44494 Federal Register / Vol. 77, No. 146 / Monday, July 30, 2012 / Rules and Regulations 

12.3 System Performance Check. 

Use Equation 16C–2 to calculate the 

system performance. 

12.4 Calibration Drift. Use Equation 

16C–3 to calculate the calibration drift 

at a single concentration level after a 

run or series of runs (not to exceed a 24- 

hr period) from initial calibration. 

Compare the single-level calibration gas 

error (ACEn) to the original error 

obtained for that gas in the initial 

analyzer calibration error test (ACEi). 

12.5 TRS Concentration as SO2. For 

each sample or test run, calculate the 

arithmetic average of SO2 concentration 

values (e.g., 1-minute averages). Then 

calculate the sample TRS concentration 

by adjusting the average value of CSO2

for system performance using Equation 

16C–4a if you use a non-zero gas as your 

low-level calibration gas, or Equation 

16C–4b if you use a zero gas as your 

low-level calibration gas. 

13.0 Method Performance 

13.1 Analyzer Calibration Error. At 

each calibration gas level (low, mid, and 

high), the calibration error must either 

not exceed 5.0 percent of the calibration 

gas concentration or ⎢CDir¥Cv⎢ must be 

≤0.5 ppmv. 

13.2 System Performance. Each 

system performance check must not 

deviate from the system performance 

gas concentration by more than 20 

percent. Alternatively, the results are 

acceptable if ⎢Cs¥CH2S⎢ is ≤0.5 ppmv. 

13.3 Calibration Drift. The 

calibration drift at the end of any run or 

series of runs within a 24-hour period 

must not differ by more than 3.0 percent 

from the original ACE at the test 

concentration level or ⎢ACEi¥ACEn⎢ 

must not exceed 0.5 ppmv. 

13.4 Interference Check. For the 

analyzer, the total interference response 

(i.e., the sum of the interference 

responses of all tested gaseous 

components) must not be greater than 

2.5 percent of the calibration span. Any 

interference is also acceptable if the sum 

of the responses does not exceed 0.5 

ppmv for a calibration span of 5 to 10 

ppmv, or 0.2 ppmv for a calibration 

span <5 ppmv. 

14.0 Pollution Prevention [Reserved] 

15.0 Waste Management [Reserved] 

16.0 References 

1. The references are the same as in Section 

16.0 of Method 16, Section 17.0 of 

Method 16A, and Section 17.0 of Method 

6C. 

2. National Council of the Paper Industry for 

Air and Stream Improvement, Inc,. A 

Study of TRS Measurement Methods. 

Technical Bulletin No. 434. New York, 

NY. May 1984. 12p. 

3. Margeson, J.H., J.E. Knoll, and M.R. 

Midgett. A Manual Method for TRS 

Determination. Draft available from the 

authors. Source Branch, Quality 

Assurance Division, U.S. Environmental 

Protection Agency, Research Triangle 

Park, NC 27711. 

17.0 Tables, Diagrams, Flowcharts, 

and Validation Data [Reserved] 

* * * * * 

[FR Doc. 2012–18513 Filed 7–27–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 122 

[EPA–HQ–OW–2012–0142; FRL–9705–6] 

RIN 2040–AF40 

National Pollutant Discharge 

Elimination System Permit Regulation 

for Concentrated Animal Feeding 

Operations: Removal of Vacated 

Elements in Response to 2011 Court 

Decision 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The EPA is amending its 

regulations to eliminate the requirement 

that an owner or operator of a 

Concentrated Animal Feeding Operation 

(CAFO) that ‘‘proposes to discharge’’ 

must apply for a National Pollutant 

Discharge Elimination System (NPDES) 

Permit. This rulemaking also removes 

the voluntary certification option for 

unpermitted CAFOs because removal of 

the ‘‘propose to discharge’’ requirement 

renders the certification option 

unnecessary. Its purpose had been to 

allow CAFO owners and operators to 

certify that they were not violating the 

requirement that owners or operators of 

CAFOs that propose to discharge must 

seek permit coverage. Both of these 


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Federal Register / Vol. 77, No. 146 / Monday, July 30, 2012 / Rules and Regulations 44495 

provisions were included in the EPA’s 

rulemaking entitled ‘‘Revised National 

Pollutant Discharge Elimination System 

Permit Regulation and Effluent 

Limitations Guidelines for Concentrated 

Animal Feeding Operations in Response 

to the Waterkeeper Decision,’’ (the 2008 

CAFO Rule). 

DATES: This final rule is effective on July 

30, 2012. 

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 Ave. 

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– 

0142. The rule and key supporting 

documents are also available 

electronically on the Internet at http:// 

www.epa.gov/npdes/caforule. 

FOR FURTHER INFORMATION CONTACT: For 

further information contact Louis Eby, 

Water Permits Division, Office of 

Wastewater Management (4203M), 

Environmental Protection Agency, 1200 

Pennsylvania Ave. NW., Washington, 

DC 20460, telephone number: (202) 

564–6599, email address: 

eby.louis@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

II. Background and Rationale for Action 

III. Implementation 

IV. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Congressional Review Act 

V. Statutory Authority 

I. General Information 

A. Does this action apply to me? 

This action applies to CAFOs as 

specified in section 502(14) of the Clean 

Water Act (CWA), 33 U.S.C. 1362(14) 

and defined in the NPDES regulations at 

40 CFR 122.23. Table 1.1 provides a list 

of standard industrial codes for 

operations potentially regulated under 

this revised rule. The rule also applies 

to States and Tribes with authorized 

NPDES Programs. 

TABLE 1.1—OPERATIONS POTENTIALLY REGULATED BY THIS RULE

Category Examples of regulated entities 

North American 

Industry 

Classification 

System (NAICS) 

Standard 

Industrial 

Classification 

(SIC) 

Industry Operators of animal production operations that meet the definition of a CAFO: 

Beef cattle feedlots (including veal calves) ........................................................ 112112 0211 

Beef cattle ranching and farming ........................................................................ 112111 0212 

Hogs .................................................................................................................... 11221 0213 

Sheep and Goats ................................................................................................ 11241, 11242 0214 

General livestock except dairy and poultry ......................................................... 11299 0219 

Dairy farms .......................................................................................................... 11212 0241

Broilers, fryers, and roaster chickens ................................................................. 11232 0251 

Chicken eggs ...................................................................................................... 11231 0252 

Turkey and turkey eggs ...................................................................................... 11233 0253 

Poultry hatcheries ............................................................................................... 11234 0254 

Poultry and eggs ................................................................................................. 11239 0259 

Ducks .................................................................................................................. 11239 0259 

Horses and other equines ................................................................................... 11292 0272 

This table is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

affected by this action. Other types of 

entities not listed in the table could also 

be affected. To determine whether your 

facility would be affected by this action, 

you should carefully examine the 

definitions and other provisions of 40 

CFR 122.23. 

II. Background and Rationale for 

Action 

On November 20, 2008, the EPA 

published a final rule (73 FR 70418) that 

revised the NPDES permitting 

requirements and Effluent Limitations 

Guidelines and Standards for CAFOs in 

response to the order issued by the U.S. 

Court of Appeals for the Second Circuit 

in Waterkeeper Alliance et al. v. EPA, 

399 F.3d 486 (2d Cir. 2005). The 2008 

CAFO Rule included a number of 

changes, including a requirement that 

CAFO owners or operators that 

discharge or propose to discharge must 

apply for an NPDES permit. The 2008 

CAFO Rule also created a voluntary 

option for unpermitted CAFO owners 

and operators to certify to the permitting 

authority that the CAFO does not 

discharge or propose to discharge. 

On March 15, 2011, the United States 

Court of Appeals for the Fifth Circuit 

(the Court) issued an opinion that, 

among other things, vacated those 

portions of the 2008 CAFO Rule 

requiring CAFOs that propose to 

discharge to apply for an NPDES permit. 

National Pork Producers Council v. 

EPA, 635 F.3d 738, 756 (5th Cir. 2011). 

This action removes from the Code of 

Federal Regulations (CFR) the specific 

‘‘propose to discharge’’ requirement in 

40 CFR 122.23(d). 

Today’s action also deletes the timing 

requirements in 40 CFR 122.23(f) related 

to when CAFO owners and operators 

must seek coverage under an NPDES 

permit. These provisions extended the 

time by which facilities newly required 

to obtain NPDES permits must apply for 

a permit. The date-specific deadlines in 

those sections have passed. The revision 

clarifies that all CAFOs must have a 

permit at the time that they discharge. 

The rule also removes 40 CFR 

122.23(g) to make conforming changes 

to EPA’s requirements for renewing 

permit coverage. 

Also, this action removes from the 

CFR the option in 40 CFR 122.23(i) and 

(j) for owners and operators to 


tkelley on DSK3SPTVN1PROD with RULES
44496 Federal Register / Vol. 77, No. 146 / Monday, July 30, 2012 / Rules and Regulations 

voluntarily certify that a CAFO does not 

discharge or propose to discharge. The 

option provides that properly certified 

CAFOs would ‘‘not be in violation of the 

requirement that CAFOs that propose to 

discharge seek permit coverage. * * *’’ 

Removing the requirement that CAFOs 

apply for permits if they ‘‘propose to 

discharge’’ renders the option to certify 

unnecessary and therefore the EPA is 

eliminating it. 

The EPA is not providing an 

opportunity for comment on this final 

rule. The Administrative Procedure Act 

of 1946 (APA) makes provision for the 

procedural path we are following in this 

action. In general, the APA requires that 

general notice of proposed rulemaking 

shall be published in the Federal 

Register. Such notice must provide an 

opportunity for public participation in 

the rulemaking process. The APA does 

provide an avenue for an agency to 

directly issue a final rulemaking in 

certain specific instances. This may 

occur, in particular, when an agency for 

good cause finds (and incorporates the 

finding and a brief statement of reasons 

therefore in the rules issued) that notice 

and public procedure thereon are 

impracticable, unnecessary, or contrary 

to the public interest. See 5 U.S.C. 

553(b)(3)(B). 

The EPA finds that a notice-andcomment rulemaking is unnecessary 

and not in the public interest because 

this action is ministerial in nature. The 

EPA has no discretion given the specific 

circumstances presented in the Court’s 

opinion. The EPA is bound by the 

decisions of the court and must act in 

accordance with that decision. The EPA 

accepts the decision of the Court that 

vacated the requirement that CAFOs 

that propose to discharge apply for 

NPDES permits and the EPA lacks 

discretion to reach a different 

conclusion. Providing an opportunity 

for notice and comment is therefore 

unnecessary and would not serve any 

public interest. 

III. Implementation 

For the reasons cited above, the EPA 

is making this action effective upon 

publication. See 5 U.S.C. 553(d)(3). This 

action removes content from the CFR 

that has been found to be contrary to the 

CWA by a United States Court of 

Appeals. This is a ministerial but 

necessary action on the part of the EPA. 

Given the EPA’s lack of discretion in 

this matter, the EPA has good cause to 

act in the public interest to implement 

the court’s remedy by amending the 

CFR without delay. 

The deadline has passed by which 

states were required to make any 

changes to their approved state NPDES 

program legal authorities necessary to 

conform to the 2008 CAFO Rule. States 

that have not yet done so must make the 

necessary changes to conform to the 

2008 CAFO Rule, less the vacated 

provisions. 

IV. Statutory and Executive Order 

Reviews 

A. Executive Order 12866 (Regulatory 

Planning and Executive Order 13563: 

Improving Regulation and Regulatory 

Review) 

This rule withdraws Federal 

requirements applicable to CAFOs that 

propose to discharge as well as the 

option to certify that a CAFO does not 

discharge or propose to discharge. It 

imposes no regulatory requirements on 

any person or entity, does not interfere 

with the action or planned action of 

another agency, and does not have any 

budgetary impacts or raise novel legal or 

policy issues. The rule imposes no 

additional cost on the regulated 

community. The rule imposes no 

additional effort on the State regulators. 

Thus, this rule is not a ‘‘significant 

regulatory action’’ under the terms of 

Executive Order 12866 (58 FR 51735, 

October 4, 1993) and Executive Order 

13563 (76 FR 3821, January 21, 2011) 

and is therefore not subject to review 

under the Executive Orders. 

B. Paperwork Reduction Act 

This rule does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act of 1995 (44 U.S.C. 3501 et seq.), 

because it is administratively 

withdrawing Federal requirements. 

C. Regulatory Flexibility Act 

Today’s final rule is not subject to the 

Regulatory Flexibility Act (RFA), which 

generally requires an agency to prepare 

a regulatory flexibility analysis for any 

rule that will have a significant 

economic impact on a substantial 

number of small entities. The RFA 

applies only to rules subject to notice 

and comment rulemaking requirements 

under the Administrative Procedure Act 

(APA) or any other statute. Although the 

rule is subject to the APA, the Agency 

has invoked the ‘‘good cause’’ 

exemption under 5 USC 553(b), 

therefore it is not subject to the notice 

and comment requirement. 

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. The 

action imposes no enforceable duty on 

any State, local or tribal governments or 

the private sector. Therefore, this action 

is not subject to the requirements of 

sections 202 or 205 of the UMRA. 

Similarly, the EPA has determined that 

this rule contains no regulatory 

requirements that might significantly or 

uniquely affect small governments and 

is therefore not subject to UMRA section 

203. 

E. Executive Order 13132 (Federalism) 

Executive Order 13132, entitled 

‘‘Federalism’’ (64 FR 43255, August 10, 

1999), requires the EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have federalism 

implications.’’ ‘‘Policies that have 

federalism implications’’ is defined in 

the Executive Order to include 

regulations that 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.’’ 

This rule 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 rule 

imposes no regulatory requirements on 

any State, Tribal, or local government. 

Thus, Executive Order 13132 does not 

apply to this rule. 

F. Executive Order 13175 (Consultation 

and Coordination With Indian Tribal 

Governments) 

Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (59 FR 

22951, November 9, 2000), requires the 

EPA to develop an accountable process 

to ensure ‘‘meaningful and timely input 

by tribal officials in the development of 

regulatory policies that have tribal 

implications.’’ This rule does not have 

tribal implications, as specified in 

Executive Order 13175. It imposes no 

regulatory requirements or costs on any 

Tribal government. It does not have 

substantial direct effects on Tribal 

governments, on the relationship 

between the Federal government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal government and Indian tribes. 

Thus, Executive Order 13175 does not 

apply to this rule. 


tkelley on DSK3SPTVN1PROD with RULES
Federal Register / Vol. 77, No. 146 / Monday, July 30, 2012 / Rules and Regulations 44497 

G. Executive Order 13045 (Protection of 

Children From Environmental Health 

and Safety Risks) 

This rule is not subject to Executive 

Order 13045, entitled ‘‘Protection of 

Children from Environmental Health 

Risks and Safety Risks’’ (62 FR 19885, 

April 23, 1997), because it is not 

economically significant as defined in 

Executive Order 12866, and the EPA has 

no reason to believe the environmental 

health or safety risks addressed by this 

rule present a disproportionate risk to 

children. 

H. Executive Order 13211 (Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use) 

This rule is not subject to Executive 

Order 13211, ‘‘Actions Concerning 

Regulations That Significantly Affect 

Energy Supply, Distribution, or Use’’ (66 

FR 28355, May 22, 2001), because it is 

not a significant regulatory action under 

Executive Order 12866. 

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 the 

Office of Management and Budget, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. 

This rule does not involve technical 

standards. Therefore, the 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 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 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. 

The EPA has determined that this rule 

will not have disproportionately high 

and adverse human health or 

environmental effects on minority or 

low-income populations because it 

merely removes regulations that were 

vacated by the U.S. Court of Appeals 

and, therefore, does not affect the level 

of protection provided to human health 

or the environment. 

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. Section 808 allows 

the issuing agency to make a rule 

effective sooner than otherwise 

provided by the CRA if the agency 

makes a good cause finding that notice 

and public procedure is impracticable, 

unnecessary or contrary to the public 

interest. This determination must be 

supported by a brief statement. 5 U.S.C. 

808(2). As stated previously, EPA has 

made such a good cause finding, 

including the reasons therefor, and 

established an effective date of July 30, 

2012. EPA will submit a report 

containing this rule and other required 

information to the U.S. Senate, the U.S. 

House of Representatives, and the 

Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. This action is not 

a ‘‘major rule’’ as defined by 5 U.S.C. 

804(2). 

V. Statutory Authority 

This rule is issued under the authority 

of sections 101, 301, 304, 306, 308, 402, 

and 501 of the CWA. 33 U.S.C. 1251, 

1311, 1314, 1316, 1317, 1318, 1342, and 

1361. 

List of Subjects in 40 CFR Part 122 

Environmental protection, 

Administrative practice and procedure, 

Confidential business information, 

Hazardous substances, Reporting and 

recordkeeping requirements, Water 

pollution control. 

Dated: July 19, 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: The Clean Water Act, 33 U.S.C. 

1251 et seq. 

■ 2. Section 122.23 is amended as 

follows: 

■ a. By revising the heading of 

paragraph (d). 

■ b. By revising paragraph (d)(1). 

■ c. By revising paragraph (f). 

■ d. By removing and reserving 

paragraph (g). 

■ e. By removing paragraphs (i) and (j). 

§ 122.23 Concentrated animal feeding 

operations (applicable to State NPDES 

programs, see § 123.25). 

* * * * * 

(d) NPDES permit authorization.—(1) 

Permit Requirement. A CAFO must not 

discharge unless the discharge is 

authorized by an NPDES permit. In 

order to obtain authorization under an 

NPDES permit, the CAFO owner or 

operator must either apply for an 

individual NPDES permit or submit a 

notice of intent for coverage under an 

NPDES general permit. 

* * * * * 

(f) By when must the owner or 

operator of a CAFO have an NPDES 

permit if it discharges? A CAFO must be 

covered by a permit at the time that it 

discharges. 

* * * * * 

[FR Doc. 2012–18378 Filed 7–27–12; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Federal Emergency Management 

Agency 

44 CFR Part 65 

[Docket ID FEMA–2012–0003; Internal 

Agency Docket No. FEMA–B–1260] 

Changes in Flood Elevation 

Determinations 

AGENCY: Federal Emergency 

Management Agency, DHS. 

ACTION: Interim rule. 

SUMMARY: This interim rule lists 

communities where modification of the 

Base (1% annual-chance) Flood 

Elevations (BFEs) is appropriate because 

of new scientific or technical data. New 

flood insurance premium rates will be 

calculated from the modified BFEs for 

new buildings and their contents. 


tkelley on DSK3SPTVN1PROD with RULES