Federal Register / Vol. 75, No. 214 / Friday, November 5, 2010 / Rules and Regulations 68215 

Commodity Parts per 

million 

* * * * * 

[FR Doc. 2010–27998 Filed 11–4–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 450 

[EPA–HQ–OW–2010–0884; FRL–9222–2] 

Direct Final Rule Staying Numeric 

Limitation for the Construction and 

Development Point Source Category 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: EPA is taking direct final 

action to stay the numeric effluent 

limitation of 280 NTU and associated 

monitoring requirements for the 

Construction and Development Point 

Source Category. This action is 

necessary so that EPA can reconsider 

the record basis for calculating the 

numeric effluent limitation. EPA 

expects to move expeditiously with its 

reconsideration, and will remove the 

stay when such reconsideration is 

completed. 

DATES: This rule is effective on January 

4, 2011 without further notice, unless 

EPA receives adverse comment by 

December 6, 2010 for 40 CFR 450.22(a) 

and (b), which are stayed indefinitely. If 

EPA receives adverse comment, we will 

publish a timely withdrawal in the 

Federal Register informing the public 

that the rule will not take effect. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OW–2010–0884, by one of the following 

methods: 

• http://www.regulations.gov: This is 

EPA’s preferred approach, although you 

may use the alternatives presented 

below. Follow the on-line instructions 

for submitting comments. 

• E-mail: OW-Docket@epa.gov. 

• Mail: USEPA Docket Center, 

Environmental Protection Agency, 

Docket Number EPA–HQ–OW–2010– 

0884, Mailcode 2822T, 1200 

Pennsylvania Ave., NW., Washington, 

DC 20460. 

• Hand Delivery: USEPA Docket 

Center, Public Reading Room, 1301 

Constitution Ave., NW., Room 3334, 

EPA West Building, Washington, DC 

20004. Such deliveries are only 

accepted during the Docket’s normal 

hours of operation, and special 

arrangements should be made for 

deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–HQ–OW–2010– 

0884. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov, your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. For additional information 

about EPA’s public docket visit the EPA 

Docket Center homepage at http:// 

www.epa.gov/epahome/dockets.htm. 

Docket: All documents in the docket 

are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, e.g., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically in http:// 

www.regulations.gov or in hard copy at 

the USEPA Docket Center, Public 

Reading Room, Room 3334, EPA West 

Building, 1301 Constitution Ave., NW., 

Washington, DC. The Public Reading 

Room is open from 8:30 a.m. to 

4:30 p.m., Monday through Friday, 

excluding legal holidays. The telephone 

number for the Public Reading Room is 

(202) 566–1744, and the telephone 

number for the EPA Docket Center is 

(202) 566–2426. 

FOR FURTHER INFORMATION CONTACT: 

Janet Goodwin, USEPA Office of Water, 

by phone at (202) 566–1060 or by e-mail 

at goodwin.janet@epa.gov. 

SUPPLEMENTARY INFORMATION: 

A. Does this action apply to me? 

Regulated Entities 

Entities potentially regulated by this 

action include: 

Category Examples of regulated entities 

North American 

industry 

classification 

system (NAICS) 

code 

Industry .................................................... Construction activities required to obtain NPDES permit coverage and performing the following activities: Construction of buildings, including building, 

developing and general contracting.

236 

Heavy and civil engineering construction, including land subdivision .................... 237 

EPA does not intend the preceding 

table to be exhaustive, but provides it as 

a guide for readers regarding entities 

likely to be regulated by this action. 

This table lists the types of entities that 

EPA is now aware could potentially be 

regulated by this action. Other types of 

entities not listed in the table could also 

be regulated. To determine whether 

your facility is regulated by this action, 

you should carefully examine the 

applicability criteria in 40 CFR 450.10 

(74 FR 62995) and the definition of 

‘‘storm water discharges associated with 

industrial activity’’ and ‘‘storm water 

discharges associated with small 

construction activity’’ in existing EPA 

regulations at 40 CFR 122.26(b)(14)(x) 

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68216 Federal Register / Vol. 75, No. 214 / Friday, November 5, 2010 / Rules and Regulations 

and 122.26(b)(15), respectively. If you 

have questions regarding the 

applicability of this action to a 

particular site, consult the person listed 

for technical information in the 

preceding FOR FURTHER INFORMATION

CONTACT section. 

B. Background 

On December 1, 2009, EPA published 

in the Federal Register (74 FR 62995) 

effluent limitations guidelines and new 

source performance standards (ELGs) for 

the Construction and Development 

Point Source category. These ELGs 

control the discharge of pollutants from 

construction sites and require 

construction site owners and operators 

to implement a range of erosion and 

sediment control measures and 

pollution prevention practices to control 

pollutants in discharges from 

construction sites. These control 

measures became effective on February 

1, 2010. In addition, the rule subjected 

discharges from certain larger 

construction sites to a numeric effluent 

limitation of 280 NTU starting in August 

of 2011 (for sites 20 acres or more) and 

February of 2014 (for sites 10 acres or 

more). These regulations are located at 

40 CFR part 450. 

Subsequent to the promulgation of the 

construction and development ELGs, 

EPA received two petitions for 

reconsideration of the rule. These 

petitions pointed out a potential error in 

the calculation of the numeric 

limitation. Based on EPA’s examination 

of the dataset underlying the 280 NTU 

limit, EPA has concluded that it 

improperly interpreted the data and, as 

a result, the calculations in the existing 

administrative record are no longer 

adequate to support the 280 NTU 

effluent limitation. EPA intends to 

expeditiously conduct a separate 

rulemaking to correct the numeric 

effluent limitation. EPA plans to publish 

a proposed correction rule in December 

2010 for public comment, and take final 

action on the proposal by May 30, 2011 

so that the revised limitation will be 

effective by June 29, 2011. An effective 

date for any revised limitation of June 

29, 2011 is necessary in order for EPA 

to incorporate the corrected numeric 

limitation in its next Construction 

General Permit by June 30, 2011. 

In 2010 and 2011, EPA estimates that 

16 states will incorporate the new 

construction and development ELG 

requirements, including the numeric 

limitation, in their construction general 

permits. Since EPA acknowledges an 

error in calculating the 280 NTU limit, 

it would be inappropriate for states to 

incorporate the current numeric 

limitation in construction and 

development permits. Consequently, 

EPA believes a stay of the 280 NTU 

effluent limitation and associated 

monitoring requirements is appropriate 

until EPA can correct its error in 

calculating the numeric limitation. EPA 

plans to initiate a limited rulemaking to 

correct the numeric limitation, and 

plans to take final action on the 

proposal by May 30, 2011. This direct 

final rule stays the numeric limitation in 

40 CFR 450.22(a) and (b) and associated 

monitoring requirements until the new 

rulemaking is effective. States issuing 

permits between effective date of the 

stay and the effective date of the new 

rule need not incorporate the 280 NTU 

numeric limitation into their permits. 

C. Description of This Action 

EPA is staying Section 22(a) and (b) 

of 40 CFR part 450 until it can complete 

a new rulemaking to correct the 280 

NTU numeric limitation. Otherwise, 

compliance with the 280 NTU numeric 

limitation based on an inadequate 

administrative record would be 

required. This stay provides certainty to 

dischargers, which would need to 

comply with the numeric limitation and 

associated monitoring requirements, 

and to permitting agencies, which 

would need to incorporate the numeric 

limitation and associated monitoring 

requirements in construction permits. 

This is especially critical for the 16 

states that are expected to issue new 

construction general permits in 2010 

and 2011. Pursuant to 5 U.S.C. 553(b), 

EPA has determined for the reasons 

stated above that good cause exists for 

issuing this stay without notice and 

public comment procedures because in 

this context, for the reasons discussed 

above, such procedures are unnecessary 

and not in the public interest. EPA is 

not staying any other provision of 40 

CFR part 450. 

D. Statutory and Executive Order 

Reviews 

Under Executive Order 12866, 58 FR 

51735 (October 4, 1993), this action is 

not a ‘‘significant regulatory action’’ and 

is therefore not subject to review by the 

Office of Management and Budget. 

Because the Agency has made a ‘‘good 

cause’’ finding that this action is not 

subject to notice-and-comment 

requirements under the Administrative 

Procedure Act or any other statute, it is 

not subject to the regulatory flexibility 

provisions of the Regulatory Flexibility 

Act, 5 U.S.C. 601 et seq., or to sections 

202 and 205 of the Unfunded Mandates 

Reform Act of 1995 (UMRA) Public Law 

104–4. In addition, this action does not 

significantly or uniquely affect small 

governments or impose a significant 

intergovernmental mandate, as 

described in sections 203 and 204 of 

UMRA. This rule also does not 

significantly or uniquely affect the 

communities of tribal governments, as 

specified by Executive Order 13175. 65 

FR 67249 (November 9, 2000). This rule 

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). This rule 

also is not subject to Executive Order 

13045, 62 FR 19885 (April 23, 1997), 

because it is not economically 

significant and it does not make 

decisions based on environmental 

health or safety risks. This rule is not 

subject to Executive Order 13211, 

‘‘Actions Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355 (May 

22, 2001)) because it is not a significant 

regulatory action under Executive Order 

12866. 

This action does not involve technical 

standards; thus, the requirements of 

section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995, 15 U.S.C. 272, do not 

apply. This rule also does not involve 

special consideration of environmental 

justice related issues as required by 

Executive Order 12898, 59 FR 7629 

(February 16, 1994). In issuing this rule, 

EPA has taken the necessary steps to 

eliminate drafting errors and ambiguity, 

minimize potential litigation, and 

provide a clear legal standard for 

affected conduct, as required by section 

3 of Executive Order 12988, 61 FR 4729 

(February 7, 1996). EPA has complied 

with Executive Order 12630, 53 FR 8859 

(March 15, 1988), by examining the 

takings implications of the rule in 

accordance with the ‘‘Attorney General’s 

Supplemental Guidelines for the 

Evaluation of Risk and Avoidance of 

Unanticipated Takings’’ issued under 

the executive order. This rule does not 

impose an information collection 

burden under the provisions of the 

Paperwork Reduction Act of 1995, 44 

U.S.C. 3501 et seq. EPA’s compliance 

with these statutes and Executive 

Orders for the underlying rule is 

discussed in the December 1, 2009 

Federal Register notice. 74 FR 62995. 

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 

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Federal Register / Vol. 75, No. 214 / Friday, November 5, 2010 / Rules and Regulations 68217 

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, EPA has 

made a good cause finding to forego 

public notice and comment procedures. 

Today’s stay eliminates a numeric 

limitation for which the record is 

inadequate and any opportunity for 

confusion. Any additional delay in 

correcting the calculation error would 

only increase the potential confusion 

and could require states to incorporate 

an incorrect numeric limitation in their 

construction permits. EPA sets an 

effective date to make the stay effective 

60 days after publication in the Federal 

Register. 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). 

List of Subjects in 40 CFR Part 450 

Environmental protection, 

Construction industry, Land 

development, Erosion, Sediment, 

Stormwater, Water pollution control. 

Dated: November 1, 2010. 

Lisa P. Jackson, 

Administrator. 

■ For the reasons set forth in the 

preamble, EPA is amending 40 CFR part 

450 as follows: 

PART 450—CONSTRUCTION AND 

DEVELOPMENT POINT SOURCE 

CATEGORY 

■ 1. The authority citation for part 450 

is revised to read as follows: 

Authority: 33 U.S.C. 101, 301, 304, 306, 

308, 401, 402, 501 and 510. 

■ 2. Section 450.22(a) and (b) are stayed 

indefinitely. 

[FR Doc. 2010–28033 Filed 11–4–10; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF ENERGY 

48 CFR Part 970 

RIN 1991–AB91 

Acquisition Regulation: Agency 

Supplementary Regulations 

AGENCY: Department of Energy. 

ACTION: Final rule. 

SUMMARY: The Department of Energy 

(DOE) is amending the Department of 

Energy Acquisition Regulation (DEAR) 

on DOE Management and Operating 

Contracts to make changes to conform to 

the Federal Acquisition Regulation 

(FAR), remove out-of-date coverage, and 

update references. Today’s rule does not 

alter substantive rights or obligations 

under current law. 

DATES: Effective Date: December 6, 2010. 

FOR FURTHER INFORMATION CONTACT: 

Barbara Binney at (202) 287–1340 or by 

e-mail, barbara.binney@hq.doe.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

II. Comments and Responses 

III. Procedural Requirements 

A. Review Under Executive Order 12866 

B. Review Under Executive Order 12988 

C. Review Under the Regulatory Flexibility 

Act 

D. Review Under the Paperwork Reduction 

Act 

E. Review Under the National 

Environmental Policy Act 

F. Review Under Executive Order 13132 

G. Review Under the Unfunded Mandates 

Reform Act of 1995 

H. Review Under the Treasury and General 

Government Appropriations Act, 1999 

I. Review Under Executive Order 13211 

J. Review Under the Treasury and General 

Government Appropriations Act, 2001 

K. Review Under the Small Business 

Regulatory Enforcement Fairness Act of 

1996 

L. Approval by the Office of the Secretary 

of Energy 

I. Background 

This final rule amends the existing 

Department of Energy Acquisition 

Regulation (DEAR) Subchapter I. The 

purpose of this rule is to update DEAR 

Subchapter I—Agency Supplementary 

Regulations, Part 970—DOE 

Management and Operating Contracts to 

conform it to the FAR. None of today’s 

changes are substantive or of a nature to 

cause any significant expense for DOE 

or its contractors. 

II. Comments and Responses 

DOE published a notice of proposed 

rulemaking on June 9, 2010 (75 FR 

32719), with a public comment period 

ending on July 9, 2010. DOE received no 

comments. 

DOE amends the DEAR as follows: 

1. Section 970.0100 is amended to 

add the references for the Code of 

Federal Regulation (CFR) chapters 1 and 

9. 

2. Section 970.0103 is revised to 

remove ‘‘DEAR’’ before 970.0309 and 

remove ‘‘FAR’’ before 3.9 and add in its 

place ‘‘48 CFR subpart’’ in paragraph 

(a)(3). 

3. Section 970.0404–2 is amended to 

update the DOE Order to 475.1, 

Counterintelligence Program. 

4. Section 970.19 is amended to revise 

the subpart heading and the 970.1907 

section heading to conform to the FAR. 

5. Section 970.1907–1 is redesignated 

as 970.1907–4 to conform to the FAR. 

6. Part 970 is revised by adding a new 

subpart ‘‘970.25 Foreign Acquisition’’ 

and section ‘‘970.2570 Contract clauses’’ 

which provides instructions on when to 

insert and how to modify the clauses at 

FAR 52.225–1, Buy American Act— 

Supplies, and FAR 52.225–9, Buy 

American Act—Construction Materials, 

in management and operating contracts. 

7. Section 970.3102–05–6 paragraphs 

(a)(7)(i) and (ii) are amended to clarify 

that the contract will set forth the 

reimbursable costs for compensation for 

personal services, it removes the 

reference to the personnel appendix. 

Paragraph (p)(1) revises the reference to 

the FAR from the ‘‘Federal Acquisition 

Regulation’’ to ‘‘48 CFR.’’ 

8. Subpart 970.34 is amended by 

redesignating 970.3400 as 970.3405 and 

970.3400–1 as 970.3405–2 to conform 

with the FAR. 

9. Subpart 970.37 is revised to add the 

new section ‘‘970.3706 Performancebased acquisition’’ and ‘‘970.3706–1 

General’’ which references 970.1100 for 

policy and guidance on performancebased contracting for management and 

operating (M&O) contracts. 

10. Section 970.3770–1 is amended by 

adding that the use of DOE directives is 

prescribed in 970.0470. 

11. Section 970.5204–1 is amended by 

revising the date of the clause and 

removing ‘‘DOE Order 5670.3, 

Counterintelligence Program’’ in 

paragraph (a) of the clause and adding 

in its place ‘‘DOE Order 475.1, 

Counterintelligence Program, or its 

successor’’. 

12. Section 970.5223–3 is amended by 

revising the date of the provision and 

adding that DOE may grant an extension 

to the notification or implementation 

period if necessary as per 10 CFR 707.5 

(g) in paragraph (b). This change will 

provide the contracting officer the 

authority to extend the time needed for 

the contractor to submit the workplace 

substance abuse program plan. 

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