

5 4 1 ..............................

63 95 7

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

C h.I ................................. 64698 1234 ................................. 63980 65381,65382,65545 172 ..............................

65294

80 ..................................... 64 66 4 173 ..............................

65 29 4 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 ....................................... 6 4 8 7 3 2 7 ..................................... 6 3 4 5 9 3 7 9 ..............................

6 3 9 9 7

270 ................................... 648 16 39 C FR 64 ..................................... 6540 1 381 ..............................

63997

18 C FR 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. 202 ......................... .................... 63326 63326 57. 571 ...........................

....... .612 65126

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 ................................... 670 18 63 ..................................... 63452 219 ................................... 63328 50 C FR

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 ................................... 6 34 8 2 27 1 ................................... 6 4 86 1 18 0 4 ................................. 63 45 8 6 79 ..............................

64 68 3

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 ....................... 67 104,67 106

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 Pacific

fisheriesWest 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 Track

ProgramHazardous waste

generator facilities;

reporting requirements;

correction; comments

due by 11-24-04;

published 10-25-04 [FR

04-23842]

Solid wastes:

National Environmental

Performance Track

ProgramHazardous 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 contingency

planNational 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 D airspace; 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

Public Laws Electronic

Notification Service

(PENS)

PENS is a free electronic mail

notification service of newly

enacted public laws. To

subscribe, go to http://

listserv.gsa.gov/archives/

publaws-l.html

Note: This service is strictly

for E-mail notification of new

laws. The text of laws is not

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specific inquiries sent to this

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