46298 Federal Register / Vol. 77, No. 150 / Friday, August 3, 2012 / Rules and Regulations 

resolved, will proceed expeditiously to 

complete the designations process. 

List of Subjects in 40 CFR Part 81 

Environmental protection, Air 

pollution control, National parks, 

Wilderness areas. 

Dated: July 27, 2012. 

Lisa P. Jackson, 

Administrator. 

[FR Doc. 2012–19043 Filed 8–2–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 131 

[EPA–HQ–OW–2011–0515, FRL 9666–8] 

RIN 2040–AF38 

Phosphorus Water Quality Standards 

for Florida Everglades 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is promulgating a rule 

that identifies provisions of Florida’s 

Water Quality Standards for Phosphorus 

in the Everglades Protection Area 

(Phosphorus Rule) and Florida’s 

Amended Everglades Forever Act (EFA) 

that EPA has disapproved and that 

therefore are not applicable water 

quality standards for purposes of the 

Clean Water Act. EPA is promulgating 

this final rule following EPA’s 

disapproval of these provisions and 

EPA’s specific directions to the State of 

Florida to correct these deficiencies in 

the Phosphorus Rule and EFA. EPA’s 

disapproval, specific directions to the 

State, and this rule implement two 

orders by the U.S. District Court for the 

Southern District of Florida. 

DATES: This final rule is effective 

September 4, 2012. The incorporation 

by reference of certain publications 

listed in the rule is approved by the 

Director of the Federal Register as of 

September 4, 2012. 

ADDRESSES: An electronic version of the 

public docket is available through the 

EPA’s electronic public docket and 

comment system, EPA Dockets. You 

may use EPA Dockets at http:// 

www.regulations.gov to view public 

comments at Docket number EPA–HQ– 

OW–2011–0515, access the index listing 

of the contents of the official public 

docket, and to access those documents 

in the public docket that are available 

electronically. For additional 

information about EPA’s public docket, 

visit the EPA Docket Center homepage 

at http://www.epa.gov/epahome/ 

dockets.htm. Publicly available docket 

materials are available either 

electronically in www.regulations.gov or 

in hard copy at the Docket Facility. The 

Office of Water (OW) Docket Center is 

open from 8:30 a.m. to 4:30 p.m., 

Monday through Friday, excluding legal 

holidays. The OW Docket Center 

telephone number is 202–566–1744 and 

the Docket address is OW Docket, EPA 

West, Room 3334, 1301 Constitution 

Ave. NW., Washington, DC 20004. 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. 

FOR FURTHER INFORMATION CONTACT: 

Mario Sengco, Standards and Health 

Protection Division, Office of Science 

and Technology, Mail Code: 4305T, 

Environmental Protection Agency, 1200 

Pennsylvania Avenue NW., Washington, 

DC 20460; telephone number: (202) 

566–2676; email: 

sengco.mario@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. What entities may be affected by this 

rule? 

Citizens concerned with water quality 

in Florida may be interested in this 

rulemaking. Entities discharging 

phosphorus to waters upstream of the 

Everglades Protection Area could be 

indirectly affected by the Phosphorus 

Rule and EFA, although not specifically 

by this rule because the rule merely 

publishes the text changes that reflect 

the prior disapproval by the EPA of 

certain provisions of the Phosphorus 

Rule and EFA. Any indirect affect to 

entities would be because the water 

quality standards contained in the 

State’s regulation and statute are used in 

determining National Pollutant 

Discharge Elimination System (NPDES) 

permit limits. With this in mind, 

categories and entities that ultimately 

may be indirectly affected include: 

Category Examples of potentially indirectly affected entities 

Water Management Districts ................... Entities responsible for managing point source discharges near the Everglades Protection Area. 

Nonpoint Source Contributors ................. Entities responsible for contributing nonpoint source runoff near the Everglades Protection Area. 

This table is not intended to be 

exhaustive, but rather provides a guide 

for entities that may be affected 

indirectly by this action. This table lists 

the types of entities of which EPA is 

now aware that potentially could be 

indirectly affected by this action. Other 

types of entities not listed in the table 

could also be affected directly or 

indirectly. Any parties or entities 

conducting activities within watersheds 

of the Florida waters covered by this 

rule, or who rely on, depend upon, 

influence, or contribute to the water 

quality of the Everglades Protection 

Area, might be indirectly affected by 

this rule. To determine whether your 

facility or activities may be affected by 

this action, you should examine the 

rule. If you have questions regarding the 

applicability of this action to a 

particular entity, consult the person 

listed in the preceding section, entitled 

FOR FURTHER INFORMATION CONTACT. 

B. How do I get copies of this notice? 

Docket. EPA has established an 

official public docket for this action 

under Docket ID No. EPA–HQ–OW– 

2011–0515. The official public docket is 

the collection of materials that is 

available for public viewing at the Water 

Docket in the EPA Docket Center, (EPA/ 

DC) EPA West, Room 3334, 1301 

Constitution Ave. NW., Washington, DC 

20460. Publicly available docket 

materials are available electronically 

through www.regulations.gov and in 

hard copy at the EPA Docket Center 

Public Reading Room, 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 Water 

docket is (202) 566–2426. 

Incorporation by reference. 

Documents that are being incorporated 

by reference through this rule may be 

found in the docket as described above, 

on EPA Web site established for this 

rulemaking at http://water.epa.gov/ 

lawsregs/rulesregs/ 

floridaeverglades_index.cfm, and 

through the National Archives and 

Records Administration (NARA) by 

sending a request by email to 

fedreg.info@nara.gov, or by mail to the 

following address: Office of the Federal 

Register (NF), The National Archives 

and Records Administration, 8601 

Adelphi Road, College Park, MD 20740– 

6001. For information on the availability 

mstockstill on DSK4VPTVN1PROD with RULES

Federal Register / Vol. 77, No. 150 / Friday, August 3, 2012 / Rules and Regulations 46299 

of this material at NARA, call 202–741– 

6030, or go to the following Web site 

http://www.archives.gov/ 

federal_register/ 

code_of_federal_regulations/ 

ibr_locations.htm. 

II. Background 

EPA is promulgating this rule to 

identify provisions of Florida’s Water 

Quality Standards for Phosphorus in the 

Everglades Protection Area (Phosphorus 

Rule) and Florida’s Amended 

Everglades Forever Act (EFA) that EPA 

has disapproved and that therefore are 

not applicable water quality standards 

for purposes of the Clean Water Act. 

EPA is promulgating this final rule 

following its disapproval of these 

provisions and EPA’s specific directions 

to the State of Florida to correct these 

deficiencies in the Phosphorus Rule and 

EFA. EPA’s disapproval and specific 

directions to the State implement two 

orders by the U.S. District Court for the 

Southern District of Florida. Pursuant to 

the Court’s orders and consistent with 

Clean Water Act section 303(c), EPA 

provided the State a period of time to 

correct the deficiencies. The State has 

not corrected the deficiencies within 

that time period. Therefore, EPA is 

promulgating this rule. The rule 

incorporates by reference two 

documents that identify the specific 

provisions of Florida’s Phosphorus Rule 

and EFA that are not applicable water 

quality standards for purposes of the 

Clean Water Act. The specific 

provisions that are not applicable water 

quality standards are indicated with 

‘‘strikeout’’ text in the documents that 

are incorporated by reference into the 

Code of Federal Regulations. 

A. Statutory and Regulatory Background 

Section 303(c) (33 U.S.C. 1313) of the 

Clean Water Act (CWA) directs States, 

with oversight by EPA, to adopt water 

quality standards to protect the public 

health and welfare, enhance the quality 

of water and serve the purposes of the 

CWA. Under section 303, States are 

required to develop water quality 

standards for waters of the United States 

within the State. Section 303(c) and 

EPA’s implementing regulations (40 

CFR part 131) provide that water quality 

standards shall include designated uses 

of the water and water quality criteria 

necessary to protect those uses. 

States must submit any new or 

revised water quality standards for EPA 

review and approval/disapproval. EPA 

must approve/disapprove any new or 

revised standards within 60–90 days. 

(Section 303(c)(3)). If EPA disapproves 

any standard, EPA is to specify the 

changes to meet the requirements of the 

CWA. If the changes are not adopted by 

the State, EPA is to promulgate 

standards to address the necessary 

changes in the State standards that EPA 

has disapproved. In this rulemaking, 

EPA is identifying the portions of 

Florida’s standards that EPA 

disapproved and that, after EPA 

notification of necessary changes, the 

State has not adopted through changes 

in State publications. 

B. Florida’s Phosphorus Rule and 

Everglades Forever Act 

1. Florida’s Phosphorus Rule 

In 2005, the Florida Department of 

Environmental Protection (FDEP) 

submitted to EPA for review pursuant to 

CWA section 303(c), provisions of 

Florida Administrative Code (‘‘FAC’’) 

62–302.540 entitled ‘‘Water Quality 

Standards for Phosphorus Within the 

Everglades Protection Area’’ 

(Phosphorus Rule or Rule). The Rule 

established a numeric water quality 

criterion for phosphorus as well as 

implementing provisions for the 

numeric criterion within the Everglades 

Protection Area. In 2005 and 2006, EPA 

issued a series of decisions approving 

certain provisions of the Phosphorus 

Rule and concluding that other 

provisions were not new or revised 

water quality standards and did not 

require EPA approval or disapproval 

under CWA section 303(c). 

2. Florida’s Everglades Forever Act 

The Florida Legislature enacted the 

Everglades Forever Act in 1994 to 

maintain and restore the ecosystem of 

the Everglades. See Miccosukee Tribe of 

Indians v. United States, 105 F.3d. 599, 

601 (11th Cir. 1997). EPA subsequently 

reviewed and approved one section of 

the EFA (section 4(f)) as a new or 

revised water quality standard in 1999. 

The Legislature enacted amendments to 

the EFA in 2003. EPA reviewed the 

amendments and issued a decision in 

2003 that the amendments were not new 

or revised water quality standards 

requiring EPA approval or disapproval 

under section 303(c) of the CWA. 

C. Litigation and Subsequent EPA 

Actions 

In consolidated litigation, 

environmental and Native American 

plaintiffs challenged (1) EPA’s 2003 

decision that the EFA amendments were 

not water quality standards and (2) 

EPA’s 2005 and 2006 decisions 

regarding the Phosphorus Rule. In a July 

29, 2008 decision, the U.S. District 

Court for the Southern District of 

Florida upheld in part and remanded in 

part EPA’s decisions. Miccosukee Tribe 

of Indians & Friends of the Everglades 

v. U.S. Environmental Protection 

Agency, Florida Department of 

Environmental Protection, et al., No. 

04–21488–CIV–Gold/McAliley (S.D. 

Fla.). The Court upheld EPA’s 2005 

approval of the Phosphorus Rule’s 

numeric phosphorus criterion and the 

‘‘four-part’’ test for determining 

attainment of the criterion. The Court 

overturned (1) EPA’s decision that 

certain implementing provisions of the 

Phosphorus Rule were not new or 

revised water quality standards, and (2) 

EPA’s approval of other provisions of 

the Phosphorus Rule, finding EPA’s 

approval to be arbitrary and capricious. 

The Court also rejected EPA’s position 

that the legislative amendments to the 

EFA did not constitute new or revised 

water quality standards subject to EPA 

review (and approval or disapproval) 

under section 303(c) of the CWA. The 

Court remanded to EPA to take further 

action consistent with the Court’s 

decision. 

1. EPA’s December 2009 Determination 

On December 3, 2009, EPA issued a 

new Determination in response to the 

Court’s remand. Consistent with the 

Court’s 2008 decision, EPA disapproved 

certain amendments to the EFA. It is 

those disapproved provisions of the 

EFA that are, in part, the subject of this 

rulemaking. In addition, EPA reviewed 

the provisions of the Phosphorus Rule 

that the Court either found were new or 

revised standards or that the Court had 

held EPA’s prior approval invalid. 

Consistent with the Court’s decision, 

EPA disapproved certain provisions of 

the Phosphorus Rule in December of 

2009 and those disapproved provisions 

also are reflected in this final 

rulemaking. 

2. Court’s April 14, 2010 Order 

Plaintiffs challenged EPA’s December 

2009 Determination, alleging, in part, 

that EPA failed to (1) specify the 

changes that Florida must make to the 

Phosphorus Rule and EFA to bring them 

into compliance with the CWA and (2) 

commit to promulgate if the State fails 

to act. The Court, in an order dated 

April 14, 2010, remanded EPA’s 2009 

Determination and ordered EPA to issue 

an Amended Determination (AD) by 

September 3, 2010. Miccosukee Tribe of 

Indians & Friends of the Everglades v. 

U.S. Environmental Protection Agency, 

Florida Department of Environmental 

Protection, et al., No. 04–21488–CIV– 

Gold/McAliley (April 14, 2010, S.D. 

Fla.) (Order). While the Court did not 

take issue with EPA’s disapprovals, the 

Court nevertheless ordered that EPA’s 

AD ‘‘shall specifically direct the State of 

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46300 Federal Register / Vol. 77, No. 150 / Friday, August 3, 2012 / Rules and Regulations 

Florida to correct deficiencies in the 

Amended EFA and Phosphorus Rule 

that have been invalidated,’’ attaching 

copies of the Rule and EFA with 

strikeout markings indicating the exact 

language from the Rule and EFA that the 

EPA was to direct the State to correct. 

Order at 44. The Court ordered that in 

the AD, ‘‘EPA shall require the State of 

Florida to commence and complete 

rulemaking for the Phosphorus Rule 

within 120 days from the date of the 

Amended Determination and shall 

require amendments to the Amended 

EFA to be enacted by July 1, 2011.’’ 

Order at 44–45. The Court further 

ordered that ‘‘[i]n the event the State of 

Florida fails to timely act, the EPA shall 

provide timely notice, and the EPA 

Administrator ‘‘shall promulgate such 

standard[s]’’ pursuant to 33 U.S.C. 

1313(c).’’ Order at 45. This rulemaking 

complies with that Court order. 

3. EPA’s September 3, 2010 Amended 

Determination 

Consistent with the Court’s April 14, 

2010 Order, EPA prepared an Amended 

Determination (AD) dated September 3, 

2010. The AD directed the State of 

Florida to correct deficiencies in the 

Phosphorus Rule and Amended EFA. 

The AD included as attachments copies 

of the Phosphorus Rule and EFA with 

strikeout markings indicating the 

language changes necessary to meet 

Clean Water Act requirements. EPA’s 

AD stated that if FDEP has not finalized 

revisions by January 1, 2011 and the 

Legislature has not enacted amendments 

to the EFA by July 1, 2011, then EPA 

would initiate rulemaking to promulgate 

the necessary changes consistent with 

the Court’s Order. 

Although FDEP initiated a 

rulemaking, with a notice of rule 

development published on March 26, 

2010, to adopt the necessary revisions to 

the Phosphorus Rule and the EFA 

amendments consistent with EPA’s AD, 

the State rulemaking agencies did not 

complete that process on the 

Phosphorus Rule changes by January 1, 

2011. Nor has the State completed its 

rulemaking process on the Phosphorus 

Rule since that date. The Florida 

Legislature also did not introduce or 

enact any amendments to the EFA 

consistent with EPA’s AD. The Florida 

Legislature adjourned and did not 

reconvene prior to July 1, 2011. 

Therefore, EPA proceeded, consistent 

with the Court’s Order and EPA’s AD, 

to initiate this rulemaking process to 

promulgate the proposed federal 

rulemaking identifying the necessary 

changes to the Phosphorus Rule and 

EFA to meet Clean Water Act 

requirements. 

III. EPA’s Proposal and Public 

Comments Received 

Proposed Rule: EPA’s proposed rule 

identified those provisions in the 

Phosphorus Rule and Everglades 

Forever Act (EFA) that EPA had 

disapproved and therefore are not 

applicable water quality standards for 

purposes of the CWA. The provisions 

are those that EPA previously 

disapproved in December 2009 that the 

Court identified in its April 2010 Order, 

and that EPA subsequently identified in 

its September 2010 AD. EPA initiated 

this rulemaking to promulgate the 

necessary changes to the Phosphorus 

Rule and EFA, consistent with the April 

2010 Order and EPA’s AD, after the 

State failed to make changes to the 

regulation and statute, respectively, by 

specified dates. 

For the purposes of codifying the 

changes, EPA proposed to incorporate 

by reference into the Code of Federal 

Regulations copies of the Phosphorus 

Rule and EFA with the strikeout 

markings, identifying the provisions and 

language that are not applicable water 

quality standards for purposes of the 

CWA. EPA explained that the approach 

of incorporation by reference was the 

most appropriate among the approaches 

that the Agency considered to correct 

the deficiencies in the State’s regulation 

and statute. Therefore, copies of the two 

documents to be incorporated were 

placed in the rulemaking docket. In 

addition, EPA identified the specific 

provisions of the Phosphorus Rule and 

EFA that are not applicable water 

quality standards for purposes of the 

CWA in Tables 1 and 2 of the proposal. 

EPA further explained in the proposal 

that the remaining provisions of the 

Phosphorus Rule and EFA either (1) had 

already been approved by EPA as new 

or revised water quality standards (i.e., 

are applicable water quality standards 

for the purposes of the CWA), or (2) are 

not water quality standards subject to 

EPA review and approval (or 

disapproval) under the Clean Water Act. 

Therefore, EPA did not propose to 

promulgate any of the remaining 

provisions that EPA had previously 

approved or that are not water quality 

standards. 

For the convenience of the reader and 

to improve the readability of the two 

documents to be incorporated by 

reference, EPA included in its proposal 

a few minor text changes to the 

Phosphorus Rule and EFA in the docket. 

These changes were identified by 

underline. EPA included these few text 

changes in a submission filed with the 

Court and the Court subsequently 

indicated that it would modify its April 

2010 to reflect these changes. EPA 

added text when deletion of the 

disapproved language rendered the 

remaining text difficult to understand. 

For example, in EFA section 10, EPA 

added text to restore language that 

existed prior to enactment of EFA 

amendments. In these sections, EPA did 

not propose to establish new or revised 

water quality standards with these text 

changes. Similarly, for ease of 

readability, the docket versions of the 

Phosphorus Rule and Amended 

Everglades Forever Act struck the 

definitions of ‘‘optimization’’ (which 

corresponded to regulatory language 

already disapproved) from sections 2(l) 

and 3(f), as discussed in the proposed 

rule preamble. 

The public was given an opportunity 

to review the proposed rule and provide 

comments over a thirty-day period. 

Comments: EPA received comments 

from eight separate commenters 

including the two litigants in the 

District Court case and other interested 

parties. A few commenters challenged 

EPA’s authority to promulgate this rule, 

arguing that the Agency lacks legal 

authority to promulgate a rule after 

disapproval of water quality standards 

when the remaining approved water 

quality standards meet CWA 

requirements. EPA disagrees that it has 

no authority to promulgate water quality 

standards following disapproval. CWA 

section 303(c) does not specifically 

address the issue. It was reasonable and 

consistent with the CWA for EPA to 

promulgate this final rule that identifies 

only those provisions of Florida law that 

EPA has disapproved and that therefore 

are not applicable water quality 

standards for purposes of the Clean 

Water Act, where EPA concluded that 

the State should revise its existing 

standards to remove the disapproved 

provisions and the State failed to take 

such action. Otherwise, the provisions 

of the revised State water quality 

standards that EPA disapproved would 

remain applicable under State law. 

EPA’s action will remove any potential 

for confusion and identify the 

provisions of State law that EPA has 

disapproved and that, therefore, are not 

in effect for federal CWA purposes. 

To the extent EPA would be 

promulgating as federal regulations 

provisions of state water quality 

standards that EPA has approved (or 

provisions associated with approved 

water quality standards that are not 

themselves water quality standards), the 

CWA does not provide for such action. 

The CWA provides that when EPA 

approves a new or revised state water 

quality standard, ‘‘such standard shall 

thereafter be the water quality standard 

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Federal Register / Vol. 77, No. 150 / Friday, August 3, 2012 / Rules and Regulations 46301 

for the applicable waters of the State.’’ 

CWA section 303(c)(3). Only if EPA 

disapproves a state water quality 

standard or makes a determination that 

a new or revised water quality standard 

is necessary to meet the requirements of 

the Clean Water Act under section 

303(c)(4)(B) and the state fails to make 

the necessary changes, does the Act 

direct EPA to promulgate such water 

quality standards for navigable waters of 

the state. There are many provisions of 

the Phosphorus Rule that EPA 

approved. EPA does not believe it 

would be appropriate to promulgate 

those provisions as federal regulations. 

Second, except for the disapproved 

provisions of the EFA amendments, 

EPA has not approved or disapproved 

the remaining provisions of the EFA 

(with one exception) as new or revised 

water quality standards under the Clean 

Water Act. Therefore, it would not be 

appropriate for EPA to promulgate such 

provisions as federal water quality 

standards. 

Copies of the public comments and 

the EPA’s responses can be found in the 

docket associated with this rulemaking 

(see instructions above under General 

Information). 

Final Rule: EPA has made no changes 

to its proposal in this final rule. EPA 

believes that the incorporation by 

reference approach described in the 

proposed rule, as well as the content of 

the proposed rule, remain appropriate 

for promulgation. 

For the convenience of persons 

reviewing this final rule, EPA has 

included copies of the Phosphorus Rule 

and Amended Everglades Forever Act in 

the docket that included the strikeout 

markings indicating the language that 

EPA identifies as not being applicable 

water quality standards for purposes of 

the CWA. The provisions of the 

Phosphorus Rule and EFA that are not 

applicable water quality standards for 

purposes of the CWA are summarized 

again here in Tables 1 and 2 below. 

TABLE 1—62–302.540 PROVISIONS OF FLORIDA ADMINISTRATIVE CODE (F.A.C.) (WATER QUALITY STANDARDS FOR

PHOSPHORUS WITHIN THE EVERGLADES PROTECTION AREA) THAT ARE NOT APPLICABLE WATER QUALITY STANDARDS FOR PURPOSES OF THE CLEAN WATER ACT

Section Specific provision or language 

(1)(a) ................. Entire paragraph. 

(1)(b)(2) ............ Entire paragraph. 

(2)(b)–(f) ........... Entire paragraphs and subparagraphs. 

(2)(h) ................. Entire paragraph. 

(2)(l) .................. Entire paragraph. 

(3)(a)–(b) .......... Entire paragraphs. 

(3)(f) .................. Entire paragraph. 

(3)(h) ................. Entire paragraph. 

(4)(d)(2)(c) ........ Sentence only, ‘‘If these limits are not met, no action shall be required, provided that the net improvement or hydropattern 

restoration provisions of subsection (6) below are met.’’ 

(5)(a) ................. Entire paragraph. 

(5)(b)(2)–(3) ...... Entire paragraphs. 

(5)(d) ................. Entire paragraph. 

(6)(a)–(c) ........... Entire paragraphs and subparagraphs. 

TABLE 2—PROVISIONS OF THE AMENDED EVERGLADES FOREVER ACT (FLORIDA STATUTE 373.4592) THAT ARE NOT

APPLICABLE WATER QUALITY STANDARDS FOR PURPOSES OF THE CLEAN WATER ACT

Section Specific provision or language 

(2)(a) ................. Entire paragraph. 

(2)(g) ................. Sentence 1, phrase ‘‘and further described in the Long-Term Plan’’. 

(2)(j) .................. Entire paragraph. 

(2)(l) .................. Entire paragraph. 

(2)(p) ................. Entire paragraph. 

(3)(b)–(e) .......... Entire paragraphs. 

(4)(a) ................. Sentence 9, phrase ‘‘design, construction, and implementation of the initial phase of the Long-Term Plan, including operation 

and maintenance, and research for the projects and strategies in the initial phase of the Long-Term Plan, and including.’’ 

(4)(a)(4) ............ Sentence 1, phrase ‘‘however, the district may modify this schedule to incorporate and accelerate enhancements to STA 3/4 

as directed in the Long-Term Plan’’. 

(4)(a)(6) ............ Entire subparagraph. 

(4)(e)(2) ............ Sentences 7, 8 and 9. 

(4)(e)(3) ............ Sentence 3. 

(10) ................... Sentence 1, phrase ‘‘to implement the pre-2006 projects and strategies of the Long-Term Plan.’’ 

Sentence 1, phrase ‘‘in all parts of the Everglades Protection Area’’. 

Sentence 1, phrase ‘‘and moderating provisions’’. 

(10)(a) ............... Entire paragraph. 

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46302 Federal Register / Vol. 77, No. 150 / Friday, August 3, 2012 / Rules and Regulations 

IV. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 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 is therefore not 

subject to review under Executive 

Orders 12866 and 13563 (76 FR 3821, 

January 21, 2011). 

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). This action 

merely clarifies the water quality 

standards concerning the phosphorus 

rule and the Amended EFA statute that 

are not water quality standards for 

purposes of the CWA and does not 

impose any information collection 

burden on anyone. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. For purposes of assessing 

the impacts of this action on small 

entities, small entity is defined as: (1) A 

small business as defined by the Small 

Business Administration’s (SBA) 

regulations at 13 CFR 121.201; (2) a 

small governmental jurisdiction that is a 

government of a city, county, town, 

school district or special district with a 

population of less than 50,000; and (3) 

a small organization that is any not-forprofit enterprise which is independently 

owned and operated and is not 

dominant in its field. 

As a result of the disapproval action 

by EPA in December 2009, the Florida 

Department of Environmental Protection 

already needs to ensure that permits it 

issues do not implement the provisions 

identified in this rule because those 

provisions are not applicable water 

quality standards for purposes of the 

CWA. In doing so, the State will have 

a number of choices associated with 

permit writing. While Florida’s 

implementation of the rule (and EPA’s 

earlier disapprovals) might ultimately 

result in some new or revised permit 

conditions for some dischargers, 

including small entities, EPA’s action 

today would not impose any of these as 

yet unknown requirements on small 

entities. Thus, I certify that this rule will 

not have a significant economic impact 

on a substantial number of small 

entities. 

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. This 

action merely clarifies the water quality 

standards concerning the Phosphorus 

Rule and the Amended EFA and does 

not impose any burden on anyone. 

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. This action 

merely clarifies the water quality 

standards concerning the Phosphorus 

Rule and the Amended EFA and does 

not apply to any government other than 

the State of Florida. 

F. Executive Order 13175 

This action does not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000) because this is an action in which 

the EPA has no discretion, i.e., EPA is 

mandated by the Court to take this 

action. Thus, Executive Order 13175 

does not apply to this action. 

Nonetheless, consistent with the 

findings of the Executive Order and in 

response to a request from the 

Miccosukee Tribe submitted during the 

public comment period, EPA did choose 

to confer with the Tribe. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

This action is not subject to EO 13045 

(62 FR 19885, April 23, 1997) because 

it is not economically significant as 

defined in EO 12866 and because the 

Agency does not believe the 

environmental health risks 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 likely to have 

a significant adverse effect on the 

supply, distribution, or use of energy. 

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 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 EPA to provide 

Congress, through OMB, explanations 

when the Agency decides not to use 

available and applicable voluntary 

consensus standards. 

This rulemaking does not involve 

technical standards. Therefore, 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 (EO) 12898 (59 FR 

7629 (Feb. 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. This 

action is not subject to E.O. 12898 

because this action merely clarifies the 

water quality standards concerning the 

Phosphorus Rule and the Amended 

EFA. 

K. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

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Federal Register / Vol. 77, No. 150 / Friday, August 3, 2012 / Rules and Regulations 46303 

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. 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. A Major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). This rule 

will be effective September 4, 2012. 

List of Subjects in 40 CFR Part 131 

Environmental protection, 

Incorporation by reference, Indians— 

lands, Intergovernmental relations, 

Reporting and recordkeeping 

requirements, Water pollution control. 

Dated: July 27, 2012. 

Lisa P. Jackson, 

Administrator. 

For the reasons set out in the 

preamble, EPA amends 40 CFR part 131 

as follows: 

PART 131—WATER QUALITY 

STANDARDS 

■ 1. The Authority citation for part 131 

continues to read as follows: 

Authority: 33 U.S.C. 1251 et seq. 

Subpart D—[Amended] 

■ 2. Section 131.44 is added as follows: 

§ 131.44 Florida. 

(a) Phosphorus Rule. (1) The 

document entitled ‘‘Florida 

Administrative Code, Chapter 62–302, 

Surface Water Quality Standards, 

Section 62–302.540, Water Quality 

Standards for Phosphorus Within the 

Everglades Protection Area, Amended 

May 25, 2005, as annotated by EPA’’ 

(Phosphorus Rule), is incorporated by 

reference as described in paragraph 

(a)(2). EPA is not incorporating the full 

text of this document, but correcting 

specified portions of the Phosphorus 

Rule as directed by a federal district 

court as indicated by the strikeout 

markings. The EPA is only 

incorporating by reference these 

crossed-out portions in the Florida 

Administrative Code 62–302.540. The 

Director of the Federal Register 

approves this incorporation by reference 

in accordance with 5 U.S.C. 552(a). 

Copies of the document may be 

inspected and obtained from the docket 

associated with this rulemaking (Docket 

Number EPA–HQ–OW–2011–0515) at 

http://www.regulations.gov 

electronically, at EPA’s Water Docket 

(Address: 1301 Constitution Avenue 

NW., EPA West, Room B102, 

Washington, DC 20460, telephone 

number: 202–566–2426), at the National 

Archives and Records Administration 

(NARA), and finally, on the EPA Web 

site associated with this rulemaking at 

http://water.epa.gov/lawsregs/rulesregs/ 

floridaeverglades_index.cfm. For 

information on the availability of this 

material at NARA, call 202–741–6030, 

or go to the following Web site http:// 

www.archives.gov/federal_register/ 

code_of_federal_regulations/ 

ibr_locations.htm. EPA adopts and 

identifies the portions of the document 

that have strikeout markings as portions 

of the Phosphorus Rule that EPA 

disapproved on December 3, 2009, and 

that are not applicable water quality 

standards for the purposes of the Clean 

Water Act. Remaining portions of the 

Phosphorus Rule that EPA had 

previously approved are applicable 

water quality standards for the purposes 

of the Clean Water Act but are not 

codified as federal regulations. 

(2) In the Phosphorus Rule, strike the 

following text: 

(i) The entire paragraph (1)(a); 

(ii) The entire paragraph (1)(b)(2); 

(iii) The entire paragraph and 

subparagraphs (2)(b), (2)(c), (2)(d), (2)(e), 

(2)(e)(1), (2)(e)(2) and 2(f); 

(iv) The entire paragraph (2)(h); 

(v) The entire paragraph (2)(l); 

(vi) The entire paragraphs (3)(a) and 

(3)(b); 

(vii) The entire paragraph 3(f); 

(viii) The entire paragraph (3)(h); 

(ix) In (4)(d)(2)(c), the sentence, ‘‘If 

these limits are not met, no action shall 

be required, provided that the net 

improvement or hydropattern 

restoration provisions of subsection (6) 

below are met.’’; 

(x) The entire paragraph (5)(a); 

(xi) The entire paragraph (5)(b)(2) and 

(5)(b)(3); 

(xii) The entire paragraph (5)(d); 

(xiii) The entire paragraph (6), 

including subparagraphs (6)(a), (6)(a)(1), 

(6)(a)(1)(a), (6)(a)(1)(b), (6)(a)(2), 

(6)(a)(3), (6)(a)(4), (6)(a)(5), (6)(b), 

(6)(b)(1), (6)(b)(2), (6)(b)(3), and (6)(c). 

(b) Amended Everglades Forever Act. 

(1) The document entitled ‘‘Florida 

Statute, Title 28, Natural Resources; 

Conservation, Reclamation, and Use, 

Section 373.4592, Everglades 

improvement and management, 

effective July 1, 2008, also known as the 

‘‘Everglades Forever Act,’’ as annotated 

by EPA’’ is incorporated by reference as 

described in paragraph (b)(2). The EPA 

is not incorporating the full text of this 

document, but correcting specified 

portions of the statute as directed by the 

court as indicated by the strike out 

markings. The EPA is only 

incorporating by reference these 

crossed-out portions in the Florida 

Statute, the ‘‘Everglades Forever Act.’’ 

The Director of the Federal Register 

approves this incorporation by reference 

in accordance with 5 U.S.C. 552(a). 

Copies of the document may be 

inspected and obtained from the docket 

associated with this rulemaking (Docket 

Number EPA–HQ–OW–2011–0515) at 

http://www.regulations.gov 

electronically, at EPA’s Water Docket 

(Address: 1301 Constitution Avenue 

NW., EPA West, Room B102, 

Washington, DC 20460, telephone 

number: 202–566–2426), at the National 

Archives and Records Administration 

(NARA), and finally, on the EPA Web 

site associated with this rulemaking at 

http://water.epa.gov/lawsregs/rulesregs/ 

floridaeverglades_index.cfm. For 

information on the availability of this 

material at NARA, call 202–741–6030, 

or go to the following Web site http:// 

www.archives.gov/federal_register/ 

code_of_federal_regulations/ 

ibr_locations.htm. EPA adopts and 

identifies the portions of the document 

that have strikeout markings as portions 

of the statute that EPA disapproved on 

December 3, 2009, and that are not 

applicable water quality standards for 

the purposes of the Clean Water Act. 

Remaining portions of the statute that 

EPA had previously approved are 

applicable water quality standards for 

the purposes of the Clean Water Act but 

are not codified as federal regulations. 

(2) In the Everglades Forever Act, 

strike the following text: 

(i) The entire paragraph (2)(a); 

(ii) In paragraph (2)(g), the phrase, 

‘‘and further described in the LongTerm Plan.’’; 

(iii) The entire paragraph (2)(j); 

(iv) The entire paragraph (2)(l); 

(v) The entire paragraph (2)(p); 

(vi) The entire paragraphs (3)(b), 

(3)(c), (3)(d) and (3)(e); 

(vii) In sentence 9 of paragraph (4)(a), 

the phrase, ‘‘design, construction, and 

implementation of the initial phase of 

the Long-Term Plan, including 

operation and maintenance, and 

research for the projects and strategies 

in the initial phase of the Long-Term 

Plan, and including’’; 

(viii) In sentence 1 of subparagraph 

(4)(a)(4), the phrase, ‘‘however, the 

district may modify this schedule to 

incorporate and accelerate 

enhancements to STA 3/4 as directed in 

the Long-Term Plan;’’; 

(ix) The entire subparagraph (4)(a)(6); 

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46304 Federal Register / Vol. 77, No. 150 / Friday, August 3, 2012 / Rules and Regulations 

(x) In subparagraph (4)(e)(2), the 

entire sentences 7, 8 and 9; 

(xi) In subparagraph (4)(e)(3), the 

entire sentence 3; 

(xii) In sentence 1 of paragraph (10), 

the phrase, ‘‘to implement the pre-2006 

projects and strategies of the Long-Term 

Plan’’, the phrase, ‘‘in all parts of the 

Everglades Protection Area’’, and the 

phrase ‘‘and moderating provisions’’; 

(xiii) The entire paragraph (10)(a). 

(3) EPA is not incorporating the text 

annotations added by hand to the 

Everglades Forever Act. These text 

inserts are included only for the 

convenience of the reader and to 

improve the readability of the 

document. 

[FR Doc. 2012–18872 Filed 8–2–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 180 

[EPA–HQ–OPP–2011–0563; FRL–9355–5] 

Rimsulfuron; Pesticide Tolerances 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: This regulation establishes 

tolerances for residues of rimsulfuron in 

or on chicory roots and tops. 

Interregional Research Project No. 4 (IR– 

4) requested these tolerances under the 

Federal Food, Drug, and Cosmetic Act 

(FFDCA). 

DATES: This regulation is effective 

August 3, 2012. Objections and requests 

for hearings must be received on or 

before October 2, 2012, and must be 

filed in accordance with the instructions 

provided in 40 CFR part 178 (see also 

Unit I.C. of the SUPPLEMENTARY

INFORMATION). 

ADDRESSES: The docket for this action, 

identified by docket identification (ID) 

number EPA–HQ–OPP–2011–0563, is 

available at http://www.regulations.gov 

or at the OPP Docket in the 

Environmental Protection Agency 

Docket Center (EPA/DC), located in EPA 

West, Rm. 3334, 1301 Constitution Ave. 

NW., Washington, DC 20460–0001. 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 OPP 

Docket is (703) 305–5805. Please review 

the visitor instructions and additional 

information about the docket available 

at http://www.epa.gov/dockets. 

FOR FURTHER INFORMATION CONTACT: 

Andrew Ertman, Registration Division 

(7505P), Office of Pesticide Programs, 

Environmental Protection Agency, 1200 

Pennsylvania Ave. NW., Washington, 

DC 20460–0001; telephone number: 

(703) 308–9367; email address: 

ertman.andrew@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this action apply to me? 

You may be potentially affected by 

this action if you are an agricultural 

producer, food manufacturer, or 

pesticide manufacturer. Potentially 

affected entities may include, but are 

not limited to those engaged in the 

following activities: 

• Crop production (NAICS code 111). 

• Animal production (NAICS code 

112). 

• Food manufacturing (NAICS code 

311). 

• Pesticide manufacturing (NAICS 

code 32532). 

This listing is not intended to be 

exhaustive, but rather to provide a guide 

for readers regarding entities likely to be 

affected by this action. Other types of 

entities not listed in this unit could also 

be affected. The North American 

Industrial Classification System 

(NAICS) codes have been provided to 

assist you and others in determining 

whether this action might apply to 

certain entities. If you have any 

questions regarding the applicability of 

this action to a particular entity, consult 

the person listed under FOR FURTHER

INFORMATION CONTACT. 

B. How can I get electronic access to 

other related information? 

You may access a frequently updated 

electronic version of EPA’s tolerance 

regulations at 40 CFR part 180 through 

the Government Printing Office’s e-CFR 

site at http://ecfr.gpoaccess.gov/cgi/t/ 

text/text-idx?&c=ecfr&tpl=/ecfrbrowse/ 

Title40/40tab_02.tpl. 

C. How can I file an objection or hearing 

request? 

Under FFDCA section 408(g), 21 

U.S.C. 346a, any person may file an 

objection to any aspect of this regulation 

and may also request a hearing on those 

objections. You must file your objection 

or request a hearing on this regulation 

in accordance with the instructions 

provided in 40 CFR part 178. To ensure 

proper receipt by EPA, you must 

identify docket ID number EPA–HQ– 

OPP–2011–0563 in the subject line on 

the first page of your submission. All 

objections and requests for a hearing 

must be in writing, and must be 

received by the Hearing Clerk on or 

before October 2, 2012. Addresses for 

mail and hand delivery of objections 

and hearing requests are provided in 40 

CFR 178.25(b). 

In addition to filing an objection or 

hearing request with the Hearing Clerk 

as described in 40 CFR part 178, please 

submit a copy of the filing that does not 

contain any CBI for inclusion in the 

public docket. Information not marked 

confidential pursuant to 40 CFR part 2 

may be disclosed publicly by EPA 

without prior notice. Submit a copy of 

your non-CBI objection or hearing 

request, identified by docket ID number 

EPA–HQ–OPP–2011–0563, by one of 

the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the online 

instructions for submitting comments. 

Do not submit electronically any 

information you consider to be 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statue. 

• Mail: OPP Docket, Environmental 

Protection Agency Docket Center (EPA/ 

DC), Mail Code: 28221T, 1200 

Pennsylvania Ave. NW., Washington, 

DC 20460–0001. 

• Hand Delivery: To make special 

arrangements for hand delivery or 

delivery of boxed information, please 

follow the instructions at http:// 

www.epa.gov/dockets/contacts.htm. 

II. Summary of Petitioned-for Tolerance 

In the Federal Register of August 26, 

2011 (76 FR 53372) (FRL–8884–9), EPA 

issued a notice pursuant to FFDCA 

section 408(d)(3), 21 U.S.C. 346a(d)(3), 

announcing the filing of a pesticide 

petition (PP 1E7883) by IR–4, 500 

College Rd. East, Suite 201W, Princeton, 

NJ 08540. The petition requested that 40 

CFR 180.478 be amended by 

establishing tolerances for residues of 

the herbicide rimsulfuron, N-((4,6- 

dimethoxypyrimidin-2- 

yl)aminocarbonyl)-3-(ethylsulfonyl)-2- 

pyridinesulfonamide, including its 

metabolites and degradates, in or on 

chicory, roots at 0.01 parts per million 

(ppm) and chicory, tops at 0.01 ppm. 

That notice referenced a summary of the 

petition prepared by DuPont, the 

registrant, which is available in the 

docket, http://www.regulations.gov. 

There were no comments received in 

response to the notice of filing. 

III. Aggregate Risk Assessment and 

Determination of Safety 

Section 408(b)(2)(A)(i) of FFDCA 

allows EPA to establish a tolerance (the 

legal limit for a pesticide chemical 

residue in or on a food) only if EPA 

determines that the tolerance is ‘‘safe.’’ 

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