Federal Register / Vol. 74, No. 63 / Friday, April 3, 2009 / Notices 15269 

1EPA’s current guidance, entitled Final Guidance 

for EPA Rulewriters: Regulatory Flexibility Act as 

Amended by the Small Business Regulatory 

Enforcement and Fairness Act, was issued in 

November 2006 and is available on EPA’s Web site: 

http://www.epa.gov/sbrefa/documents/ 

rfafinalguidance06.pdf. After considering the 

Guidance and the purpose of CWA general permits, 

EPA concludes that general permits affecting less 

than 100 small entities do not have a significant 

economic impact on a substantial number of small 

entities. 

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 the general 

permit needed to comply with the 

applicable legal requirements for the 

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

Home Builders v. US 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 of a ‘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 

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 that 

the Agency will operate in accordance 

with the RFA’s framework and 

requirements during the Agency’s 

issuance of CWA general permits (in 

other words, the Agency commits 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). In satisfaction of this 

commitment, during the course of this 

general offshore oil and gas exploration, 

development and production operations 

permit proceeding, the Agency 

conducted the analysis and made the 

appropriate determinations that are 

called for by the RFA. In addition, and 

in satisfaction of the Agency’s 

commitment, EPA will apply the RFA’s 

framework and requirements in any 

future issuance of other NPDES general 

permits. EPA anticipates that for most 

general permits the Agency will be able 

to conclude that there is not a 

significant economic impact on a 

substantial number of small entities. In 

such cases, the requirements of the RFA 

framework are fulfilled by including a 

statement to this effect in the permit fact 

sheet, along with a statement providing 

the factual basis for the conclusion. A 

quantitative analysis of impacts would 

only be required for permits that may 

affect a substantial number of small 

entities, consistent with EPA guidance 

regarding RFA certification.1

G. Analysis of Economic Impacts of 

the General Permit for Offshore Oil and 

Gas Exploration, Development and 

Production Operations off Southern 

California. EPA determined, in 

consideration of the discussion in 

Section F above, the issuance of the 

general permit for offshore oil and gas 

exploration, development and 

production operations off Southern 

California would not have a significant 

economic impact on a substantial 

number of small entities. There are only 

22 offshore platforms which could be 

affected by the proposed general permit 

modification. EPA concludes since this 

general permit affects less than 100 

small entities, EPA believes it does not 

have a significant economic impact on 

a substantial number of small entities. 

Accordingly, EPA concludes a 

quantitative analysis of impacts is not 

required for this permit. 

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

1251 et seq. 

Dated: March 12, 2009. 

Alexis Strauss, 

Director, Water Division, Region 9. 

[FR Doc. E9–6840 Filed 4–2–09; 8:45 am] 

BILLING CODE 6560–50–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

Notice of Public Information 

Collection(s) Being Reviewed by the 

Federal Communications Commission 

for Extension Under Delegated 

Authority, Comments Requested 

March 30, 2009. 

SUMMARY: The Federal Communications 

Commission, as part of its continuing 

effort to reduce paperwork burden 


sroberts on PROD1PC70 with NOTICES
15270 Federal Register / Vol. 74, No. 63 / Friday, April 3, 2009 / Notices 

invites the general public and other 

Federal agencies to take this 

opportunity to comment on the 

following information collection(s), as 

required by the Paperwork Reduction 

Act of 1995, 44 U.S.C. 3501–3520. An 

agency may not conduct or sponsor a 

collection of information unless it 

displays a currently valid control 

number. No person shall be subject to 

any penalty for failing to comply with 

a collection of information subject to the 

Paperwork Reduction Act (PRA) that 

does not display a valid control number. 

Comments are requested concerning (a) 

whether the proposed collection of 

information is necessary for the proper 

performance of the functions of the 

Commission, including whether the 

information shall have practical utility; 

(b) the accuracy of the Commission’s 

burden estimate; (c) ways to enhance 

the quality, utility, and clarity of the 

information collected; and (d) ways to 

minimize the burden of the collection of 

information on the respondents, 

including the use of automated 

collection techniques or other forms of 

information technology. 

DATES: Persons wishing to comment on 

this information collection should 

submit comments June 2, 2009. If you 

anticipate that you will be submitting 

comments, but find it difficult to do so 

within the period of time allowed by 

this notice, you should advise the 

contact listed below as soon as possible. 

ADDRESSES: Direct all PRA comments to 

Nicholas A. Fraser, Office of 

Management and Budget (OMB), (202) 

395–5887, or via fax at 202–395–5167, 

or via the Internet at 

Nicholas_A._Fraser@omb.eop.gov and 

to Judith-B.Herman@fcc.gov, Federal 

Communications Commission (FCC). To 

submit your comments by e-mail send 

them to: PRA@fcc.gov. 

To view a copy of this information 

collection request (ICR) submitted to 

OMB: (1) Go to the Web page http:// 

www.reginfo.gov/public/do/PRAMain, 

(2) look for the section of the Web page 

called ‘‘Currently Under Review’’, (3) 

click the downward-pointing arrow in 

the ‘‘Select Agency’’ box below the 

‘‘Currently Under Review’’ heading, (4) 

select ‘‘Federal Communications 

Commission’’ from the list of agencies 

presented in the ‘‘Select Agency’’ box, 

(5) click the ‘‘Submit’’ button to the 

right of the ‘‘Select Agency’’ box and (6) 

when the list of FCC ICRs currently 

under review appears, look for the title 

of this ICR (or its OMB Control Number, 

if there is one) and then click on the ICR 

Reference Number to view detailed 

information about this ICR. 

FOR FURTHER INFORMATION CONTACT: For 

additional information, send an e-mail 

to Judith B. Herman at 202–418–0214. 

SUPPLEMENTARY INFORMATION: 

OMB Control Number: 3060–0690. 

Title: Section 101.17, Performance 

Requirements for the 38.6–40.0 GHz 

Frequency Band. 

Form No.: N/A. 

Type of Review: Extension of a 

currently approved collection. 

Respondents: Business or other forprofit; not-for-profit institutions; Federal 

Government; and State, local or tribal 

government. 

Number of Respondents: 67 

respondents; 975 responses. 

Estimated Time per Response: 2 

hours. 

Frequency of Response: Reporting 

requirement at the end of the 10-year 

license term. 

Obligation to Respond: Required to 

obtain or retain benefits. Statutory 

authority for these information 

collections are contained in 47 U.S.C. 

4(i), 303(c), 303(g), 303(r), and 309(j) of 

the Communications Act of 1934, as 

amended. 

Total Annual Burden: 1,950 hours. 

Total Annual Cost: $260,000. 

Privacy Act Impact Assessment: N/A. 

Nature and Extent of Confidentiality: 

There may be a need for confidentiality. 

Applicants may request confidentiality 

and request confidential treatment in 

connection with their substantial 

service showings, pursuant to 47 CFR 

0.459 of the Commission’s rules. 

Needs and Uses: The Commission 

will submit this information collection 

to the Office of Management and Budget 

(OMB) after this 60 day comment period 

in order to obtain the full three year 

clearance from them. The Commission 

is requesting an extension (no change in 

the reporting requirement) of this 

information collection. The Commission 

is reporting a change in the estimated 

number of respondents/responses, 

burden hours and annual costs. The 

Commission is adjusting the total 

annual burden estimate by +1,590 

hours. This adjustment reflects the 

revised respondent and responses 

estimates based on updated licensing 

data and the increase number of licenses 

that will be due for renewal in the next 

three years. The Commission is also 

adjusting the estimated annual cost 

burden by an increase of $208,000 

which is due to an increase in the 

number of responses; and is also due to 

the estimated number of respondents 

(licensees) using outside consultants to 

discuss and prepare the information. 

Section 101.17 requires that all 38.6– 

40.0 GHz band licensees demonstrate 

substantial service at the time of license 

renewal (at the end of the ten year 

license term). A licensee’s substantial 

service showing should include, but not 

limited to, the following information for 

each channel for which the hold a 

license, in each Economic Area (EA) or 

portion of the EA covered by their 

license, in order to qualify for renewal 

of that license. The information is used 

by Commission staff to satisfy 

requirements for licensees to 

demonstrate substantial service at the 

time of license renewal. Without this 

information, the Commission not be 

able to carry out its statutory 

responsibilities. Also the information is 

used by the Commission to determine 

whether the licensee is providing 

service which rises to the level of 

‘‘substantial’’ requires the following 

information: 

(1) A description of the 38.6–40.0 GHz 

band licensee’s current service in terms 

of geographic coverage; 

(2) A description of the licensee’s 

current service in terms of population 

served, as well as any additional service 

provided during the license term; and 

(3) A description of the licensee’s 

investment in its system(s) (type of 

facilities constructed and their 

operational status is required. 

Any licensees adjudged not to be 

providing substantial service will not 

have their license renewed. 

Federal Communications Commission. 

Marlene H. Dortch, 

Secretary. 

[FR Doc. E9–7519 Filed 4–2–09; 8:45 am] 

BILLING CODE 6712–01–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

Notice of Public Information 

Collection(s) Being Submitted for 

Review to the Office of Management 

and Budget 

March 27, 2009. 

SUMMARY: The Federal Communications 

Commission, as part of its continuing 

effort to reduce paperwork burden 

invites the general public and other 

Federal agencies to take this 

opportunity to comment on the 

following information collection(s), as 

required by the Paperwork Reduction 

Act (PRA) of 1995, 44 U.S.C. 3501— 

3520. An agency may not conduct or 

sponsor a collection of information 

unless it displays a currently valid 

control number. No person shall be 

subject to any penalty for failing to 

comply with a collection of information 

subject to the Paperwork Reduction Act 

(PRA) that does not display a valid 


sroberts on PROD1PC70 with NOTICES