68750 Federal Register / Vol. 76, No. 215 / Monday, November 7, 2011 / Notices

ENVIRONMENTAL PROTECTION need to obtain an NPDES permit if the C. History of Application AGENCY application was done in accordance Regulations Under FIFRA with other laws. EPA requested and was D. Court Decisions Leading to the CWA [EPA–HQ–OW–2010–0257; FRL–9487–9] granted a stay of the Court’s mandate to Regulation Concerning Pesticide RIN 2040–ZA08 provide time to draft and implement the Applications permit noticed today. The stay of the E. 2006 Agency Rulemaking Excluding Final National Pollutant Discharge mandate expires on October 31, 2011; Discharges from Pesticide Applications Elimination System (NPDES) Pesticide after which, NPDES permits will be From NPDES Permitting F. Legal Challenges to the 2006 NPDES General Permit for required for such point source Discharges From the Application of Rule and Resulting Court discharges to waters of the United Decision Pesticides States. G. Publication of the Draft NPDES AGENCY: Environmental Protection DATES: This action is effective on Pesticide General Permit Agency (EPA). October 31, 2011. III. Scope and Applicability of This NPDES Pesticide General Permit ACTION: Notice of final permit. FOR FURTHER INFORMATION CONTACT: For further information on this final NPDES A. Geographic Coverage B. Categories of Facilities Covered SUMMARY: This notice announces the general permit, contact the appropriate C. Summary of Permit Terms and NPDES general permit for point source EPA Regional Office listed in Section Requirements discharges from the application of I.F, or contact Jack Faulk, EPA IV. Economic Impacts of the Pesticide pesticides to waters of the United States, Headquarters, Office of Water, Office of General Permit also referred to as the Pesticide General Wastewater Management at tel.: (202) V. Executive Orders 12866 and 13563 Permit (PGP). A draft PGP was 564–0768 or email: [email protected]. published on June 4, 2010 for public SUPPLEMENTARY INFORMATION: This I. General Information comment. 75 FR 31775. All ten EPA supplementary information section is A. Does this action apply to me? Regions today are issuing the final organized as follows: NPDES PGP, which will be available in You may be affected by this action if those areas where EPA is the NPDES Table of Contents your application of pesticides, under the permitting authority. This action is in I. General Information use patterns in Section III.B., results in response to the Sixth Circuit Court’s A. Does this action apply to me? a discharge to waters of the United ruling that vacated an EPA regulation B. How can I get copies of this document States in one of the geographic areas that excluded discharges of biological and other related information? identified in Section III.A. Potentially C. Who are the EPA regional contacts for pesticides and chemical pesticides that this final permit? affected entities, as categorized in the leave a residue from the application of II. Statutory and Regulatory History North American Industry Classification pesticides to, or over, including near A. Clean Water Act System (NAICS), may include, but are waters of the United States from the B. NPDES Permits not limited to:

TABLE 1—ENTITIES POTENTIALLY REGULATED BY THIS PERMIT

Category NAICS Examples of potentially affected entities

Agriculture parties—General agri- 111 Crop Production...... Producers of crops mainly for food and fiber including farms, or- cultural interests, farmers/pro- chards, groves, greenhouses, and nurseries that have irrigation ducers, forestry, and irrigation. ditches requiring pest control. 113110 Timber Tract Operations The operation of timber tracts for the purpose of selling standing tim- 113210 Forest Nurseries Gath- ber. Growing trees for reforestation and/or gathering forest prod- ering of Forest Products. ucts, such as gums, barks, balsam needles, rhizomes, fibers, Spanish moss, ginseng, and truffles. 221310 Water Supply for Irrigation Operating irrigation systems. Pesticide parties (includes pesticide 325320 Pesticide and Other Agri- Formulation and preparation of agricultural pest control chemicals. manufacturers, other pesticide cultural Chemical Manufacturing. users/interests, and consultants). Public health parties (includes mos- 923120 Administration of Public Government establishments primarily engaged in the planning, ad- quito or other vector control dis- Health Programs. ministration, and coordination of public health programs and serv- tricts and commercial applicators ices, including environmental health activities. that service these). Resource management parties (in- 924110 Administration of Air and Government establishments primarily engaged in the administration, cludes State departments of fish Water Resource and Solid regulation, and enforcement of air and water resource programs; and wildlife, State departments of Waste Management Programs. the administration and regulation of water and air control pesticide regulation, State envi- and prevention programs; the administration and regulation of flood ronmental agencies, and univer- control programs; the administration and regulation of drainage de- sities). velopment and water resource consumption programs; and coordi- nation of these activities at intergovernmental levels.

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TABLE 1—ENTITIES POTENTIALLY REGULATED BY THIS PERMIT—Continued

Category NAICS Examples of potentially affected entities

924120 Administration of Con- Government establishments primarily engaged in the administration, servation Programs. regulation, supervision and control of land use, including rec- reational areas; conservation and preservation of natural re- sources; erosion control; geological survey program administration; weather forecasting program administration; and the administration and protection of publicly and privately owned forest lands. Gov- ernment 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 utilities) ...... 221 Utilities ...... Provide electric power, natural gas, steam supply, water supply, and sewage removal through a permanent infrastructure of lines, mains, and pipes.

B. How can I get copies of this document information about EPA’s public docket, For EPA Region 8, contact David Rise and other related information? visit the EPA Docket Center homepage at USEPA Region 8, Montana 1. Docket. EPA has established an at http://www.epa.gov/epahome/ Operations Office, Federal Building, 10 official public docket for this action dockets.htm. Although not all docket West 15th Street, Suite 3200, Mail Code: under Docket ID No. EPA–HQ–OW– materials may be available 8MO, Helena, MT 59626; or at tel.: (406) 2010–0257. The official public docket is electronically, you may still access any 457–5012 or email at: the collection of materials that is of the publicly available docket [email protected]. available for public viewing at the Water materials through the Docket Facility For EPA Region 9, contact Pascal Docket in the EPA Docket Center, (EPA/ identified in Section I.A.1. Mues, USEPA Region 9, 75 Hawthorne Street, Mail Code: WTR–5, San DC) EPA West, Room 3334, 1301 C. Who are the EPA regional contacts Francisco, CA 94105; or at tel.: (415) Constitution Ave. NW., Washington, for this final permit? DC. Although all documents in the 972–3768 or email at: docket are listed in an index, some For EPA Region 1, contact George [email protected]. information is not publicly available, Papadopoulos at USEPA Region 1, 5 For EPA Region 10, contact Dirk i.e., CBI or other information whose Post Office Square—Suite 100, Boston, Helder, USEPA Region 10 Idaho disclosure is restricted by statute. EPA MA 02109–3912; or at tel.: (617) 918– Operations Office, 1435 North Orchard policy is that copyrighted material will 1579; or email at Street, Boise, ID 83706 or at tel.: (208) not be placed in EPA’s electronic public [email protected]. 378–5749 or email at: docket but will be available only in For EPA Region 2, contact Maureen [email protected]. Krudner at USEPA Region 2, 290 printed, paper form in the official public II. Statutory and Regulatory History docket. Publicly available docket Broadway, New York, NY 10007–1866; materials are available in hard copy at or tel.: (212) 637–3874; or email at A. Clean Water Act the EPA Docket Center Public Reading [email protected]. Section 301(a) of the Clean Water Act Room, open from 8:30 a.m. to 4:30 p.m., For EPA Region 3, contact Peter (CWA) provides that ‘‘the discharge of Monday through Friday, excluding legal Weber at USEPA Region 3, 1650 Arch any pollutant by any person shall be holidays. The telephone number for the Street, Mail Code: 3WP41, Philadelphia, unlawful’’ unless the discharge is in Public Reading Room is (202) 566–1744, PA 19103–2029; or at tel.: (215) 814– compliance with certain other sections and the telephone number for the Water 5749; or email at [email protected]. of the Act. 33 U.S.C. 1311(a). The CWA Docket is (202) 566–2426. For EPA Region 4, contact Sam defines ‘‘discharge of a pollutant’’ as 2. Electronic Access. You may access Sampath at USEPA Region 4, 61 Forsyth ‘‘(A) any addition of any pollutant to this Federal Register document Street SW., Atlanta, CA 30303–8960; or navigable waters from any point source, electronically through the United States at tel.: (404) 562–9229; or email at (B) any addition of any pollutant to the government on-line source for federal [email protected]. waters of the contiguous zone or the regulations at http:// For EPA Region 5, contact Morris ocean from any point source other than www.regulations.gov. Beaton at USEPA Region 5, 77 West a vessel or other floating craft.’’ 33 Electronic versions of this final permit Jackson Boulevard, Mail Code: WN16J, U.S.C. 1362(12). A ‘‘point source’’ is any and fact sheet are available on EPA’s Chicago, IL 60604–3507; or at tel.: (312) ‘‘discernible, confined and discrete NPDES Web site at http://www.epa.gov/ 353–0850; or email at conveyance’’ but does not include npdes/pesticides. [email protected]. ‘‘agricultural discharges and An electronic version of the public For EPA Region 6, contact Jenelle Hill return flows from irrigated agriculture.’’ docket is available through EPA’s at USEPA Region 6, 1445 Ross Avenue, 33 U.S.C. 1362(14). electronic public docket and comment Suite 1200, Mail Code: 6WO, Dallas, TX The term ‘‘pollutant’’ includes, among system, EPA Dockets. You may use EPA 75202–2733; or at tel.: (214) 665–9737 other things, ‘‘garbage* * * chemical Dockets at http://www.regulations.gov to or email at [email protected]. wastes, biological materials * * * and view public comments, access the index For EPA Region 7, contact Kimberly industrial, municipal, and agricultural listing of the contents of the official Hill at USEPA Region 7, 901 North Fifth waste discharged into water.’’ 33 U.S.C. public docket, and to access those Street, Mail Code: XX, Kansas City, KS 1362(6). documents in the public docket that are 66101; or at tel.: (913) 551–7841 or One way a person may discharge a available electronically. For additional email at: [email protected]. pollutant without violating the section

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301 prohibition is by obtaining to seek individual permit coverage. The D. Court Decisions Leading to the CWA authorization to discharge (referred to general permit approach allows EPA to Regulation Concerning Pesticide herein as ‘‘coverage’’) under a section allocate resources in a more efficient Applications 402 National Pollutant Discharge manner and to provide more timely Over the past ten years, several courts Elimination System (NPDES) permit (33 coverage. As with any permit, the CWA addressed the question of whether the U.S.C. 1342). Under section 402(a), EPA requires the general permit to contain CWA requires NPDES permits for may ‘‘issue a permit for the discharge of technology-based effluent limitations, as pesticide applications. These cases any pollutant, or combination of well as any more stringent limits when resulted in some confusion among the pollutants, notwithstanding section necessary to meet applicable state water regulated community and other affected 1311(a)’’ upon certain conditions quality standards. Courts have approved citizens about the applicability of the required by the Act. of the use of general permits. See e.g., CWA to pesticides applied to waters of B. NPDES Permits Natural Res. Def. Council v. Costle, 568 the United States. In 2001, the U.S. An NPDES permit authorizes the F.2d 1369 (DC Cir. 1977); EDC v. U.S. Court of Appeals for the Ninth Circuit discharge of a specified amount of a EPA, 344 F.3d 832, 853 (9th Cir. 2003). held in Headwaters, Inc. v. Talent pollutant or pollutants into a receiving Irrigation District (Talent) that an C. History of Pesticide Application applicator of herbicides was required to water under certain conditions. The Regulation Under FIFRA NPDES program relies on two types of obtain an NPDES permit under the permits: Individual and general. An EPA regulates the sale, distribution circumstances before the court. 243 individual permit is a permit and use of pesticides in the United F.3rd 526 (9th Cir. 2001). In 2002, the Ninth Circuit in League specifically tailored for an individual States under the statutory framework of of Wilderness Defenders et al. v. discharger. Upon receiving the FIFRA to ensure that, when used in Forsgren (Forsgren) held that the appropriate permit application(s), the conformance with FIFRA labeling application of pesticides to control permitting authority, i.e., EPA or a state directions, pesticides will not pose or territory, develops a draft individual Douglas Fir Tussock Moths in National unreasonable risks to human health and Forest lands required an NPDES permit. permit for public comment for that the environment. All new pesticides particular discharger based on the 309 F.3d 1181 (9th Cir. 2002). The court must undergo a rigorous registration in Forsgren did not analyze the question information contained in the permit procedure under FIFRA during which application (e.g., type of activity, nature of whether the pesticides applied were EPA assesses a variety of potential of discharge, receiving water quality). pollutants, because it incorrectly human health and environmental effects Following consideration of public assumed that the parties agreed that comments, a final individual permit is associated with use of the product. they were (in fact, the United States then issued to the discharger for a Under FIFRA, EPA is required to expressly reserved its arguments on that specific time period (not to exceed 5 consider the effects of pesticides on the issue in its brief to the District Court. Id. years) with a provision for reapplying environment by determining, among at 1184, n.2). The court instead analyzed for further permit coverage prior to the other things, whether a pesticide ‘‘will the question of whether the aerial expiration date. perform its intended function without application of the pesticide constituted In contrast, a general permit covers unreasonable adverse effects on the a point source discharge, and concluded multiple facilities/sites/activities within environment,’’ and whether ‘‘when used that it did. Id. at 1185). a specific category for a specific period in accordance with widespread and Since Talent and Forsgren, California, of time (not to exceed 5 years). For commonly recognized practice [the Nevada, Oregon, and Washington, all of general permits, EPA, or a state pesticide] will not generally cause which are within the Ninth Circuit, authorized to administer the NPDES unreasonable adverse effects on the have issued permits for the application program, develops and issues the environment.’’ 7 U.S.C. 136a(c)(5). In of certain types of pesticides (e.g., general permit with dischargers then performing this analysis, EPA examines, products to control aquatic weeds and obtaining coverage under the already among other things, the ingredients of a algae and products to control mosquito issued general permit, typically through pesticide, the intended type of larvae). Other States have continued submission of a Notice of Intent (NOI). application site and directions for use, their longstanding practice of not A general permit is also subject to and supporting scientific studies for issuing permits to people who apply public comment, as was done for this human health and environmental effects pesticides to waters of the United States. permit on June 4, 2010, and is and exposures. The applicant for These varying practices reflected the developed and issued by a permitting registration of the pesticide must submit substantial uncertainty among authority (in this case, EPA). data as required by EPA regulations. regulators, the regulated community, Under 40 CFR 122.28, general permits and the public regarding how the CWA may be written to cover categories of When EPA approves a pesticide for a applies to pesticides that have been point sources having common elements, particular use, the Agency imposes properly applied and used for their such as facilities that involve the same labeling restrictions governing such use. intended purpose. or substantially similar types of Compliance with the labeling Additionally, the Second Circuit operations, that discharge the same requirements ensures that the pesticide Court of Appeals addressed the types of wastes, or that are more serves an intended purpose and avoids applicability of the CWA’s NPDES appropriately regulated by a general unreasonable adverse effects. It is illegal permit requirements to pesticide permit. Given the vast number of under Section 12(a)(2)(G) of FIFRA to applications. In Altman v. Town of pesticide applicators requiring NPDES use a registered pesticide in a manner Amherst (Altman), the court vacated permit coverage and the discharges inconsistent with its labeling. States and remanded for further development common to these applicators, EPA have primary authority under FIFRA to of the record a District Court decision believes that it makes administrative enforce ‘‘use’’ violations, but both the holding that the Town of Amherst was sense to issue this general permit, rather States and EPA have ample authority to not required to obtain an NPDES permit than issuing individual permits to each prosecute pesticide misuse when it to spray mosquitocides over waters of applicator. Entities still have the ability occurs. the United States. 47 Fed. Appx. 62, 67

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(2nd Cir. 2002). The United States filed Rule under a plain language reading of permits are required for discharges from an amicus brief setting forth the the CWA. National Cotton Council of the application of pesticides. The Agency’s views in the context of that America v. EPA, 553 F.3d 927 (6th Cir. specified use patterns may not represent particular case. In its opinion, the 2009). The Court held that the CWA every pesticide application activity for Second Circuit stated that ‘‘[u]ntil the unambiguously includes ‘‘biological which a discharge requires NPDES EPA articulates a clear interpretation of pesticides,’’ and ‘‘chemical pesticides’’ permit coverage; however, the Agency current law—among other things, that leave a residue within its definition believes these four use patterns whether properly used pesticides of ‘‘pollutant.’’ Specifically, the represent a significant portion of those released into or over waters of the application of chemical pesticides that activities for which permit coverage is leaves no residue is not a pollutant. The United States can trigger the now required and is consistent with the requirement for NPDES permits Court also found that the application of use patterns EPA contemplated in the * * *—the question of whether pesticides is from a point source. Thus, properly used pesticides can become point source discharges of biological 2006 NPDES Pesticides Rule. pollutants that violate the CWA will pesticides and chemical pesticide Neither the Court’s ruling nor EPA’s remain open.’’ Id. at 67. residues to Waters of the United States issuance of this general permit affects In 2005, the Ninth Circuit again require an NPDES permit. This also the existing CWA exemptions for addressed the CWA’s applicability to means (as also supported by other court irrigation return flow and agricultural pesticide applications. In Fairhurst v. cases) that point source discharges to stormwater runoff, which are excluded Hagener, the court held that pesticides waters of the United States from from the definition of a point source applied directly to a lake to eliminate pesticides applied for forest pest control under Section 502(14) of the CWA and non-native fish species, where there are activities need to obtain an NPDES do not require NPDES permit coverage. no residues or unintended effects, are permit (see Section III.1 of the Fact not ‘‘pollutants’’ under the CWA Sheet for further discussion). G. Publication of the Draft NPDES because they are not chemical wastes. Based on the Court’s decision, Pesticide General Permit 422 F.3d 1146 (9th Cir. 2005). chemical pesticides that leave no Recently, the Second Circuit residue do not require an NPDES EPA worked closely with states and reaffirmed the recent Sixth Circuit permit. However, EPA assumes for other stakeholders to develop the PGP. decision in ruling that trucks and purpose of this permit that all chemical Because 44 states are required to helicopters that sprayed pesticides pesticides have a residue, and, therefore develop their own permits, EPA held should be considered point sources would need a permit unless it can be three face-to-face meetings and regular under the CWA. Peconic Baykeeper Inc. shown that there is no residual. Unlike conference calls with environmental v. Suffolk County, 600 F.3d 180 (2nd chemical pesticides (where the residual and agricultural agencies in each state, Cir. 2010). is the pollutant), the Court further found in order to share information and ideas that biological pesticides are pollutants E. 2006 Agency Rulemaking Excluding on how to permit this new class of regardless of whether the application Discharges From Pesticide Applications NPDES permittees. EPA also conducted results in residuals and such discharges from NPDES Permitting or attended approximately 150 meetings need an NPDES permit. with industry experts, environmental On November 27, 2006 (71 FR 68483), In response to this decision, on April interest groups, and other interested EPA issued a final rule (hereinafter 9, 2009, EPA requested a two-year stay stakeholders. called the ‘‘2006 NPDES Pesticides of the mandate to provide the Agency Rule’’) clarifying two specific time to develop a general permit, to EPA published the draft NPDES circumstances in which an NPDES assist NPDES-authorized states to Pesticide General Permit and permit is not required to apply develop their NPDES permits, and to accompanying fact sheet in the Federal pesticides to or over, including near provide outreach and education to the Register on June 4, 2010 (75 FR 31775) water provided that the application is regulated community and other soliciting comments on that permit, and consistent with relevant Federal stakeholders. On June 8, 2009, the Sixth accepted public comments through July Insecticide, Fungicide and Rodenticide Circuit granted EPA the two-year stay of 19, 2010. In addition, EPA held three Act (FIFRA) requirements. They are: (1) the mandate until April 9, 2011. On public meetings, a public hearing, and The application of pesticides directly to November 2, 2009, Industry Petitioners three national webcasts to further water to control pests; and (2) the of the Sixth Circuit Case petitioned the educate stakeholders on the conditions application of pesticides to control pests Supreme Court to review the Sixth included in the draft permit and to get that are present over, including near, Circuit’s decision. On February 22, feedback on specific areas for which water where a portion of the pesticides 2010, the Supreme Court issued its EPA sought additional information to will unavoidably be deposited to the decision denying petitions to review the support finalization of the permit. EPA water to target the pests. Sixth Circuit decision. also conducted formal consultation with As a result of the Court’s decision on F. Legal Challenges to the 2006 NPDES the 2006 NPDES Pesticides Rule, at the the Tribes. EPA received over 750 Pesticide Rule and Resulting Court end of the two-year stay, NPDES permits written comment letters on the draft Decision will be required for point source permit from a variety of stakeholders, On January 19, 2007, EPA received discharges to waters of the U.S. of including industry; federal, state, and petitions for review of the 2006 NPDES biological pesticides, and of chemical local governments; environmental Pesticides Rule from both pesticides that leave a residue. Until groups; academia; and individual environmental and industry groups. April 9, 2011, the rule remains in effect citizens. EPA considered all comments Petitions were filed in eleven circuit and NPDES permits are not required. received during the comment period in courts with the case, National Cotton In response to the Court’s decision, preparing the final general permit. EPA Council, et al, v. EPA, assigned to the EPA is issuing this final general permit responded to all significant comments Sixth Circuit Court of Appeals. On for four specific pesticide use patterns in the Response to Comment Document January 9, 2009, the Sixth Circuit with an effective date of April 9, 2011, which is available as part of the docket vacated EPA’s 2006 NPDES Pesticides i.e., the date upon which NPDES to this permit.

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H. Posting of the Draft Final NPDES • Indian Country lands within • Indian Country lands within Pesticide General Permit Mississippi Arizona as well as Navajo Reservation • On April 1, 2011, EPA posted a pre- Indian Country lands within North lands within New Mexico (see Region 6) publication version of its draft final Carolina and Utah (see Region 8), excluding for Hualapai Reservation Pesticide General Permit for discharges EPA Region 5 • of pesticide applications to U.S. waters. Indian Country lands within • Indian Country lands within This draft final permit was not California Michigan • Guam considered a ‘‘final agency action,’’ and • Indian Country lands within • the Agency did not solicit public Johnston Atoll Minnesota, excluding Sokaogon • Midway Island and Wake Island comment on this draft final permit. EPA Chippewa Community and other unincorporated U.S. provided a preview of the draft final • Indian Country lands within possessions permit to assist states in developing Wisconsin, excluding Lac du Flambeau • Northern Mariana Islands their own permits and for the regulated Band of Lake Superior Chippewa • Indian Country lands within community to become familiar with the Indians and Fond du Lac Reservation Nevada, as well as the Duck Valley permit’s requirements before it was to Reservation within Idaho, the Fort become effective. This reflected EPA’s EPA Region 6 McDermitt Reservation within Oregon commitment to transparency and • Indian Country lands within (see Region 10) and the Goshute responding to the needs of stakeholders. Louisiana Reservation within Utah (see Region 8) The draft final permit posted on April • New Mexico, including Indian 1, 2011 contains largely identical Country lands within New Mexico, EPA Region 10 requirements to the final permit being except Navajo Reservation Lands (see • Alaska, including Indian Country published today. The principal change Region 9) and Ute Mountain Reservation lands is the addition of conditions to protect Lands (see Region 8) • The State of Idaho, including Indian • listed species as a result of consultation Oklahoma, including Indian Country lands within Idaho, except with the National Marine Fisheries Country lands • Duck Valley Reservation lands (see Service (NMFS) under the Endangered Discharges in Texas that are not Region 9), excluding Puyallup Tribe Species Act (ESA). There have also been under the authority of the Texas Reservation changes to the timing of NOI submission Commission on Environmental Quality • Indian Country lands within deadlines and some additional (formerly TNRCC), including activities Oregon, except Fort McDermitt clarifying changes, but these do not alter associated with the exploration, Reservation lands (see Region 9) the intent of the pre-publication version development, or production of oil or gas • Federal Facilities in Washington, posted in April. or geothermal resources, including including those located on Indian transportation of crude oil or natural gas III. Scope and Applicability of the Country lands within Washington, by pipeline, including Indian Country NPDES Pesticide General Permit excluding Puyallup Tribe Reservation lands within Texas A. Geographic Coverage B. Categories of Facilities Covered EPA Region 7 The PGP will provide permit coverage The final general permit regulates • Indian Country lands within Iowa for discharges in areas where EPA is the • discharges to waters of the United States Indian Country lands within Kansas from the application of (1) biological NPDES permitting authority. The • Indian Country lands within geographic coverage of today’s final pesticides, and (2) chemical pesticides Nebraska, except Pine Ridge Reservation that leave a residue for the following permit is listed below. Where this lands (see Region 8) permit covers activities on Indian four pesticide use patterns. • Country lands, those areas are as listed EPA Region 8 Mosquito and Other Flying Insect below within the borders of that state: • Federal Facilities within Colorado, Pest Control—to control public health/ including those on Indian Country lands nuisance and other flying insect pests EPA Region 1 that develop or are present during a • within Colorado as well as the portion Massachusetts, including Indian of the Ute Mountain Reservation located portion of their life cycle in or above Country lands within Massachusetts standing or flowing water. Public • in New Mexico Indian Country lands within • Indian Country lands within the health/nuisance and other flying insect Connecticut State of Colorado, as well as the portion pests in this use category include • New Hampshire mosquitoes and black flies. • Indian Country lands within Rhode of the Ute Mountain Reservation located • in New Mexico Weed and Algae Pest Control—to Island • control weeds, algae, and pathogens that • Federal Facilities within Vermont Indian Country lands within Montana are pests in water and at water’s edge, EPA Region 2 • Indian Country lands within North including ditches and/or canals. • Animal Pest Control—to control • Indian Country lands within New Dakota • Indian Country lands within South animal pests in water and at water’s York edge. Animal pests in this use category • Puerto Rico Dakota, as well as the portion of the Pine Ridge Reservation located within include fish, lampreys, insects, EPA Region 3 Nebraska (see Region 7) mollusks, and pathogens. • • The District of Columbia • Indian Country lands within Utah, Forest Canopy Pest Control— • Federal Facilities within Delaware except Goshute and Navajo Reservation application of a pesticide to a forest lands (see Region 9) canopy to control the population of a EPA Region 4 • Indian Country lands within pest species (e.g., insect or pathogen) • Indian Country lands within Wyoming where, to target the pests effectively, a Alabama portion of the pesticide unavoidably • Indian Country lands within EPA Region 9 will be applied over and deposited to Florida • American Samoa water.

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The scope of activities encompassed Resources of Concern for the PGP are • Expanded eligibility provisions to by these pesticide use patterns is identified in detail on EPA’s Web site at provide for coverage for discharges to described in greater detail in Part III.1.1. http://www.epa.gov/npdes/pesticides. Tier 3 waters from pesticide of the fact sheet for the final general These provisions were added as a result applications made to restore or maintain permit. of consultation between EPA and the water quality or to protect public health National Marine Fisheries Service C. Summary of Permit Terms and or the environment that either do not (NMFS), as required under Section 7 of Requirements degrade water quality or that only the Endangered Species Act. Other degrade water quality on a short-term or The following is a summary of the requirements that address protection of temporary basis; final PGP’s requirements: listed species include the waiting • Eliminated the requirement for • The PGP defines Operator (i.e., the periods between submission of an NOI certain Applicators to submit NOIs; entity required to obtain NPDES permit and authorization to discharge, and • Revised annual treatment area coverage for discharges) to include any specific permit conditions requiring thresholds (which trigger the need for (a) Applicator who performs the compliance with the results of any ESA NOI submission and implementation of application of pesticides or has day-to- Section 7 consultation with the more comprehensive Pest Management day control of the application of Services, or ESA Section 10 permit Measures and documentation); pesticides that results in a discharge to issued by the Services. • Delayed discharge date for which Waters of the United States, or (b) • Certain Decision-makers (i.e., any NOIs are required for a little more than Decision-maker who controls any agency for which pest management for two months after permit issuance; decision to apply pesticides that results land resource stewardship is an integral • Refined definitions of ‘‘Operator,’’ in a discharge to Waters of the United part of the organization’s operations, ‘‘Applicator,’’ and ‘‘Decision-maker,’’ States. There may be instances when a entities with a specific responsibility to for purposes of delineating single entity acts as both an Applicator control pests (e.g., mosquito and weed responsibilities under the permit and a Decision-maker. control districts), local governments or between Applicators and Decision- • All Applicators are required to other entities that apply pesticides in makers based on EPA’s expectation for minimize pesticide discharges by using excess of specified annual treatment these two groups of Operators; only the amount of pesticide and area thresholds, and entities that • Added requirement for Applicators frequency of pesticide application discharge pesticides to Tier 3 waters or to assess weather conditions in the necessary to control the target pest, to Waters of the United States treatment area to ensure pesticide maintain pesticide application containing NMFS Listed Resources of application is consistent with all federal equipment in proper operating Concern) are required to also submit a requirements; condition, control discharges as Notice of Intent (NOI) to obtain • Added requirement for certain necessary to meet applicable water authorization to discharge and Operators to document visual quality standards, and monitor for and implement pest management options to monitoring activities, Provided different report any adverse incidents. reduce the discharge of pesticides to responsibilities for small Decision- • All Decision-makers are required, to Waters of the United States. Certain makers to complete a pesticide the extent not determined by the large Decision-makers must also discharge evaluation worksheet in lieu Applicator, to minimize pesticide develop a Pesticide Discharge of a more comprehensive PDMP, annual discharges by using only the amount of Management Plan (PDMP), submit report, and detailed recordkeeping; and pesticide and frequency of pesticide annual reports, and maintain detailed • Added specific permit conditions application necessary to control the records. Certain small Decision-makers for states and Tribes in accordance with target pest. All Decision-makers are also are required to complete a pesticide CWA section 401 certifications. required to control discharges as discharge evaluation worksheet for each necessary to meet applicable water IV. Economic Impacts of the Pesticide pesticide application (in lieu of the General Permit quality standards and monitor for and more comprehensive PDMP), an annual report any adverse incidents. report, and detailed recordkeeping. As a result of the Sixth Circuit Court • Coverage under this permit is Permit conditions take effect as of decision on EPA’s 2006 NPDES available only for discharges and October 31, 2011; however, Operators Pesticides Rule, operators of discharges discharge-related activities that are not with eligible discharges are authorized to waters of the U.S. from the likely to adversely affect species that are for permit coverage through January 12, application of pesticides now require federally-listed as endangered or 2010 without submission of an NOI. NPDES permits for those discharges. threatened (‘‘listed’’) under the Thus, for any discharges commencing EPA expects that costs associated with Endangered Species Act (ESA) or on or before January 12, 2012 that will complying with the effluent limitations habitat that is federally-designated as continue after this date, an NOI will under this general permit will be similar critical under the ESA (‘‘critical need to be submitted no later than to costs under individual permits for habitat’’), except for certain cases January 2, 2012 to ensure uninterrupted similar activities; however, specified in the permit involving prior permit coverage, and for any discharge administrative costs for both EPA as the consultation with the Services and occurring after January 12, 2012, no permitting authority and operators as Declared Pest Emergencies. The permit later than 10 days before the first permittees are expected to be lower contains several provisions addressing discharge occurring after January 12, under this general permit than under listed species, including for certain 2012. individual permits. In other words, the listed species identified in the permit as The following is a summary of permit general permit itself can be expected to NMFS Listed Resources of Concern, that terms and requirements modified from reduce rather than increase costs for Decision-makers whose discharges may the draft PGP public noticed on June 4, permittees as compared to the baseline affect these resources certify compliance 2010: of individual permitting. with one of six criteria which together • Expanded the forest canopy pest EPA expects the economic impact on ensure that any potential adverse effects control use pattern to also include covered entities, including small have been properly considered and pesticide application activities businesses, to be minimal. EPA addressed. These NMFS Listed performed from the ground; requested additional information during

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the public notice of the draft permit and Stephen S. Tuber, Needs and Uses: On March 10, 2010, updated the analysis as appropriate for Assistant Regional Administrator, Office of OMB authorized the collection of the final permit. A copy of EPA’s Partnerships and Regulatory Assistance, EPA information set forth in the Second economic analysis, titled, ‘‘Economic Region 8. FNPRM in EB Docket No. 04–296, FCC Analysis of the Pesticide General Permit Dated: October 31, 2011. 09–10. Specifically, OMB authorized the (PGP) for Point Source Discharges from Alexis Strauss, Commission to require entities required the Application of Pesticides’’ is Director, Water Division, EPA Region 9. to participate in EAS (EAS Participants) available in the docket for this permit. Dated: October 31, 2011. to gather and submit the following The economic impact analysis indicates Michael A. Bussell, *52663 information on the operation of that the PGP will cost approximately Director, Office of Water and Watersheds, their EAS equipment during a national $10.0 million dollars annually for the EPA Region 10. test of the EAS: (1) Whether they [FR Doc. 2011–28770 Filed 11–4–11; 8:45 am] 35,200 operators in the areas for which received the alert message during the EPA is the permitting authority. BILLING CODE 6560–50–P designated test; (2) whether they Knowing that most applicators and retransmitted the alert; and (3) if they decision-makers are small businesses, were not able to receive and/or transmit EPA conducted a small entity economic FEDERAL COMMUNICATIONS the alert, their ‘best effort’ diagnostic analysis. Based on available data, this COMMISSION analysis regarding the cause or causes for such failure. OMB also authorized permit will not have a significant Public Information Collections economic impact on a substantial the Commission to require EAS Approved by the Office of Management Participants to provide it with the date/ number of small entities. The economic and Budget (OMB) impact analysis is included in the time of receipt of the EAN message by administrative record for this permit. AGENCY: Federal Communications all stations; and the date/time of receipt Commission. of the EAT message by all stations; a V. Executive Orders 12866 and 13563 ACTION: Notice. description of their station Under Executive Order (EO) 12866 identification and level of designation (58 FR 51735 (October 4, 1993)) this SUMMARY: The Federal Communications (PEP, LP–1, etc.); who they were action is a ‘‘significant regulatory Commission has received Office of monitoring at the time of the test, and action.’’ Accordingly, EPA submitted Management and Budget (OMB) the make and model number of the EAS this action to the Office of Management approval for the following public equipment that they utilized. and Budget (OMB) for review under information collection(s) pursuant to the In the Third Report and Order in EB Executive Orders 12866 and 13563 (76 Paperwork Reduction Act of 1995 (44 Docket No. 04–296, FCC 09–10, the FR 3821, January 21, 2011) and any U.S.C. 3501–3520). The FCC may not Commission adopted the foregoing rule changes made in response to OMB conduct or sponsor a collection of requirements. In addition, the recommendations have been information unless it displays a Commission decided that test data will documented in the docket for this currently valid OMB control number, be presumed confidential and action. and no person is required to respond to disclosure of test data will be limited to FEMA, NWS and EOP at the Federal Authority: Clean Water Act, 33 U.S.C. 1251 a collection of information unless it et seq. displays a currently valid OMB control level. At the State level, test data will be number. made available only to State government Dated: October 31, 2011. FOR FURTHER INFORMATION CONTACT: For emergency management agencies that H. Curtis Spalding, have confidential treatment protections Regional Administrator, EPA, Region 1. additional information about the information collection contact Leslie at least equal to FOIA. The process by Dated: October 31, 2011. Haney, [email protected], (202) which these agencies would receive test Ariel Iglesias, 418–1002. data will comport with those used to Deputy Director, Division of Environmental provide access to the Commission’s Planning and Protection, EPA Region 2. SUPPLEMENTARY INFORMATION: The FCC obtained approval of this revision to the NORS and DIRS data. We seek comment Dated: October 31, 2011. on this revision of the approved previously approved information Carl-Axel P. Soderberg, collection. collection to establish a voluntary Division Director, Caribbean Environmental In the Third Report and Order, the Protection Division, EPA, Region 2. electronic method of complying with Commission also indicated that it would the reporting that EAS participants must Dated: October 31, 2011. establish a voluntary electronic Jon M. Capacasa, complete as part of their participation in reporting system that EAS test Director, Water Division, EPA Region 3. the national EAS test. participants may use as part of their OMB Control Number: 3060–0207. Dated: October 31, 2011. OMB Approval Date: 10/14/2011. participation in the national EAS test. Gail Mitchell, Effective Date: 10/17/2011. The Commission noted that using this Acting Director, Water Protection Division, system, EAS test participants could EPA, Region 4. OMB Expiration Date: 04/30/2012. Title: Part 11—Emergency Alert input the same information that they Dated: October 31, 2011. System (EAS). were already required to file manually Tinka G. Hyde, Form No.: Not applicable. via a web-based interface into a Director, Water Division, EPA Region 5. Estimated Annual Burden: 82,008 confidential database that the Dated: October 31, 2011. hours. Commission would use to monitor and William K. Honker, Obligation to Respond: Voluntary. assess the test. This information would Acting Director, Water Quality Protection Statutory authority for this collection of include identifying information such as Division, EPA Region 6. information is contained in 47 U.S.C. station call letters, license identification Dated: October 31, 2011. sections 154(i) and 606. number, geographic coordinates, EAS Karen A. Flournoy, Nature and Extent of Confidentiality: assignment (LP, NP, etc), EAS Acting Director, Water, Wetlands, and The Commission will treat submissions monitoring assignment, as well as a 24/ Pesticides Division, EPA Region 7. pursuant to 47 CFR 11.61(a)(3) as 7 emergency contact for the EAS Dated: October 31, 2011. confidential. Participant. The only difference, other

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