

[Federal Register: February 10, 2006 (Volume 71, Number 28)]
[Rules and Regulations]               
[Page 6978-6984]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10fe06-5]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 122 and 412

[EPA-HQ-OW-2005-0036; FRL-8031-3]
RIN 2040-AE80

 
Revised Compliance Dates for National Pollutant Discharge 
Elimination System Permit Regulation and Effluent Limitation Guidelines 
for Concentrated Animal Feeding Operations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: Today's rule extends certain compliance dates in the National 
Pollutant Discharge Elimination System (NPDES) permitting requirements 
and Effluent Limitations Guidelines and Standards (ELGs) for 
concentrated animal feeding operations (CAFOs) in conjunction with 
EPA's efforts to respond to the order issued by the Second Circuit 
Court of Appeals in Waterkeeper Alliance et al. v. EPA, 399 F.3d 486 
(2nd Cir. 2005). The purpose of today's rule is to address timing 
issues associated with the Agency's response to the Waterkeeper 
decision.
    This final rule revises dates established in the 2003 CAFO rule, 
issued on February 12, 2003, by which facilities newly defined as CAFOs 
were required to seek permit coverage and by which all CAFOs were 
required to have nutrient management plans (NMPs) developed and 
implemented. EPA is extending the date by which operations defined as 
CAFOs as of April 14, 2003, who were not defined as CAFOs prior to that 
date, must seek NPDES permit coverage, from February 13, 2006, to July 
31, 2007. EPA is also amending the date by which operations that become 
defined as CAFOs after April 14, 2003, due to operational changes that 
would not have made them a CAFO prior to April 14, 2003, and that are 
not new sources, must seek NPDES permit coverage, from April 13, 2006, 
to July 31, 2007. Finally, EPA is extending the deadline by which CAFOs 
are required to develop and implement NMPs, from December 31, 2006, to 
July 31, 2007. This rule revises all references to the date by which 
NMPs must be developed and implemented currently in the 2003 CAFO rule.

DATES: This rule is effective as of February 10, 2006.

ADDRESSES: EPA established a docket for this action under Docket ID No. 
EPA-OW-2005-0036. This is where you can obtain a copy of all materials 
related to this rulemaking, including the

[[Page 6979]]

comment response document and the rule. All documents in the docket are 
listed on the http://www.regulations.gov Web site. 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 not placed on the 
Internet and will be publicly available only in hard copy form. 
Publicly available docket materials are available either electronically 
through http://www.regulations.gov or in hard copy at the Water Docket 

in the EPA Docket Center, EPA West, Room B102, 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: Kawana Cohen, Water Permits Division, 
Office of Wastewater Management (4203M), Environmental Protection 
Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone 
number: (202) 564-2345, e-mail address: cohen.kawana@epa.gov.

SUPPLEMENTARY INFORMATION:
I. General Information
    A. Does this Action Apply to Me?
II. Background
    A. The Clean Water Act
    B. History of Actions To Address CAFOs Under the NPDES 
Permitting Program
    C. Status of EPA's Response to the Waterkeeper Decision
    D. Proposed Rule
III. Today's Final Rule
    A. Today's Final Action
    1. Application Deadline for Newly Defined CAFOs
    2. Deadline for Nutrient Management Plans
    B. Rationale for Today's Action
IV. Effective Date of These Actions
V. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental
    Health and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Congressional Review Act

I. General Information

A. Does This Action Apply to Me?

    This action applies to concentrated animal feeding operations 
(CAFOs) as defined in section 502(14) of the Clean Water Act and in the 
NPDES regulations at 40 CFR 122.23. The following table provides a list 
of standard industrial codes and analogous North American industry 
codes for operations covered under this revised rule:

                              Table 1.--Entities Potentially Regulated by This Rule
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                                                                                                    Standard
                                                 Examples of regulated        North American       industrial
                  Category                              entities              industry code      classification
                                                                                  (NAIC)              code
----------------------------------------------------------------------------------------------------------------
Federal, State, and Local Government:
    Industry...............................  Operators of animal
                                              production operations that
                                              meet the definition of a
                                              CAFO.
                                             Beef cattle feedlots                      112112               0211
                                              (including veal).
                                             Beef cattle ranching and                  112111               0212
                                              farming.
                                             Hogs.........................              11221               0213
                                             Sheep........................       11241, 11242               0214
                                             General livestock except                   11299               0219
                                              dairy and poultry.
                                             Dairy farms..................              11212               0241
                                             Broilers, fryers, and roaster              11232               0251
                                              chickens.
                                             Chicken eggs.................              11231               0252
                                             Turkey and turkey eggs.......              11233               0253
                                             Poultry hatcheries...........              11234               0254
                                             Poultry and eggs.............              11239               0259
                                             Ducks........................             112390               0259
                                             Horses and other equines.....              11292               0272
----------------------------------------------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. This table lists the types of entities that EPA is now aware 
could potentially be regulated by this action. Other types of entities 
not listed in the table could also be regulated. To determine whether 
your facility is regulated under this rulemaking, you should carefully 
examine the applicability criteria in 40 CFR 122.23. If you have 
questions regarding the applicability of this action to a particular 
entity, consult the person listed in the preceding FOR FURTHER 
INFORMATION CONTACT section.

II. Background

A. The Clean Water Act

    Congress passed the Federal Water Pollution Control Act (1972), 
also known as the Clean Water Act (CWA), to ``restore and maintain the 
chemical, physical, and biological integrity of the nation's waters'' 
(33 U.S.C. 1251(a)). Among the core provisions, the CWA establishes the 
NPDES permit program to authorize and regulate the discharge of 
pollutants from point sources to waters of the U.S. 33 U.S.C. 1342. 
Section 502(14) of the CWA specifically includes CAFOs in the 
definition of the term ``point source.'' Section 502(12) defines the 
term ``discharge of a pollutant'' to mean ``any addition of any 
pollutant to navigable waters from any point source.'' EPA has issued 
comprehensive regulations that implement the NPDES program at 40 CFR 
part 122. The Act also provides for the development of technology-based 
and water quality-based effluent limitations that are imposed through 
NPDES permits to control the discharge of pollutants from point 
sources. CWA section 301(a) and (b).

B. History of Actions To Address CAFOs Under the NPDES Permitting 
Program

    EPA's regulation of wastewater and manure from CAFOs dates to the 
1970s. EPA initially issued national effluent

[[Page 6980]]

limitations guidelines and standards for feedlots on February 14, 1974 
(39 FR 5704), and NPDES CAFO regulations on March 18, 1976 (41 FR 
11458).
    In February 2003, EPA issued revisions to these regulations that 
focused on the 5% of the nation's animal feeding operations (AFOs) that 
presented the highest risk of impairing water quality and public health 
(68 FR 7176) (the ``2003 CAFO rule''). The 2003 CAFO rule required the 
owner or operators of all CAFOs \1\ to seek coverage under an NPDES 
permit. CAFO industry organizations (American Farm Bureau Federation, 
National Pork Producers Council, National Chicken Council, and National 
Turkey Federation (NTF), although NTF later withdrew its petition) and 
environmental groups (Waterkeeper Alliance, Natural Resources Defense 
Council, Sierra Club, and American Littoral Society) filed petitions 
for judicial review of certain aspects of the 2003 CAFO rule. This case 
was brought before the U.S. Court of Appeals for the Second Circuit. On 
February 28, 2005, the court ruled on these petitions and upheld most 
provisions of the 2003 rule but vacated and remanded others. 
Waterkeeper Alliance et al. v. EPA, 399 F.3d 486 (2nd Cir. 2005) 
(hereafter referred to as Waterkeeper).
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    \1\ The Clean Water Act regulates the conduct of persons, which 
includes the owners and operators of CAFOs, rather than the 
facilities or their discharges. To improve readability in this 
preamble, reference is made to ``CAFOs'' as well as ``owners and 
operators of CAFOs.'' No change in meaning is intended.
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C. Status of EPA's Response to the Waterkeeper Decision

    EPA is developing a rulemaking to respond to the vacatures and 
remands in the Waterkeeper decision. EPA plans to issue a proposed 
rulemaking for public comment in mid 2006 and a final rulemaking as 
expeditiously as possible. Among other revisions related to the court's 
decision the Agency plans to address in the forthcoming rulemaking are 
those that establish which CAFOs must seek permit coverage and 
procedures for development and implementation of nutrient management 
plans (NMPs).

D. Proposed Rule

    On December 21, 2005, EPA proposed to revise each of the compliance 
dates in the 2003 CAFO rule that were affected by the Agency's need to 
respond to the Waterkeeper decision. 70 FR 75771 (December 21, 2005). 
The 2003 CAFO rule required all newly defined CAFOs, as of the date of 
the final rule, and some new dischargers to seek permit coverage by 
February 13, 2006, or April 13, 2006, respectively. The rule also 
required all CAFOs to develop and implement an NMP by December 31, 
2006. EPA proposed to revise these dates in a separate, limited 
rulemaking, prior to the Agency's response to the Waterkeeper decision, 
in order: (1) To provide the Agency sufficient time to take final 
action on the regulatory revisions it plans to propose in the near 
future with respect to the Second Circuit's decision; and (2) to 
require NMPs to be submitted at the time of the permit application, 
consistent with the court's decision.

III. Today's Final Rule

A. Today's Final Action

    Today's final rule extends certain dates for compliance specified 
in the 2003 CAFO rule. EPA is extending the dates for newly defined 
CAFOs to seek NPDES permit coverage and the date by which all CAFOs 
must develop and implement NMPs. Because EPA will not have completed 
the rulemaking responding to the Waterkeeper decision prior to the 
dates by which newly defined CAFOs must seek permit coverage, the 
Agency is revising these dates to a time that is subsequent to the 
forthcoming CAFO rule revision.
    Today's rule is simply a means of avoiding conflict with existing 
deadlines that precede EPA's upcoming revisions to the 2003 rules. 
Today's rule does not, for example, address issues associated with the 
court's vacature of the requirement that all CAFOs seek coverage under 
an NPDES permit. That issue and other related issues, such as those 
associated with the development and implementation of nutrient 
management plans (NMPs) will be addressed in the separate forthcoming 
rulemaking.
1. Application Deadline for Newly Defined CAFOs
    EPA is extending the date by which operations defined as CAFOs as 
of April 14, 2003, that were not defined as CAFOs prior to that date, 
must seek NPDES permit coverage, from February 13, 2006, to July 31, 
2007. EPA is also proposing to amend the date by which operations that 
become defined as CAFOs after April 14, 2003, due to operational 
changes that would not have made them a CAFO prior to April 14, 2003, 
and that are not new sources, must seek NPDES permit coverage, from 
April 13, 2006, to July 31, 2007.
    Today's rule does not affect the applicable time for seeking permit 
coverage for new source CAFOs that discharge or propose to discharge, 
even those in categories that were added to the definition of a CAFO in 
the 2003 CAFO rule. New source CAFOs that discharge or propose to 
discharge are required by the 2003 CAFO rule to seek NPDES permit 
coverage at least 180 days prior to the time that they commence 
operating.
    Nor does today's rule affect requirements for newly defined CAFOs 
to obtain permit coverage in States that do not revise the deadlines in 
their current regulations. States may choose to require CAFOs to obtain 
NPDES permits in advance of the dates set in the federal NPDES 
regulations, pursuant to the authority reserved to States under Section 
510 of the Clean Water Act to adopt requirements more stringent than 
those that apply under federal law. Furthermore, many CAFOs are already 
permitted and the extension of the deadline for requesting NPDES permit 
coverage does not apply to CAFOs that existed prior to the effective 
date of the 2003 CAFO rule and as such were required to seek NPDES 
permit coverage even before EPA issued the 2003 CAFO rule.
2. Deadline for Nutrient Management Plans
    EPA is extending the deadline by which permitted CAFOs are required 
to develop and implement NMPs, from December 31, 2006, to July 31, 
2007. This revises all references to the date by which NMPs must be 
developed and implemented currently in the 2003 CAFO rule. Thus the 
deadlines established in 40 CFR 122.21(i)(1)(x), 122.42(e)(1), 
412.31(b)(3), and 412.43(b)(2) are all revised accordingly.
    Today's rule extending deadlines for nutrient management plans 
would not affect CAFOs operating under existing permits so long as 
those permits remain in effect. If their existing permits require 
development and implementation of an NMP, currently permitted CAFOs 
must develop and implement their NMPs in accordance with the terms of 
their current permit.

B. Rationale for Today's Action

    In December 2005, EPA proposed to extend the dates that EPA is 
today revising for certain CAFOs to seek NPDES permit coverage and for 
CAFOs to develop and implement NMPs to March 30, 2007. At the time of 
the proposed rule, EPA believed that setting the revised dates to March 
30, 2007, would allow sufficient time for the Agency to complete the 
forthcoming rule to address the Waterkeeper decision. In proposing 
these date changes, EPA also reasoned that the rationales for these 
revised dates were

[[Page 6981]]

generally consistent with the rationales that the Agency had originally 
relied upon in setting the compliance dates in the 2003 CAFO rule and 
that these dates would ensure compliance with the NPDES regulations 
applicable to CAFO owners and operators within a reasonable timeframe 
consistent with the dates established in the 2003 rule.
    EPA received a number of comments on the proposed rule, including 
comments from States, industry, agricultural trade associations, and 
environmental groups. Some commenters asserted that the proposed rule 
is not consistent with the part of the court's decision that vacated 
the ``duty to apply'' provision of the 2003 regulations. The ``duty to 
apply'' provision required all CAFOs to apply for a permit, including 
those with only a potential to discharge. Commenters maintained that 
the language of the proposed rule was not appropriate because it 
continued to follow the approach in the 2003 CAFO regulations, under 
which all CAFOs must have or seek a permit.
    In response, EPA reiterates that it will address the various 
aspects of the court's Waterkeeper decision, including the court's 
ruling on the ``duty to apply'' issue, in a forthcoming rulemaking. 
That rulemaking will address the regulations on who must apply for a 
permit in order to conform those regulations to the court's ruling. 
Nothing in today's rule affects or otherwise addresses the issue of who 
must apply for a permit. Today's rule only shifts the deadline for when 
a permit application must be submitted by those CAFOs that are required 
to apply. As a sequence of events, EPA expects that its upcoming 
rulemaking to respond to Waterkeeper will change the universe of who 
must apply for a permit and that those regulations will be finalized 
and effective before the new deadline of July 31, 2007, promulgated in 
today's rule for permit applications. As a result, only those CAFOs 
that are required to apply for a permit--as redefined in the upcoming 
rulemaking--will be subject to the permit application deadlines in 
today's rule. EPA notes in particular that today's rule is not intended 
to, and does not, have the effect of requiring all CAFOs to apply for a 
permit by the new deadlines in today's rule.
    Some commenters asserted that the proposed deadlines would not 
offer CAFOs sufficient time to submit permit applications that will 
comply with the regulatory revisions the Agency is planning to address 
in its response to the Waterkeeper decision. These commenters noted 
that the proposed March 30, 2007, permit application deadline will not 
provide EPA sufficient time to propose and take final action on such 
regulatory revisions in time for CAFOs to apply for permits by that 
date.
    EPA is revising its proposal to extend the date from March 30, 
2007, to July 31, 2007, to provide sufficient time for the Agency to 
promulgate regulations addressing the Waterkeeper decision. EPA intends 
to propose such regulations in mid 2006 and to take final action on 
that proposal as soon as possible thereafter, so that affected CAFOs 
will have sufficient time to comply with revised regulations after they 
take effect. In addition, EPA notes that most of the technical 
provisions of the 2003 CAFO rule (e.g., the substantive NMP 
requirements) were unaffected by the Waterkeeper decision, and 
therefore CAFOs do have some information at this time to assess the 
actions they will need to take. Should the Agency decide that a further 
extension of time is necessary to allow CAFOs an adequate opportunity 
to meet the requirements of the revised regulations, EPA could allow a 
further extension in the final rule.
    Commenters also raised issues about the way in which the proposed 
rule failed to separate the date by which an NMP needs to be developed 
from the date when the CAFO must implement the NMP. Commenters 
expressed the view that keeping the dates together was inconsistent 
with the Waterkeeper court's decision to require NMPs to be publicly 
reviewed and the terms of the NMP to be included as conditions in a 
CAFO's permit before they could be implemented, as such. As discussed 
above, EPA is developing a rule to address the court's decision 
regarding public and permitting authority review and the inclusion of 
NMPs in permits and will issue the proposed rule in mid 2006 and the 
final rule as soon as possible thereafter. That rule will address 
issues raised by the commenters in that rulemaking and it is premature 
to resolve them now. Should further revisions to the deadlines for 
development and implementation be necessary to address these concerns, 
the Agency could further modify the dates in the final rule.
    Several commenters expressed the view that EPA needed to take into 
consideration the time necessary for States to make conforming 
revisions to State programs following EPA's regulatory revisions. While 
EPA agrees that States need additional time to modify their programs 
once EPA has finalized its regulatory revisions in response to the 
Waterkeeper decision, the Agency does not believe that these concerns 
justify further extension of the compliance dates in today's rule. EPA 
is committed to work with States and other interested parties to work 
through the procedural challenges and resolve any difficulties that may 
arise in the implementation of the regulatory revisions.

IV. Effective Date of These Actions

    EPA is making this rule immediately effective upon the date of 
publication. The immediate effective date for this action is authorized 
under both 5 U.S.C. 553(d)(1), which provides that rulemaking actions 
may become effective less than 30 days after publication if the rule 
``grants or recognizes an exemption or relieves a restriction'' and 
section 553(d)(3) which allows an effective date less than 30 days 
after publication ``as otherwise provided by the agency for good cause 
found and published with the rule.'' EPA finds that there is good cause 
to make the rule effective immediately. The 2003 CAFO rule requires 
some CAFOs to seek NPDES permit coverage and prepare and implement 
nutrient management plans in 2006 well before EPA regulations will be 
in place to respond to the Waterkeeper's decision. Making this rule 
immediately effective is consistent with the purpose of the good cause 
exemption which is to provide reasonable time for affected parties to 
comply. A delayed effective date is not necessary because affected 
parties do not have to take any action to comply with this rule which 
simply extends deadlines for seeking NPDES permit coverage and 
preparing and implementing nutrient management plans. In addition, 
consistent with section 553(d)(3), an immediate effective date is 
justified because this rule relieves certain CAFOs of obligations which 
would otherwise apply to them, to seek NPDES permit coverage and 
develop and implement nutrient management plans in 2006.

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866, (58 FR 51735; October 4, 1993), the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to Office of Management and Budget (OMB) review 
and the requirements of the Executive Order. The Order defines 
``significant regulatory action'' as one that is likely to result in a 
rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the

[[Page 6982]]

economy, a sector of the economy, productivity, competition, jobs, the 
environment, public health or safety, or State, local, or tribal 
governments or communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    It has been determined that this rule is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and, 
therefore, is not subject to OMB review.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
As discussed above, the purpose of today's rule is solely to address 
timing issues associated with the Agency's response to the Waterkeeper 
court ruling based on litigation ensuing from the 2003 CAFO rule. 
However, the Office of Management and Budget (OMB) has previously 
approved the information collection requirements contained in the 
existing regulations at 40 CFR parts 9, 122, 123, and 412 under the 
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and 
has assigned OMB control number 2040-0250. The EPA ICR number for the 
original set of regulations is 1989.02. A copy of the OMB approved 
Information Collection Request (ICR) may be obtained from Susan Auby, 
Collection Strategies Division; U.S. Environmental Protection Agency 
(2822T); 1200 Pennsylvania Ave., NW., Washington, DC 20460 or by 
calling (202) 566-1672.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small 
entities, small entity is defined as: (1) A small business based on 
Small Business Administration (SBA) size standards; (2) a small 
governmental jurisdiction that is a government of a city, county, town, 
school district or special district with a population of less than 
50,000; and (3) a small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.
    This action will not have a significant economic impact on a 
substantial number of small entities since the effect of the rule is 
solely to extend certain deadlines related to NPDES CAFO permitting. 
Additionally, this rule would not affect small governments, as the 
permitting authorities are State or Federal agencies.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of UMRA generally requires EPA to identify and 
consider a reasonable number of regulatory alternatives and to adopt 
the least costly, most cost-effective, or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    EPA determined that this rule does not contain a Federal mandate 
that may result in expenditures of $100 million or more for State, 
local, and tribal governments, in the aggregate, or the private sector 
in any one year. As discussed above, the purpose of today's rule is 
solely to address timing issues associated with the Agency's response 
to the Waterkeeper court ruling based on litigation ensuing from the 
2003 CAFO rule.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations 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.''
    Under section 6(b) of Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed

[[Page 6983]]

regulation. Under section 6(c) of Executive Order 13132, EPA may not 
issue a regulation that has federalism implications and that preempts 
State law, unless the Agency consults with State and local officials 
early in the process of developing the proposed regulation.
    EPA has concluded that this rule does not have federalism 
implications. It will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132. 
EPA does not consider an annual impact of $2 million on States to be a 
substantial effect. In addition, EPA does not expect this rule to have 
any impact on local governments.
    Further, the revised regulations do not alter the basic State-
Federal scheme established in the Clean Water Act under which EPA 
authorizes States to carry out the NPDES permitting program. EPA 
expects the revised regulations to have little effect on the 
relationship between, or the distribution of power and responsibilities 
among, the Federal and State governments. Thus, Executive Order 13132 
does not apply to this rule.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled, ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249; November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.''
    This regulation does not have tribal implications. It will not have 
substantial direct effects on tribal governments, on the relationship 
between the Federal government and Indian tribes, or on the 
distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in Executive Order 13175. 
Thus, Executive Order 13175 does not apply to this rule.
    In the spirit of Executive Order 13175, and consistent with EPA 
policy to promote communications between EPA and tribal governments, 
EPA specifically solicited additional comment on this proposed rule 
from tribal officials.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    Executive Order 13045: ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies 
to any rule that: (1) Is determined to be ``economically significant'' 
as defined under E.O. 12866, and (2) concerns an environmental health 
or safety risk that EPA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health or 
safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    This final rule is not subject to Executive Order 13045 because it 
is not economically significant as defined under E.O. 12866, and 
because the Agency does not have reason to believe the environmental 
health and safety risks addressed by this action present a 
disproportionate risk to children. The benefits analysis performed for 
the 2003 CAFO rule determined that the rule would result in certain 
significant benefits to children's health. (Please refer to the 
Benefits Analysis in the record for the 2003 CAFO final rule.) Since 
today's action would not affect the environmental benefits of the rule, 
these benefits are retained.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This final rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it is not a 
significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Pub. L. 104-113, Section 12(d) (15 U.S.C. 272 
note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standard bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards.
    This final rule does not involve technical standards. Therefore, 
EPA did not consider the use of any voluntary consensus standards.

J. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. 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 February 10, 2006.

List of Subjects

40 CFR Part 122

    Administrative practice and procedure, Confidential business 
information, Hazardous substances, Reporting and recordkeeping 
requirements, Water pollution control.

40 CFR Part 412

    Environmental protection, Feedlots, Livestock, Waste treatment and 
disposal, Water pollution control.

    Dated: February 7, 2006.
Stephen L. Johnson,
Administrator.

0
40 CFR part 122 and 412 are amended as follows:

PART 122--EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT 
DISCHARGE ELIMINATION SYSTEM

0
1. The authority citation for part 122 continues to read as follows:

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


0
2. Amend Sec.  122.21 by revising paragraph (i)(1)(x) to read as 
follows:


Sec.  122.21  Application for a permit (applicable to State programs, 
see Sec.  123.25).

* * * * *
    (i) * * *
    (1) * * *

[[Page 6984]]

    (x) For CAFOs that must seek coverage under a permit after July 31, 
2007, certification that a nutrient management plan has been completed 
and will be implemented upon the date of permit coverage.
* * * * *

0
3. Amend Sec.  122.23 by revising paragraphs (g)(1) and (g)(3)(iii) to 
read as follows:


Sec.  122.23  Concentrated animal feeding operations (applicable to 
State NPDES programs, see Sec.  123.25).

* * * * *
    (g) * * *
    (1) Operations defined as CAFOs as of April 14, 2003, who were not 
defined as CAFOs prior to that date. For all CAFOs, the owner or 
operator of the CAFO must seek to obtain coverage under an NPDES permit 
by a date specified by the Director, but no later than July 31, 2007.
    (3) * * *
    (iii) If an operational change that makes the operation a CAFO 
would not have made it a CAFO prior to April 14, 2003, the operation 
has until July 31, 2007, or 90 days after becoming defined as a CAFO, 
whichever is later.
* * * * *

0
4. Amend Sec.  122.42 by revising the third and fourth sentences in 
paragraph (e)(1) introductory text to read as follows:


Sec.  122.42  Additional conditions applicable to specified categories 
of NPDES permits (applicable to State NPDES programs, see Sec.  
123.25).

* * * * *
    (e) * * *
    (1) * * * Permitted CAFOs must have their nutrient management plans 
developed and implemented by July 31, 2007. CAFOs that seek to obtain 
coverage under a permit after July 31, 2007, must have a nutrient 
management plan developed and implemented upon the date of permit 
coverage. * * *
* * * * *

PART 412--CONCENTRATED ANIMAL FEEDING OPERATIONS (CAFO) POINT 
SOURCE CATEGORY

0
5. The authority citation for part 412 continues to read as follows:

    Authority: 33 U.S.C. 1311, 1314, 1316, 1317, 1318, 1342, 1361.


0
6. Amend Sec.  412.31 by revising paragraph (b)(3) to read as follows:


Sec.  412.31  Effluent limitations attainable by the application of the 
best practicable control technology currently available (BPT).

* * * * *
    (b) * * *
    (3) The CAFO shall attain the limitations and requirements of this 
paragraph by July 31, 2007.

0
7. Amend Sec.  412.43 by revising paragraph (b)(2) to read as follows:


Sec.  412.43  Effluent limitations attainable by the application of the 
best practicable control technology currently available (BPT).

* * * * *
    (b) * * *
    (2) The CAFO shall attain the limitations and requirements of this 
paragraph by July 31, 2007.

[FR Doc. 06-1240 Filed 2-9-06; 8:45 am]

BILLING CODE 6560-50-P
