[Federal Register Volume 78, Number 124 (Thursday, June 27, 2013)]
[Rules and Regulations]
[Pages 38591-38594]
From the Federal Register Online via the Government Publishing 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.

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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 http://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 http://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: 
[email protected].

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]
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