Federal Register / Vol. 74, No. 56 / Wednesday, March 25, 2009 / Notices 12849 

section, if any State determines that the 

protection and enhancement of the 

quality of some or all of the waters 

within such State require greater 

environmental protection, such State 

may completely prohibit the discharge 

from all vessels of any sewage, whether 

treated or not, into such waters, except 

that no such prohibition shall apply 

until the Administrator determines that 

adequate facilities for the safe and 

sanitary removal and treatment of 

sewage from all vessels are reasonably 

available for such water to which such 

prohibition would apply. 

This Notice of Determination is for 

the waters of Boothbay Harbor. The 

NDA boundaries are as follows: 

Waterbody/general area Longitude Latitude 

From the USCG navigational buoy green bell ‘‘1C’’ off the light station ‘‘The 

Cuckholds’’ north to ‘‘Cape Newagen’’.

69°39′38.57′′ W .................. 43°47′8.75′′ N 

North to ‘‘Cameron Point’’ on the northwest end of ‘‘Townsend Gut’’ .......................... 69°40′5.32′′ W .................... 43°51′4.21′′ N 

North to the southern tip of ‘‘Indiantown Island’’ ........................................................... 69°40′4.75′′ W .................... 43°51′19.4′′ N 

North to the northern end of ‘‘Indiantown Island’’ ......................................................... 69°40′3.45′′ W .................... 43°51′57.73′′ N 

East to the head of navigation of unnamed stream ...................................................... 69°38′9.31′′ W .................... 43°51′17.33′′ N 

East to the head of navigation of unnamed stream ...................................................... 69°37′24.62′′ W .................. 43°51′8.04′′ N 

East to the head of navigation of unnamed stream ...................................................... 69°36′50.93′′ W .................. 43°51′4.99′′ N 

East to the northern end of ‘‘Linekin Bay’’ .................................................................... 69°35′26.86′′ W .................. 43°51′42.94′′ N 

South to the western point of ‘‘Ocean Point’’ ................................................................ 69°36′16.39′′ W .................. 43°48′50.14′′ N 

Southwest in a straight line to USCG navigational buoy green bell ‘‘1C’’ off the light 

station ‘‘The Cuckholds’’.

69°39′0.09′′ W .................... 43°46′22.55′′ N 

The proposed NDA includes the 

municipal waters of Boothbay Harbor. 

The information submitted to EPA by 

the state of Maine certifies that there are 

six pumpout facilities located within 

this area. A list of the facilities, with 

phone numbers, locations, and hours of 

operation is appended at the end of this 

determination. 

Based on the examination of the 

petition, and its supporting 

documentation, EPA has determined 

that adequate facilities for the safe and 

sanitary removal and treatment of 

sewage from all vessels are reasonably 

available for the area covered under this 

determination. 

This determination is made pursuant 

to Section 312(f)(3) of Public Law 92– 

500, as amended by Public laws 95–217 

and 100–4. 

PUMPOUT FACILITIES WITHIN PROPOSED NO DISCHARGE AREA—BOOTHBAY HARBOR

Name Location Contact info. Hours Mean low water depth 

Harbormaster ........................................ Boothbay Harbor .......... 207–633–3671 VHF 16 6 a.m.–8 p.m. ............... N/A. 

Carousel Marina .................................... Boothbay Harbor .......... 207–633–2922 VHF 9 .. 8 a.m.–5 p.m., 7days ... 10 ft . 

Brown’s Wharf ....................................... Boothbay Harbor .......... 207–633–5440 VHF 9 .. 8 a.m.–5 p.m., 7 days .. 15 ft. 

Cap’n Fish’s Marina .............................. Boothbay Harbor .......... 207–633–3244 VHF 9 .. 8 a.m.–5 p.m., 7 days .. 15 ft. 

Tugboat Inn and Marina ........................ Boothbay Harbor .......... 207–633–4434 VHF 9 .. 10 a.m.–2 p.m., 7 days 8 ft. 

Signal Point Marina ............................... Boothbay Harbor .......... 207–633–6920 ............. 24/7 Self Service .......... 8 ft. 

Dated: March 5, 2009. 

Ira W. Leighton, 

Acting Regional Administrator, New England 

Region. 

[FR Doc. E9–6665 Filed 3–24–09; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[FRL–8780–6] 

Draft National Pollutant Discharge 

Elimination System (NPDES) General 

Permit for Discharges From Horse, 

Cattle and Dairy Cows, Swine, Poultry, 

and Veal Calf Concentrated Animal 

Feeding Operations (CAFOs) in 

Oklahoma (Except Indian Country) 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice of proposed permit 

issuance. 

SUMMARY: EPA Region 6 Water Quality 

Protection Division, today is proposing 

for public comment the issuance of a 

National Pollutant Discharge 

Elimination System general permit for 

discharges from eligible owners/ 

operators of existing concentrated 

animal feeding operations (CAFOs), in 

Oklahoma, except those discharges on 

Indian Country. CAFOs discharging on 

Indian Country would be required to 

apply for an individual permit. 

All currently operating animal feeding 

operations that are defined as CAFOs or 

designated as CAFOs by the permitting 

authority (See Part VII Definitions, 

‘‘CAFOs’’) and that are subject to 40 

CFR Part 412, Subpart A (Horses), 

Subpart C (Dairy Cows and Cattle Other 

than Veal Calves), and Subpart D 

(Swine, Poultry, and Veal Calves) are 

eligible for coverage under this permit. 

Hereinafter, this NPDES general permit 

will be referred to as ‘‘permit’’ or 

‘‘CAFO permit’’ or ‘‘CAFO general 

permit.’’ Eligible CAFOs may apply for 

authorization under the terms and 

conditions of this permit, by submitting 

a notice of intent (NOI) to be covered by 

this permit. This permit covers animal 

feeding operations listed above which 

meet the definition of a CAFO and 

discharge or propose to discharge 

pollutants to waters of the United 

States. A CAFO proposes to discharge if 

it is designed, constructed, operated, or 

maintained such that a discharge will 

occur. 

To determine whether your facility is 

regulated by this action, you should 

carefully examine the definition of 

‘‘concentrated animal feeding 

operation’’ in existing EPA regulations 

at 40 CFR 122.23. (also found in Part VII 

of the draft permit). If you have 

questions regarding the applicability of 

this action to a particular entity, consult 

the person listed for technical 

information in the preceding FOR

FURTHER INFORMATION CONTACT section. 

This permit was originally issued in 

the Federal Register at 58 FR 7610 with 

an effective date of March 10, 1993, and 

an expiration date of March 10, 1998. 

Applicable requirements from that 1993 

permit are continued in the proposed 


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12850 Federal Register / Vol. 74, No. 56 / Wednesday, March 25, 2009 / Notices 

permit. The proposed permit adds 

additional requirements contained in 

revised CAFO regulations at 40 CFR 122 

and 412 which were published in the 

Federal Register at 73 FR 70,418 

(November 20, 2008). 

The permit adds new requirements 

relating to Nutrient Management Plans 

(NMPs) for permitted CAFOs. CAFO 

operators were required to develop and 

implement NMPs under the 2003 rule; 

the 2008 rule requires CAFOs to submit 

the NMPs along with their notice of 

intent (NOI). EPA Region 6 as the 

permitting authority will review the 

NMPs submitted along with the NOIs 

and will also establish the terms of the 

NMP that are enforceable elements of 

the permit. The region will provide the 

public with an opportunity for 

meaningful review and comment on the 

NMPs and the terms of the NMPs will 

be incorporated into the permit. 

DATES: Comments must be submitted in 

writing to EPA on or before April 24, 

2009. 

Proposed Documents: The proposed 

general permit and fact sheet which sets 

forth principal facts and the significant 

factual, legal, and policy questions 

considered in the development of the 

proposed general permit, may both be 

obtained via the Internet at http:// 

www.epa.gov/region6/water/npdes/ 

cafo/index.htm. To obtain hard copies 

of these documents or any other 

information in the administrative 

record, please contact Ms. Diane Smith 

using the contact information provided 

below. 

How Do I Comment on This Proposal? 

Comment Submittals: Submit your 

comments, by one of the following 

methods: 

• E-mail: smith.diane@epa.gov. 

• Mail: Ms. Diane Smith, 

Environmental Protection Agency, 

Water Quality Protection Division 

(6WQ–NP), 1445 Ross Ave., Suite 1200, 

Dallas, TX 75202. 

• Hand Delivery: EPA Region 6, 7th 

Floor Reception Desk, 1445 Ross Ave., 

Suite 1200, Dallas, TX 75202. Such 

deliveries are only accepted during 

normal business hours. 

For Technical Information Contact: 

Scott Stine, NPDES Permits and TMDL 

Branch (6WQ–PP), Environmental 

Protection Agency, 1445 Ross Ave., 

Suite 1200, Dallas, TX 75202; telephone 

number: (214) 665–7182; fax number: 

(214) 665–2191; e-mail address: 

stine.scott@epa.gov. 

Administrative Record: All 

documents and references used in the 

development of this permit are part of 

the Administrative Record for this 

permit. 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 materials are available either 

electronically or in hard copy from Ms. 

Diane Smith at the address above. The 

Administrative Record may also be 

viewed at the EPA Region 6 Offices from 

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

Friday, excluding legal holidays. For 

more information on scheduling a time 

to view the Record or to obtain copies 

of available documents, please contact 

Ms. Diane Smith at 214–665–2145 or 

smith.diane@epa.gov. 

Public Hearings 

EPA has not scheduled any public 

hearings to receive public comment 

concerning the proposed permit. All 

persons will continue to have the right 

to provide written comments during the 

public comment period. However, 

interested persons may request a public 

hearing pursuant to 40 CFR 124.12 

concerning the proposed permit. 

Requests for a public hearing must be 

sent or delivered in writing to the same 

address as provided above for public 

comments prior to the close of the 

comment period. Requests for a public 

hearing must state the nature of the 

issues proposed to be raised in the 

hearing. Pursuant to 40 CFR 124.12, 

EPA shall hold a public hearing if it 

finds, on the basis of requests, a 

significant degree of public interest in a 

public hearing on the proposed permit. 

If EPA decides to hold a public hearing, 

a public notice of the date, time and 

place of the hearing will be made at 

least 30 days prior to the hearing. Any 

person may provide written or oral 

statements and data pertaining to the 

proposed permit at the public hearing. 

III. Compliance With the Regulatory 

Flexibility Act 

EPA’s Approach to Compliance With 

the Regulatory Flexibility Act for 

General Permits 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. 

The legal question of whether a 

general permit (as opposed to an 

individual permit) qualifies as a ‘‘rule’’ 

or as an ‘‘adjudication’’ under the 

Administrative Procedure Act (APA) 

has been the subject of periodic 

litigation. In a recent case, the court 

held that the CWA Section 404 

Nationwide general permit before the 

court did qualify as a ‘‘rule’’ and 

therefore that the issuance of that 

general permit needed to comply with 

the applicable legal requirements for the 

issuance of a ‘‘rule.’’ National Ass’n of 

Home Builders v. U.S. Army Corps of 

Engineers, 417 F.3d 1272, 1284–85 (DC 

Cir.2005) (Army Corps general permits 

under Section 404 of the Clean Water 

Act are rules under the APA and the 

Regulatory Flexibility Act; ‘‘Each NWP 

[nationwide permit] easily fits within 

the APA’s definition ‘rule.’ * * * As 

such, each NWP constitutes a rule 

* * *’’). 

As EPA stated in 1998, ‘‘the Agency 

recognizes that the question of the 

applicability of the APA, and thus the 

RFA, to the issuance of a general permit 

is a difficult one, given the fact that a 

large number of dischargers may choose 

to use the general permit.’’ 63 FR 36489, 

36497 (July 6, 1998). At that time, EPA 

‘‘reviewed its previous NPDES general 

permitting actions and related 

statements in the Federal Register or 

elsewhere,’’ and stated that ‘‘[t]his 

review suggests that the Agency has 

generally treated NPDES general permits 

effectively as rules, though at times it 

has given contrary indications as to 

whether these actions are rules or 

permits.’’ Id. at 36496. Based on EPA’s 

further legal analysis of the issue, the 

Agency ‘‘concluded, as set forth in the 

proposal, that NPDES general permits 

are permits [i.e., adjudications] under 

the APA and thus not subject to APA 

rulemaking requirements or the RFA.’’ 

Id. Accordingly, the Agency stated that 

‘‘the APA’s rulemaking requirements are 

inapplicable to issuance of such 

permits,’’ and thus ‘‘NPDES permitting 

is not subject to the requirement to 

publish a general notice of proposed 

rulemaking under the APA or any other 

law * * * [and] it is not subject to the 

RFA.’’ Id. at 36497. 

However, the Agency went on to 

explain that, even though EPA had 

concluded that it was not legally 

required to do so, the Agency would 

voluntarily perform the RFA’s smallentity impact analysis. Id. EPA 

explained the strong public interest in 

the Agency following the RFA’s 

requirements on a voluntary basis: 

‘‘[The notice and comment] process also 

provides an opportunity for EPA to 

consider the potential impact of general 


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Federal Register / Vol. 74, No. 56 / Wednesday, March 25, 2009 / Notices 12851 

permit terms on small entities and how 

to craft the permit to avoid any undue 

burden on small entities.’’ Id. 

Accordingly, with respect to the NPDES 

permit that EPA was addressing in that 

Federal Register notice, EPA stated that 

‘‘the Agency has considered and 

addressed the potential impact of the 

general permit on small entities in a 

manner that would meet the 

requirements of the RFA if it applied.’’ 

Id. 

Subsequent to EPA’s conclusion in 

1998 that general permits are 

adjudications rather than rules, as noted 

above, the DC Circuit recently held that 

nationwide general permits under 

section 404 are ‘‘rules’’ rather than 

‘‘adjudications.’’ Thus, this legal 

question remains ‘‘a difficult one’’ 

(supra). However, EPA continues to 

believe that there is a strong public 

policy interest in EPA applying the 

RFA’s framework and requirements to 

the Agency’s evaluation and 

consideration of the nature and extent of 

any economic impacts that a CWA 

general permit could have on small 

entities (e.g., small businesses). In this 

regard, EPA believes that the Agency’s 

evaluation of the potential economic 

impact that a general permit would have 

on small entities, consistent with the 

RFA framework discussed below, is 

relevant to, and an essential component 

of, the Agency’s assessment of whether 

a CWA general permit would place 

requirements on dischargers that are 

appropriate and reasonable. 

Furthermore, EPA believes that the 

RFA’s framework and requirements 

provide the Agency with the best 

approach for the Agency’s evaluation of 

the economic impact of general permits 

on small entities. While using the RFA 

framework to inform its assessment of 

whether permit requirements are 

appropriate and reasonable, EPA will 

also continue to ensure that all permits 

satisfy the requirements of the Clean 

Water Act. Accordingly, EPA has 

committed to operating in accordance 

with the RFA’s framework and 

requirements during the Agency’s 

issuance of CWA general permits (in 

other words, the Agency has committed 

that it will apply the RFA in its issuance 

of general permits as if those permits do 

qualify as ‘‘rules’’ that are subject to the 

RFA). 

Authority: Clean Water Act, 33 U.S.C. 1251 

et seq. 

Dated: March 4, 2009. 

Miguel I. Flores, 

Director, Water Quality Protection Division, 

EPA Region 6. 

[FR Doc. E9–6673 Filed 3–24–09; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[EPA–HQ–OPP–2008–0893; FRL–8404–3] 

Fomesafen; Product Cancellation 

Order 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice. 

SUMMARY: This notice announces EPA’s 

order for the cancellation, voluntarily 

requested by the registrant and accepted 

by the Agency, of products containing 

the pesticide fomesafen, pursuant to 

section 6(f)(1) of the Federal Insecticide, 

Fungicide, and Rodenticide Act 

(FIFRA), as amended. This cancellation 

order follows a December 31, 2008 

Federal Register Notice of Receipt of 

Request from the fomesafen registrant to 

voluntarily cancel all their fomesafen 

product registrations. Fomesafen is a 

pre-plant, pre-emergence and postemergence herbicide used on soybeans, 

snap beans, dry beans, and cotton. It is 

also registered for use on agricultural 

fallow/idleland, nonagricultural 

uncultivated areas/soils, pine (forest/ 

shelterbelt) and pine (seed orchard). 

These are not the last fomesafen 

products registered for use in the United 

States. In the December 31, 2008 Notice, 

EPA indicated that it would issue an 

order implementing the cancellations, 

unless the Agency received substantive 

comments within the 30–day comment 

period that would merit its further 

review of these requests, or unless the 

registrant withdrew their request within 

this period. The Agency did not receive 

any comments on the notice. Further, 

the registrant did not withdraw their 

request. Accordingly, EPA hereby issues 

in this notice a cancellation order 

granting the requested cancellations. 

Any distribution, sale, or use of the 

fomesafen products subject to this 

cancellation order is permitted only in 

accordance with the terms of this order, 

including any existing stocks 

provisions. 

DATES: The cancellations are effective 

March 25, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Wilhelmena Livingston, Special Review 

and Reregistration Division (7508P), 

Office of Pesticide Programs, 

Environmental Protection Agency, 1200 

Pennsylvania Ave., NW., Washington, 

DC 20460–0001; telephone number: 

(703) 308–8025; fax number: (703) 308– 

8005; e-mail address: 

livingston.wilhelmena@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this Action Apply to Me? 

This action is directed to the public 

in general, and may be of interest to a 

wide range of stakeholders including 

environmental, human health, and 

agricultural advocates; the chemical 

industry; pesticide users; and members 

of the public interested in the sale, 

distribution, or use of pesticides. Since 

others also may be interested, the 

Agency has not attempted to describe all 

the specific entities that may be affected 

by this action. If you have any questions 

regarding the applicability of this action 

to a particular entity, consult the person 

listed under FOR FURTHER INFORMATION

CONTACT. 

B. How Can I Get Copies of this 

Document and Other Related 

Information? 

1. Docket. EPA has established a 

docket for this action under docket 

identification (ID) number EPA–HQ– 

OPP–2008–0893. Publicly available 

docket materials are available either in 

the electronic docket at http:// 

www.regulations.gov, or, if only 

available in hard copy, at the Office of 

Pesticide Programs (OPP) Regulatory 

Public Docket in Rm. S–4400, One 

Potomac Yard (South Bldg.), 2777 S. 

Crystal Dr., Arlington, VA. The hours of 

operation of this Docket Facility are 

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

through Friday, excluding legal 

holidays. The Docket Facility telephone 

number is (703) 305–5805. 

2. Electronic access. You may access 

this Federal Register document 

electronically through the EPA Internet 

under the ‘‘Federal Register’’ listings at 

http://www.epa.gov/fedrgstr. 

II. What Action is the Agency Taking? 

This notice announces the 

cancellation, as requested by the 

registrant, of products registered under 

section 3 of FIFRA. These registrations 

are listed in sequence by registration 

number in Table 1 of this unit. 

TABLE 1.—FOMESAFEN PRODUCT

CANCELLATIONS

EPA Registration Number Product Name 

7969–82 BAS 530 04 H Herbicide 

7969–83 FASTERTM Herbicide 

Table 2 of this unit includes the name 

and address of record for the registrant 

of the products in Table 1 of this unit, 

in sequence by EPA company number. 


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