72970 Federal Register / Vol. 77, No. 236 / Friday, December 7, 2012 / Rules and Regulations 

1This rulemaking responds to the uncertainty 

created by the Ninth Circuit’s holding in NEDC that 

certain channeled discharges of stormwater from 

logging roads constitute point source discharges, 

bringing them within the Section 402 NPDES 

located in the State, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

The Congressional Review Act, 5 

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

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action 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). 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by February 5, 2013. 

Filing a petition for reconsideration by 

the Administrator of this final rule does 

not affect the finality of this action for 

the purposes of judicial review nor does 

it extend the time within which a 

petition for judicial review may be filed, 

and shall not postpone the effectiveness 

of such rule or action. Parties with 

objections to this direct final rule are 

encouraged to file a comment in 

response to the parallel notice of 

proposed rulemaking for this action 

published in the Proposed Rules section 

of today’s Federal Register, rather than 

file an immediate petition for judicial 

review of this direct final rule, so that 

EPA can withdraw this direct final rule 

and address the comment in the 

proposed rulemaking. This action may 

not be challenged later in proceedings to 

enforce its requirements (see section 

307(b)(2)). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Ozone, Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

Dated: July 19, 2012. 

Jared Blumenfeld, 

Regional Administrator, Region IX. 

Part 52, Chapter I, Title 40 of the Code 

of Federal Regulations is amended as 

follows: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for Part 52 

continues to read as follows: 

Authority: 42 U.S.C. 7401 et seq. 

Subpart F—California 

■ 2. Section 52.220 is amended by 

adding paragraphs (c)(381)(i)(A)(6), 

(389)(i)(B)(4), and (404)(i)(C) to read as 

follows: 

§ 52.220 Identification of plan. 

* * * * * 

(c) * * * 

(381) * * * 

(i) * * * 

(A) * * * 

(6) Rule 116, ‘‘Emissions Statement 

and Certification,’’ adopted on February 

23, 2010. 

* * * * * 

(389) * * * 

(i) * * * 

(B) * * * 

(4) Rule 503, ‘‘Emission Statement,’’ 

amended on August 12, 2010. 

* * * * * 

(404) * * * 

(i) * * * 

(C) Ventura County Air Pollution 

Control District. 

(1) Rule 2, ‘‘Definitions,’’ adopted on 

October 22, 1968, as revised through 

April 12, 2011. 

* * * * * 

[FR Doc. 2012–29117 Filed 12–6–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 122 

[EPA–HQ–OW–2012–0195; FRL–9758–9] 

RIN 2040–AF42 

Revisions to Stormwater Regulations 

To Clarify That an NPDES Permit Is Not 

Required for Stormwater Discharges 

From Logging Roads 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The EPA is revising its Phase 

I stormwater regulations to clarify that 

stormwater discharges from logging 

roads do not constitute stormwater 

discharges associated with industrial 

activity and that a National Pollutant 

Discharge Elimination System (NPDES) 

permit is not required for these 

stormwater discharges. 

DATES: This final rule is effective on 

January 7, 2013. 

ADDRESSES: The record for this 

rulemaking is available for inspection 

and copying at the Water Docket, 

located at the EPA Docket Center (EPA/ 

DC), EPA West 1301 Constitution 

Avenue NW., Washington, DC 20004. 

The record is also available via the EPA 

Dockets at http://www.regulations.gov 

under docket number EPA–HQ–OW– 

2012–0195. 

FOR FURTHER INFORMATION CONTACT: For 

further information on this notice, you 

may contact Jeremy Bauer, EPA 

Headquarters, Office of Water, Office of 

Wastewater Management via email at 

bauer.jeremy@epa.gov or telephone at 

202–564–2775. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Applicability 

This action does not impose 

requirements on any entity. The action 

clarifies the status of stormwater 

discharges from logging roads. Those 

with an interest in such discharges may 

be interested in this action. If you have 

questions regarding the applicability of 

this rule, consult the person listed in the 

preceding FOR FURTHER INFORMATION

CONTACT section. 

B. Copies of This Document and Other 

Information 

This document is available for 

download at http://www.epa.gov/npdes/ 

stormwater/forestroads or under docket 

EPA–HQ–OW–2012–0195. 

II. Background 

A. Purpose 

The EPA is promulgating this final 

rule to address the stormwater 

discharges identified under Northwest 

Environmental Defense Center v. Brown, 

640 F.3d 1063 (9th Cir. 2011) (NEDC). 

The final rule clarifies that, for the 

purposes of assessing whether 

stormwater discharges are ‘‘associated 

with industrial activity,’’ the only 

facilities under SIC code 2411 that are 

‘‘industrial’’ are: rock crushing, gravel 

washing, log sorting, and log storage. 

This clarifies, contrary to the Ninth 

Circuit’s decision in NEDC, that 

discharges of stormwater from 

silviculture facilities other than the four 

specifically named silviculture facilities 

identified above do not require an 

NPDES permit.1


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Federal Register / Vol. 77, No. 236 / Friday, December 7, 2012 / Rules and Regulations 72971 

permitting framework. This final rule, by clarifying 

what constitutes a discharge ‘‘associated with 

industrial activity,’’ makes clear that such 

discharges do not require NPDES permits even if 

they are point source discharges. We note that the 

Supreme Court has granted review of the NEDC 

case for the October 2012 term. 

B. Statutory Authority and Regulatory 

History 

The objective of the Clean Water Act 

is to restore and maintain the chemical, 

physical, and biological integrity of the 

nation’s waters. 33 U.S.C. 1251(a). To 

that end, the Act provides that the 

discharge of any pollutant by any 

person shall be unlawful, except in 

compliance with other provisions of the 

statute. Generally, the Act provides for 

a permit program for the addition to 

waters of the United States of a 

pollutant from a point source, defined 

as ‘‘any discernible, confined and 

discrete conveyance, including but not 

limited to any pipe, ditch, channel, 

tunnel, conduit, well, discrete fissure, 

container, rolling stock, concentrated 

animal feeding operation, or vessel or 

other floating craft, from which 

pollutants are or may be discharged.’’ 33 

U.S.C. 1362(14). In 1987 Congress 

amended the Clean Water Act by adding 

section 402(p), that created a temporary 

moratorium on NPDES permits for 

stormwater discharges, except for 

certain listed categories, and gave the 

EPA discretion to designate other 

stormwater discharges for regulation. 33 

U.S.C. 1342(p). 

For the initial phase, section 402(p)(1) 

created a temporary moratorium on 

NPDES permits for stormwater 

discharges from point sources except for 

those listed in section 402(p)(2), which 

includes discharges for which a permit 

had already been issued; discharges 

from large municipal separate storm 

sewer systems; and ‘‘industrial 

discharges.’’ Congress did not define 

industrial discharges, allowing the EPA 

to define the term. For subsequent 

phases, section 402(p)(5) directs the 

EPA to conduct studies, in consultation 

with the states, for ‘‘identifying those 

stormwater discharges or classes of 

stormwater discharges for which 

permits are not required’’; ‘‘determining 

to the maximum extent practicable, the 

nature and extent of pollutants in such 

discharges’’; and ‘‘establishing 

procedures and methods to control 

stormwater discharges to the extent 

necessary to mitigate impacts on water 

quality.’’ Section 402(p)(6) directs the 

Agency to issue regulations, in 

consultation with state and local 

officials, based on such studies. The 

section allows the EPA flexibility in 

issuing regulations to address 

designated stormwater discharges where 

appropriate and does not require the use 

of NPDES permits or any specific 

regulatory approach. Specifically, the 

section states that the regulations ‘‘shall 

establish priorities, establish 

requirements for state stormwater 

management programs, and establish 

expeditious deadlines’’ and may include 

‘‘performance standards, guidelines, 

guidance, and management practices 

and treatment requirements, as 

appropriate.’’ 33 U.S.C. 1342(p)(6). This 

flexibility is unique to stormwater 

discharges and is different than the 

treatment of stormwater discharges 

listed in section 402(p)(2)(B) of the Act, 

which requires a permit for a 

stormwater discharge ‘‘associated with 

industrial activity.’’ 

Prior to the 1987 Amendments, there 

were numerous questions regarding the 

appropriate means of regulating 

stormwater discharges within the 

NPDES program due to the water quality 

impacts of stormwater, the variable 

nature of stormwater, the large number 

of stormwater discharges, and the 

limited resources of permitting agencies. 

The EPA undertook numerous 

regulatory actions, which resulted in 

extensive litigation, in an attempt to 

address these unique discharges. 

The EPA’s Silvicultural Rule (40 CFR 

122.27) predates the 1987 amendments 

to the Clean Water Act that created 

section 402(p) for stormwater controls. 

The Agency defined silvicultural point 

source as part of the Silvicultural Rule 

to specify which silvicultural discharges 

were to be included in the NPDES 

program. The rule defines silvicultural 

point source to mean any ‘‘discernible, 

confined and discrete conveyance 

related to rock crushing, gravel washing, 

log sorting, or log storage facilities 

which are operated in connection with 

silvicultural activities and from which 

pollutants are discharged into waters of 

the United States’’ and further explains 

that ‘‘the term does not include nonpoint source silvicultural activities such 

as nursery operations, site preparation, 

reforestation and subsequent cultural 

treatment, thinning, prescribed burning, 

pest and fire control, harvesting 

operations, surface drainage, or road 

construction and maintenance from 

which there is natural runoff.’’ 

In 1990, following the 1987 

amendments that directed the Agency to 

develop regulations requiring permits 

for large municipal separate storm sewer 

systems and stormwater ‘‘discharges 

associated with industrial activity,’’ the 

EPA promulgated the Phase I 

stormwater regulations. (55 FR 47990, 

November 16, 1990). The EPA defined 

in the Phase I regulations ‘‘storm water 

discharge associated with industrial 

activity’’ which is not defined by the 

Act. In describing the scope of the term 

‘‘associated with industrial activity,’’ 

several members of Congress explained 

in the legislative history that the term 

applied if a discharge was ‘‘directly 

related to manufacturing, processing or 

raw materials storage areas at an 

industrial plant.’’ (Vol. 132 Cong. Rec. 

H10932, H10936 (daily ed. October 15, 

1986); Vol. 133 Cong. Rec. H176 (daily 

ed. January 8, 1987)). The Phase I rule 

clarified the regulatory definition of 

‘‘associated with industrial activity’’ by 

adopting the language used in the 

legislative history and supplementing it 

with a description of various types of 

areas (e.g., material handling sites, sites 

used for the storage and maintenance of 

material handling equipment, etc.) that 

are directly related to an industrial 

process and to industrial facilities 

identified by the EPA. The 

supplemental language in the Phase I 

rule also includes the term ‘‘immediate 

access road.’’ The EPA considers 

‘‘immediate access roads’’ to refer to 

roads which are exclusively or primarily 

dedicated for use by the industrial 

facility. See 55 FR 47990, 48009 (Nov. 

16, 1990). These ‘‘immediate access 

roads’’ do not include public access 

roads that are state, county, or federal 

roads such as highways or Bureau of 

Land Management roads which happen 

to be used by the facility. See id. The 

Phase I regulation defines the term 

‘‘storm water discharge associated with 

industrial activity’’ to include 

stormwater discharges from facilities 

identified in the rule by standard 

industrial classification or ‘‘SIC’’ code at 

40 CFR 122.26(b)(14). The Phase I 

regulation included in the definition of 

that term SIC code 24 (Lumber and 

Wood Products) which includes 2411 

(logging), but the Agency also had 

specified in the Phase I rule that the 

term does not include discharges from 

facilities or activities excluded from the 

NPDES program under other parts of the 

EPA’s regulations, including the 

Silvicultural Rule. As discussed above, 

the EPA had previously specified under 

the Silvicultural Rule which 

silvicultural discharges were to be 

included in the NPDES program (40 

CFR 122.27). The EPA intended to 

regulate those same ‘‘silvicultural point 

source[s]’’ under the Phase I rule (i.e., 

rock crushing, gravel washing, log 

sorting, and log storage facilities) and to 

exclude from the Phase I regulation 

stormwater runoff from other 

silvicultural activities. For the 

‘‘silvicultural point source[s]’’ (i.e., rock 

crushing, gravel washing, log sorting, 

and log storage facilities) regulated 


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72972 Federal Register / Vol. 77, No. 236 / Friday, December 7, 2012 / Rules and Regulations 

under the Phase I rule, the term ‘‘storm 

water discharge associated with 

industrial activity’’ includes 

‘‘immediate access roads’’ (40 CFR 

122.26(b)(14)(ii)). Unlike ‘‘immediate 

access roads’’ associated with industrial 

facilities, many logging roads have 

multiple uses, including recreation and 

general transportation, and commonly 

extend over long distances (i.e.; may not 

provide ‘‘immediate access’’ to an 

industrial site). The intent of the EPA in 

this rulemaking is that the NPDES 

program requirements be implemented 

with regard to ‘‘immediate access roads’’ 

in the same way they were implemented 

prior to the decision by the Ninth 

Circuit. 

In developing the second phase of 

stormwater regulations, the EPA 

submitted to Congress in March 1995 a 

report that presented the nature of 

stormwater discharges from municipal 

and industrial facilities that were not 

already regulated under the Phase I 

regulations (U.S. Environmental 

Protection Agency, Office of Water. 

1995. Storm Water Discharges 

Potentially Addressed by Phase II of the 

National Pollutant Discharge 

Elimination System Storm Water 

Program: Report to Congress. 

Washington, DC. EPA 833–K–94–002). 

On December 8, 1999, the EPA 

published the Phase II stormwater 

regulations to address stormwater 

discharges from small municipal 

separate storm sewer systems and 

construction sites that disturb one to 

five acres. (64 FR 68722, December 8, 

1999). The EPA retains the authority to 

designate additional stormwater 

discharges for regulation at a later date 

under either CWA section 402(p)(2)(E) 

or 402(p)(6). 

The Phase II regulations for 

stormwater controls were challenged in 

Environmental Defense Center v. US 

EPA, 344 F.3d 832 (9th Cir. 2003) (EDC 

v. EPA). In that case, petitioners 

contended that the EPA arbitrarily failed 

to regulate discharges from forest roads 

under the Phase II rule. The court held 

that the EPA failed to consider the 

petitioners’ comments and remanded 

the issue to the EPA ‘‘so that it may 

consider in an appropriate proceeding 

Petitioner’s contention that § 402(p)(6) 

requires the EPA to regulate forest 

roads. The EPA may then either accept 

Petitioners’ arguments in whole or in 

part, or reject them on the basis of valid 

reasons that are adequately set forth to 

permit judicial review.’’ Id. at 863. 

More recently, in Northwest 

Environmental Defense Center v. Brown, 

640 F.3d 1063 (9th Cir. 2011) (NEDC), 

a citizen suit was filed alleging 

violations of the Clean Water Act for 

discharging stormwater from ditches 

alongside two logging roads in state 

forests without a permit. The court held 

that because the stormwater runoff from 

the two roads in question is collected by 

and then discharged from a system of 

ditches, culverts and channels, there 

was a point source discharge of 

industrial stormwater for which an 

NPDES permit is required. As discussed 

above, the Agency specified in the 

Phase I rule that the term ‘‘storm water 

discharge associated with industrial 

activity’’ does not include discharges 

from facilities or activities excluded 

from the NPDES program under other 

parts of the EPA’s regulations, including 

the aforementioned Silvicultural Rule. 

The EPA intends through this regulation 

to more clearly limit Phase I 

applicability to only those silvicultural 

facilities that are ‘‘rock crushing, gravel 

washing, log sorting, and log storage 

facilities.’’ 

In response to the partial remand 

under Environmental Defense Center, 

Inc. (EDC) v. US EPA, 344 F.3d 832 (9th 

Cir. 2003), the Agency continues to 

review available information on the 

water-quality impacts of stormwater 

discharges from forest roads, which 

include logging roads as discussed 

above, as well as existing practices to 

control those discharges and is 

considering a range of options to 

address such discharges, which could 

include designating a subset of 

stormwater discharges from forest roads 

for regulation under the Agency’s 

section 402(p) rulemaking authority. 

The EPA believes that the broad range 

of flexible approaches under section 

402(p)(6) may be well suited to address 

the complexity of forest road ownership, 

management, and use. 

In the interim, the EPA notes that 

Congress has directed that permits are 

not required for stormwater discharges 

for logging roads. Under the continuing 

resolution passed in September, 2012, 

until March 27, 2013, the Administrator 

may not require an NPDES permit or 

directly or indirectly require any state to 

require a permit, for discharges of 

stormwater runoff from roads, the 

construction, use, or maintenance of 

which are associated with silvicultural 

activities. 

III. EPA’s Proposed Revisions and 

Public Comments Received on Proposed 

Rule 

A. Proposed Revisions 

The EPA proposed to revise 40 CFR 

122.26(b)(14)(ii) to clarify that for the 

purposes of defining stormwater 

discharges associated with industrial 

activity, the only activities under SIC 

code 2411 that are ‘‘industrial’’ are rock 

crushing, gravel washing, log sorting, 

and log storage. This revision does not 

remove any existing exemptions. 

Though the existing language in 40 CFR 

122.26(b)(14)(ii) excepts SIC code 2434, 

wood kitchen cabinets, the wood 

kitchen cabinets category remains 

covered in a separate subsection. See id. 

at 122.26(b)(14)(xi) (listing ‘‘Facilities 

covered under Standard Industrial 

Classifications 20, 21, 22, 23, 2434 

* * *’’ as engaging in industrial activity 

for purposes of the industrial 

stormwater regulations). 

B. Public Comments 

The EPA received 85 comment letters 

on its ‘‘Notice of Proposed Revisions to 

Stormwater Regulations to Clarify That 

an NPDES Permit is not Required for 

Stormwater Discharges From Logging 

Roads’’ (77 FR 53834, September 4, 

2012). The Agency had previously 

announced its plan to propose these 

revisions in an earlier notice, ‘‘Notice of 

Intent to Revise Stormwater Regulations 

To Specify That an NPDES Permit is Not 

Required for Stormwater Discharges 

From Logging Roads and To Seek 

Comment on Approaches for 

Addressing Water Quality Impacts From 

Forest Road Discharges’’ (77 FR 30473, 

May 23, 2012). While the EPA has 

reviewed and is considering the 

comments received in response to the 

May 23 Notice of Intent, the Agency 

explained in its September 4 proposal 

that the EPA is not developing 

responses to those comments as part of 

this rulemaking. 

The EPA has reviewed and 

considered all of the comments received 

on the proposed revisions. Many 

commenters expressed support for the 

EPA’s proposal. Most agreed with the 

objective to clarify the applicability of 

Phase I stormwater regulations but some 

suggested alternate language or 

approaches to reach that objective. For 

example, some suggested that the EPA 

simply state in its regulations that 

stormwater discharges from logging 

roads do not require a NPDES permit. 

Others recommended that the EPA 

assert that logging roads are nonpoint 

sources and therefore would not require 

a NPDES permit. 

The EPA believes that the final 

language clarifies the applicability of 

Phase I stormwater regulations to 

stormwater discharges from logging 

roads. The final language indicates 

explicitly which facilities are included 

in the definition of stormwater 

discharges ‘‘associated with industrial 

activity’’ (i.e., ‘‘Facilities classified 

within Standard Industrial 

Classification 24, Industry Group 241 


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Federal Register / Vol. 77, No. 236 / Friday, December 7, 2012 / Rules and Regulations 72973 

that are rock crushing, gravel washing, 

log sorting, or log storage facilities 

operated in connection with 

silvicultural activities’’). Moreover, the 

final language further explains that ‘‘not 

included are all other types of 

silvicultural facilities.’’ 

Many commenters suggested that the 

EPA delay finalizing the rule until after 

the Supreme Court rules on Decker v. 

Northwest Environmental Defense 

Center, No. 11–388, and Georgia-Pacific 

West v. Northwest Environmental 

Defense Center, No. 11–347. Some 

suggested that the Agency should have 

sought relief from the Supreme Court or 

Congress. The EPA disagrees with these 

commenters because today’s action ends 

any uncertainty created by the Ninth 

Circuit’s holding in NEDC 

administratively by clarifying what 

constitutes a discharge ‘‘associated with 

industrial activity’’ in connection with 

silvicultural activities. By moving to 

finalize this rule expeditiously, the EPA 

is providing the regulatory certainty 

needed in the wake of the Ninth 

Circuit’s decision and is reaffirming the 

EPA’s long-standing regulatory position 

regarding the applicability of 

stormwater regulations to logging roads. 

In doing so, this final rule cancels out 

any on-the-ground impact of the Ninth 

Circuit’s decision. Further, the EPA 

actions are consistent with amicus 

curiae briefs filed by the United States 

Department of Justice (DOJ) on May 24 

and again on September 4, which 

described to the public and to the 

Supreme Court the administrative steps 

that the EPA would take to clarify 

‘‘expeditiously’’ that an NPDES permit 

is not required for stormwater 

discharges from logging roads. 

Some commenters disagreed with the 

EPA’s proposal, asserting that at least a 

subset of stormwater discharges from 

logging roads is truly industrial in 

nature and that those discharges should 

require NPDES permits. The EPA 

clarifies the applicability of Phase I 

stormwater regulations to stormwater 

discharges from logging roads and the 

Agency’s rationale in section II.B of this 

preamble. As the EPA notes, the Agency 

did not intend logging roads themselves 

to be regulated as industrial facilities 

and its view has not changed since EPA 

first issued the Phase I stormwater rule. 

The EPA is revising that rule to clarify 

the Agency’s original intent. 

Some commenters asserted that the 

water quality impacts of stormwater 

discharges from logging roads and other 

forest roads are well-documented and 

suggested that the Agency should 

regulate them. Other commenters 

pointed to existing programs and 

suggested that a national regulation is 

unnecessary. Some asserted that 

existing state, federal, and tribal 

programs are insufficient to protect 

water quality. Others commented that 

the Agency already has all of the 

information it needs in order to regulate 

stormwater discharges from forest roads 

and suggested that if information gaps 

remain, the Agency should specify what 

information is needed and indicate on 

what schedule that information will be 

collected. 

The EPA is not proposing new 

regulations for stormwater discharges 

from forest roads, including logging 

roads, at this time. While the EPA has 

not developed a specific schedule for 

addressing stormwater discharges from 

forest roads, the Agency notes that, in 

response to the partial remand under 

EDC v. US EPA, the Agency continues 

to review available information on the 

water quality impacts of stormwater 

discharges from forest roads, which 

include logging roads, as well as 

existing practices to control those 

discharges and is considering a range of 

options to address such discharges, 

which could include designating a 

subset of stormwater discharges from 

forest roads for regulation under the 

Agency’s section 402(p) rulemaking 

authority. The EPA believes that the 

broad range of flexible approaches 

under section 402(p)(6) may be wellsuited to address the complexity of 

forest road ownership, management, 

and use. 

IV. Final Rule 

The EPA has made no revisions to the 

proposed rule. The EPA is revising 40 

CFR 122.26(b)(14)(ii) to clarify that for 

the purposes of defining stormwater 

discharges associated with industrial 

activity, the only activities under SIC 

code 2411 that are ‘‘industrial’’ are rock 

crushing, gravel washing, log sorting, 

and log storage. This revision does not 

remove any existing exemptions. 

Though the existing language in 40 CFR 

122.26(b)(14)(ii) excepts SIC code 2434, 

wood kitchen cabinets, the wood 

kitchen cabinets category remains 

covered in a separate subsection. See id. 

at 122.26(b)(14)(xi) (listing ‘‘Facilities 

covered under Standard Industrial 

Classifications 20, 21, 22, 23, 2434 

* * *’’ as engaging in industrial activity 

for purposes of the industrial 

stormwater regulations.) 

As discussed in this preamble, the 

EPA did not intend logging roads 

themselves to be regulated as industrial 

facilities, but, in light of NEDC, the EPA 

is modifying 40 CFR 122.26(b)(14) to 

clarify the Agency’s intent. The EPA 

believes that stormwater discharges 

from forest roads, including logging 

roads, should be evaluated under 

section 402(p)(6) of the Clean Water Act 

because the section allows for a broad 

range of flexible approaches, including 

non-permitting approaches, that may be 

better suited to address the complexity 

of forest road ownership, management, 

and use. 

V. Economic Impact 

The final rule clarifies existing 

regulations and does not impose new 

regulatory requirements. As a result this 

action has no economic, public health, 

or environmental impacts. 

VI. Statutory and Executive Order 

Review 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this action is a 

‘‘significant regulatory action.’’ 

Accordingly, the EPA submitted this 

action to the Office of Management and 

Budget (OMB) for review under 

Executive Orders 12866 and 13563 (76 

FR 3821, January 21, 2011) and any 

changes made in response to OMB 

recommendations have been 

documented in the docket for this 

action. 

B. Paperwork Reduction Act 

This action does not impose any new 

information collection burden as it 

serves only to clarify existing 

regulations. However, the Office of 

Management and Budget (OMB) has 

previously approved the information 

collection requirements contained in the 

existing regulations (40 CFR 122.26) 

under the provisions of the Paperwork 

Reduction Act, 44 U.S.C. 3501 et seq. 

and has assigned OMB control number 

2040–0004. The OMB control numbers 

for EPA’s regulations in 40 CFR are 

listed in 40 CFR part 9. 

C. Regulatory Flexibility Act (RFA) 

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 a 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 today’s rule on small 

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

small business ‘‘as defined by the Small 

Business Administration’s (SBA) 


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72974 Federal Register / Vol. 77, No. 236 / Friday, December 7, 2012 / Rules and Regulations 

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. 

After considering the economic 

impacts of today’s final rule on small 

entities, I certify that this action will not 

have a significant economic impact on 

a substantial number of small entities. 

This rule will not impose any 

requirements on small entities. Rather, 

the rule clarifies that stormwater 

discharges from logging roads do not 

constitute stormwater discharges 

associated with industrial activity and 

that an NPDES permit is not required for 

these stormwater discharges. 

D. Unfunded Mandates Reform Act 

(UMRA) 

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 imposes no enforceable duty on 

any state, local or tribal governments or 

the private sector. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. This action clarifies 

existing regulations and has no 

economic impact. Thus, it does 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, 

November 2, 1999). 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000). Thus, Executive Order 13175 

does not apply to this action. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

The action is not subject to Executive 

Order 13045 (62 FR 19885, April 23, 

1997) because it is not economically 

significant as defined in Executive 

Order 12866. Moreover, this action 

clarifies existing regulations and has no 

economic, public health, or 

environmental impacts. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

The action is not a ‘‘significant energy 

action’’ as defined in 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. 

Additionally, the change does not 

involve the installation of treatment or 

other components that use a measurable 

amount 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 

the EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. NTTAA directs the EPA to 

provide Congress, through OMB, 

explanations when the EPA decides not 

to use available and applicable 

voluntary consensus standards. 

The action clarifies existing 

regulations and makes no change to 

existing standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629, 

February 16, 1994) establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission. Agencies must do this by 

identifying and addressing as 

appropriate any disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

The EPA has determined that this 

action does not have disproportionately 

high and adverse human health or 

environmental effects on minority or 

low-income populations because it does 

not affect the level of protection 

provided to human health or the 

environment. The action clarifies 

existing regulations and has no 

economic, public health, or 

environmental impacts. 

K. Congressional Review Act 

The Congressional Review Act, 5 

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

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. 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 January 7, 2013. 

List of Subjects in 40 CFR Part 122 

Environmental protection, Water 

pollution control. 

Dated: November 30, 2012. 

Lisa P. Jackson, 

Administrator. 

For the reasons set out in the 

preamble, 40 CFR part 122 is amended 

as follows: 

PART 122—EPA ADMINISTERED 

PERMIT PROGRAMS: THE NATIONAL 

POLLUTANT DISCHARGE 

ELIMINATION SYSTEM 

■ 1. The authority citation for part 122 

continues to read as follows: 

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

Subpart B—Permit Application and 

Special NPDES Program Requirements 

■ 2. Section 122.26 is amended by 

revising paragraph (b)(14)(ii) to read as 

follows: 

§ 122.26 Storm water discharges 

(applicable to State NPDES programs, see 

§ 123.25). 

* * * * * 

(b) * * * 

(14) * * * 

(ii) Facilities classified within 

Standard Industrial Classification 24, 

Industry Group 241 that are rock 

crushing, gravel washing, log sorting, or 

log storage facilities operated in 

connection with silvicultural activities 

defined in 40 CFR 122.27(b)(2)–(3) and 

Industry Groups 242 through 249; 26 

(except 265 and 267), 28 (except 283), 

29, 311, 32 (except 323), 33, 3441, 373; 


srobinson on DSK4SPTVN1PROD with 
Federal Register / Vol. 77, No. 236 / Friday, December 7, 2012 / Rules and Regulations 72975 

(not included are all other types of 

silviculture facilities); 

* * * * * 

[FR Doc. 2012–29688 Filed 12–6–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 180 

[EPA–HQ–OPP–2010–0472; FRL–9371–7] 

Zeta Cypermethrin; Pesticide 

Tolerances 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: This regulation establishes 

tolerances for residues of zetacypermethrin in or on multiple 

commodities which are identified and 

discussed later in this document. 

Interregional Research Project Number 4 

(IR–4) requested these tolerances under 

the Federal Food, Drug, and Cosmetic 

Act (FFDCA). 

DATES: This regulation is effective 

December 7, 2012. Objections and 

requests for hearings must be received 

on or before February 5, 2013, 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–2010–0472, is 

available at http://www.regulations.gov 

or at the Office of Pesticide Programs 

Regulatory Public Docket (OPP Docket) 

in the Environmental Protection Agency 

Docket Center (EPA/DC), EPA West 

Bldg., 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. The following 

list of North American Industrial 

Classification System (NAICS) codes is 

not intended to be exhaustive, but rather 

provides a guide to help readers 

determine whether this document 

applies to them. Potentially affected 

entities may include: 

• Crop production (NAICS code 111). 

• Animal production (NAICS code 

112). 

• Food manufacturing (NAICS code 

311). 

• Pesticide manufacturing (NAICS 

code 32532). 

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://www.ecfr.gov/cgi-bin/textidx?&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–2010–0472 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 February 5, 2013. 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 (excluding 

any Confidential Business Information 

(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 the non-CBI copy of your 

objection or hearing request, identified 

by docket ID number EPA–HQ–OPP– 

2010–0472, 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 CBI or 

other information whose disclosure is 

restricted by statute. 

• Mail: OPP Docket, Environmental 

Protection Agency Docket Center (EPA/ 

DC), (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. 

Additional instructions on 

commenting or visiting the docket, 

along with more information about 

dockets generally, is available at http:// 

www.epa.gov/dockets. 

II. Summary of Petitioned-For 

Tolerance 

In the Federal Register issue of 

August 4, 2010 (75 FR 46924) (FRL– 

8834–9), EPA issued a document 

pursuant to FFDCA section 408(d)(3), 21 

U.S.C. 346a(d)(3), announcing the filing 

of a pesticide petition (PP 0E7717) by 

the IR–4 Project, Rutgers, The State 

University of New Jersey, 500 College 

Rd. East, Suite 201 W, Princeton, NJ 

08540. The petition requested that 40 

CFR 180.418 be amended by 

establishing tolerances for residues of 

the insecticide zeta-cypermethrin, in or 

on pistachio at 0.05 parts per million 

(ppm), artichoke, globe at 0.80 ppm; 

barley, grain at 1.7 ppm; barley, hay at 

5.0 ppm; barley, straw at 19.0 ppm; 

buckwheat, grain at 1.7 ppm; 

buckwheat, hay at 5.0 ppm; buckwheat, 

straw at 19.0 ppm; oat, grain at 1.7 ppm; 

oat, hay at 5.0 ppm; oat, straw at 19.0 

ppm; rye, grain at 1.7 ppm; rye, hay at 

5.0 ppm; and rye, straw at 19.0 ppm. 

That document referenced a summary of 

the petition prepared by FMC, the 

registrant, which is available in the 

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

comment was received on the notice of 

filing. EPA’s response to this comment 

is discussed in Unit IV.C. 

In the Federal Register issue of 

February 25, 2011 (76 FR 10584) (FRL– 

8863–3), EPA issued a document 

pursuant to FFDCA section 408(d)(3), 21 

U.S.C. 346a(d)(3), announcing the filing 

of a pesticide petition (PP 0E7804) by 

the IR–4 Project, Rutgers, The State 

University of New Jersey, 500 College 

Rd. East, Suite 201 W, Princeton, NJ 

08540. The petition requested that 40 

CFR 180.418 be amended by 

establishing tolerances for residues of 

the insecticide zeta-cypermethrin, (Scyano(3-phenoxyphenyl) methyl 

(±))(cis-trans 3-(2,2-dichloroethenyl)-2,2 

dimethylcyclopropanecarboxylate and 


srobinson on DSK4SPTVN1PROD with