38592 Federal Register / Vol. 76, No. 127 / Friday, July 1, 2011 / Proposed Rules 

is presented above in the ADDRESSES

section. 

Dated: June 24, 2011. 

Gina McCarthy, 

Assistant Administrator. 

[FR Doc. 2011–16496 Filed 6–30–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 131 

[EPA–HQ–OW–2011–0515; FRL–9428–3] 

Phosphorus Water Quality Standards 

for Florida Everglades 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing a rule that 

would identify provisions of Florida’s 

Water Quality Standards for Phosphorus 

in the Everglades Protection Area 

(Phosphorus Rule) and Florida’s 

Amended Everglades Forever Act (EFA) 

that EPA has disapproved and that 

therefore are not applicable water 

quality standards for purposes of the 

Clean Water Act. EPA is proposing 

today’s rule following EPA’s 

disapproval of these provisions and 

EPA’s specific directions to the State of 

Florida to correct these deficiencies in 

the Phosphorus Rule and EFA. EPA’s 

disapproval, specific directions to the 

State, and today’s proposed rule 

implement two orders by the U.S. 

District Court for the Southern District 

of Florida. The intended effect of 

today’s proposed rule is to identify only 

those provisions of Florida law that EPA 

has disapproved and that therefore are 

not applicable water quality standards 

for purposes of the Clean Water Act. 

DATES: Comments must be received on 

or before August 1, 2011. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OW–2011–0515 by one of the following 

methods: 

• http://www.regulations.gov: Follow 

the on-line instructions for submitting 

comments. This electronic docket is 

EPA’s preferred method of receiving 

comments. 

• Mail: Water Docket, U.S. 

Environmental Protection Agency, Mail 

Code: 2822T, 1200 Pennsylvania 

Avenue, NW., Washington, DC 20460. 

• Hand Delivery: EPA Docket Center, 

EPA West, Room 3334, 1301 

Constitution Ave., NW., Washington, 

DC. 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–2011– 

0515. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or e-mail. The 

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

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. For additional instructions on 

submitting comments, go to section I.D 

of the SUPPLEMENTARY INFORMATION

section of this document. 

Docket: All documents in the docket 

are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

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

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically in http:// 

www.regulations.gov or in hard copy at 

the OW Docket Center, which is open 

from 8:30 until 4:30 pm, Monday 

through Friday, excluding legal 

holidays. The OW Docket Center 

telephone number is (202) 566–2426, 

and the Docket address is OW Docket, 

EPA West, Room 3334, 1301 

Constitution Avenue, NW., Washington, 

DC 20004. The Public Reading Room is 

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

Monday through Friday, excluding legal 

holidays. The telephone number for the 

Public Reading Room is (202) 566–1744. 

FOR FURTHER INFORMATION CONTACT: 

Mario Sengco, Standards and Health 

Protection Division, Office of Science 

and Technology, Mail Code: 4305T, 

Environmental Protection Agency, 1200 

Pennsylvania Avenue, NW., 

Washington, DC 20460; telephone 

number: (202) 566–2676; e-mail: 

sengco.mario@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. What entities may be affected by this 

rule? 

Citizens concerned with water quality 

in Florida may be interested in this 

rulemaking. Entities discharging 

phosphorus to waters upstream of the 

Everglades Protection Area could be 

indirectly affected by the Phosphorus 

Rule and EFA, although not specifically 

by this proposed rulemaking because 

the current action further addresses 

prior disapproval by EPA of certain 

provisions of the Phosphorus Rule and 

EFA. Any indirect affect to entities 

would be because the water quality 

standards contained in the State’s 

regulation and statute are used in 

determining National Pollutant 

Discharge Elimination System (NPDES) 

permit limits. With this in mind, 

categories and entities that may 

ultimately be indirectly affected 

include: 

Category Examples of potentially affected entities 

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

Area. 

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

Area. 


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This table is not intended to be 

exhaustive, but rather provides a guide 

for entities that may be affected by this 

action. This table lists the types of 

entities of which EPA is now aware that 

potentially could be affected by this 

action. Other types of entities not listed 

in the table could also be affected. Any 

parties or entities conducting activities 

within watersheds of the Florida waters 

covered by this rule, or who rely on, 

depend upon, influence, or contribute to 

the water quality of the Everglades 

Protection Area, might be affected by 

this rule. To determine whether your 

facility or activities may be affected by 

this action, you should examine this 

proposed rule. If you have questions 

regarding the applicability of this action 

to a particular entity, consult the person 

listed in the preceding FOR FURTHER

INFORMATION CONTACT section. 

B. How do I get copies of this notice? 

Docket. EPA has established an 

official public docket for this action 

under Docket ID No. EPA–HQ–OW– 

2011–0515. The official public docket is 

the collection of materials that is 

available for public viewing at the Water 

Docket in the EPA Docket Center, (EPA/ 

DC) EPA West, Room 3334, 1301 

Constitution Ave., NW., Washington, 

DC 20460. Although all documents in 

the docket are listed in an index, some 

information is not publicly available, 

i.e., Confidential Business Information 

(CBI) or other information whose 

disclosure is restricted by statute. 

Publicly available docket materials are 

available electronically through http:// 

www.regulations.gov and in hard copy 

at the EPA Docket Center Public 

Reading Room, open from 8:30 a.m. to 

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

excluding legal holidays. The telephone 

number for the public Reading Room is 

(202) 566–1744 and the telephone 

number for the Water docket is (202) 

566–2426. 

C. What comments will be considered 

and what should I consider as I prepare 

my comments for EPA? 

(1) The public is invited to submit 

comments on whether EPA’s proposed 

rule is consistent with EPA’s 

disapprovals of the Phosphorus Rule 

and EFA and the Court’s orders. 

(2) The public is invited to submit 

comments regarding EPA’s approach of 

identifying, through incorporation by 

reference, those provisions of the 

Phosphorus Rule and EFA that are not 

applicable water quality standards for 

purposes of the CWA. 

(3) Do not submit confidential 

business information (CBI) to EPA 

through the http://www.regulations.gov 

portal. Contact EPA before submitting 

CBI by contacting the person in FOR

FURTHER INFORMATION CONTACT section. 

II. Background 

EPA is proposing a rule that would 

identify provisions of Florida’s Water 

Quality Standards for Phosphorus in the 

Everglades Protection Area (Phosphorus 

Rule) and Florida’s Amended 

Everglades Forever Act (EFA) that EPA 

has disapproved and that therefore are 

not applicable water quality standards 

for purposes of the Clean Water Act. 

EPA is proposing today’s rule following 

its disapproval of these provisions and 

EPA’s specific directions to the State of 

Florida to correct these deficiencies in 

the Phosphorus Rule and EFA. EPA’s 

disapproval and specific directions to 

the State implement two orders by the 

U.S. District Court for the Southern 

District of Florida. Pursuant to the 

Court’s orders, EPA gave the State a 

period of time to correct the 

deficiencies. The State has not corrected 

the deficiencies within that time period. 

Therefore, EPA is proposing today’s 

rule. The proposed rule incorporates by 

reference two documents that identify 

the specific provisions of Florida’s 

Phosphorus Rule and EFA that are not 

applicable water quality standards for 

purposes of the Clean Water Act. 

A. Statutory and Regulatory Background 

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

Clean Water Act (CWA) directs States, 

with oversight by EPA, to adopt water 

quality standards to protect the public 

health and welfare, enhance the quality 

of water and serve the purposes of the 

CWA. Under section 303, States are 

required to develop water quality 

standards for waters of the United States 

within the State. Section 303(c) and 

EPA’s implementing regulations (40 

CFR Part 131) provide that water quality 

standards shall include designated uses 

of the water and water quality criteria 

necessary to protect those uses. 

States must submit any new or 

revised water quality standards for EPA 

review and approval/disapproval. EPA 

must approve/disapprove any new or 

revised standards within 60–90 days. 

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

any standard, EPA is to specify the 

changes to meet the requirements of the 

CWA. If the changes are not adopted by 

the State, EPA is to promulgate 

standards to address the necessary 

changes in the State standards that EPA 

has disapproved. Today, EPA is 

proposing Federal standards to address 

the portions of Florida’s standards that 

EPA disapproved and that have not 

been revised by the State. 

B. Florida’s Phosphorus Rule and 

Everglades Forever Act 

1. Florida’s Phosphorus Rule 

In 2005, the Florida Department of 

Environmental Protection (FDEP) 

submitted to EPA for review pursuant to 

CWA section 303(c), provisions of 

Florida Administrative Code (‘‘FAC’’) 

62–302.540 entitled ‘‘Water Quality 

Standards for Phosphorus Within the 

Everglades Protection Area’’ 

(Phosphorus Rule or Rule). The Rule 

established a numeric water quality 

criterion for phosphorus as well as 

implementing provisions for the 

numeric criterion within the Everglades 

Protection Area. In 2005 and 2006, EPA 

issued a series of decisions approving 

certain provisions of the Phosphorus 

Rule and concluding that other 

provisions were not new or revised 

water quality standards and did not 

require EPA approval/disapproval 

under CWA section 303(c). 

2. Florida’s Everglades Forever Act 

The Florida Legislature enacted the 

Everglades Forever Act in 1994 to 

maintain and restore the ecosystem of 

the Everglades. See Miccosukee Tribe of 

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

601 (11th Cir. 1997). EPA subsequently 

reviewed and approved one section of 

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

revised water quality standard in 1999. 

The Legislature enacted amendments to 

the EFA in 2003. EPA reviewed the 

amendments and issued a decision in 

2003 that the amendments were not new 

or revised water quality standards 

requiring EPA approval/disapproval 

under section 303(c) of the CWA. 

C. Litigation and Subsequent EPA 

Actions 

In consolidated litigation, plaintiffs 

challenged (1) EPA’s 2003 decision that 

the EFA amendments were not water 

quality standards and (2) EPA’s 2005 

and 2006 decisions regarding the 

Phosphorus Rule. In a July 29, 2008 

decision, the U.S. District Court for the 

Southern District of Florida upheld in 

part and remanded in part EPA’s 

decisions. Miccosukee Tribe of Indians 

& Friends of the Everglades v. U.S. 

Environmental Protection Agency, 

Florida Department of Environmental 

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

Gold/McAliley (S.D. Fla.). The Court 

upheld EPA’s 2005 approval of the 

Phosphorus Rule’s numeric phosphorus 

criterion and the ‘‘four-part’’ test for 

determining attainment of the criterion. 

The Court overturned (1) EPA’s decision 

that certain implementing provisions of 

the Phosphorus Rule were not new or 

revised water quality standards and (2) 


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EPA’s approval of other provisions of 

the Phosphorus Rule finding EPA’s 

approval to be arbitrary and capricious. 

The Court also rejected EPA’s 

determination that the legislative 

amendments to the EFA did not 

constitute new or revised water quality 

standards subject to EPA review (and 

approval or disapproval) under section 

303(c) of the CWA. The Court remanded 

to EPA to take further action consistent 

with the Court’s decision. 

1. EPA’s December 2009 Determination 

On December 3, 2009, EPA issued a 

new Determination in response to the 

Court’s remand. Consistent with the 

Court’s 2008 decision, EPA disapproved 

certain amendments to the EFA. It is 

those disapproved provisions of the 

EFA that are, in part, the subject of 

today’s proposed rulemaking. In 

addition, EPA reviewed the provisions 

of the Phosphorus Rule that the Court 

either found were new or revised 

standards or that the Court had held 

EPA’s prior approval invalid. Consistent 

with the Court’s decision, EPA 

disapproved certain provisions of the 

Phosphorus Rule and those disapproved 

provisions also are the subject of today’s 

proposed rulemaking. 

2. Court’s April 10, 2010 Order 

Plaintiffs challenged EPA’s December 

2009 Determination, alleging, in part, 

that EPA failed to (1) specify the 

changes that Florida must make to the 

Phosphorus Rule and EFA to bring them 

into compliance with the CWA and (2) 

commit to promulgate if the State fails 

to act. The Court, in an order dated 

April 10, 2010, remanded EPA’s 2009 

Determination and ordered EPA to issue 

an Amended Determination (AD) by 

September 3, 2010. While the Court did 

not take issue with EPA’s disapprovals, 

the Court nevertheless ordered that 

EPA’s AD ‘‘shall specifically direct the 

State of Florida to correct deficiencies in 

the Amended EFA and Phosphorus Rule 

that have been invalidated,’’ attaching 

copies of the Rule and EFA with 

strikeout markings indicating the exact 

language from the Rule and EFA that the 

State must correct. Order at 44. The 

Court ordered that in the AD, ‘‘EPA 

shall require the State of Florida to 

commence and complete rule-making 

for the Phosphorus Rule within 120 

days from the date of the Amended 

Determination and shall require 

amendments to the Amended EFA to be 

enacted by July 1, 2011.’’ Order at 44– 

45. The Court further ordered that ‘‘[i]n 

the event the State of Florida fails to 

timely act, the EPA shall provide timely 

notice, and the EPA Administrator 

‘‘shall promulgate such standard[s]’’ 

pursuant to 33 U.S.C. 1313(c).’’ Order at 

45. 

3. EPA’s September 3, 2010 Amended 

Determination 

Consistent with the Court’s April 14, 

2010 Order, EPA gave directions to the 

State of Florida for correcting 

deficiencies in the Phosphorus Rule and 

Amended EFA. EPA’s AD included as 

attachments copies of the Phosphorus 

Rule and EFA with strikeout markings 

indicating the language that the State 

needed to correct. EPA’s AD stated that 

if FDEP has not finalized revisions by 

January 1, 2011 and the Legislature has 

not enacted amendments to the EFA by 

July 1, 2011, EPA would initiate 

rulemaking to promulgate standards 

consistent with the Court’s Order. 

FDEP initiated a rulemaking to adopt 

the necessary revisions to the 

Phosphorus Rule consistent with EPA’s 

AD. However, FDEP did not complete 

that process by January 1, 2011. Nor has 

FDEP completed its rulemaking process 

since that date. The Florida Legislature 

also did not introduce or enact any 

amendments to the EFA consistent with 

EPA’s AD. The Florida Legislature 

stands adjourned and is not scheduled 

to reconvene prior to July 1, 2011. 

Therefore, EPA is proceeding, consistent 

with the Court’s Order and EPA’s AD, 

to initiate the rulemaking process to 

promulgate Federal standards 

addressing the deficiencies of the 

Phosphorus Rule and EFA. 

III. EPA’s Proposal and Solicitation of 

Public Comments 

EPA’s proposed rule identifies those 

provisions in the Phosphorus Rule and 

Everglades Forever Act that EPA has 

disapproved and that therefore are not 

applicable water quality standards for 

purposes of the CWA. The provisions 

are the ones that EPA previously 

disapproved in December 2009 that the 

Court identified in its April 2010 Order 

and that EPA identified in its September 

2010 AD. EPA’s proposed rule 

incorporates by reference copies of the 

Phosphorus Rule and EFA with the 

strikeout markings indicating the 

provisions and language that are not 

applicable water quality standards for 

purposes of the CWA. 

For the convenience of persons 

reviewing this proposal, EPA has put 

copies of the Phosphorus Rule and 

Amended Everglades Forever Act in the 

docket, with the strikeout markings 

indicating the language that EPA 

disapproved and that EPA’s proposed 

rule identifies as not being applicable 

water quality standards for purposes of 

the CWA. The provisions of the 

Phosphorus Rule and EFA that will not 

be applicable water quality standards 

for purposes of the CWA are 

summarized in Tables 1 and 2. 

The remaining provisions of the 

Phosphorus Rule and EFA in the docket 

either already have been approved by 

EPA as new or revised water quality 

standards (i.e., are applicable water 

quality standards for the purposes of the 

CWA), or are not a water quality 

standard subject to EPA review and 

approval (or disapproval) under the 

Clean Water Act. As explained in the 

Statutory and Regulatory Background 

(II.A) and in the sections below, EPA is 

not proposing to promulgate any of the 

remaining provisions that EPA has 

approved or that are not water quality 

standards. 

In the Court’s 2010 order, the judge 

struck a provision in the EFA (i.e., 

paragraph 2(l)), which defined the term 

‘‘optimization.’’ In today’s action, EPA 

is not identifying the strike out 

paragraph 2(l) in the EFA or paragraph 

3(f) in the Phosphorus Rule because 

EPA did not specifically disapprove 

either provision in its December 2009 

Determination. EPA believes that its 

decision not to identify these two 

definitions in today’s proposed rule will 

not conflict with the objectives of the 

Court in its ruling because EPA 

disapproved the other provisions in the 

EFA and Phosphorus Rule where the 

term ‘‘optimization’’ occurs and EPA 

has identified those disapproved 

provisions in today’s proposed rule. 

For the convenience of the reader and 

to improve the readability of the 

documents, EPA has included a few 

minor text changes to the Phosphorus 

Rule and Amended Everglades Forever 

Act in the docket. These changes are 

identified by underline. EPA included 

these few text changes in its submission 

to the Court and the Court’s April 2011 

order reflects these changes. EPA added 

text when deletion of the disapproved 

language rendered the remaining text 

difficult to understand. In EFA section 

10 for example, EPA’s added text would 

restore language that existed prior to 

enactment of EFA amendments. In these 

sections, EPA is not proposing to 

establish new or revised water quality 

standards with these text changes, but 

merely to restore language that would 

make the remaining text easier to 

understand. Similarly, for ease of 

readability, the docket versions of the 

Phosphorus Rule and Amended 

Everglades Forever Act strike the 

definitions of ‘‘optimization’’ (which is 

defined only for the purposes of other 

provisions that EPA disapproved) from 

sections 2(l) and 3(f), respectively, as 

discussed above. 


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

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

Section Specific provision or language 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

APPLICABLE WATER QUALITY STANDARDS FOR PURPOSES OF THE CLEAN WATER ACT

Section Specific provision or language 

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

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

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

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

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

(4)(a) .................................................................... Sentence 9, phrase ‘‘design, construction, and implementation of the initial phase of the LongTerm Plan, including operation and maintenance, and research for the projects and strategies in the initial phase of the Long-Term Plan, and including’’ 

(4)(a)(4) ............................................................... Sentence 1, phrase ‘‘however, the district may modify this schedule to incorporate and accelerate enhancements to STA 3⁄4 as directed in the Long-Term Plan’’. 

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

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

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

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

Plan.’’ 

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

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

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

EPA believes that its proposal to 

incorporate by reference documents that 

identify those specific provisions of the 

Phosphorus Rule and EFA that are not 

applicable water quality standards for 

purposes of the CWA best accomplishes 

the purpose of removing those 

provisions from consideration for future 

implementation within CWA programs. 

EPA considered other approaches to 

accomplish this result and decided the 

approach the Agency is proposing today 

is the most appropriate approach. 

Because the Phosphorus Rule and EFA 

are Florida laws, EPA could not 

‘‘amend’’ those state laws. EPA 

considered whether it should 

incorporate the complete Phosphorus 

Rule and EFA as Federal regulations 

and amend them accordingly. EPA 

concluded this approach would not be 

appropriate for two reasons. 

First, to the extent EPA would be 

promulgating as Federal regulations 

provisions of state water quality 

standards that EPA has approved (or 

provisions associated with approved 

water quality standards but that are not 

themselves water quality standards), the 

CWA does not provide for such action. 

The CWA provides that when EPA 

approves a new or revised state water 

quality standard, ‘‘such standard shall 

thereafter be the water quality standard 

for the applicable waters of the State.’’ 

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

disapproves a state water quality 

standard or makes a determination that 

a new or revised water quality standard 

is necessary to meet the requirements of 

the Clean Water Act under section 

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

the necessary changes, does the Act 

direct EPA to promulgate such water 

quality standards for navigable waters of 

the state. There are many provisions of 

the Phosphorus Rule that EPA 

approved. EPA did not believe it would 

be appropriate to promulgate those 

provisions as Federal regulations. 

Second, except for the disapproved 

provisions of the EFA amendments, 

EPA has not approved or disapproved 

the remaining provisions of the EFA 

(with one exception) as new or revised 

water quality standards under the Clean 

Water Act. Therefore, it would not be 

appropriate for EPA to promulgate such 

provisions as Federal water quality 

standards. 

For these reasons, EPA concluded the 

best approach was to identify, through 

incorporation by reference, those 

provisions of the Phosphorus Rule and 

EFA that EPA disapproved and are 

therefore not applicable water quality 

standards for purposes of the CWA. EPA 

solicits comments on this approach. 


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III. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This action is not a ‘‘significant 

regulatory action’’ under the terms of 

Executive Order 12866 (58 FR 51735, 

October 4, 1993) and is therefore not 

subject to review under Executive 

Orders 12866 and 13563 (76 FR 3821, 

January 21, 2011). 

B. Paperwork Reduction Act 

This action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq. Burden is 

defined at 5 CFR 1320.3(b). This 

proposed action merely clarifies the 

water quality standards concerning the 

phosphorus rule and the Amended EFA 

statute that are not water quality 

standards for purposes of the CWA and 

does not impose any information 

collection burden on anyone. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. For purposes of assessing 

the impacts of this action on small 

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

small business as defined by the Small 

Business Administration’s (SBA) 

regulations at 13 CFR 121.201; (2) a 

small governmental jurisdiction that is a 

government of a city, county, town, 

school district or special district with a 

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

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

owned and operated and is not 

dominant in its field. 

As a result of the disapproval action 

by EPA in December 2009, the Florida 

Department of Environmental Protection 

already needs to ensure that permits it 

issues do not implement the provisions 

identified in this rule which are not 

applicable water quality standards for 

purposes of the CWA. In doing so, the 

State will have a number of choices 

associated with permit writing. While 

Florida’s implementation of the rule 

might ultimately result in some new or 

revised permit conditions for some 

dischargers, including small entities, 

EPA’s action today would not impose 

any of these as yet unknown 

requirements on small entities. Thus, I 

certify that this proposed rule will not 

have a significant economic impact on 

a substantial number of small entities. 

D. Unfunded Mandates Reform Act 

This action contains no Federal 

mandates under the provisions of Title 

II of the Unfunded Mandates Reform 

Act of 1995 (UMRA), 2 U.S.C. 1531– 

1538 for State, local, or Tribal 

governments or the private sector. This 

proposed action merely clarifies the 

water quality standards concerning the 

phosphorus rule and the Amended EFA 

and does not impose any burden on 

anyone. Therefore, this action is not 

subject to the requirements of sections 

202 or 205 of the UMRA. 

This action is also not subject to the 

requirements of section 203 of UMRA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. 

E. Executive Order 13132 (Federalism) 

This action does not have Federalism 

implications. It will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. This proposed 

action merely clarifies the water quality 

standards concerning the phosphorus 

rule and the Amended EFA and does 

not apply to any government other than 

the State of Florida. 

F. Executive Order 13175 

This action does not have Tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000) because this is an action in which 

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

mandated by the Court to take this 

action. Thus, Executive Order 13175 

does not apply to this action. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

This action is not subject to EO 13045 

(62 FR 19885, April 23, 1997) because 

it is not economically significant as 

defined in EO 12866 and because the 

Agency does not believe the 

environmental health risks or safety 

risks addressed by this action present a 

disproportionate risk to children. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not subject to Executive 

Order 13211 (66 FR 28355 (May 22, 

2001)), because it is not likely to have 

a significant adverse effect on the 

supply, distribution, or use of energy. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, 12(d) (15 U.S.C. 272 note) 

directs EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. NTTAA directs EPA to provide 

Congress, through OMB, explanations 

when the Agency decides not to use 

available and applicable voluntary 

consensus standards. 

This proposed rulemaking does not 

involve technical standards. Therefore, 

EPA is not considering 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 (E.O.) 12898 (59 FR 

7629 (Feb. 16, 1994)) establishes Federal 

executive policy on environmental 

justice. Its main provision directs 

Federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. This 

action is not subject to E.O. 12898 

because this proposed action merely 

clarifies the water quality standards 

concerning the phosphorus rule and the 

Amended EFA. 

List of Subjects in 40 CFR Part 131 

Environmental protection, 

Incorporation by reference, Indians— 

lands, Intergovernmental relations, 

Reporting and recordkeeping 

requirements, Water pollution control. 


jlentini on DSK4TPTVN1PROD with PROPOSALS
Federal Register / Vol. 76, No. 127 / Friday, July 1, 2011 / Proposed Rules 38597 

Dated: June 27, 2011. 

Lisa P. Jackson, 

Administrator. 

For the reasons set out in the 

preamble, EPA proposes to amend 40 

CFR part 131 as follows: 

PART 131—WATER QUALITY 

STANDARDS 

1. The Authority citation for part 131 

continues to read as follows: 

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

Subpart D—[Amended] 

2. Section 131.44 is added to read as 

follows: 

§ 131.44 Florida. 

(a) Phosphorus Rule. The document 

entitled ‘‘Corrected Florida 

Administrative Code 62–302.540: Water 

Quality Standards for Phosphorus 

Within the Everglades Protection Area,’’ 

(Phosphorus Rule) dated April 26, 2011 

shall be added to this Subpart through 

an incorporation by reference. The 

Director of the Federal Register 

approves this incorporation by reference 

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

Copies of the document may be 

inspected and obtained from the docket 

associated with this rulemaking (Docket 

Number EPA–HQ–OW–2011–0515), at 

EPA’s Water Docket (Address: 1301 

Constitution Avenue, NW., EPA West, 

Room B102, Washington, DC 20460, 

telephone number: 202–566–2426), or at 

the National Archives and Records 

Administration (NARA). For 

information on the availability of this 

material at NARA, call 202–741–6030, 

or go to the following Web site http:// 

www.archives.gov/federal_register/ 

code_of_federal_regulations/ 

ibr_locations.htm. EPA adopts and 

identifies the portions of the document 

that have strikeout markings as portions 

of the Phosphorus Rule that EPA 

disapproved on December 3, 2009, and 

that are not applicable water quality 

standards for the purposes of the Clean 

Water Act. Remaining portions of the 

Phosphorus Rule that EPA had 

previously approved are applicable 

water quality standards for the purposes 

of the Clean Water Act but are not 

codified as Federal water quality 

standards. 

(b) Amended Everglades Forever Act. 

The document entitled ‘‘Corrected 

Everglades Forever Act: Florida Statute 

373.4592,’’ dated April 26, 2011 shall be 

added to this Subpart through an 

incorporation by reference. The Director 

of the Federal Register approves this 

incorporation by reference in 

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

of the document may be inspected and 

obtained from the docket associated 

with this rulemaking (Docket Number 

EPA–HQ–OW–2011–0515), at EPA’s 

Water Docket (Address: 1301 

Constitution Avenue, NW., EPA West, 

Room B102, Washington, DC 20460, 

telephone number: 202–566–2426 or at 

the National Archives and Records 

Administration (NARA). For 

information on the availability of this 

material at NARA, call 202–741–6030, 

or go to the following Web site: http:// 

www.archives.gov/federal_register/ 

code_of_federal_regulations/ 

ibr_locations.html. EPA adopts and 

identifies the portions of the document 

that have strikeout markings as portions 

of the statute that EPA disapproved on 

December 3, 2009, and that are not 

applicable water quality standards for 

the purposes of the Clean Water Act. 

Remaining portions of the statute that 

EPA had previously approved are 

applicable water quality standards for 

the purposes of the Clean Water Act but 

are not codified as Federal water quality 

standards. 

[FR Doc. 2011–16616 Filed 6–30–11; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF TRANSPORTATION 

Federal Motor Carrier Safety 

Administration 

49 CFR Parts 383 and 390 

[Docket No. FMCSA–2011–0146] 

Regulatory Guidance: Applicability of 

the Federal Motor Carrier Safety 

Regulations to Operators of Certain 

Farm Vehicles and Off-Road 

Agricultural Equipment 

AGENCY: Federal Motor Carrier Safety 

Administration (FMCSA), DOT. 

ACTION: Notice; extension of public 

comment period. 

SUMMARY: FMCSA extends the public 

comment period for its May 31, 2011, 

notice concerning regulatory guidance 

on the applicability of the Federal Motor 

Carrier Safety Regulations to operators 

of certain farm vehicles and off-road 

agricultural equipment. The public 

comment period is extended from June 

30, 2011, to August 1, 2011. 

DATES: Comments on the notice must be 

received on or before August 1, 2011. 

ADDRESSES: You may submit comments 

identified by Federal Docket 

Management System Number FMCSA– 

2011–0146 by any of the following 

methods 

• Web site: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments 

on the Federal electronic docket site. 

• Fax: 1–202–493–2251. 

• Mail: Docket Management Facility; 

U.S. Department of Transportation, 

Room W12–140, 1200 New Jersey 

Avenue, SE., Washington, DC 20590– 

0001. 

• Hand Delivery: Ground Floor, Room 

W12–140, DOT Building, 1200 New 

Jersey Avenue, SE., Washington, DC, 

between 9 a.m. and 5 p.m. e.t., Monday 

through Friday, except Federal 

Holidays. 

Instructions: All submissions must 

include the Agency name and docket 

number. For detailed instructions on 

submitting comments and additional 

information on the exemption process, 

see the ‘‘Public Participation’’ heading 

below. Note that all comments received 

will be posted without change to 

http://www.regulations.gov, including 

any personal information provided. 

Please see the ‘‘Privacy Act’’ heading 

below. 

Docket: For access to the docket to 

read background documents or 

comments received, go to http:// 

www.regulations.gov at any time or to 

the ground floor, room W12–140, DOT 

Building, 1200 New Jersey Avenue, SE., 

Washington, DC, between 9 a.m. and 

5 p.m., e.t., Monday through Friday, 

except Federal holidays. 

Privacy Act: Anyone is able to search 

the electronic form of all comments 

received into any of our dockets by the 

name of the individual submitting the 

comment (or signing the comment, if 

submitted on behalf of an association, 

business, labor union, etc.). You may 

review DOT’s Privacy Act System of 

Records Notice for the DOT Federal 

Docket Management System published 

in the Federal Register on January 17, 

2008 (73 FR 3316) or you may visit 

http://edocket.access.gpo.gov/2008/pdf/ 

E8-785.pdf. 

Public Participation: The http:// 

www.regulations.gov Web site is 

generally available 24 hours each day, 

365 days each year. You can obtain 

electronic submission and retrieval help 

and guidelines under the ‘‘help’’ section 

of the http://www.regulations.gov Web 

site and also at the DOT’s http:// 

docketsinfo.dot.gov Web site. If you 

want us to notify you that we received 

your comments, please include a selfaddressed, stamped envelope or 

postcard or print the acknowledgement 

page that appears after submitting 

comments online. 

FOR FURTHER INFORMATION CONTACT: 

Thomas L. Yager, Chief, Driver and 

Carrier Operations Division, Office of 

Bus and Truck Standards and 


jlentini on DSK4TPTVN1PROD with PROPOSALS