53834 Federal Register / Vol. 77, No. 171 / Tuesday, September 4, 2012 / Proposed Rules 

documentary evidence, such as when 

the existence, or amount, of a debt turns 

on issues of credibility or veracity. An 

oral hearing includes an in-person 

hearing, a telephonic hearing, or a 

hearing by video conference. When the 

Hearing Official determines that an oral 

hearing is not necessary, the decision 

shall be based solely on written 

submissions. The Hearing Official shall 

arrange for the recording and 

transcription of an oral hearing, which 

shall serve as the official record of the 

hearing. The unexcused absence of a 

party at the time and place set for 

hearing may not be occasion for delay 

at the discretion of the Hearing Official. 

In the event of such absence, the hearing 

may proceed without the participation 

of the absent party. 

9. Section 966.11 is revised to read as 

follows: 

§ 966.11 Appeal. 

The initial or tentative decision will 

become the final agency decision thirty 

(30) days after its issuance unless, 

before the expiration of that time, a 

party files an appeal with the Judicial 

Officer, or the Judicial Officer, in his or 

her sole discretion, elects to conduct a 

review of the decision on his or her own 

initiative. During such review or appeal 

consideration, the Judicial Officer will 

accept all findings of fact in the original 

decision unless clearly erroneous. If 

following appeal or review, the Judicial 

Officer affirms the original decision, 

that decision becomes the final agency 

decision with no further right of appeal 

within the agency. 

10. Section 966.12 is revised to read 

as follows: 

§ 966.12 Waiver of rights. 

(a) The Hearing Official may 

determine that the former employee has 

waived the right to a hearing, and that 

administrative offset may be initiated if 

the former employee files a petition for 

hearing after the period prescribed in 

these Rules and fails to demonstrate to 

the satisfaction of the Hearing Official 

good cause for the delay; or has filed a 

withdrawal of the former employee’s 

previous petition for a hearing. 

(b) The Hearing Official may 

determine that the Postal Service has 

waived the alleged debt at issue, and 

that the administrative offset may not be 

initiated if the Postal Service fails to file 

the answer within the period prescribed 

by the Rules and fails to demonstrate to 

the satisfaction of the Hearing Official 

good cause for the delay; or has filed a 

withdrawal of the debt determination at 

issue. 

(c) In addition, whenever a record 

discloses the failure of either party to 

file documents required by these rules, 

respond to notices or correspondence 

from the Hearing Official, comply with 

orders of the Hearing Official, 

participate in conferences, fail to treat 

the proceedings with the proper 

decorum, or otherwise indicate an 

intention not to continue the 

prosecution or defense of a petition, the 

Hearing Official may issue an order 

requiring the offending party to show 

cause why the petition should not be 

dismissed or granted, as appropriate. If 

the offending party shall fail to show 

cause, the Hearing Official may take 

such action as he or she deems 

reasonable and proper under the 

circumstances, including dismissal or 

granting of the petition as appropriate. 

11. Section 966.13 is revised to read 

as follows: 

§ 966.13 Ex parte communications. 

Ex parte communications are not 

allowed between a party and the 

Hearing Official or the Official’s staff. 

For these purposes, ex parte 

communication means an oral or 

written communication, not on the 

public record, with one party only with 

respect to which reasonable prior notice 

to all parties is not given, but it shall not 

include requests for status reports or 

procedural matters. A memorandum of 

any communication between the 

Hearing Official and a party will be 

transmitted to both parties. 

Stanley F. Mires, 

Attorney, Legal Policy & Legislative Advice. 

[FR Doc. 2012–21617 Filed 8–31–12; 8:45 am] 

BILLING CODE 7710–12–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 122 

[EPA–HQ–OW–2012–0195; FRL–9722–5] 

RIN 2040–AF42 

Notice of Proposed 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: Notice of proposed rulemaking. 

SUMMARY: The EPA is proposing 

revisions to 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: Comments must be received on 

or before October 4, 2012. 

ADDRESSES: You may submit comments, 

identified by docket number EPA–HQ– 

OW–2012–0195, by any of the following 

methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Mail: Water Docket, Environmental 

Protection Agency, Mailcode: 2822T, 

1200 Pennsylvania Avenue NW., 

Washington, DC 20460, Attention 

Docket ID No. EPA–HQ–OW–2012– 

0195. 

• Hand Delivery/Courier: EPA Docket 

Center, (EPA/DC) EPA West, Room 

3334, 1301 Constitution Avenue NW., 

Washington, DC 20460. Such deliveries 

are only accepted during the Docket’s 

normal hours of operation, and special 

arrangements should be made for 

deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–HQ–OW–2012– 

0195. The EPA’s policy is that all 

comments received will be included in 

the public docket without change and 

may be made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or email. The 

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

an ‘‘anonymous access’’ system, which 

means the EPA will not know your 

identity or contact information unless 

you provide it in the body of your 

comment. If you send an email 

comment directly to the EPA without 

going through http:// 

www.regulations.gov, your email 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, the EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If the EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, the EPA may not 

be able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. For additional information 

about the EPA’s public docket, visit the 


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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 

permitting framework. This proposed 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. Nothing in this 

proposed rule should be construed as conceding 

that discharges of stormwater from logging roads 

constitute point source discharges, a question on 

which the Supreme Court has granted review for 

the October 2012 term. 

EPA Docket Center homepage at http:// 

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

Docket: All documents in the docket 

are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information 

may not be publicly available, i.e., CBI 

or other information whose disclosure is 

restricted by statue. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically in http:// 

www.regulations.gov or in hard copy at 

the Water Docket, EPA Docket Center, 

EPA/DC, EPA West, Room B102, 1301 

Constitution Ave. NW., Washington, 

DC. The Public Reading Room is open 

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

through Friday, excluding legal 

holidays. The telephone number for the 

Public Reading Room is (202) 566–1744, 

and the telephone number for the Water 

Docket is (202) 566–2426. 

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 notice does not impose 

requirements on any entity. The action 

proposed is intended to clarify the 

status of stormwater discharges from 

logging roads. Those with an interest in 

such discharges may be interested in 

this proposed action. If you have 

questions regarding the applicability of 

this notice, 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 issuing this notice to 

address the stormwater discharges 

identified under Northwest 

Environmental Defense Center v. Brown, 

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

This notice proposes adding language 

to existing stormwater regulations to 

clarify 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. The effect of this would be to 

clarify, 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

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 with the 

addition of section 402(p), which 

required NPDES permits for certain 

categories of stormwater point source 

discharges and allowed EPA discretion 

to determine how pollution from other 

stormwater discharges would be 

addressed. 

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. 

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 


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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 Agency 

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 

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 notice of proposed 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 

promulgated 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 EDC v. EPA, 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. EPA is currently evaluating 

comments on its 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), as it considers possible 

next steps. 

In the interim, the EPA notes that 

Congress has directed that permits are 

not required for stormwater discharges 


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for logging roads. Under the 

Consolidated Appropriations Act of 

2012, until September 30, 2012, 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. Proposed Revisions and Rationale 

A. Proposed Revisions 

The EPA is proposing 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. Rationale 

The EPA did not intend logging roads 

themselves to be regulated as industrial 

facilities. However, in light of NEDC, 

the EPA proposes the addition of 

language to 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 that 

may be better suited to address the 

complexity of forest road ownership, 

management, and use. 

C. Request for Comment 

The EPA requests comment on 

whether the proposed language 

sufficiently clarifies that discharges of 

stormwater from logging roads do not 

require an NPDES permit. The EPA does 

not think that changes to 40 CFR 122.27 

are necessary to accomplish the goal of 

clarifying the scope of stormwater 

discharges associated with industrial 

activity, but welcomes comments on 

this point and reserves the option of 

making changes to that section as 

appropriate to clearly articulate the 

Agency’s intent. 

Although the EPA has conducted a 

preliminary review of the comments 

submitted in response to the ‘‘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), the Agency does not 

plan to respond to these comments 

when taking final action on the rule 

proposed in today’s notice. If you 

submitted comments in response to the 

earlier Federal Register Notice that you 

believe to be relevant to the rule 

proposed today, please resubmit your 

comments in accordance with the 

process outlined above. 

IV. Economic Impact 

The proposed action clarifies existing 

regulations and has no economic, public 

health, or environmental impacts. 

V. 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, 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 

The Paperwork Reduction Act (44 

U.S.C. 3501 et seq.) requires the EPA to 

estimate the burden on regulated 

entities to comply with information 

collection requirements of the EPA’s 

regulations. This proposed action would 

clarify existing regulations and would 

have no impact on existing information 

collection requirements. 

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) 

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 proposed rule on 

small entities, I certify that this action 

will not have a significant economic 

impact on a substantial number of small 

entities. This proposed rule will not 

impose any requirements on small 

entities. Rather, the proposed rule will 

clarify 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. We continue to 

be interested in the potential impacts of 

the proposed rule on small entities and 

welcome comments on issues related to 

such impacts. 

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 proposed action would not have 

Federalism implications. This proposed 

action would clarify existing regulations 

and would have no economic impact. 

Thus, it would 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. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This proposed action would 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 

proposed action. 


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G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

The proposed 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 

proposed action would clarify existing 

regulations and would have no 

economic, public health, or 

environmental impacts. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

The proposed 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 proposed 

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 proposed action would clarify 

existing regulations and would make 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 will not have disproportionately 

high and adverse human health or 

environmental effects on minority or 

low-income populations because it does 

not affect the level of protection 

provided to human health or the 

environment. The proposed action 

would clarify existing regulations and 

would have no economic, public health, 

or environmental impacts. 

List of Subjects 40 CFR Part 122 

Environmental protection, water 

pollution control. 

Dated: August 24, 2012. 

Lisa P. Jackson, 

Administrator. 

For the reasons set out in the 

preamble, 40 CFR part 122 is proposed 

to be 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—[Amended] 

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; 

(not included are all other types of 

silviculture facilities); 

* * * * * 

[FR Doc. 2012–21432 Filed 8–31–12; 8:45 am] 

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