Federal Register / Vol. 78, No. 124 / Thursday, June 27, 2013 / Rules and Regulations 38591 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

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

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

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

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by August 26, 2013. 

Filing a petition for reconsideration by 

the Administrator of this final rule does 

not affect the finality of this action for 

the purposes of judicial review nor does 

it extend the time within which a 

petition for judicial review may be filed, 

and shall not postpone the effectiveness 

of such rule or action. This action may 

not be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Nitrogen dioxide, Ozone, 

Volatile organic compounds. 

Dated: March 22, 2013. 

H. Curtis Spalding, 

Regional Administrator, EPA New England. 

Part 52 of chapter I, title 40 of the 

Code of Federal Regulations is amended 

as follows: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart H—Connecticut 

■ 2. Section 52.370 is amended by 

adding paragraph (c)(101) to read as 

follows: 

§ 52.370 Identification of plan 

* * * * * 

(c) * * * 

(101) Revisions to the State 

Implementation Plan submitted by the 

Connecticut Department of 

Environmental Protection on July 20, 

2007, consisting of orders establishing 

reasonably available control technology 

for volatile organic compound 

emissions for Sumitomo Bakelite North 

America, Cyro Industries, and Curtis 

Packaging. 

(i) Incorporation by reference. 

(A) State of Connecticut vs. Sumitomo 

Bakelite North America, Inc., Consent 

Order No. 8245, issued as a final order 

on October 11, 2006. 

(B) State of Connecticut and Cyro 

Industries, Consent Order No. 8268, 

issued as a final order on February 28, 

2007. 

(C) State of Connecticut vs. Curtis 

Packaging Corporation, Consent Order 

No. 8270, issued as a final order on May 

1, 2007. 

■ 3. Section 52.375 is amended by 

revising paragraph (b) to read as follows: 

§ 52.375 Certification of no sources. 

* * * * * 

(b) In its December 8, 2006 submittal 

to EPA pertaining to reasonably 

available control technology 

requirements for the 1997 8-hour ozone 

standard, the State of Connecticut 

certified to the satisfaction of EPA that 

no sources are located in the state that 

are covered by the following Control 

Technique Guidelines: 

(1) Automobile Coatings; 

(2) Large Petroleum Dry Cleaners; 

(3) Large Appliance Coating; 

(4) Natural Gas and Gas Processing 

Plants; 

(5) Flat Wood Paneling Coatings; and 

(6) Control of VOC Leaks from 

Petroleum Refineries. 

■ 4. Section 52.377 is amended by 

adding paragraph (l) to read as follows: 

§ 52.377 Control strategy: Ozone. 

* * * * * 

(l) Approval—Revisions to the 

Connecticut State Implementation Plan 

(SIP) submitted on December 8, 2006. 

The SIP revision satisfies the 

requirement to implement reasonably 

available control technology (RACT) for 

sources of volatile organic compounds 

(VOC) and oxides of nitrogen (NOX) for 

purposes of the 1997 8-hour ozone 

standard. Specifically, the following 

sections of the Regulations of 

Connecticut State Agencies are 

approved for this purpose: For VOC 

RACT, 22a–174–20, Control of Organic 

Compound Emissions, 22a–174–30, 

Dispensing of Gasoline/Stage I and 

Stage II Vapor Recovery, and 22a–174– 

32, RACT for Organic Compounds; for 

NOX RACT, 22a–174–22, Control of 

Nitrogen Oxide Emissions, and 22a– 

174–38, Municipal Waste Combustors. 

[FR Doc. 2013–15299 Filed 6–26–13; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 122 

[EPA–HQ–OW–2003–0063; FRL–9829–2] 

RIN 2040–AF47 

National Pollutant Discharge 

Elimination System Regulation 

Revision: Removal of the Pesticide 

Discharge Permitting Exemption in 

Response to Sixth Circuit Court of 

Appeals Decision 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The EPA is amending its 

regulations to remove language added 

by the EPA’s 2006 NPDES Pesticides 

Rule which exempted the application of 

pesticides from National Pollutant 

Discharge Elimination System (NPDES) 

permit requirements in two 

circumstances: When the application of 

the pesticide is made directly to waters 

of the United States to control pests that 

are present in the water, and when the 

application of the pesticide is made to 

control pests that are over, including 

near, waters of the United States. This 

rulemaking is in response to the 2009 

Sixth Circuit Court of Appeals ruling 

that vacated the EPA’s 2006 NPDES 

Pesticides Rule. 

DATES: This final rule is effective on 

June 27, 2013. 

ADDRESSES: The record for this 

rulemaking is available for inspection 

and copying at the Water Docket, 

located at the EPA Docket Center (EPA/ 

DC), EPA West 1301 Constitution 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–2003– 

0063. The rule and key supporting 

documents are also available 

electronically on the Internet at http:// 

www.epa.gov/npdes/pesticides. 

FOR FURTHER INFORMATION CONTACT: For 

further information contact Prasad 

Chumble, Water Permits Division, 

Office of Wastewater Management 

(4203M), Environmental Protection 

Agency, 1200 Pennsylvania Ave. NW., 

Washington, DC 20460, telephone 

number: (202) 564–0021, email address: 

chumble.prasad@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 


TKELLEY on DSK3SPTVN1PROD with RULES
38592 Federal Register / Vol. 78, No. 124 / Thursday, June 27, 2013 / Rules and Regulations 

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 may be of interest to you 

if you apply pesticides to or over, 

including near, waters of the United 

States. Potentially affected entities, as 

categorized in the North American 

Industry Classification System (NAICS), 

may include, but are not limited to: 

TABLE 1—ENTITIES POTENTIALLY REGULATED BY THIS RULE

Category NAICS Examples of potentially 

affected entities 

Agriculture parties—General agricultural interests, farmers/producers, forestry, and irrigation.111 Crop Production ..................................... Producers of crops mainly for food and fiber 

including farms, orchards, groves, greenhouses, and nurseries that have irrigation 

ditches requiring pest control. 

113110 Timber Tract Operations .................. The operation of timber tracts for the purpose 

of selling standing timber. 

113210 Forest Nurseries Gathering of Forest Products.Growing trees for reforestation and/or gathering forest products, such as gums, barks, 

balsam needles, rhizomes, fibers, Spanish 

moss, ginseng, and truffles. 

221310 Water Supply for Irrigation ............... Operating irrigation systems. 

Pesticide parties (includes pesticide manufacturers, other pesticide users/interests, and 

consultants).

325320 Pesticide and Other Agricultural 

Chemical Manufacturing.

Formulation and preparation of agricultural 

pest control chemicals. 

Public health parties (includes mosquito or 

other vector control districts and commercial 

applicators that service these).

923120 Administration of Public Health Programs.Government establishments primarily engaged in the planning, administration, and 

coordination of public health programs and 

services, including environmental health activities. 

Resource management parties (includes State 

departments of fish and wildlife, State departments of pesticide regulation, State environmental agencies, and universities).

924110 Administration of Air and Water Resource and Solid Waste Management Programs.Government establishments primarily engaged in the administration, regulation, and 

enforcement of air and water resource programs; the administration and regulation of 

water and air pollution control and prevention programs; the administration and regulation of flood control programs; the administration and regulation of drainage development and water resource consumption programs; and coordination of these activities 

at intergovernmental levels. 

924120 Administration of Conservation Programs.Government establishments primarily engaged in the administration, regulation, supervision and control of land use, including 

recreational areas; conservation and preservation of natural resources; erosion control; geological survey program administration; weather forecasting program administration; and the administration and protection of publicly and privately owned forest 

lands. Government establishments responsible for planning, management, regulation 

and conservation of game, fish, and wildlife 

populations, including wildlife management 

areas and field stations; and other administrative matters relating to the protection of 

fish, game, and wildlife are included in this 

industry. 

Utility parties (includes utilities) .......................... 221 Utilities .................................................... Provide electric power, natural gas, steam 

supply, water supply, and sewage removal 

through a permanent infrastructure of lines, 

mains, and pipes. 


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Federal Register / Vol. 78, No. 124 / Thursday, June 27, 2013 / Rules and Regulations 38593 

II. Background and Rationale for 

Action 

On November 27, 2006, the EPA 

issued a final rule, Application of 

Pesticides to Waters of the United States 

in Compliance with FIFRA (71 FR 

68483) (‘‘2006 NPDES Pesticides Rule’’), 

which promulgated 40 CFR 122.3(h). 

Section 122.3(h) specified two 

circumstances in which an NPDES 

permit would not be required for the 

application of pesticides to waters of the 

United States. They were: (1) the 

application of pesticides directly to 

waters of the United States to control 

pests; and (2) the application of 

pesticides to control pests that are 

present over waters of the United States, 

including near such waters, where a 

portion of the pesticides will 

unavoidably be deposited to waters of 

the United States to target the pests 

effectively; provided that the 

application is consistent with relevant 

Federal Insecticide, Fungicide and 

Rodenticide Act (FIFRA) requirements. 

On January 19, 2007, petitions for 

review of the 2006 NPDES Pesticides 

Rule were filed in eleven federal circuit 

courts of appeals by industry and 

environmental groups. Petitions were 

consolidated and assigned to the Sixth 

Circuit Court of Appeals. On January 7, 

2009, the Sixth Circuit Court concluded 

the EPA’s 2006 NPDES Pesticides Rule 

was inconsistent with the Clean Water 

Act. Nat’ Cotton Council of Am. v. EPA, 

553 F.3d 927 (6th Cir. 2009). On January 

17, 2012 the court issued a mandate 

vacating the Rule. 

Today’s action removes 40 CFR 

122.3(h) from the Code of Federal 

Regulations (CFR), in accordance with 

the vacatur of that section by the Court. 

The EPA is not providing an 

opportunity for comment on this final 

rule. Under the Administrative 

Procedure Act of 1946 (APA) an agency 

may issue a final rulemaking without 

providing notice and an opportunity for 

public comment 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 public notice and 

comment procedures are impracticable, 

unnecessary, or contrary to the public 

interest. See 5 U.S.C. 553(b)(3)(B). 

The EPA finds that notice and an 

opportunity for public comment are 

unnecessary for today’s action. This 

action is ministerial because the Sixth 

Circuit Court vacated the 2006 NPDES 

Pesticides Rule effective January 17, 

2012. The EPA has no discretion in 

taking this action. Based on the Court’s 

decision, the 2006 NPDES Pesticides 

Rule is no longer effective. Therefore, 

the EPA is removing the Rule from the 

CFR to conform to the Court’s decision. 

Providing an opportunity for notice and 

comment is therefore unnecessary. The 

EPA finds that this constitutes good 

cause under 5 U.S.C. 553(b)(3)(B). 

III. Implementation 

The EPA has determined that good 

cause exists to waive the requirement 

under 5 U.S.C. 553(d) that a substantive 

rule’s effective date be not less than 30 

days after the publication of the rule. 

The APA authorizes exceptions to 5 

U.S.C. 553(d) for substantive rules that 

grant or recognize an exemption or 

relieve a restriction; interpretative rules 

and statements of policy; and as 

otherwise provided by the agency for 

good cause found and published with 

the rule. The 2006 NPDES Pesticides 

Rule was vacated by the Sixth Circuit 

Court effective January 17, 2012. This 

rule only amends the CFR to reflect the 

Court’s order. It does not impose any 

requirements or alter the status quo in 

any way, and regulated parties will not 

need to adjust their behavior in 

response to this rule. The EPA finds that 

this constitutes good cause to waive the 

requirement that a rule be published not 

less than 30 days before its effective 

date pursuant to 5 U.S.C. 553(d)(3). 

Therefore, this final rule is effective on 

June 27, 2013. 

IV. Statutory and Executive Order 

Reviews 

A. Executive Order 12866 (Regulatory 

Planning 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 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 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). The Agency 

believes this action does not impose a 

burden because it only removes the 

2006 NPDES Pesticides Rule from the 

CFR. 

C. Regulatory Flexibility Act 

Today’s action 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. This rule is 

not subject to notice and comment 

requirements under the APA or any 

other statute because although the rule 

is subject to the APA, it does not impose 

any requirements or alter the status quo 

in any way, and regulated parties will 

not need to adjust their behavior in 

response to this rule. Therefore, the 

Agency has invoked the ‘‘good cause’’ 

exemption to the notice and comment 

requirement under 5 USC 553(b). 

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. 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 (64 FR 43255, 

August 10, 1999), because the action 

removes the 2006 NPDES Pesticides 

Rule from the CFR, which has already 

been vacated by the Sixth Circuit Court. 

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’’ (65 FR 

67249, 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 action does not have 

tribal implications, as specified in 

Executive Order 13175 (65 FR 67249, 

November 9, 2000). It imposes no 


TKELLEY on DSK3SPTVN1PROD with RULES
38594 Federal Register / Vol. 78, No. 124 / Thursday, June 27, 2013 / Rules and Regulations 

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. 

G. Executive Order 13045 (Protection of 

Children From Environmental Health 

and Safety Risks) 

This 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, and because the Agency 

does not believe the environmental 

health 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 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 action 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 

final rule 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. This action merely 

removes the 2006 NPDES Pesticides 

Rule from the CFR which was vacated 

by the U.S. Court of Appeals. 

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, the EPA 

has made such a good cause finding, 

including the reasons therefore, and 

established an effective date of June 27, 

2013. The 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: June 21, 2013. 

Bob Perciasepe, 

Acting 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. 

§ 122.3 [Amended] 

■ 2. Section 122.3 is amended by 

removing and reserving paragraph (h). 

[FR Doc. 2013–15445 Filed 6–26–13; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Medicare & Medicaid 

Services 

42 CFR Part 483 

[CMS–3140–F] 

RIN 0938–AP32 

Medicare and Medicaid Programs; 

Requirements for Long Term Care 

Facilities; Hospice Services 

AGENCY: Centers for Medicare & 

Medicaid Services (CMS), HHS. 

ACTION: Final rule. 

SUMMARY: This final rule will revise the 

requirements that an institution will 

have to meet in order to qualify to 

participate as a skilled nursing facility 

(SNF) in the Medicare program, or as a 

nursing facility (NF) in the Medicaid 

program. These requirements will 

ensure that long-term care (LTC) 

facilities (that is, SNFs and NFs) that 

choose to arrange for the provision of 

hospice care through an agreement with 

one or more Medicare-certified hospice 

providers will have in place a written 

agreement with the hospice that 

specifies the roles and responsibilities 

of each entity. This final rule reflects the 

Centers for Medicare and Medicaid 

Services’ (CMS’) commitment to the 

principles of the President’s Executive 

Order 13563, released on January 18, 

2011, titled ‘‘Improving Regulation and 

Regulatory Review.’’ It will improve 

quality and consistency of care between 

hospices and LTC facilities in the 

provision of hospice care to LTC 

residents. 


TKELLEY on DSK3SPTVN1PROD with RULES