[Federal Register Volume 68, Number 149 (Monday, August 4, 2003)]
[Notices]
[Pages 45817-45819]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-19744]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-7538-8]


Final Reissuance of the National Pollutant Discharge Elimination 
System (NPDES) Storm Water Construction General Permit for the 
Commonwealth of Massachusetts and Indian Country in Massachusetts

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of Final Reissuance of NPDES Storm Water Construction 
General Permits.

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SUMMARY: This action provides notice of the reissuance of the Final 
National Pollutant Discharge Elimination System (NPDES) Storm Water 
Construction General Permit for the Commonwealth of Massachusetts and 
Indian country within the Commonwealth of Massachusetts.

DATES: Today's action shall be effective August 4, 2003. The permit 
will expire five years from the effective date.

ADDRESSES: The final permit is based on an administrative record. The 
administrative record for the final construction general permit is 
available for inspection and copying at the Water Docket, located at 
the EPA Docket Center in the basement of the EPA West

[[Page 45818]]

Building, Room B-102, at 1301 Constitution Avenue, NW., Washington, DC.

FOR FURTHER INFORMATION CONTACT: Additional information concerning the 
final permit, the permit's Notice of Intent (NOI), or the permit's 
Notice of Termination (NOT) is available on EPA's Web site at http://www.epa.gov/npdes/stormwater/cgp.cfm or from Thelma Murphy, Office of 
Ecosystem Protection, Environmental Protection Agency, 1 Congress 
Street, Suite 1100, Boston, MA 02114-2023; telephone: 617-918-1615; e-
mail: [email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

    On July 1, 2003 (68 FR 39087), EPA published final NPDES 
construction general permits for large construction activity in Regions 
1, 2, 3, 6, 7, 8, 9 and 10. Also on July 1, 2003 (68 FR 39087), EPA 
published final NPDES construction general permits for small 
construction activity in Regions 1, 2, 3, 5, 6, 7, 8, 9, and 10. At the 
time of publication, the State Coastal Zone Management Act 
certification for Massachusetts had not been received, therefore the 
neither the small or large construction activity general permits were 
issued in Massachusetts. EPA Region 1 received certification from the 
Office of Coastal Zone Management. The Office concurred with EPA's 
certification that the permit as proposed is consistent with the 
Coastal Zone Management enforceable program policies.
    Today's action reissues EPA's NPDES General Permit for Storm Water 
Discharges from Construction Activities for the Commonwealth of 
Massachusetts and Indian country in Massachusetts. The permit's terms 
and conditions are those set forth in the Construction General Permit 
reissued on July 1, 2003 (68 FR 39087) and available at http://www.epa.gov/npdes/stormwater/cgp. The state specific requirements for 
the Commonwealth of Massachusetts, except Indian country, under section 
401 of the Clean Water Act are found in part 9.A.1 of the construction 
general permit. The Office of Coastal Zone Management did not add any 
additional requirements to the permit.
    Additional information regarding the statutory and regulatory 
history of the final permit and storm water program; significant 
changes to the permit; and a summary of the terms and conditions of the 
permit are found in the July 1, 2003 Federal Register and are not being 
repeated here.

II. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735 (October 4, 1993)) the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to 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. OMB has exempted 
review of NPDES general permits under the terms of Executive Order 
12866.

III. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rule-making requirements under the Administrative 
Procedures 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.
    Issuance of an NPDES general permit is not subject to rulemaking 
requirements, under APA section 553 or any other law, and is thus not 
subject to the RFA requirements. The APA defines two broad, mutually 
exclusive categories of agency action--``rules'' and ``orders.'' Its 
definition of ``rule'' encompasses ``an agency statement of general or 
particular applicability and future effect designed to implement, 
interpret, or prescribe law or policy or describing the organization, 
procedure, or practice requirements of an agency * * *'' APA section 
551(4). Its definition of ``order'' is residual: ``a final disposition 
* * * of an agency in a matter other than rule making but including 
licensing.'' APA section 551(6) (emphasis added). The APA defines 
``license'' to ``include * * * an agency permit * * *'' APA section 
551(8). The APA thus categorizes a permit as an order, which by the 
APA's definition is not a rule. Section 553 of the APA establishes 
``rule making'' requirements. The APA defines ``rule making'' as ``the 
agency process for formulating, amending, or repealing a rule.'' APA 
section 551(5). By its terms, then, section 553 applies only to 
``rules'' and not also to ``orders,'' which include permits.

IV. 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. UMRA uses the term ``regulatory 
actions'' to refer to regulations. (See, e.g., UMRA section 201, ``Each 
agency shall * * * assess the effects of Federal regulatory actions * * 
* (other than to the extent that such regulations incorporate 
requirements specifically set forth in law)'' (emphasis added)). UMRA 
section 102 defines ``regulation'' by reference to 2 U.S.C. 658 which 
in turn defines ``regulation'' and ``rule'' by reference to section 
601(2) of the Regulatory Flexibility Act (RFA). That section of the RFA 
defines ``rule'' as ``any rule for which the agency publishes a notice 
of proposed rulemaking pursuant to section 553(b) of [the 
Administrative Procedure Act (APA)], or any other law. * * *'' As 
discussed in the RFA section of this notice, NPDES general permits are 
not ``rules'' under the APA and thus not subject to the APA requirement 
to publish a notice of proposed rulemaking. NPDES general permits are 
also not subject to such a requirement under the CWA. While EPA 
publishes a notice to solicit public comment on draft general permits, 
it does so pursuant to the CWA section 402(a) requirement to provide 
``an opportunity for a hearing.'' Thus, NPDES general permits are not 
``rules'' for RFA or UMRA purposes.

V. Paperwork Reduction Act

    EPA has reviewed the requirements imposed on regulated facilities 
resulting from the final construction general permit under the 
Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq. The information 
collection requirements of the construction general permit for large 
construction activities have already been approved by the Office of 
Management and Budget (OMB) (OMB Control No. 2040-0188) in previous 
submissions made for the NPDES permit program under the provisions of 
the Clean Water Act. Information collection requirements of the 
construction general

[[Page 45819]]

permit for small construction activities were submitted to OMB (OMB 
Control No. 2040-0211) for review and approval and will be published in 
a separate Federal Register Notice.

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

    Dated: July 16, 2003.
Linda M. Murphy,
Director, Office of Ecosystem Protection.
[FR Doc. 03-19744 Filed 8-1-03; 8:45 am]
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