National Pollutant Discharge Elimination System Regulation Revision: Removal of the Pesticide Discharge Permitting Exemption in Response to Sixth Circuit Court of Appeals Decision, 38591-38594 [2013-15445]

Download as PDF Federal Register / Vol. 78, No. 124 / Thursday, June 27, 2013 / Rules and Regulations 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 action 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). Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 26, 2013. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).) List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Nitrogen dioxide, Ozone, Volatile organic compounds. Dated: March 22, 2013. H. Curtis Spalding, Regional Administrator, EPA New England. America, Cyro Industries, and Curtis Packaging. (i) Incorporation by reference. (A) State of Connecticut vs. Sumitomo Bakelite North America, Inc., Consent Order No. 8245, issued as a final order on October 11, 2006. (B) State of Connecticut and Cyro Industries, Consent Order No. 8268, issued as a final order on February 28, 2007. (C) State of Connecticut vs. Curtis Packaging Corporation, Consent Order No. 8270, issued as a final order on May 1, 2007. 2. Section 52.370 is amended by adding paragraph (c)(101) to read as follows: ■ § 52.370 Identification of plan TKELLEY on DSK3SPTVN1PROD with RULES * * * * * (c) * * * (101) Revisions to the State Implementation Plan submitted by the Connecticut Department of Environmental Protection on July 20, 2007, consisting of orders establishing reasonably available control technology for volatile organic compound emissions for Sumitomo Bakelite North VerDate Mar<15>2010 15:51 Jun 26, 2013 Jkt 229001 RIN 2040–AF47 National Pollutant Discharge Elimination System Regulation Revision: Removal of the Pesticide Discharge Permitting Exemption in Response to Sixth Circuit Court of Appeals Decision SUMMARY: Certification of no sources. * * * * * (b) In its December 8, 2006 submittal to EPA pertaining to reasonably available control technology requirements for the 1997 8-hour ozone standard, the State of Connecticut certified to the satisfaction of EPA that no sources are located in the state that are covered by the following Control Technique Guidelines: (1) Automobile Coatings; (2) Large Petroleum Dry Cleaners; (3) Large Appliance Coating; (4) Natural Gas and Gas Processing Plants; (5) Flat Wood Paneling Coatings; and (6) Control of VOC Leaks from Petroleum Refineries. * Subpart H—Connecticut [EPA–HQ–OW–2003–0063; FRL–9829–2] § 52.375 PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS Authority: 42 U.S.C. 7401 et seq. 40 CFR Part 122 3. Section 52.375 is amended by revising paragraph (b) to read as follows: ■ ■ 1. The authority citation for part 52 continues to read as follows: ENVIRONMENTAL PROTECTION AGENCY Environmental Protection Agency (EPA). ACTION: Final rule. Part 52 of chapter I, title 40 of the Code of Federal Regulations is amended as follows: ■ 38591 4. Section 52.377 is amended by adding paragraph (l) to read as follows: § 52.377 Control strategy: Ozone. * * * * (l) Approval—Revisions to the Connecticut State Implementation Plan (SIP) submitted on December 8, 2006. The SIP revision satisfies the requirement to implement reasonably available control technology (RACT) for sources of volatile organic compounds (VOC) and oxides of nitrogen (NOX) for purposes of the 1997 8-hour ozone standard. Specifically, the following sections of the Regulations of Connecticut State Agencies are approved for this purpose: For VOC RACT, 22a–174–20, Control of Organic Compound Emissions, 22a–174–30, Dispensing of Gasoline/Stage I and Stage II Vapor Recovery, and 22a–174– 32, RACT for Organic Compounds; for NOX RACT, 22a–174–22, Control of Nitrogen Oxide Emissions, and 22a– 174–38, Municipal Waste Combustors. [FR Doc. 2013–15299 Filed 6–26–13; 8:45 am] BILLING CODE 6560–50–P PO 00000 Frm 00051 Fmt 4700 Sfmt 4700 AGENCY: The EPA is amending its regulations to remove language added by the EPA’s 2006 NPDES Pesticides Rule which exempted the application of pesticides from National Pollutant Discharge Elimination System (NPDES) permit requirements in two circumstances: When the application of the pesticide is made directly to waters of the United States to control pests that are present in the water, and when the application of the pesticide is made to control pests that are over, including near, waters of the United States. This rulemaking is in response to the 2009 Sixth Circuit Court of Appeals ruling that vacated the EPA’s 2006 NPDES Pesticides Rule. DATES: This final rule is effective on June 27, 2013. ADDRESSES: The record for this rulemaking is available for inspection and copying at the Water Docket, located at the EPA Docket Center (EPA/ DC), EPA West 1301 Constitution Ave. NW., Washington, DC 20004. The record is also available via the EPA Dockets at https://www.regulations.gov under docket number EPA–HQ–OW–2003– 0063. The rule and key supporting documents are also available electronically on the Internet at https:// www.epa.gov/npdes/pesticides. FOR FURTHER INFORMATION CONTACT: For further information contact Prasad Chumble, Water Permits Division, Office of Wastewater Management (4203M), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460, telephone number: (202) 564–0021, email address: chumble.prasad@epa.gov. SUPPLEMENTARY INFORMATION: I. General Information II. Background and Rationale for Action III. Implementation IV. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive E:\FR\FM\27JNR1.SGM 27JNR1 38592 Federal Register / Vol. 78, No. 124 / Thursday, June 27, 2013 / Rules and Regulations Order 13563: Improving Regulation and Regulatory Review B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations K. Congressional Review Act V. Statutory Authority I. General Information A. Does this action apply to me? This action may be of interest to you if you apply pesticides to or over, including near, waters of the United States. Potentially affected entities, as categorized in the North American Industry Classification System (NAICS), may include, but are not limited to: TABLE 1—ENTITIES POTENTIALLY REGULATED BY THIS RULE Category Examples of potentially affected entities NAICS Agriculture parties—General agricultural interests, farmers/producers, forestry, and irrigation. 111 Crop Production ..................................... 113110 Timber Tract Operations .................. 113210 Forest Nurseries Gathering of Forest Products. Pesticide parties (includes pesticide manufacturers, other pesticide users/interests, and consultants). Public health parties (includes mosquito or other vector control districts and commercial applicators that service these). Resource management parties (includes State departments of fish and wildlife, State departments of pesticide regulation, State environmental agencies, and universities). 221310 Water Supply for Irrigation ............... 325320 Pesticide and Other Agricultural Chemical Manufacturing. 923120 Administration of Public Health Programs. 924110 Administration of Air and Water Resource and Solid Waste Management Programs. 924120 Administration of Conservation Programs. TKELLEY on DSK3SPTVN1PROD with RULES Utility parties (includes utilities) .......................... VerDate Mar<15>2010 15:51 Jun 26, 2013 Jkt 229001 221 PO 00000 Utilities .................................................... Frm 00052 Fmt 4700 Sfmt 4700 Producers of crops mainly for food and fiber including farms, orchards, groves, greenhouses, and nurseries that have irrigation ditches requiring pest control. The operation of timber tracts for the purpose of selling standing timber. Growing trees for reforestation and/or gathering forest products, such as gums, barks, balsam needles, rhizomes, fibers, Spanish moss, ginseng, and truffles. Operating irrigation systems. Formulation and preparation of agricultural pest control chemicals. Government establishments primarily engaged in the planning, administration, and coordination of public health programs and services, including environmental health activities. Government establishments primarily engaged in the administration, regulation, and enforcement of air and water resource programs; the administration and regulation of water and air pollution control and prevention programs; the administration and regulation of flood control programs; the administration and regulation of drainage development and water resource consumption programs; and coordination of these activities at intergovernmental levels. Government establishments primarily engaged in the administration, regulation, supervision and control of land use, including recreational areas; conservation and preservation of natural resources; erosion control; geological survey program administration; weather forecasting program administration; and the administration and protection of publicly and privately owned forest lands. Government establishments responsible for planning, management, regulation and conservation of game, fish, and wildlife populations, including wildlife management areas and field stations; and other administrative matters relating to the protection of fish, game, and wildlife are included in this industry. Provide electric power, natural gas, steam supply, water supply, and sewage removal through a permanent infrastructure of lines, mains, and pipes. E:\FR\FM\27JNR1.SGM 27JNR1 TKELLEY on DSK3SPTVN1PROD with RULES Federal Register / Vol. 78, No. 124 / Thursday, June 27, 2013 / Rules and Regulations II. Background and Rationale for Action On November 27, 2006, the EPA issued a final rule, Application of Pesticides to Waters of the United States in Compliance with FIFRA (71 FR 68483) (‘‘2006 NPDES Pesticides Rule’’), which promulgated 40 CFR 122.3(h). Section 122.3(h) specified two circumstances in which an NPDES permit would not be required for the application of pesticides to waters of the United States. They were: (1) the application of pesticides directly to waters of the United States to control pests; and (2) the application of pesticides to control pests that are present over waters of the United States, including near such waters, where a portion of the pesticides will unavoidably be deposited to waters of the United States to target the pests effectively; provided that the application is consistent with relevant Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) requirements. On January 19, 2007, petitions for review of the 2006 NPDES Pesticides Rule were filed in eleven federal circuit courts of appeals by industry and environmental groups. Petitions were consolidated and assigned to the Sixth Circuit Court of Appeals. On January 7, 2009, the Sixth Circuit Court concluded the EPA’s 2006 NPDES Pesticides Rule was inconsistent with the Clean Water Act. Nat’ Cotton Council of Am. v. EPA, 553 F.3d 927 (6th Cir. 2009). On January 17, 2012 the court issued a mandate vacating the Rule. Today’s action removes 40 CFR 122.3(h) from the Code of Federal Regulations (CFR), in accordance with the vacatur of that section by the Court. The EPA is not providing an opportunity for comment on this final rule. Under the Administrative Procedure Act of 1946 (APA) an agency may issue a final rulemaking without providing notice and an opportunity for public comment in certain specific instances. This may occur, in particular, when an agency for good cause finds (and incorporates the finding and a brief statement of reasons therefore in the rules issued) that public notice and comment procedures are impracticable, unnecessary, or contrary to the public interest. See 5 U.S.C. 553(b)(3)(B). The EPA finds that notice and an opportunity for public comment are unnecessary for today’s action. This action is ministerial because the Sixth Circuit Court vacated the 2006 NPDES Pesticides Rule effective January 17, 2012. The EPA has no discretion in taking this action. Based on the Court’s decision, the 2006 NPDES Pesticides VerDate Mar<15>2010 15:51 Jun 26, 2013 Jkt 229001 Rule is no longer effective. Therefore, the EPA is removing the Rule from the CFR to conform to the Court’s decision. Providing an opportunity for notice and comment is therefore unnecessary. The EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(3)(B). III. Implementation The EPA has determined that good cause exists to waive the requirement under 5 U.S.C. 553(d) that a substantive rule’s effective date be not less than 30 days after the publication of the rule. The APA authorizes exceptions to 5 U.S.C. 553(d) for substantive rules that grant or recognize an exemption or relieve a restriction; interpretative rules and statements of policy; and as otherwise provided by the agency for good cause found and published with the rule. The 2006 NPDES Pesticides Rule was vacated by the Sixth Circuit Court effective January 17, 2012. This rule only amends the CFR to reflect the Court’s order. It does not impose any requirements or alter the status quo in any way, and regulated parties will not need to adjust their behavior in response to this rule. The EPA finds that this constitutes good cause to waive the requirement that a rule be published not less than 30 days before its effective date pursuant to 5 U.S.C. 553(d)(3). Therefore, this final rule is effective on June 27, 2013. IV. Statutory and Executive Order Reviews A. Executive Order 12866 (Regulatory Planning and Executive Order 13563: Improving Regulation and Regulatory Review) This action is not a ‘‘significant regulatory action’’ under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and Executive Order 13563 (76 FR 3821, January 21, 2011) and is therefore not subject to review under the Executive Orders. 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. Burden is defined at 5 CFR 1320.3(b). The Agency believes this action does not impose a burden because it only removes the 2006 NPDES Pesticides Rule from the CFR. C. Regulatory Flexibility Act Today’s action is not subject to the Regulatory Flexibility Act (RFA), which generally requires an agency to prepare a regulatory flexibility analysis for any rule that will have a significant economic impact on a substantial PO 00000 Frm 00053 Fmt 4700 Sfmt 4700 38593 number of small entities. The RFA applies only to rules subject to notice and comment rulemaking requirements under the Administrative Procedure Act (APA) or any other statute. This rule is not subject to notice and comment requirements under the APA or any other statute because although the rule is subject to the APA, it does not impose any requirements or alter the status quo in any way, and regulated parties will not need to adjust their behavior in response to this rule. Therefore, the Agency has invoked the ‘‘good cause’’ exemption to the notice and comment requirement under 5 USC 553(b). D. Unfunded Mandates Reform Act This action contains no Federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531– 1538 for State, local, or tribal governments or the private sector. The action imposes no enforceable duty on any State, local or tribal governments or the private sector. Therefore, this action is not subject to the requirements of sections 202 or 205 of the UMRA. This action is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. E. Executive Order 13132 (Federalism) This action 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 (64 FR 43255, August 10, 1999), because the action removes the 2006 NPDES Pesticides Rule from the CFR, which has already been vacated by the Sixth Circuit Court. This rule imposes no regulatory requirements on any State, tribal, or local government. Thus, Executive Order 13132 does not apply to 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 9, 2000), requires the 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 action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). It imposes no E:\FR\FM\27JNR1.SGM 27JNR1 38594 Federal Register / Vol. 78, No. 124 / Thursday, June 27, 2013 / Rules and Regulations regulatory requirements or costs on any tribal government. It does 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. Thus, Executive Order 13175 does not apply to this rule. G. Executive Order 13045 (Protection of Children From Environmental Health and Safety Risks) This action is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it is not economically significant as defined in Executive Order 12866, and because the Agency does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. H. Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) This action is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not a significant regulatory action under Executive Order 12866. TKELLEY on DSK3SPTVN1PROD with RULES I. National Technology Transfer and Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (‘‘NTTAA’’), Public Law 104–113, 12(d) (15 U.S.C. 272 note) directs the 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. NTTAA directs the EPA to provide Congress, through the Office of Management and Budget, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This action does not involve technical standards. Therefore, the EPA did not consider the use of any voluntary consensus standards. J. Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations) Executive Order 12898 (59 FR 7629, February 16, 1994) establishes Federal executive policy on environmental justice. Its main provision directs VerDate Mar<15>2010 15:51 Jun 26, 2013 Jkt 229001 Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. The EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. This action merely removes the 2006 NPDES Pesticides Rule from the CFR which was vacated by the U.S. Court of Appeals. Dated: June 21, 2013. Bob Perciasepe, Acting Administrator. K. 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. Section 808 allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary or contrary to the public interest. This determination must be supported by a brief statement. 5 U.S.C. 808(2). As stated previously, the EPA has made such a good cause finding, including the reasons therefore, and established an effective date of June 27, 2013. The 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. This action is not a ‘‘major rule’’ as defined by 5 U.S.C. 804(2). BILLING CODE 6560–50–P V. Statutory Authority This rule is issued under the authority of sections 101, 301, 304, 306, 308, 402, and 501 of the CWA. 33 U.S.C. 1251, 1311, 1314, 1316, 1317, 1318, 1342, and 1361. List of Subjects in 40 CFR Part 122 Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous substances, Reporting and recordkeeping requirements, Water pollution control. PO 00000 Frm 00054 Fmt 4700 Sfmt 4700 For the reasons set out in the preamble, 40 CFR part 122 is amended as follows: PART 122—EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM 1. The authority citation for part 122 continues to read as follows: ■ Authority: The Clean Water Act, 33 U.S.C. 1251 et seq. § 122.3 [Amended] 2. Section 122.3 is amended by removing and reserving paragraph (h). ■ [FR Doc. 2013–15445 Filed 6–26–13; 8:45 am] DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Medicare & Medicaid Services 42 CFR Part 483 [CMS–3140–F] RIN 0938–AP32 Medicare and Medicaid Programs; Requirements for Long Term Care Facilities; Hospice Services Centers for Medicare & Medicaid Services (CMS), HHS. ACTION: Final rule. AGENCY: This final rule will revise the requirements that an institution will have to meet in order to qualify to participate as a skilled nursing facility (SNF) in the Medicare program, or as a nursing facility (NF) in the Medicaid program. These requirements will ensure that long-term care (LTC) facilities (that is, SNFs and NFs) that choose to arrange for the provision of hospice care through an agreement with one or more Medicare-certified hospice providers will have in place a written agreement with the hospice that specifies the roles and responsibilities of each entity. This final rule reflects the Centers for Medicare and Medicaid Services’ (CMS’) commitment to the principles of the President’s Executive Order 13563, released on January 18, 2011, titled ‘‘Improving Regulation and Regulatory Review.’’ It will improve quality and consistency of care between hospices and LTC facilities in the provision of hospice care to LTC residents. SUMMARY: E:\FR\FM\27JNR1.SGM 27JNR1

Agencies

ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 78, Number 124 (Thursday, June 27, 2013)]
[Rules and Regulations]
[Pages 38591-38594]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-15445]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 122

[EPA-HQ-OW-2003-0063; FRL-9829-2]
RIN 2040-AF47

National Pollutant Discharge Elimination System Regulation
Revision: Removal of the Pesticide Discharge Permitting Exemption in
Response to Sixth Circuit Court of Appeals Decision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The EPA is amending its regulations to remove language added
by the EPA's 2006 NPDES Pesticides Rule which exempted the application
of pesticides from National Pollutant Discharge Elimination System
(NPDES) permit requirements in two circumstances: When the application
of the pesticide is made directly to waters of the United States to
control pests that are present in the water, and when the application
of the pesticide is made to control pests that are over, including
near, waters of the United States. This rulemaking is in response to
the 2009 Sixth Circuit Court of Appeals ruling that vacated the EPA's
2006 NPDES Pesticides Rule.

DATES: This final rule is effective on June 27, 2013.

ADDRESSES: The record for this rulemaking is available for inspection
and copying at the Water Docket, located at the EPA Docket Center (EPA/
DC), EPA West 1301 Constitution Ave. NW., Washington, DC 20004. The
record is also available via the EPA Dockets at https://www.regulations.gov under docket number EPA-HQ-OW-2003-0063. The rule
and key supporting documents are also available electronically on the
Internet at https://www.epa.gov/npdes/pesticides.

FOR FURTHER INFORMATION CONTACT: For further information contact Prasad
Chumble, Water Permits Division, Office of Wastewater Management
(4203M), Environmental Protection Agency, 1200 Pennsylvania Ave. NW.,
Washington, DC 20460, telephone number: (202) 564-0021, email address:
chumble.prasad@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information
II. Background and Rationale for Action
III. Implementation
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive

[[Page 38592]]

Order 13563: Improving Regulation and Regulatory Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Congressional Review Act
V. Statutory Authority

I. General Information

A. Does this action apply to me?

This action may be of interest to you if you apply pesticides to or
over, including near, waters of the United States. Potentially affected
entities, as categorized in the North American Industry Classification
System (NAICS), may include, but are not limited to:

Table 1--Entities Potentially Regulated by This Rule
------------------------------------------------------------------------
Examples of
Category NAICS potentially affected
entities
------------------------------------------------------------------------
Agriculture parties--General 111 Crop Production. Producers of crops
agricultural interests, mainly for food and
farmers/producers, fiber including
forestry, and irrigation. farms, orchards,
groves,
greenhouses, and
nurseries that have
irrigation ditches
requiring pest
control.
113110 Timber Tract The operation of
Operations. timber tracts for
the purpose of
selling standing
timber.
113210 Forest Growing trees for
Nurseries Gathering reforestation and/
of Forest Products. or gathering forest
products, such as
gums, barks, balsam
needles, rhizomes,
fibers, Spanish
moss, ginseng, and
truffles.
221310 Water Supply Operating irrigation
for Irrigation. systems.
Pesticide parties (includes 325320 Pesticide and Formulation and
pesticide manufacturers, Other Agricultural preparation of
other pesticide users/ Chemical agricultural pest
interests, and consultants). Manufacturing. control chemicals.
Public health parties 923120 Government
(includes mosquito or other Administration of establishments
vector control districts Public Health primarily engaged
and commercial applicators Programs. in the planning,
that service these). administration, and
coordination of
public health
programs and
services, including
environmental
health activities.
Resource management parties 924110 Government
(includes State departments Administration of establishments
of fish and wildlife, State Air and Water primarily engaged
departments of pesticide Resource and Solid in the
regulation, State Waste Management administration,
environmental agencies, and Programs. regulation, and
universities). enforcement of air
and water resource
programs; the
administration and
regulation of water
and air pollution
control and
prevention
programs; the
administration and
regulation of flood
control programs;
the administration
and regulation of
drainage
development and
water resource
consumption
programs; and
coordination of
these activities at
intergovernmental
levels.
924120 Government
Administration of establishments
Conservation primarily engaged
Programs. in the
administration,
regulation,
supervision and
control of land
use, including
recreational areas;
conservation and
preservation of
natural resources;
erosion control;
geological survey
program
administration;
weather forecasting
program
administration; and
the administration
and protection of
publicly and
privately owned
forest lands.
Government
establishments
responsible for
planning,
management,
regulation and
conservation of
game, fish, and
wildlife
populations,
including wildlife
management areas
and field stations;
and other
administrative
matters relating to
the protection of
fish, game, and
wildlife are
included in this
industry.
Utility parties (includes 221 Utilities....... Provide electric
utilities). power, natural gas,
steam supply, water
supply, and sewage
removal through a
permanent
infrastructure of
lines, mains, and
pipes.
------------------------------------------------------------------------

[[Page 38593]]

II. Background and Rationale for Action

On November 27, 2006, the EPA issued a final rule, Application of
Pesticides to Waters of the United States in Compliance with FIFRA (71
FR 68483) (``2006 NPDES Pesticides Rule''), which promulgated 40 CFR
122.3(h). Section 122.3(h) specified two circumstances in which an
NPDES permit would not be required for the application of pesticides to
waters of the United States. They were: (1) the application of
pesticides directly to waters of the United States to control pests;
and (2) the application of pesticides to control pests that are present
over waters of the United States, including near such waters, where a
portion of the pesticides will unavoidably be deposited to waters of
the United States to target the pests effectively; provided that the
application is consistent with relevant Federal Insecticide, Fungicide
and Rodenticide Act (FIFRA) requirements.
On January 19, 2007, petitions for review of the 2006 NPDES
Pesticides Rule were filed in eleven federal circuit courts of appeals
by industry and environmental groups. Petitions were consolidated and
assigned to the Sixth Circuit Court of Appeals. On January 7, 2009, the
Sixth Circuit Court concluded the EPA's 2006 NPDES Pesticides Rule was
inconsistent with the Clean Water Act. Nat' Cotton Council of Am. v.
EPA, 553 F.3d 927 (6th Cir. 2009). On January 17, 2012 the court issued
a mandate vacating the Rule.
Today's action removes 40 CFR 122.3(h) from the Code of Federal
Regulations (CFR), in accordance with the vacatur of that section by
the Court. The EPA is not providing an opportunity for comment on this
final rule. Under the Administrative Procedure Act of 1946 (APA) an
agency may issue a final rulemaking without providing notice and an
opportunity for public comment in certain specific instances. This may
occur, in particular, when an agency for good cause finds (and
incorporates the finding and a brief statement of reasons therefore in
the rules issued) that public notice and comment procedures are
impracticable, unnecessary, or contrary to the public interest. See 5
U.S.C. 553(b)(3)(B).
The EPA finds that notice and an opportunity for public comment are
unnecessary for today's action. This action is ministerial because the
Sixth Circuit Court vacated the 2006 NPDES Pesticides Rule effective
January 17, 2012. The EPA has no discretion in taking this action.
Based on the Court's decision, the 2006 NPDES Pesticides Rule is no
longer effective. Therefore, the EPA is removing the Rule from the CFR
to conform to the Court's decision. Providing an opportunity for notice
and comment is therefore unnecessary. The EPA finds that this
constitutes good cause under 5 U.S.C. 553(b)(3)(B).

III. Implementation

The EPA has determined that good cause exists to waive the
requirement under 5 U.S.C. 553(d) that a substantive rule's effective
date be not less than 30 days after the publication of the rule. The
APA authorizes exceptions to 5 U.S.C. 553(d) for substantive rules that
grant or recognize an exemption or relieve a restriction;
interpretative rules and statements of policy; and as otherwise
provided by the agency for good cause found and published with the
rule. The 2006 NPDES Pesticides Rule was vacated by the Sixth Circuit
Court effective January 17, 2012. This rule only amends the CFR to
reflect the Court's order. It does not impose any requirements or alter
the status quo in any way, and regulated parties will not need to
adjust their behavior in response to this rule. The EPA finds that this
constitutes good cause to waive the requirement that a rule be
published not less than 30 days before its effective date pursuant to 5
U.S.C. 553(d)(3). Therefore, this final rule is effective on June 27,
2013.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866 (Regulatory Planning and Executive Order
13563: Improving Regulation and Regulatory Review)

This action is not a ``significant regulatory action'' under the
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and
Executive Order 13563 (76 FR 3821, January 21, 2011) and is therefore
not subject to review under the Executive Orders.

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.
Burden is defined at 5 CFR 1320.3(b). The Agency believes this action
does not impose a burden because it only removes the 2006 NPDES
Pesticides Rule from the CFR.

C. Regulatory Flexibility Act

Today's action is not subject to the Regulatory Flexibility Act
(RFA), which generally requires an agency to prepare a regulatory
flexibility analysis for any rule that will have a significant economic
impact on a substantial number of small entities. The RFA applies only
to rules subject to notice and comment rulemaking requirements under
the Administrative Procedure Act (APA) or any other statute. This rule
is not subject to notice and comment requirements under the APA or any
other statute because although the rule is subject to the APA, it does
not impose any requirements or alter the status quo in any way, and
regulated parties will not need to adjust their behavior in response to
this rule. Therefore, the Agency has invoked the ``good cause''
exemption to the notice and comment requirement under 5 USC 553(b).

D. Unfunded Mandates Reform Act

This action contains no Federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538 for State, local, or tribal governments or the private
sector. The action imposes no enforceable duty on any State, local or
tribal governments or the private sector. Therefore, this action is not
subject to the requirements of sections 202 or 205 of the UMRA. This
action is also not subject to the requirements of section 203 of UMRA
because it contains no regulatory requirements that might significantly
or uniquely affect small governments.

E. Executive Order 13132 (Federalism)

This action 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 (64 FR 43255, August 10, 1999),
because the action removes the 2006 NPDES Pesticides Rule from the CFR,
which has already been vacated by the Sixth Circuit Court. This rule
imposes no regulatory requirements on any State, tribal, or local
government. Thus, Executive Order 13132 does not apply to 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 9, 2000),
requires the 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 action does
not have tribal implications, as specified in Executive Order 13175 (65
FR 67249, November 9, 2000). It imposes no

[[Page 38594]]

regulatory requirements or costs on any tribal government. It does 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. Thus, Executive Order 13175 does not
apply to this rule.

G. Executive Order 13045 (Protection of Children From Environmental
Health and Safety Risks)

This action is not subject to Executive Order 13045 (62 FR 19885,
April 23, 1997) because it is not economically significant as defined
in Executive Order 12866, and because the Agency does not believe the
environmental health or safety risks addressed by this action present a
disproportionate risk to children.

H. Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use)

This action is not subject to Executive Order 13211 (66 FR 28355,
May 22, 2001), because it is not a significant regulatory action under
Executive Order 12866.

I. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs the 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. NTTAA directs the EPA to provide
Congress, through the Office of Management and Budget, explanations
when the Agency decides not to use available and applicable voluntary
consensus standards.
This action does not involve technical standards. Therefore, the
EPA did not consider the use of any voluntary consensus standards.

J. Executive Order 12898 (Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations)

Executive Order 12898 (59 FR 7629, February 16, 1994) establishes
Federal executive policy on environmental justice. Its main provision
directs Federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
The EPA has determined that this final rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
affect the level of protection provided to human health or the
environment. This action merely removes the 2006 NPDES Pesticides Rule
from the CFR which was vacated by the U.S. Court of Appeals.

K. 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. Section 808 allows the issuing agency to make a rule
effective sooner than otherwise provided by the CRA if the agency makes
a good cause finding that notice and public procedure is impracticable,
unnecessary or contrary to the public interest. This determination must
be supported by a brief statement. 5 U.S.C. 808(2). As stated
previously, the EPA has made such a good cause finding, including the
reasons therefore, and established an effective date of June 27, 2013.
The 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. This action is not a ``major rule''
as defined by 5 U.S.C. 804(2).

V. Statutory Authority

This rule is issued under the authority of sections 101, 301, 304,
306, 308, 402, and 501 of the CWA. 33 U.S.C. 1251, 1311, 1314, 1316,
1317, 1318, 1342, and 1361.

List of Subjects in 40 CFR Part 122

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

Dated: June 21, 2013.
Bob Perciasepe,
Acting Administrator.

For the reasons set out in the preamble, 40 CFR part 122 is amended
as follows:

PART 122--EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT
DISCHARGE ELIMINATION SYSTEM

0
1. The authority citation for part 122 continues to read as follows:

Authority: The Clean Water Act, 33 U.S.C. 1251 et seq.

Sec. 122.3 [Amended]

0
2. Section 122.3 is amended by removing and reserving paragraph (h).

[FR Doc. 2013-15445 Filed 6-26-13; 8:45 am]
BILLING CODE 6560-50-P

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