52584 Federal Register / Vol. 73, No. 176 / Wednesday, September 10, 2008 / Rules and Regulations 

PART 210—FEDERAL GOVERNMENT 

PARTICIPATION IN THE AUTOMATED 

CLEARING HOUSE 

■ 1. The authority citation for part 210 

continues to read as follows: 

Authority: 5 U.S.C. 5525; 12 U.S.C. 391; 31 

U.S.C. 321, 3301, 3302, 3321, 3332, 3335, and 

3720. 

■ 2. In § 210.2, revise paragraph (d) to 

read as follows: 

§ 210.2 Definitions. 

* * * * * 

(d) Applicable ACH Rules means the 

ACH Rules with an effective date on or 

before September 21, 2007, as published 

in Parts II, III and VI of the ‘‘2007 ACH 

Rules: A Complete Guide to Rules & 

Regulations Governing the ACH 

Network’’ except: 

(1) ACH Rule 1.1 (limiting the 

applicability of the ACH Rules to 

members of an ACH association); 

(2) ACH Rule 1.2.2 (governing claims 

for compensation); 

(3) ACH Rules 1.2.4 and 2.2.1.12; 

Appendix Eight; and Appendix Eleven 

(governing the enforcement of the ACH 

Rules, including self-audit 

requirements); 

(4) ACH Rules 2.2.1.10; 2.6; and 4.8 

(governing the reclamation of benefit 

payments); 

(5) ACH Rule 9.3 and Appendix Two 

(requiring that a credit entry be 

originated no more than two banking 

days before the settlement date of the 

entry—see definition of ‘‘Effective Entry 

Date’’ in Appendix Two); 

(6) ACH Rule 2.11.2.3 (requiring that 

originating depository financial 

institutions (ODFIs) establish exposure 

limits for Originators of Internetinitiated debit entries); and 

(7) ACH Rule 2.13.3 (requiring 

reporting regarding unauthorized 

Telephone-initiated entries). 

* * * * * 

■ 3. In § 210.3, revise paragraph (b) to 

read as follows: 

§ 210.3 Governing law. 

* * * * * 

(b) Incorporation by reference— 

applicable ACH Rules. 

(1) This part incorporates by reference 

the applicable ACH Rules, including 

rule changes with an effective date on 

or before September 21, 2007, as 

published in Parts II, III, and VI of the 

‘‘2007 ACH Rules: A Complete Guide to 

Rules & Regulations Governing the ACH 

Network.’’ The Director of the Federal 

Register approves this incorporation by 

reference in accordance with 5 U.S.C. 

552(a) and 1 CFR part 51. Copies of the 

‘‘2007 ACH Rules’’ are available from 

NACHA—The Electronic Payments 

Association, 13450 Sunrise Valley 

Drive, Suite 100, Herndon, Virginia 

20171, http://www.nacha.org. Copies 

also are available for public inspection 

at the Financial Management Service, 

401 14th Street, SW., Room 400A, 

Washington, DC 20227, (202) 874–1251, 

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: http://www.archives.gov/ 

federal_register/ 

code_of_federal_regulations/ 

ibr_locations.html. 

(2) Any amendment to the applicable 

ACH Rules that is approved by 

NACHA—The Electronic Payments 

Association after January 1, 2007 shall 

not apply to Government entries unless 

the Service expressly accepts such 

amendment by obtaining approval of the 

amended incorporation by reference 

from the Director of the Federal Register 

and publishing an amendment to this 

part in the Federal Register. An 

amendment to the ACH Rules that is 

accepted by the Service and approved 

by the Director of the Federal Register 

for incorporation by reference shall 

apply to Government entries on the 

effective date specified by the Service in 

the Federal Register rulemaking 

expressly accepting such amendment. 

* * * * * 

■ 4. In § 210.5, redesignate paragraph 

(b)(3) as paragraph (b)(5), and add new 

paragraphs (b)(3) and (b)(4) to read as 

follows: 

§ 210.5 Account requirements for Federal 

payments. 

* * * * * 

(b)(3) Where an agency is issuing part 

or all of an employee’s travel 

reimbursement payment to the official 

travel card issuing bank, as authorized 

or required by Office of Management 

and Budget guidance or the Federal 

Travel Regulation, the ACH credit entry 

representing the payment may be 

deposited to the account of the travel 

card issuing bank for credit to the 

employee’s travel card account at the 

bank. 

(4) Where a Federal payment is to be 

disbursed through a debit card, stored 

value card, prepaid card or similar 

payment card program established by 

the Service, the Federal payment may be 

deposited to an account at a financial 

institution designated by the Service as 

a financial or fiscal agent. The account 

title, access terms and other account 

provisions may be specified by the 

Service. 

* * * * * 

■ 5. In § 210.6, revise paragraphs (g) and 

(h) to read as follows, and remove 

paragraph (i): 

§ 210.6 Agencies. 

* * * * * 

(g) Point-of-purchase debit entries. An 

agency may originate a Point-ofPurchase (POP) entry using a check 

drawn on a consumer or business 

account and presented at a point-ofpurchase unless the Receiver opts out in 

accordance with the ACH Rules. The 

requirements of ACH Rules 2.1.2 and 

3.12 shall be met for such an entry if the 

Receiver presents the check at a location 

where the agency has posted the notice 

required by the ACH Rules and has 

provided the Receiver with a copy of the 

notice. 

(h) Returned item service fee. An 

agency that has authority to collect 

returned item service fees may do so by 

originating an ACH debit entry to collect 

a one-time service fee in connection 

with an ARC, POP or BOC entry that is 

returned due to insufficient funds. An 

entry originated pursuant to this 

paragraph shall meet the requirements 

of ACH Rules 2.1.2 and 3.5 if the agency 

includes the following statement in the 

required notice(s) to the Receiver: ‘‘If 

the electronic fund transfer cannot be 

completed because there are insufficient 

funds in your account, we may impose 

a one-time fee of $ [llll] against 

your account, which we will also collect 

by electronic fund transfer.’’

Appendices A Through C to Part 210 

[Removed] 

■ 6. Remove Appendices A, B and C. 

Dated: August 27, 2008. 

Kenneth E. Carfine, 

Fiscal Assistant Secretary, Department of the 

Treasury. 

[FR Doc. E8–20575 Filed 9–9–08; 8:45 am] 

BILLING CODE 4810–35–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 35 

[EPA–HQ–OW–2006–0765; FRL–8712–7] 

RIN 2040–AE99 

NPDES Voluntary Permit Fee Incentive 

for Clean Water Act Section 106 

Grants; Allotment Formula 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: This final rule revises the 

allotment formula contained in EPA’s 

Clean Water Act (CWA) Section 106 


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1CWA Sections 106 and 518 authorize EPA to 

award such grants to eligible Indian Tribes, but this 

rule does not affect those grants. 

Water Pollution Control grant 

regulations to include a financial 

incentive for States to voluntarily 

collect adequate National Pollutant 

Discharge Elimination System (NPDES) 

permit fees. EPA is amending its 

existing CWA Section 106 grant 

allotment. This amendment provides 

the Agency with the flexibility to 

annually allot separately an amount up 

to three percent of the FY 2008 base 

funds allocated to States from CWA 

Section 106 grants appropriated by 

Congress. This rule will begin in FY 

2009. The incentive will not impact the 

FY 2008 base funds. It will be set-aside 

for allotment only if funds allotted to 

the States are greater than the amount 

allotted in FY 2008. 

DATES: This rule is effective on 

September 10, 2008. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–OW–2006–0765. All 

documents in the docket are listed in 

the 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, is publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically through 

www.regulations.gov or in hard copy at 

the Water Docket, EPA/DC, EPA West, 

Room 3334, 1301 Constitution Ave., 

NW., Washington, DC. 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, and the telephone 

number for the Water Docket is (202) 

566–2426. 

FOR FURTHER INFORMATION CONTACT: 

Robyn Delehanty, Office of Water, 

Office of Wastewater Management, 

4201M, U.S. Environmental Protection 

Agency, 1200 Pennsylvania Avenue, 

NW., Washington, DC 20460; telephone 

number: (202) 564–3880; fax number: 

(202) 501–2346; e-mail address: 

delehanty.robyn@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

Affected Entities: State Agencies that 

are eligible to receive grants under 

Section 106 of the Clean Water Act 

(CWA). 

II. Background 

Section 106 of the CWA authorizes 

the EPA to provide grants to State and 

interstate agencies 1 to administer 

programs for the prevention, reduction, 

and elimination of water pollution, 

including the development and 

implementation of groundwater 

protection strategies. Section 106(b) of 

the CWA directs the EPA Administrator 

to make allotments ‘‘in accordance with 

regulations promulgated by him on the 

basis of the extent of the pollution 

problem in the respective States.’’ EPA’s 

regulations implementing Section 106 

can be found at 40 CFR 35.160 et seq. 

EPA’s current allotment formula for 

Section 106 grants includes an 

allotment ratio for each State based on 

six components selected to reflect the 

extent of the water pollution problem in 

the respective States. These six 

components are surface water area, 

ground water use, water quality 

impairment, potential point sources, 

nonpoint sources, and the population of 

urbanized areas. 40 CFR 35.162(b)(1)(i). 

By including a component related to 

point sources, EPA recognizes the 

important role they play in determining 

the extent of pollution in a State. 

EPA proposed this rule amending the 

CWA Section 106 allotment formula on 

January 4, 2007 (72 FR 293) and 

requested comments from interested 

parties. EPA received 717 comments on 

the proposed rule. A summary of the 

significant public comments and the 

Agency’s responses are included in this 

preamble in Section III below. This 

preamble also summarizes the two 

changes to the final rule which EPA 

determined necessary. These changes 

involve delaying implementation of this 

rule until FY 2009 and changing the 

base fiscal year which the Agency will 

use to determine if an allotment for this 

purpose should be made. EPA’s 

responses to all comments received on 

this rulemaking are included in the 

docket described above. 

This final rule amends the State 

allotment formula to incorporate 

financial incentives for States to 

implement adequate NPDES fee 

programs. The Agency recognizes the 

importance of States’ flexibility in 

program management. Therefore, this 

final rule is purely an incentive; it is 

voluntary and will not impact State’s 

base funds. This rule will only be 

invoked if there is an increase above the 

FY 2008 level in the total amount of 

funds allotted to States under 40 CFR 

35.162(b). 

The Clean Water Act prohibits the 

discharge of any pollutant from point 

sources except in compliance with other 

provisions of the statute. 33 U.S.C. 

1311(a). One of these provisions is CWA 

Section 402, under which pollutant 

discharges can be authorized by an 

NPDES permit. 33 U.S.C. 1342(a). EPA 

oversees the NPDES program and also 

approves applications from States to 

administer and enforce the NPDES 

program in those States. Currently, 45 

States are authorized by EPA to 

administer all or some parts of the 

NPDES program. 

State water quality programs are 

funded with a mixture of State and 

federal dollars. The growing complexity 

of water quality issues has prompted 

more States to implement NPDES 

permit fee programs. An estimated 41 

States currently have permit fee 

programs in place, with such fees 

paying for all or a portion of the cost of 

the State’s permit program. 

A number of States still operate their 

permit programs with little or no 

reliance on permit fees. States can 

address permit program budget 

shortfalls through the implementation of 

permit fee programs that collect funds to 

cover the cost of issuing and 

administering permits. Funding permit 

programs with the support of permit 

fees allows States to use CWA Section 

106 funds for other critical water quality 

programs, which address the 

prevention, reduction, and elimination 

of water pollution. 

EPA is committed to making State 

surface water protection programs more 

sustainable through better resource 

management. As State agencies carry 

out most of the day-to-day aspects of 

water quality functions, their 

responsibilities are expanding while 

they are simultaneously facing 

increasingly severe funding constraints. 

As a nation, billions of federal funds 

under the Water Pollution Control 

grants, together with State resources, 

have been spent to establish and 

maintain adequate measures for the 

prevention and control of surface and 

groundwater resources. Federal and 

State governments cannot carry out this 

responsibility alone. EPA is committed 

to finding effective and efficient 

solutions to maintaining sustainable 

State water pollution control programs 

that continue to provide this nation 

with clean and protected water. All 

levels of government and the private 

sector must share in this commitment. 

The purpose of this rule is to 

encourage States to voluntarily collect 

NPDES permit fees adequate to meet 

their program costs. This amendment to 

the allotment formula is designed to 

provide an incentive for States to 

voluntarily move toward greater 

sustainability in the way they manage 


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and budget for environmental programs 

and to shift part of the financial burden 

to those who benefit from NPDES 

permits. No State is required to collect 

permit fees under this rule. To ensure 

that no States receive a reduction from 

their current allotment amount, no 

funds will be set aside for this permit 

fee incentive unless funds designated 

for distribution in FY 2009 and 

subsequent fiscal years under 40 CFR 

35.162(b) are greater than $171 million, 

which is the amount of funds set aside 

under 40 CFR 35.162(b) in FY 2008. If 

40 CFR 35.162(b) funds in FY 2009 or 

later fiscal years are not greater than 

$171 million, then EPA will not be able 

to invoke the permit incentive. This rule 

is intended to increase overall available 

funding for CWA 106 eligible activities. 

The amount of any permit fee 

incentive allotment set-aside would be 

limited to three percent of the funds 

allotted under 40 CFR 35.162(b) in FY 

2008, or $5.1 million. And, in order to 

ensure that the incentive to each 

qualifying State is modest, the rule caps 

the maximum share of the incentive at 

50% of the amount a State received 

under 40 CFR 35.162(b) in the previous 

year. As a result of this rule, beginning 

in FY 2009, EPA would allot the State 

and interstate CWA 106 grant funds in 

the following order: 2.6 percent will be 

set aside for allotment to the eligible 

interstate agencies in accordance with 

the existing interstate allotment formula 

in 40 CFR 35.162(c); next, funds may be 

allotted for specific water pollution 

control elements under 40 CFR 

35.162(d); next, funds may be allotted to 

States in accordance with the permit fee 

incentive allotment formula under 40 

CFR 35.162(e), which requires that 

‘‘there is an increase above the FY 2008 

level in the total amount of funds 

allotted to States under subsection (b)’’; 

and finally, the balance will be allotted 

to the States in accordance with the 

existing allotment formula under 40 

CFR 35.162(b). 

The only States which will be eligible 

for this set-aside are those States which 

have been authorized by EPA to 

implement the NPDES program by the 

first day of the fiscal year, October 1, for 

which funds are appropriated by 

Congress. Under this rule, these States 

must also submit annually a 

certification to EPA (to the attention of 

the Regional Administrator). For FY 

2009, the certification must be 

postmarked by November 14, 2008. For 

every year thereafter, the required 

certification must be postmarked by 

October 1. The certification must meet 

the following two requirements. First, 

the certification must include the total 

NPDES State program costs, the 

percentage of NPDES program costs 

recovered by the State through permit 

fee collections during the most recently 

completed State fiscal year, and a 

statement that the amount of permit fees 

collected is used by the State to defray 

NPDES program costs. This rule defines 

NPDES program costs as all activities 

relating to permitting, enforcement, and 

compliance. Second, the certification 

must include a statement that State 

recurrent expenditures for water quality 

programs have not decreased from the 

previous State fiscal year, or indicate 

that a decrease in such expenditures is 

attributable to a non-selective reduction 

of the programs of all executive branch 

agencies of the State government. The 

concept of non-selective reduction is 

derived from the statutory requirements 

related to maintenance of effort from 

Clean Air Act Section 105 grants and 

EPA’s implementing regulations found 

at 40 CFR 35.146. Under the Clean Air 

Act, EPA is prohibited from awarding 

grants to air pollution control agencies 

if State recurrent expenditures are not at 

least equal to such expenditures during 

the preceding State fiscal year. EPA can 

still award a grant even if there are 

decreases in such expenditures if EPA 

determines that the reduction is 

attributable to a non-selective reduction 

of all State programs. This situation 

would occur, for example, when a State 

legislature enacts budget cuts across all 

State agencies and does not target the air 

program. EPA is adopting a similar 

approach in this rulemaking. 

After EPA determines the number of 

eligible States which have met the 

certification requirements, each State 

will be able to receive up to a full share 

of the set-aside amount. EPA will 

determine the amount of a full share by 

dividing the set-aside amount by the 

number of eligible States which have 

met the certification requirements. A 

full share will be the same amount for 

each State. The percent of a full share 

that each State will receive, however, 

will be determined by the following 

formula, based on the certification 

information described above. 

(A) A State will receive 25 percent of 

a full share if that State has collected 

permit fees which equal or exceed 75 

percent of total State NPDES program 

costs; or 

(B) A State will receive 50 percent of 

a full share if that State has collected 

permit fees which equal or exceed 90 

percent of total State NPDES program 

costs; or 

(C) A State will receive a full share if 

that State has collected permit fees 

which equal 100 percent of total State 

NPDES program costs. 

In other words, in its certification, a 

State must inform EPA of its total 

NPDES program costs and the 

percentage of which are recovered 

through permit fees. EPA would use the 

information from this certification to 

determine any additional amount a 

State would receive in its Section 106 

grant based on this financial incentive 

allotment formula. If, for example, there 

is an increase in Section 106 funding of 

$5.1 million and EPA has verified that 

5 States will qualify for the Permit Fee 

Incentive, the first step would be to 

determine the value of a full share. This 

would be calculated by dividing $5.1 

million by 5 states with a full share 

equaling $1.02 million. Next, based on 

the State’s certification, the percent of 

fees collected will be used to calculate 

the amount of the incentive for each 

qualifying state. For example; State A 

collects 75% of their NPDES permit 

program costs, State B collects 90%, 

State C collects 75%, State D collects 

100%, and State E collects 75%. Once 

again a full share equals $1.02 million. 

State A will receive 1/4 of $1.02 million 

which calculates to be $255,000. State B 

will receive 1/2 of $1.02 million or 

$510,000. State C will receive 1/4 of 

$1.02 million or $255,000. State D will 

receive a full share, $1.02 million and 

finally, State E will receive 1/4 of $1.02 

million or $255,000. A total incentive of 

$2,295,000 will be distributed to the 5 

States with a remaining balance of 

$2,805,000. Since 100% of the incentive 

pool was not allotted per 40 CFR 

35.162(f) (e.g., because some or all 

qualifying States do not cover 100% of 

their NPDES program costs with fees), 

then the remainder of the incentive pool 

will be allotted per the formula under 

40 CFR 35.162 (b). A more simplified 

example would be if a State’s total 

NPDES program costs are $1 million, 

and the State collected $750,000 in 

NPDES permit fees, a State would 

receive 25% of a full share in addition 

to the grant amount allotted to it under 

the current CWA Section 106 allotment 

formula. It should be noted that the rule 

caps the maximum share of the 

incentive at 50% of the amount a State 

received under 40 CFR 35.162(b) in the 

previous year. States receiving the 

incentive, either in part or in full, are 

free to allocate those funds per the 

individual State’s water quality program 

priorities, which address the 

prevention, reduction, and elimination 

of water pollution and are eligible under 

CWA Section 106. 


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III. Response to Comments 

A. EPA’s Authority To Issue This Rule 

Multiple commenters questioned the 

Agency’s authority to create the 

incentive program for various reasons. 

The Agency maintains that it clearly has 

the legal authority to establish 

conditions for the distribution of grant 

funding consistent with the approach 

reflected in the rule. Section 106(b) of 

the CWA states: ‘‘From the sums 

appropriated in any fiscal year, the 

Administrator shall make allotments to 

the several States and interstate 

agencies in accordance with regulations 

promulgated by him on the basis of the 

extent of the pollution problem in the 

respective States.’’ 33 U.S.C. 1256(b). 

EPA complies with this statutory 

requirement and makes allotments on 

the basis of the extent of the pollution 

problem in the States. EPA has codified 

this basis at 40 CFR 35.162(b)(1), which 

lists six components the agency takes 

into account to determine this 

allotment: Surface water area, ground 

water use, water quality impairment, 

potential point sources, nonpoint 

sources, and population of urbanized 

areas. We also list associated elements, 

sub elements, and supporting data for 

each component. This is not, however, 

the only basis the agency uses to make 

allotments to the States, and we do not 

read the above statutory provision as 

requiring that the extent of pollution be 

the only basis for the allotment process. 

Section 106(b) does not state that 

allotments shall be made only on the 

basis of the extent of pollution. Thus, 

we do not read this language to prohibit 

other bases for the overall allotment of 

Section 106 grant funds. Further, the 

statutory language includes the phrase 

‘‘[f]rom the sums appropriated, the 

Administrator shall make allotments 

[emphasis added] * * *’’ implying that 

not all of the funds appropriated must 

be allotted on this basis. 

In fact, EPA has promulgated other 

bases for allotting 106 funds. For 

example, our regulation at 40 CFR 

35.162(b)(2) imposes a funding floor; 40 

CFR 35.162(b)(4) includes an inflation 

adjustment; 40 CFR 35.162(b)(5) 

imposes a cap on funding increases; and 

40 CFR 35.162(b)(6) imposes a cap on 

the component ratio of the six elements. 

In addition, we allot to the interstate 

agencies based on a percentage of funds 

appropriated for Section 106 purposes 

(40 CFR 35.162(c)). Finally, we also 

have the ability to use an alternative 

allotment formula when the 

appropriations process indicates that 

some of the Section 106 funds should be 

used for specific water pollution control 

elements (40 CFR 35.162(d)). 

Other language in Section 106 also 

lends support to our interpretation of 

our authority. Section 106(c) authorizes 

the Administrator to pay States for their 

water quality programs two different 

ways, whichever is the lesser: Either the 

allotment under 106(b) or ‘‘the 

reasonable costs as determined by the 

Administrator of developing and 

carrying out a [State] pollution program 

***’’ Section 106(g) allows EPA to 

reallot any sums allotted under 106(b) 

when funds originally allotted are not 

paid to the State. This reallotment is not 

required to be conducted in accordance 

with 106(b). Both of these provisions 

indicate to EPA that Congress gave the 

Agency flexibility to allot to the States 

and interstates not only on the basis of 

the extent of pollution in the States but 

also on the basis of other factors. 

Further, because the permit fee rule is 

related to fees charged to dischargers, it 

does, in fact, fit within the extent of 

pollution basis used in the current 

allotment formula. Under the current 

allotment formula found at 40 CFR 

35.162(b), one of the six components 

evaluated is the number of potential 

point sources. Similarly, the incentive 

allotment is based in part on evaluating 

the number of point sources in a State 

and collection of fees from dischargers. 

Finally, no State has challenged the 

allotment formulae summarized above 

that have been implemented by EPA for 

several years. 

Two commenters, citing 40 CFR 

35.162(d), stated that EPA lacks the 

authority to engage in the rulemaking 

absent Congressional authorization and 

that we failed to consult with States as 

required under this provision. We 

disagree. No Congressional action is 

required to execute this rulemaking (see 

discussion above). The President’s FY 

2007 Budget Request for EPA did 

include language directing EPA to 

promulgate this rule, but that language 

was never enacted into statute. As stated 

above, EPA has the statutory authority 

to promulgate this rule under Section 

106 of the Clean Water Act. In addition, 

EPA will submit the final rule to 

Congress in accordance with the 

Congressional Review Act. 

Regarding the applicability of 40 CFR 

35.162(d), this rule does not fall within 

the scope of that provision because this 

rule does not allot a portion of the funds 

for a specific water pollution control 

element, such as assessment of impaired 

water bodies. (See, Table 1 of 40 CFR 

35.162, Formula Component No. 3). The 

provision at 40 CFR 35.162(d) was 

promulgated to address a situation like 

that which occurred in FY 2006 in 

which both the President’s Budget 

Request and EPA’s Appropriation 

targeted Section 106 grants funds to 

support enhanced water quality 

monitoring efforts. As EPA stated when 

it promulgated 40 CFR 35.162(d), the 

application of 35.162(d) is limited to 

‘‘situations where the appropriations 

process has indicated that funds should 

be used for a specific purpose’’ (71 FR 

17, January 3, 2006). Because this rule 

does not fall within this situation, any 

consultation requirement is not 

applicable. 

B. EPA’s Rulemaking Process 

Commenters also questioned whether 

the Agency complied with all applicable 

statutory and executive order reviews 

relating to the rulemaking process. EPA 

maintains we met all of our obligations 

and have even gone beyond that which 

is required. 

Some commenters asserted that EPA 

did not adequately consult with the 

states on the details of the rulemaking 

as required in Executive Order 13132, 

‘‘Federalism’’. We disagree that this rule 

has federalism implications that would 

trigger the requirements of Executive 

Order 13132. Actions that have 

‘‘federalism implications’’ are defined in 

the Executive Order to include 

regulations and regulatory policies that 

have ‘‘substantial direct effects on the 

States, on the relationship between the 

national government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government.’’ This rule is a 

voluntary incentive that does not have 

substantial direct compliance costs on 

States. Nor will this rule substantially 

impact the relationship between the 

national government and the States or 

the distribution of power between the 

national government and the States, as 

contemplated under the Executive 

Order. 

These commenters also suggested that 

EPA failed to consult under Executive 

Order 13132. Although this Executive 

Order is not applicable, EPA, in fact, 

took several steps to ensure that input 

from the States was solicited and 

considered. State representatives 

nominated by the Association of State 

and Interstate Water Pollution Control 

Administrators (ASIWPCA) and the 

Environmental Council of the States 

were provided an opportunity to 

provide input at the outset of rule 

development. EPA held a series of work 

group teleconferences in 2006 and 

discussed the proposed rule with 

attendees at the 2006 annual ASIWPCA 

meeting. EPA carefully considered 

feedback received during work group 

meetings prior to the publication of the 

proposed rule. As a result of the 

comments received from the States and 


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52588 Federal Register / Vol. 73, No. 176 / Wednesday, September 10, 2008 / Rules and Regulations 

other entities prior to publication of the 

proposed rule, the proposal was 

modified significantly. 

Some commenters asserted that EPA 

did not comply with Executive Order 

12866, as amended by Executive Order 

13258 and Executive Order 13422. We 

disagree. EPA disagrees with assertions 

that the rule will have an annual effect 

on the economy of $100 million or more 

or adversely affect in a material way the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, or tribal governments or 

communities. However, upon further 

consideration, the Agency has 

determined that the rule is a ‘‘significant 

regulatory action’’ under Executive 

Order 12866 because it raises novel 

policy issues. Therefore, this rule will 

be submitted to OMB for review. 

Additionally, some commenters 

asserted that this rule does not meet the 

‘‘compelling public need’’ test included 

in Executive Order 12866. EPA 

disagrees that Executive Order 12866 

contains a test that mandates Agency 

rules have a compelling public need. 

The requirements of the Executive 

Order are clearly distinct from the 

‘‘Statement of Regulatory Philosophy 

and Principles’’ that contains the 

compelling public need language. 

However, EPA has complied with the 

Agency responsibilities included in 

Section 6 of Executive Order 12866. 

A few commenters contended that 

EPA has not complied with the 

Unfunded Mandates Reform Act 

(UMRA) and the Regulatory Flexibility 

Act (RFA), as amended by the Small 

Business Regulatory Enforcement 

Fairness Act (SBREFA). We disagree. By 

its terms, the RFA only applies to 

rulemakings which require notice and 

comment rulemaking under 5 U.S.C. 

553(b) or any other statute. Grant rules 

are expressly excluded from the 

coverage of 5 U.S.C. 553(b) by the 

provisions of 5 U.S.C. 553(a). Similarly, 

UMRA applies to ‘‘federal mandates,’’

which exclude ‘‘conditions of Federal 

assistance.’’ 2 U.S.C. 658(5), (6) & (7). 

Because this is a grant rule, by 

definition this rule is not subject to the 

RFA or Sections 202 and 205 of UMRA. 

Additionally, UMRA generally excludes 

from the definition of ‘‘Federal 

intergovernmental mandate’’ duties that 

arise from participation in a voluntary 

federal program, such as the fee 

incentive program established by this 

rule. 

C. Financial Impact of Proposed Rule 

Many commenters expressed 

concerns regarding the potential 

financial impact of the proposed rule. 

Commenters’ concerns included: That 

the costs of working to qualify for the 

incentive would exceed the value of the 

incentive, that increased permit fees 

would adversely impact small 

communities and businesses, and that 

States may see a decline in general 

revenue funding from their legislatures 

if they begin collecting permit fees. 

Many of the comments drew 

conclusions based on the premise that 

EPA was requiring States to impose 

permit fees on point source-dischargers. 

The incentive program is voluntary. It 

is designed to encourage States to 

consider establishing or expanding 

permit fee programs. However, States 

are under no obligation to apply for 

these funds. Each State should continue 

to make their permit fee decisions based 

on sound economic and programmatic 

information. 

As a result of comments received 

during the development of the proposed 

rule, EPA did make changes prior to the 

proposal of the rule to promote 

responsible decision making regarding 

permit fees and participation in the 

incentive program. EPA established the 

pool at a modest amount (no more than 

three percent of FY 2008 core program 

funding). The Agency considers the 

incentive pool to be sufficient to 

generate State interest but not large 

enough to significantly impact the 

amount of core Section 106 funding 

available. The incentive pool will not be 

taken from existing core program 

funding but will only be created from 

State grant increases above FY 2008 

levels. No State will receive reduced 

funding as a result of this rule. The total 

incentive will never exceed 

approximately $5.1 million. Future 

increases in Section 106 funding above 

FY 2008 levels may be distributed 

through the current distribution 

mechanism using the allotment formula 

found at 40 CFR 35.162. 

Some comments also focused on the 

challenges that States may potentially 

encounter in attempting to comply with 

the rule, including collection and 

reporting of cost information to EPA in 

a timely manner. EPA will work with 

the States to provide assistance in 

applying for a share of the incentive. As 

necessary, EPA will provide any 

clarifications on the application process, 

including guidance and Q&A 

documents. The Agency postponed rule 

implementation until FY 2009 to 

provide States additional time to 

establish new or expand existing permit 

fee programs. 

Multiple commenters objected to the 

use of grant ‘‘set-asides.’’ The comments 

suggested that designating funds for 

specific purposes eliminates State 

flexibility to use the funding to address 

the highest State priorities. As use of 

approximately 85 percent of State grant 

funding is still at the discretion of the 

States (with EPA approval), EPA has 

ensured that States continue to have 

wide latitude in targeting funding 

according to State priorities. EPA has 

designated the remaining funding to 

address Administration priorities and to 

ensure that the funds are used as 

Congress intended. In addition, States 

receiving the incentive, either in part or 

in full are free to allocate those funds 

per the individual State’s water quality 

program priorities. Furthermore, 

recovering permit program costs 

through fees will make resources 

available for other water quality 

program activities, creating a net 

increase in the amount of funds that 

States can devote to addressing their 

water quality priorities. 

D. State Discretion and the Role of State 

Legislatures and General Funds 

Commenters provided information 

regarding how States fund their NPDES 

programs, and the restrictions that some 

States face in implementing or 

expanding permit fee programs. Some 

noted that their NPDES permits are 

funded through States’ general revenue. 

Some commenters expressed concerns 

that the proposed rule would interfere 

with State discretion regarding how 

States manage and fund State water 

quality programs. Commenters also 

noted that it may be difficult or even 

impossible to receive legislative 

approval for implementation of a permit 

fee system or increases in existing fees. 

EPA emphasizes that the incentive 

program is voluntary. The incentive 

program promotes the use of permit fees 

as a mechanism for funding water 

quality activities. EPA recognizes that 

there are a number of revenue streams 

that States may employ to support State 

water quality programs, including 

federal support, State general funds, and 

revenue from those who benefit from 

the activity (permit fees). EPA also 

recognizes that there may currently be 

limitations in place that prevent States 

from increasing permit fees or 

implementing permit fee programs in 

time to qualify for the incentive in FY 

2009. 

Ultimately, States have the option to 

collect fees and apply for the incentive 

funds or to choose other mechanisms for 

funding their activities. States that do 

not qualify for the incentive during the 

first year that it is available will not be 

precluded from receiving a share of the 

incentive in future years. 

Recovering permit program costs 

through fees will make resources 


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Federal Register / Vol. 73, No. 176 / Wednesday, September 10, 2008 / Rules and Regulations 52589 

available for other water quality 

program activities, creating a net 

increase in the amount of funds that 

States can devote to addressing their 

water quality priorities. A State may 

choose not to apply for funds if State 

officials decide that meeting the 

qualifying threshold is not in the best 

interest of the State. EPA intentionally 

limited the size of the incentive pool to 

protect core funding for all States, in 

recognition of the fact that not every 

State will qualify or attempt to qualify 

for the incentive program. 

E. Objective and Intent of Proposed Rule 

Many commenters stated that EPA has 

not clearly articulated the objective of 

the rule or demonstrated that the 

incentive will serve the intended 

purpose of shifting more of the financial 

burden for program operation to NPDES 

permit holders. As stated above, the 

purpose of this rule is to encourage 

States to voluntarily collect NPDES 

permit fees adequate to meet their 

program costs. This rule is designed to 

provide an incentive for States to move 

toward greater sustainability in the way 

they manage and budget for 

environmental programs and to shift 

part of the financial burden to those 

who benefit from NPDES permits. 

F. Promoting Water Quality Protection 

Some commenters contended that the 

creation of an incentive pool would 

limit funding to State water quality 

programs, thereby potentially adversely 

impacting a State’s ability to protect and 

improve water quality. These comments 

were based on the belief that the 

incentive pool represents a reduction in 

106 funding and may signal EPA’s 

intent to eliminate all federal funding 

for State water quality programs in the 

future. EPA has ensured that the rule 

creates an incentive that is sufficient to 

encourage States to increase or maintain 

the sustainability of their water quality 

programs while protecting core 106 

funding for those States that currently 

do not, or choose not to, qualify for the 

incentive. The incentive pool will be 

created only from program funding 

increases above FY 2008 funding levels 

(up to three percent of FY 2008 core 

program funding) and can only be 

applied to support Section 106 eligible 

activities. In addition, following 

distribution of incentives to qualifying 

States, all remaining incentive funds 

will be distributed to all States through 

the existing formula (40 CFR 35.162(b)). 

Some commenters also stated that 

EPA has failed to demonstrate that the 

incentive program will have a positive 

environmental impact. EPA 

acknowledges that States which fail to 

qualify for the incentive will receive 

fewer grant dollars than if all of the 

funds were distributed through the 

existing formula. However, EPA does 

not believe that this will negatively 

impact a State’s ability to protect water 

quality or unfairly penalize those States 

that are currently unable to qualify for 

the incentive. Ultimately, the Agency 

believes that the new fee revenue that 

States will generate, coupled with the 

incentive, may significantly increase the 

available funding for water quality 

programs, justifying EPA’s decision to 

set aside a modest portion of 106 

funding. EPA also believes that this 

increase in available funding will allow 

States to build more sustainable water 

quality programs that are better 

equipped to address water quality 

problems. 

G. Impact on Non-Authorized States 

Some commenters expressed concern 

regarding the impact of the proposed 

rule on non-authorized States. EPA 

reiterates that base grant funding for 

State water quality programs is 

protected under this rule. The incentive 

pool will be created only from future 

State Section 106 increases greater than 

FY 2008 funding. The total incentive 

will never exceed approximately $5.1 

million. Therefore, the amount of 

funding diverted from any one State as 

a consequence of this rule will be 

relatively modest, should not adversely 

impact a State’s ability to effectively 

implement their water quality program, 

and should not be a pivotal factor in any 

State program approval decision. 

H. Permit Fees for EPA-Regulated 

Dischargers 

Some commenters noted that the rule 

does not apply to federal facilities, tribal 

lands, and other EPA-regulated 

dischargers in non-authorized States. 

EPA reiterates that this rule is not solely 

intended to collect fees. It is intended to 

support the implementation of high 

quality NPDES programs in authorized 

States while at the same time build 

more sustainable State water programs. 

EPA does not collect user fees in nonauthorized States. In addition, the 

distribution of permit program 

responsibilities among the nonauthorized States and EPA varies by 

State. While none of the non-authorized 

States issue permits, many carry out a 

number of permit program-related 

activities. 

I. Resources Needs Gap 

A few commenters were concerned 

that EPA’s focus on permit fees detracts 

from efforts to address the resources 

needs gap identified in the State Water 

Quality Management Resource Analysis 

Task Force’s Interim 2002 report. EPA 

agrees that action needs to be taken to 

address the resource needs gap and 

believes that this rule responds directly 

to the State Resource Analysis Report. 

The Agency asserts that if States 

establish or expand permit fee programs 

to qualify for the incentive funds 

established under this rule, they will 

ultimately realize a net increase in the 

amount of funding available for their 

water quality programs. EPA also 

believes that recovering all or most of 

program costs through permit fees 

represents a more sustainable approach 

to program management and budgeting. 

J. Measuring the Success of NPDES 

Programs 

A few commenters stated that the 

success of NPDES programs should be 

measured by improvements in water 

quality, rather than the amount of 

permit fees a State generates. EPA agrees 

with this position and does not consider 

the criteria set forth in today’s rule 

regarding permit program costs 

recovered to be an environmental 

measure of NPDES program success or 

a measure of NPDES program adequacy. 

The purpose of this rule is to encourage 

States to voluntarily collect NPDES 

permit fees adequate to meet their 

program costs. 

K. Self-Certification and Reporting 

Requirements 

Many commenters stated that the 

proposed rule would impose a 

significant administrative burden on the 

States. Additionally, some commenters 

indicated that the incentive would not 

be sufficient to justify the expenses 

necessary to meet the certification 

requirements of the proposed rule. In 

addition to ensuring the integrity of the 

incentive program, EPA believes the 

reporting required under the incentive 

program will help States to understand 

and document program costs and 

identify more opportunities to ensure 

program sustainability. 

The rule provides for a modest 

incentive to further encourage States to 

establish or expand their permit fee 

programs. EPA anticipates that the 

additional revenue streams created from 

both the extra fees and the incentive 

awards will provide sufficient revenue 

to generate interest among States and 

cover the costs of creating or expanding 

a permit fee program and meeting all 

accounting and reporting requirements 

outlined in this rule. Since this rule 

establishes a voluntary incentive 

program, EPA advises States to carefully 

analyze all options before pursuing any 

fee strategy. 


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52590 Federal Register / Vol. 73, No. 176 / Wednesday, September 10, 2008 / Rules and Regulations 

L. Defining NPDES Activities 

Some commenters requested 

clarification and definitions for several 

terms used in the proposed rule, 

including ‘‘NPDES program’’ and an 

‘‘adequate’’ NPDES fee program. As 

necessary, EPA will provide additional 

guidance regarding those activities the 

Agency considers to be included in the 

program’s scope. 

M. Current Status of State NPDES 

Programs 

Some commenters provided 

information regarding the current status 

and structure of, and funding 

mechanisms for State NPDES programs. 

This information is included in the 

comments which can be found in the 

public docket, available at 

www.regulations.gov. 

N. Alternatives to Proposed Incentive 

Some commenters suggested 

alternatives to the proposed rule. While 

the Agency has determined that some of 

these suggestions are not viable, others 

are not mutually exclusive of the rule 

we are finalizing today. EPA commits to 

continue to work with the States on 

these ideas. 

Conclusion 

After careful evaluation of the 

comments received, the Agency has 

decided to finalize this rule with only 

two minor modifications: (1) Changing 

the implementation date of the rule 

from FY 2008 to FY 2009 (e.g., 

beginning October 1, 2008) and (2) 

changing the base fiscal year the Agency 

will use to determine if a permit fee 

allotment is made from FY 2006 to FY 

2008. 

Statutory and Executive Order 

Reviews: Under Executive Order 12866 

(58 FR 51735, October 4, 1993), this rule 

is a ‘‘significant action’’ because it 

involves novel policy issues. 

Accordingly, EPA submitted this action 

to the Office of Management and Budget 

(OMB) for review under Executive 

Order 12866 and any changes made in 

response to OMB recommendations 

have been documented in the docket for 

this action. Because this rule is not 

subject to notice and comment 

requirements under the Administrative 

Procedures Act or any other statute, it 

is not subject to the Regulatory 

Flexibility Act (5 U.S.C. 601 et seq.). 

Today’s rule contains no Federal 

mandates (under the regulatory 

provisions of Title 2 of the Unfunded 

Mandates Reform Act of 1999 (UMRA)) 

for State, local, or tribal governments or 

the private sector that would subject the 

rule to Sections 202 and 205 of the 

UMRA) (Pub. L. 104–4). The rule 

imposes no enforceable duty on any 

State, local, or Tribal governments or 

the private sector. In addition, this rule 

does not significantly or uniquely affect 

small governments. Although this rule 

proposes to create new binding legal 

requirements, such requirements do not 

substantially and directly affect Indian 

Tribes under Executive Order 13175 (63 

FR 67249, November 9, 2000). EPA 

interprets Executive Order 13045 (62 FR 

19885, April 23, 1997) as applying only 

to those regulatory actions that concern 

health or safety risks, such that the 

analysis required under section 5–501 of 

the Executive Order has the potential to 

influence the regulation. This action is 

not subject to Executive Order 13045 

because it does not establish an 

environmental standard intended to 

mitigate health or safety risks. This rule 

will not have federalism implications, 

as specified in Executive Order 13132 

(64 FR 43255, August 10, 1999). 

Executive Order 12898 (59 FR 7629 

(February 16, 1994)) establishes federal 

executive policy on environmental 

justice. EPA has determined that this 

rule will not have disproportionately 

high and adverse human health or 

environmental effects on minority or 

low-income populations because it is a 

grant rule that does not affect the level 

of protection provided to human health 

or the environment. This rule is not a 

‘‘significant energy action’’ as defined in 

Executive Order 13211, ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (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. 

Further, we have concluded that this 

rule is not likely to have any adverse 

energy effects. This rule does not 

involve technical standards; thus, the 

requirements of Section 12(d) of the 

National Technology Transfer and 

Advancement Act of 1995 (15 U.S.C. 

272 note) do not apply. This rule does 

not impose an additional information 

collection burden under the provisions 

of the Paperwork Reduction Act of 1995 

(44 U.S.C. 3501 et seq.). The 

Congressional Review Act, 5 U.S.C. 801 

et seq., generally provides that before 

certain actions may take effect, the 

agency promulgating the action must 

submit a report, which includes a copy 

of the action, to each House of the 

Congress and to the Comptroller General 

of the United States. 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. 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). This rule 

will be effective on September 10, 2008. 

List of Subjects in 40 CFR Part 35 

Environmental protection, 

Administrative practices and 

procedures, Reporting and 

recordkeeping requirements, Water 

pollution control. 

Dated: September 4, 2008. 

Benjamin H. Grumbles, 

Assistant Administrator, Office of Water. 

■ EPA amends 40 CFR part 35 as 

follows: 

PART 35—[AMENDED] 

Subpart A—[Amended] 

■ 1. The authority citation for part 35, 

Subpart A continues to read as follows: 

Authority: 42 U.S.C. 7401 et seq.; 33 U.S.C. 

1251 et seq.; 42 U.S.C. 300f et seq.; 42 U.S.C. 

6901 et seq.; 7 U.S.C. 136 et seq.; 15 U.S.C. 

2601 et seq.; 42 U.S.C. 13101 et seq.; Public 

Law 104–134, 110 Stat. 1321, 1321–299 

(1966); Public Law 105–65, 111 Stat. 1344, 

1373 (1997). 

■ 2. Section 35.162 is amended by 

adding paragraph (e) to read as follows: 

§ 35.162 Basis for allotment. 

* * * * * 

(e) Permit fee incentive allotment 

formula. If there is an increase above the 

FY 2008 level in the total amount of 

funds allotted to States under 

subsection (b), EPA may award this 

increase as the permit fee incentive 

allotment to eligible States in 

accordance with this section. The 

amount of this annual allotment shall 

not be greater than three percent of the 

funds allotted under paragraph (b) of 

this section in FY 2008, and any funds 

above this amount shall be allotted to 

States under paragraph (b) of this 

section. 

(1) Each eligible State may receive up 

to a full share of this allotment, as 

determined by the following formula. A 

full share is the allotment amount 

divided by the number of eligible States: 

(i) A State will receive 25 percent of 

a full share if that State has collected 

permit fees which equal or exceed 75 

percent of total State NPDES program 

costs; or 

(ii) A State will receive 50 percent of 

a full share if that State has collected 

permit fees which equal or exceed 90 

percent of total State NPDES program 

costs; or 

(iii) A State will receive a full share 

if that State has collected permit fees 


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Federal Register / Vol. 73, No. 176 / Wednesday, September 10, 2008 / Rules and Regulations 52591 

which equal 100 percent of total State 

NPDES program costs. 

(2) The maximum share to any State 

under this subsection shall not exceed 

50 percent of the State’s previous year’s 

total Section 106 allotment determined 

under paragraph (b) of this section. 

(3) Any funds left remaining after all 

shares have been allotted under this 

subsection will be re-allotted to the 

States under paragraph (b) of this 

section. 

(4) In order for a State to be eligible 

for this incentive, a State must: be 

authorized by EPA to implement the 

NPDES program by the first day of the 

Federal fiscal year, October 1, for which 

the funds have been appropriated; and 

submit to EPA a certification meeting 

the requirements of paragraph (e)(5) of 

this section. 

(5) The certification required under 

paragraph (e)(4) of this section must 

meet the following requirements: 

(i) The certification must be submitted 

annually to EPA (to the attention of the 

Regional Administrator). For FY 2009, 

the certification must be postmarked by 

November, 14, 2008. For every year 

thereafter the certification must be 

postmarked by October 1; and 

(ii) The certification must include the 

total NPDES State program costs and the 

percentage of NPDES program costs, as 

defined in paragraph (e)(6) of this 

section, recovered by the State through 

permit fee collections during the most 

recently completed State fiscal year, and 

a statement that the amount of permit 

fees collected is used by the State to 

defray NPDES program costs; and 

(iii) The certification must include a 

statement that State recurrent 

expenditures for water quality programs 

have not decreased from the previous 

State fiscal year or indicate that a 

decrease in such expenditures is 

attributable to a non-selective reduction 

of the programs of all executive branch 

agencies of the State government. 

(6) NPDES program costs are defined 

as all permitting, enforcement, and 

compliance costs. 

[FR Doc. E8–21046 Filed 9–9–08; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 174 

[EPA–HQ–OPP–2007–0573; FRL–8380–1] 

Bacillus thuringiensis Cry2Ae in 

Cotton; Temporary Exemption from the 

Requirement of a Tolerance 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: This regulation establishes a 

temporary exemption from the 

requirement of a tolerance for residues 

of the Bacillus thuringiensis Cry2Ae in 

or on cotton and its food and feed 

commodities when used as a PlantIncorporated Protectant (PIP) in 

accordance with the terms of 

Experimental Use Permit 264–EUP–143. 

Bayer CropScience LP submitted a 

petition to EPA under the Federal Food, 

Drug, and Cosmetic Act (FFDCA), 

requesting the temporary tolerance 

exemption. This regulation eliminates 

the need to establish a maximum 

permissible level for residues of Bacillus 

thuringiensis Cry2Ae. The temporary 

tolerance exemption expires on 

December 31, 2012. 

DATES: This regulation is effective 

September 10, 2008. Objections and 

requests for hearings must be received 

on or before November 10, 2008, and 

must be filed in accordance with the 

instructions provided in 40 CFR part 

178 (see also Unit I.C. of the 

SUPPLEMENTARY INFORMATION). 

ADDRESSES: EPA has established a 

docket for this action under docket 

identification (ID) number EPA–HQ–

OPP–2007–0573. All documents in the 

docket are listed in the docket index 

available at http://www.regulations.gov. 

Although listed in the index, some 

information is not publicly available, 

e.g., Confidential Business Information 

(CBI) or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available in the electronic docket at 

http://www.regulations.gov, or, if only 

available in hard copy, at the OPP 

Regulatory Public Docket in Rm. S–

4400, One Potomac Yard (South Bldg.), 

2777 S. Crystal Dr., Arlington, VA. The 

Docket Facility is open from 8:30 a.m. 

to 4 p.m., Monday through Friday, 

excluding legal holidays. The Docket 

Facility telephone number is (703) 305–

5805. 

FOR FURTHER INFORMATION CONTACT: 

Shanaz Bacchus, Biopesticides and 

Pollution Prevention Division (7511P), 

Office of Pesticide Programs, 

Environmental Protection Agency, 1200 

Pennsylvania Ave., NW., Washington, 

DC 20460–0001; telephone number: 

(703) 308–8097; e-mail address: 

bacchus.shanaz@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this Action Apply to Me? 

You may be potentially affected by 

this action if you are an agricultural 

producer, food manufacturer, or 

pesticide manufacturer. Potentially 

affected entities may include, but are 

not limited to: 

• Crop production (NAICS code 111). 

• Animal production (NAICS code 

112). 

• Food manufacturing (NAICS code 

311). 

• Pesticide manufacturing (NAICS 

code 32532). 

This listing is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

affected by this action. Other types of 

entities not listed in this unit could also 

be affected. The North American 

Industrial Classification System 

(NAICS) codes have been provided to 

assist you and others in determining 

whether this action might apply to 

certain entities. 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 Access Electronic Copies 

of this Document? 

In addition to accessing electronically 

available documents at http:// 

www.regulations.gov, you may access 

this Federal Register document 

electronically through the EPA Internet 

under the ‘‘Federal Register’’ listings at 

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

also access a frequently updated 

electronic version of 40 CFR part 174 

through the Government Printing 

Office’s pilot e-CFR site at http:// 

www.gpoaccess.gov/ecfr. 

C. Can I File an Objection or Hearing 

Request? 

Under section 408(g) of FFDCA, 21 

U.S.C. 346a, any person may file an 

objection to any aspect of this regulation 

and may also request a hearing on those 

objections. The EPA procedural 

regulations which govern the 

submission of objections and requests 

for hearings appear in 40 CFR part 178. 

You must file your objection or request 

a hearing on this regulation in 

accordance with the instructions 

provided in 40 CFR part 178. To ensure 

proper receipt by EPA, you must 

identify docket ID number EPA–HQ–

OPP–2007–0573 in the subject line on 

the first page of your submission. All 

requests must be in writing, and must be 

mailed or delivered to the Hearing Clerk 

on or before November 10, 2008. 


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