[Federal Register: September 30, 2008 (Volume 73, Number 190)]
[Rules and Regulations]
[Page 56737-56738]
[DOCID:fr30se08-8]

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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

44 CFR Part 65

[Docket No. FEMA-B-1008]

Changes in Flood Elevation Determinations

AGENCY: Federal Emergency Management Agency, DHS.

ACTION: Interim rule.

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SUMMARY: This interim rule lists communities where modification of the
Base (1% annual-chance) Flood Elevations (BFEs) is appropriate because
of new scientific or technical data. New flood insurance premium rates
will be calculated from the modified BFEs for new buildings and their
contents.

DATES: These modified BFEs are currently in effect on the dates listed
in the table below and revise the Flood Insurance Rate Maps (FIRMs) in
effect prior to this determination for the listed communities.
    From the date of the second publication of these changes in a
newspaper of local circulation, any person has ninety (90) days in
which to request through the community that the Mitigation Assistant
Administrator of FEMA reconsider the changes. The modified BFEs may be
changed during the 90-day period.

ADDRESSES: The modified BFEs for each community are available for
inspection at the office of the Chief Executive Officer of each
community. The respective addresses are listed in the table below.

FOR FURTHER INFORMATION CONTACT: William R. Blanton, Jr., Engineering
Management Branch, Mitigation Directorate, Federal Emergency Management
Agency, 500 C Street, SW., Washington, DC 20472,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: The modified BFEs are not listed for each
community in this interim rule. However, the address of the Chief
Executive Officer of the community where the modified BFE
determinations are available for inspection is provided.
    Any request for reconsideration must be based on knowledge of
changed conditions or new scientific or technical data.
    The modifications are made pursuant to section 201 of the Flood
Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance
with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq.,
and with 44 CFR part 65.
    For rating purposes, the currently effective community number is
shown and must be used for all new policies and renewals.
    The modified BFEs are the basis for the floodplain management
measures that the community is required to either adopt or to show
evidence of being already in effect in order to qualify or to remain
qualified for participation in

the National Flood Insurance Program (NFIP).
    These modified BFEs, together with the floodplain management
criteria required by 44 CFR 60.3, are the minimum that are required.
They should not be construed to mean that the community must change any
existing ordinances that are more stringent in their floodplain
management requirements. The community may at any time enact stricter
requirements of its own, or pursuant to policies established by the
other Federal, State, or regional entities. The changes BFEs are in
accordance with 44 CFR 65.4.
    National Environmental Policy Act. This interim rule is
categorically excluded from the requirements of 44 CFR part 10,
Environmental Consideration. An environmental impact assessment has not
been prepared.
    Regulatory Flexibility Act. As flood elevation determinations are
not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-
612, a regulatory flexibility analysis is not required.
    Regulatory Classification. This interim rule is not a significant
regulatory action under the criteria of section 3(f) of Executive Order
12866 of September 30, 1993, Regulatory Planning and Review, 58 FR
51735.
    Executive Order 13132, Federalism. This interim rule involves no
policies that have federalism implications under Executive Order 13132,
Federalism.
    Executive Order 12988, Civil Justice Reform. This interim rule
meets the applicable standards of Executive Order 12988.

List of Subjects in 44 CFR Part 65

    Flood insurance, Floodplains, Reporting and recordkeeping
requirements.

0
Accordingly, 44 CFR part 65 is amended to read as follows:

PART 65--[AMENDED]

0
1. The authority citation for part 65 continues to read as follows:

    Authority: 42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of
1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR,
1979 Comp., p. 376.

Sec.  65.4  [Amended]

0
2. The tables published under the authority of Sec.  65.4 are amended
as follows:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Date and name of
         State and county             Location and  case     newspaper  where     Chief executive officer   Effective date of  modification   Community
                                             No.           notice was published         of community                                             No.
--------------------------------------------------------------------------------------------------------------------------------------------------------
California: San Diego.............  Unincorporated areas   August 18, 2008;      The Honorable Greg Cox,    December 23, 2008..............       060284
                                     of San Diego County    August 25, 2008;      Chairman, San Diego
                                     (08-09-0782P).         San Diego Union-      County Board of
                                                            Tribune.              Supervisors, 1600
                                                                                Pacific Highway, Room
                                                                                335, San Diego, CA 92101.
Colorado: El Paso.................  City of Colorado       September 2, 2008;    The Honorable Lionel       August 15, 2008................       080060
                                     Springs (07-08-        September 9, 2008;    Rivera, Mayor, City of
                                     0958P).                The Gazette.          Colorado Springs, P.O.
                                                                                Box 1575, Colorado
                                                                                Springs, CO 80901.
Iowa: Dallas......................  City of Granger (08-   August 21, 2008;      The Honorable James        July 31, 2008..................       190104
                                     07-0907P).             August 28, 2008;      Doyle, Mayor, City of
                                                            Northeast Dallas      Granger, 1906 Main
                                                            Record.               Street, Granger, IA
                                                                                50109.
Oklahoma: Tulsa...................  City of Tulsa (08-06-  July 31, 2008;        The Honorable Kathryn L.   July 17, 2008..................       405381
                                     1865P).                August 7, 2008;       Taylor, Mayor, City of
                                                            Tulsa World.          Tulsa, 200 Civic Center,
                                                                                Tulsa, OK 74103.
Texas:
    Brazos........................  City of Bryan (08-06-  August 7, 2008;       The Honorable D. Mark      July 25, 2008..................       480082
                                     0692P).                August 14, 2008;      Conlee, Mayor, City of
                                                            Bryan College         Bryan, 300 South Texas
                                                            Station Eagle.        Avenue, Bryan, TX 77803.
    Brazos........................  City of College        July 31, 2008;        The Honorable Ben White,   December 5, 2008...............       480083
                                     Station (08-06-        August 7, 2008;       Mayor, City of College
                                     1882P).                Bryan College         Station, 1101 Texas
                                                            Station Eagle.        Avenue, College Station,
                                                                                TX 77840.
    Guadalupe.....................  City of Cibolo (08-06- August 20, 2008;      The Honorable Jennifer     December 26, 2008..............       480267
                                     0784P).                August 27, 2008;      Hartman, Mayor, City of
                                                            Seguin Gazette-       Cibolo, P.O. Box 826,
                                                            Enterprise.           Cibolo, TX 78108-0826.
    Palo Pinto and Parker.........  City of Mineral Wells  September 2, 2008;    The Honorable Clarence     January 7, 2009................       480517
                                     (08-06-2504P).         September 9, 2008;    Holliman, Mayor, City of
                                                            Mineral Wells Index.  Mineral Wells, 115
                                                                                Southwest First Street,
                                                                                Mineral Wells, TX 76067.
Virginia: Roanoke.................  Unincorporated areas   August 15, 2008;      The Honorable Richard      December 22, 2008..............       510190
                                     of Roanoke County      August 22, 2008;      Flora, Chairman, Roanoke
                                     (08-03-0782P).         The Roanoke Times.    County Board of
                                                                                Supervisors, P.O. Box
                                                                                29800, Roanoke, VA 24018.
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(Catalog of Federal Domestic Assistance No. 97.022, ``Flood
Insurance.'')

    Dated: September 19, 2008.
Michael K. Buckley,
Acting Assistant Administrator, Mitigation Directorate, Department of
Homeland Security, Federal Emergency Management Agency.
[FR Doc. E8-22951 Filed 9-29-08; 8:45 am]

BILLING CODE 9110-12-P


[Federal Register: November 27, 2006 (Volume 71, Number 227)]
[Rules and Regulations]
[Page 68483-68492]
[DOCID:fr27no06-12]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 122

[OW-2003-0063; FRL-8248-1]
RIN 2040-AE79

Application of Pesticides to Waters of the United States in
Compliance With FIFRA

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: Today, EPA is issuing a regulation stating that the
application of a pesticide in compliance with relevant requirements of
the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) does
not require a National Pollutant Discharge Elimination System (NPDES)
permit in two specific circumstances. The first circumstance is when
the application of the pesticide is made directly to waters of the
United States to control pests that are present in the water. The
second circumstance is when the application of the pesticide is made to
control pests that are over, including near, waters of the United
States. This rulemaking is based on the Agency's interpretation of the
definition of the term ``pollutant'' under the Clean Water Act (CWA) as
not including such pesticides.
    This final rulemaking replaces EPA's previously published Interim
and Final Interpretive Statements on the Application of Pesticides to
Waters of the United States in Compliance with FIFRA. EPA's
Interpretive Statement, published February 1, 2005, described the
Agency's interpretation of the CWA with regard to the application of
pesticides regulated under FIFRA that are applied to or over, including
near, waters of the United States. On August 13, 2003, EPA provided
public notice of and solicited public comment on an Interim Statement
and incorporated that input into the Interpretive Statement. On
February 1, 2005, EPA published the Interpretive Statement and proposed
to codify its substance in EPA's NPDES regulations and solicited
comment on that proposed action. Today's final rule is the result of
this process.

DATES: These final regulations are effective on January 26, 2006.

ADDRESSES: EPA has established a docket for this action under Docket ID
No. OW-2003-0063. All documents in the docket are listed online at
http://www.regulations.gov. Although listed in the online docket, some

information is not publicly available, i.e., 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 either
online or in hard copy at the Water Docket, EPA/DC, 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<PHONE_NUMBER>, and the telephone number for the Water Docket
is<PHONE_NUMBER>.

FOR FURTHER INFORMATION CONTACT: For additional information, contact
Jeremy Arling, Water Permits Division, Office of Wastewater Management
(4203M), Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460; telephone number:<PHONE_NUMBER>, e-mail address:
<EMAIL_ADDRESS>

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does This Action Apply to Me?

    You may be affected by this action if you apply pesticides to or
over, including near, water. Potentially affected entities may include,
but are not limited to:

          Table 1.--Entities Potentially Regulated by This Rule
------------------------------------------------------------------------
                                                        Examples of
           Category                   NAICS         potentially affected
                                                          entities
------------------------------------------------------------------------
Agriculture parties--General    111 Crop           Producers of crops
 agricultural interests,         Production.        mainly for food and
 farmers/producers, forestry,                       fiber including
 and irrigation.                                    farms, orchards,
                                                    groves, greenhouses,
                                                    and nurseries.
                                113110 Timber      The operation of
                                 Tract Operations.  timber tracts for
                                                    the purpose of
                                                    selling standing
                                                    timber.

                                113210 Forest      Growing trees for
                                 Nurseries          reforestation and/or
                                 Gathering of       gathering forest
                                 Forest Products.   products, such as
                                                    gums, barks, balsam
                                                    needles, rhizomes,
                                                    fibers, Spanish
                                                    moss, ginseng, and
                                                    truffles.
                                221310 Water       Operating irrigation
                                 Supply for         systems.
                                 Irrigation.
Pesticide parties (includes     325320 Pesticide   Formulation and
 pesticide manufacturers,        and Other          preparation of
 other pesticide users/          Agricultural       agricultural pest
 interests, and consultants).    Chemical           control chemicals.
                                 Manufacturing.
Public health parties           923120             Government
 (includes mosquito or other     Administration     establishments
 vector control districts and    of Public Health   primarily engaged in
 commercial applicators that     Programs.          the planning,
 service these).                                    administration, and
                                                    coordination of
                                                    public health
                                                    programs and
                                                    services, including
                                                    environmental health
                                                    activities.
Resource management parties     924110             Government
 (includes State departments     Administration     establishments
 of fish and wildlife, State     of Air and Water   primarily engaged in
 departments of pesticide        Resource and       the administration,
 regulation, State               Solid Waste        regulation, and
 environmental agencies, and     Management         enforcement of air
 universities).                  Programs.          and water resource
                                                    programs; the
                                                    administration and
                                                    regulation of water
                                                    and air pollution
                                                    control and
                                                    prevention programs;
                                                    the administration
                                                    and regulation of
                                                    flood control
                                                    programs; the
                                                    administration and
                                                    regulation of
                                                    drainage development
                                                    and water resource
                                                    consumption
                                                    programs; and
                                                    coordination of
                                                    these activities at
                                                    intergovernmental
                                                    levels.
                                924120             Government
                                 Administration     establishments
                                 of Conservation    primarily engaged in
                                 Programs.          the administration,
                                                    regulation,
                                                    supervision and
                                                    control of land use,
                                                    including
                                                    recreational areas;
                                                    conservation and
                                                    preservation of
                                                    natural resources;
                                                    erosion control;
                                                    geological survey
                                                    program
                                                    administration;
                                                    weather forecasting
                                                    program
                                                    administration; and
                                                    the administration
                                                    and protection of
                                                    publicly and
                                                    privately owned
                                                    forest lands.
                                                    Government
                                                    establishments
                                                    responsible for
                                                    planning,
                                                    management,
                                                    regulation and
                                                    conservation of
                                                    game, fish, and
                                                    wildlife
                                                    populations,
                                                    including wildlife
                                                    management areas and
                                                    field stations; and
                                                    other administrative
                                                    matters relating to
                                                    the protection of
                                                    fish, game, and
                                                    wildlife are
                                                    included in this
                                                    industry.
Utility parties (includes       221 Utilities....  Provide electric
 utilities).                                        power, natural gas,
                                                    steam supply, water
                                                    supply, and sewage
                                                    removal through a
                                                    permanent
                                                    infrastructure of
                                                    lines, mains, and
                                                    pipes.
Other Parties.................  713910 Golf        Golf course operators
                                 courses and        who have ponds for
                                 country clubs.     irrigation.
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be affected by this
action. This table lists the types of entities that EPA is now aware
could potentially be affected by this action. Other types of entities
not listed in the table could also be affected. To determine whether
your facility is affected by this action, 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. Clean Water Act and the Federal Insecticide, Fungicide, and
Rodenticide 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). The CWA prohibits the discharge of any pollutant by
any person from a point source into a water of the United States,
except in compliance with certain other provisions of the Act,
including Section 402. 33 U.S.C. 1311(a). Section 402 in turn
authorizes EPA to issue permits under the National Pollutant Discharge
Elimination System (NPDES) permit program for such discharges. States
may also issue NPDES permits if authorized to do so by EPA. 33 U.S.C.
1342(a) and (b).
    NPDES permits under the CWA are required only for point source
discharges of materials that are pollutants to waters of the United
States. Section 502(6) of the CWA defines ``pollutant'' to mean:

    * * * dredged spoil, solid waste, incinerator residue, sewage,
garbage, sewage sludge, munitions, chemical wastes, biological
materials, radioactive materials, heat, wrecked or discarded
equipment, rock, sand, cellar dirt and industrial, municipal and
agricultural waste discharged into water.

33 U.S.C. 1362(6).\1\ In the more than 30 years that EPA has
administered the CWA, the Agency has never issued an NPDES permit for
the application of a pesticide to or over water to target a pest that
is present in or over the water. Nor has the Agency ever stated in any
general policy or guidance that an NPDES permit is required for such
applications.
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    \1\ The remaining language of the definition of ``pollutant'' in
Section 502(6) is as follows, and is not relevant to today's action:
``The term does not mean (A) ``sewage from vessels'' within the
meaning of Section 312 of this Act; or (B) water, gas, or other
material which is injected into a well to facilitate production of
oil or gas, or water derived in association with oil or gas
production and disposed of in a well, if the well used either to
facilitate production or for disposal purposes is approved by
authority of the State in which the well is located, and if such
State determines that such injection or disposal will not result in
the degradation of ground or surface water resources.''
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    EPA regulates the sale, distribution and use of pesticides in the
United States under the statutory framework of the Federal Insecticide,
Fungicide, and Rodenticide Act (FIFRA) to ensure that when used in
conformance with FIFRA labeling directions, pesticides will not pose
unreasonable risks to human health and the environment. All new
pesticides must undergo a rigorous registration procedure under FIFRA
during which EPA assesses a variety of potential human health and
environmental effects associated with use of the product.
    Under FIFRA, EPA is required to consider the effects of pesticides
on the environment by determining, among

other things, whether a pesticide ``will perform its intended function
without unreasonable adverse effects on the environment,'' and whether
``when used in accordance with widespread and commonly recognized
practice [the pesticide] will not generally cause unreasonable adverse
effects on the environment.'' 7 U.S.C. 136a(c)(5). In performing this
analysis, EPA examines the ingredients of a pesticide, the intended
type of application site and directions for use, and supporting
scientific studies for human health and environmental effects and
exposures. The applicant for registration of the pesticide must provide
data from tests done according to EPA guidelines. This process is
discussed in more detail below.
    Several courts have recently addressed the question of whether the
CWA requires NPDES permits for pesticide applications. These cases have
resulted in some confusion among the regulated community and other
affected citizens about the applicability of the CWA to pesticides
applied to waters of the United States. In 2001, the U.S. Court of
Appeals for the Ninth Circuit held in Headwaters, Inc. v. Talent
Irrigation District (Talent) that an applicator of herbicides was
required to obtain an NPDES permit under the circumstances before the
court (described in detail in Section V.C. below). 243 F.3rd 526 (9th
Cir. 2001). The Talent decision caused considerable concern and
confusion among public health authorities, natural resource managers,
and others who rely on pesticides regarding their potential obligation
to obtain an NPDES permit when applying a pesticide consistent with
FIFRA and particularly about the impact of such a requirement on
accomplishing their mission of protecting human health and the
environment.
    In 2002, the Ninth Circuit in League of Wilderness Defenders et al.
v. Forsgren (Forsgren) held that the application of pesticides to
control gypsy moths in National Forest lands required an NPDES permit.
309 F.3d 1181 (9th Cir. 2002). The court in Forsgren did not analyze
the question of whether the pesticides applied were pollutants, because
it assumed that the parties agreed that they were. In fact, the United
States expressly reserved its arguments on that issue in its brief to
the District Court. Id. at 1184, n.2. The court instead analyzed the
question of whether the aerial application of the pesticide constituted
a point source discharge, and concluded that it did. Id. at 1185.
    Since Talent and Forsgren, California, Nevada, Oregon, and
Washington, all of which are within the Ninth Circuit, have issued
permits for the application of certain types of pesticides (e.g.,
products to control aquatic weeds and algae and products to control
mosquito larvae). Other States have continued their longstanding
practice of not issuing permits to people who apply pesticides to
waters of the United States. These varying practices reflect the
substantial uncertainty among regulators, the regulated community, and
the public regarding how the Clean Water Act applies to pesticides that
have been properly applied and used for their intended purpose.
    The Ninth Circuit recently addressed the Clean Water Act's
applicability to pesticide applications for a third time. In Fairhurst
v. Hagener, the court held that pesticides applied directly to a lake
in order to eliminate non-native fish species, where there are no
residues or unintended effects, are not ``pollutants'' under the CWA
because they are not chemical wastes. 422 F.3d 1146 (9th Cir. 2005).
    Since Talent and Forsgren, other courts have addressed the
applicability of the CWA's NPDES permit requirements to pesticide
applications. In Altman v. Town of Amherst (Altman), the Second Circuit
vacated and remanded for further development of the record a District
Court decision holding that the Town of Amherst was not required to
obtain an NPDES permit to spray mosquitocides over waters of the United
States. 47 Fed. Appx. 62, 67 (2nd Cir. 2002). The United States filed
an amicus brief setting forth the Agency's views in the context of that
particular case. In its opinion, the Second Circuit stated that
``[u]ntil the EPA articulates a clear interpretation of current law--
among other things, whether properly used pesticides released into or
over waters of the United States can trigger the requirement for NPDES
permits * * *--the question of whether properly used pesticides can
become pollutants that violate the CWA will remain open.'' Id. at 67.

B. Interim and Interpretive Statements

    In August 2003, EPA first analyzed the applicability of the NPDES
permit program to pesticide applications in an administrative context
through an Interim Statement and Guidance. 68 FR 48385 (Aug. 13, 2003).
The Interim Statement presented EPA's position on the two circumstances
in which pesticides applied to waters of the United States consistent
with all relevant requirements of FIFRA are not ``pollutants'' under
the CWA and thus do not require an NPDES permit. Although the United
States previously addressed issues related to the Interim Statement in
several amicus briefs, including those filed in Talent and Altman,
those briefs reflected the government's evaluation of the law in the
context of specific factual situations, and did not result from
deliberative consideration through an administrative process. As such,
the amicus briefs did not represent EPA's legal position on the precise
questions at issue in the Interim Statement or in today's regulation.
    EPA solicited public comments on its interpretation of the term
``pollutant'' in the Interim Statement as it relates to certain
pesticide applications. After considering the public comments, EPA
issued a final Interpretive Statement on January 25, 2005. EPA
simultaneously published a notice of proposed rulemaking to incorporate
the substance of the Interpretive Statement into EPA regulations and
solicited public comment on the proposed rulemaking. 70 FR 5093 (Feb.1,
2005). EPA has considered the comments received and is today taking
final action on the proposed regulation. The final regulation is
substantially similar to the proposed regulations, with certain
modifications described below.\2\
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    \2\ On March 29, 2002, EPA issued an Interpretive Statement and
Regional Guidance on the Clean Water Act's Exemption for Return
Flows from Irrigated Agriculture, which clarified that the
application of an aquatic herbicide consistent with the FIFRA
labeling to ensure the passage of irrigation return flow is a
nonpoint source activity not subject to NPDES permit requirements
under the Clean Water Act. This regulation does not address the
March 2002 guidance.
---------------------------------------------------------------------------

III. Summary of the Final Rule

    EPA is revising the NPDES permit program regulations to add a
paragraph to the list of discharges in 40 CFR 122.3 that are excluded
from NPDES permit requirements. Specifically, today's regulation
excludes applications of pesticides to waters of the United States
consistent with all relevant requirements under FIFRA in two specific
circumstances as follows:

    (1) The application of pesticides directly to waters of the
United States in order to control pests. Examples of such
applications include applications to control mosquito larvae,
aquatic weeds, or other pests that are present in waters of the
United States.
    (2) The application of pesticides to control pests that are
present over waters of the United States, including near such
waters, where a portion of the pesticides will unavoidably be
deposited to waters of the United States in order to target the
pests effectively; for example, when insecticides are aerially
applied to a forest canopy where

waters of the United States may be present below the canopy or when
pesticides are applied over or near water for control of adult
mosquitoes or other pests.

Pesticides applied under these circumstances are not pollutants and
therefore are not subject to NPDES permitting requirements.
    EPA's final rule is substantially similar to the rule proposed in
February 2005. EPA has modified the proposed regulatory text only to
clarify the types of pesticide applications covered in the second
circumstance (those to control pests present over, including near,
waters of the United States). Commenters raised concerns that the
second circumstance, as written in the proposed rule, could be
interpreted more broadly than the Agency intended (e.g. encompassing
drift from terrestrial pesticide applications). The final rule
clarifies that the applications in the second circumstance are those in
which it is unavoidable that some of the pesticides will be deposited
into water in order to effectively target the pests. In other words,
EPA is clarifying in the final rule that the regulation encompasses
only those applications to control pests over, including near, waters
of the United States, where the pesticide necessarily must enter the
water in order for the application to achieve its intended purpose.
Thus, the applications must first be intended to control pests over
(including near) a water of the United States. Second, it must be
unavoidable that the pesticide enter the water in order to target such
pests effectively. For example, EPA believes that wide-area forest
canopy insecticide applications can result in deposition to streams and
other waters of the U.S. which are either not visible to the aerial
applicator or not possible to avoid given the location of aerial
application, and that in such circumstances, it is unavoidable that the
pesticide enter the water in order to effectively target pests living
in the canopy. Likewise, mosquito adulticide applications can result in
some pesticide product entering the water because adult mosquitoes
generally live over and adjacent to waterbodies. Similarly, pesticide
applications to control non-native plants which grow at the water's
edge, such as purple loosestrife, are intended to be covered by this
provision, because when targeting plants at the water's edge, it is
unavoidable that some of the herbicide will enter the water. EPA notes
that the clarifying language in Sec.  122.3(h)(2) is not intended to
impose any additional requirements on pesticide applications beyond
relevant FIFRA requirements. In addition, it is not intended to address
applications of pesticides to terrestrial agricultural crops.

IV. Discussion

    Today's rulemaking implements EPA's interpretation of the CWA's
definition of ``pollutant'' with respect to certain applications of
pesticides. Under the CWA, pollutant means:

    * * * dredged spoil, solid waste, incinerator residue, sewage,
garbage, sewage sludge, munitions, chemical wastes, biological
materials, radioactive materials, heat, wrecked or discarded
equipment, rock, sand, cellar dirt and industrial, municipal, and
agricultural waste discharged into water. 33 U.S.C. 1362(6).

    The circumstances of pesticide applications covered under today's
rule are limited to the two types of applications described above, when
conducted in compliance with all relevant requirements of FIFRA. EPA
considers ``relevant requirements'' of FIFRA to mean those FIFRA
requirements that relate to water quality. For instance, violating a
requirement that the person mixing the pesticide must wear protective
clothing, while an unlawful act that can be enforced under FIFRA, is
not related to the protection of water quality, and therefore not a
relevant FIFRA requirement for purposes of today's regulation. However,
a labeling provision that governs application rates, active ingredient
concentrations and dilution requirements, buffer zones, application
locations, intended targets, times of day, temperature or other
application requirements, and thus concerns the amounts,
concentrations, and viability of substances that may potentially end up
in waters of the United States, is related to water quality. Relevant
FIFRA requirements may appear in product labeling, FIFRA regulation, or
other documents setting forth requirements applied pursuant to FIFRA.
    The application of a pesticide from a point source to waters of the
United States requires an NPDES permit only if it constitutes the
discharge of a ``pollutant'' within the meaning of that term in the
CWA. EPA has evaluated whether pesticides regulated under and applied
consistent with relevant FIFRA requirements for the two circumstances
previously described fall within the terms in the CWA's definition of
``pollutant,'' and concludes that they do not. Pesticides are not
dredged spoil, solid waste, incinerator residue, sewage, garbage,
sewage sludge, munitions, radioactive materials, heat, wrecked or
discarded equipment, rock, sand, cellar dirt or industrial, municipal,
and agricultural waste. See CWA section 502(6). In addition, as
described below, the terms, ``chemical waste'' and ``biological
materials,'' also do not encompass the types of pesticide applications
addressed in today's action.
    First, such pesticides are not ``chemical wastes.'' The term
``waste'' ordinarily means that which is ``eliminated or discarded as
no longer useful or required after the completion of a process.'' The
New Oxford American Dictionary 1905 (Elizabeth J. Jewell & Frank Abate
eds., 2001). Pesticides applied consistent with relevant FIFRA
requirements are not ``wastes'' as that term is commonly defined--on
the contrary, they are products that EPA has evaluated and registered
for the purpose of controlling target organisms, and are designed,
purchased, and applied to perform that purpose. See Fairhurst v.
Hagener, 422 F.3d at 1150.
    EPA also interprets the term ``biological materials'' not to
include biological pesticides applied consistent with relevant FIFRA
requirements. This interpretation is both reasonable and consistent
with Congressional intent, and is supported by relevant case law. It is
unlikely that Congress intended to include biological pesticides
applied in the circumstances described in today's rule within the Clean
Water Act's definition of ``pollutant.'' To do so would mean that
biological pesticides are pollutants, while chemical pesticides used in
the same circumstances are not. Since biologically and chemically based
pesticides applied consistent with relevant requirements adopted by EPA
under FIFRA are both EPA-evaluated products, treating them differently
under the Clean Water Act is not warranted. Moreover, at the time the
Act was adopted in 1972, chemical pesticides were predominant. It is
therefore not surprising that Congress failed to discuss whether
biological pesticides were to be covered by the Act. The fact that more
biological pesticides have been developed since passage of the Act in
1972 does not justify expanding the reach of the NPDES permit
requirement when there is no evidence that Congress intended the CWA to
regulate biological pesticides in a manner different from chemical
pesticides. Finally, biological pesticides in use today are generally
reduced-risk products that have a narrower range of potential adverse
environmental effects compared to many chemical pesticides. For this
reason it would not make sense, and would be inconsistent with the
goals of the Clean Water Act, to discourage the

use of biological pesticides by requiring applicators of these products
to obtain an NPDES permit when chemical pesticides have no such
requirement.
    In cases in which courts have found specific biological materials
to be ``pollutants'' under section 502(6) the substances at issue were
waste materials discharged from a point source. See Concerned Area
Residents for the Environment v. Southview Farm, 34 F.3d 114 (2d Cir.
1994) (liquid manure is solid waste, sewage, biological material, and
agricultural waste and is therefore a pollutant); USPIRG v. Atlantic
Salmon, 215 F.Supp. 2d 239, 247-49 (D. Maine 2002) (non-native fish
escaped from net pens and salmon feces and urine exiting net pens are
biological materials; pharmaceuticals in excess salmon feed exiting net
pens are chemical wastes), National Wildlife Federation v. Consumers
Power Co., 862 F.2d 580, 585 (6th Cir. 1988) (live fish, dead fish, and
fish remains released from hydro-electric facility's turbine are
biological materials), U.S. v. Plaza Health Laboratories, Inc., 3 F.3d
643, 646 (2d Cir. 1993), cert. denied 114 S.Ct. 2764 (1994) (discarded
vials of human blood are pollutants). In none of these cases, which
were cited by commenters, did a court find that a product applied for
its intended purpose consistent with applicable EPA requirements was a
``biological material'' and therefore a pollutant under the CWA.
    The Ninth Circuit Court of Appeals in Assn. to Protect Hammersley,
Eld, and Totten Inlets (APHETI) v. Taylor Resources, Inc., 299 F.3d
1007, 1017 (9th Cir. 2002), cited to several of these cases as being in
accord with its finding that ``biological materials'' means the waste
product of a human or industrial process. The APHETI court based its
decision that mussel shells, mussel feces, and other materials emitted
from mussels grown on harvesting rafts are not pollutants on the
doctrine of ejusdem generis. The court found that the more specific
terms in the CWA's definition of ``pollutant'' support an understanding
of the more general term ``biological materials'' as waste material of
a human or industrial process. Id. at 1015. The court went on to
analyze Congress' intent in enacting the CWA and found that the purpose
of the statute further supported such an interpretation of biological
materials in that case. Id. at 1016.
    Furthermore, EPA's interpretation that biological and chemical
pesticides are not pollutants is reasonable because both types of
pesticides must comply with FIFRA registration requirements. EPA
reviews and evaluates these pesticides and authorizes their use,
subject to the limitations and requirements of the EPA registration.
    Today's action applies only to the specific categories of pesticide
applications addressed in the text of the regulation. EPA notes that
pesticides are waste materials, and therefore pollutants under the Act,
when contained in a waste stream, including storm water regulated under
section 402(p) or other industrial or municipal discharges. In those
circumstances, an NPDES permit may be required if the pesticides are
discharged into a water of the United States from a point source.
    In addition, if there are residual materials resulting from
pesticides that remain in the water after the application and its
intended purpose (elimination of targeted pests) have been completed,
these residual materials are also pollutants under CWA section 502(6)
because they are wastes of the pesticide application. Such residuals
include excess amounts of pesticide that do not reach a target organism
and materials that remain after the application has completed its
intended task. These materials are waste materials, as that term is
commonly defined, because they are substances that are ``no longer
useful or required after the completion of a process.'' The New Oxford
American Dictionary 1905, supra. See also Fairhurst v. Hagener, 422
F.3d 1146.
    However, pesticide applications under the circumstances described
above and consistent with FIFRA do not require NPDES permits, even if
the application leaves residual materials which are ``pollutants''
under the Act in waters of the United States. Section 301(a) of the CWA
prohibits the ``discharge of any pollutant'' except in compliance with
certain other provisions of the Act. The CWA defines ``discharge of a
pollutant'' to mean ``any addition of any pollutant to navigable waters
from any point source.'' Thus, at the time of discharge to a water of
the United States, the material in the discharge must be both a
pollutant, and from a point source. In this case, while the discharge
of the pesticide is from a point source (generally a hose or an
airplane), it is not a pollutant at the time of the discharge. The
material added by a pesticide applicator to or over, including near,
water is not a pollutant for the reasons stated above. Even though the
pesticide may become a ``pollutant'' at a later time (e.g., after the
pesticide product has served its intended purpose), a permit is not
required for its application because it did not meet both statutory
prerequisites (pollutant and point source) at the time of its discharge
into the water. Instead, the residual should be treated as a nonpoint
source pollutant, potentially subject to CWA programs other than the
NPDES permit program (e.g., listing and TMDL development pursuant to
CWA section 303(d)).
    Today's action does not address drift over and into waters of the
United States from pesticide applications to land. As discussed below,
EPA has established a multi-stakeholder workgroup under one of its
federal advisory committees to explore policy issues relating to the
terrestrial application of pesticides that may drift into aquatic
environments. EPA also notes that today's discussion of the terms
``chemical waste'' and ``biological materials'' applies only for CWA
purposes and is not intended to address the use of those terms or
similar terms under any other statutes the Agency administers.

V. Public Comment

    EPA first solicited comment on its interpretation of ``pollutant''
under the CWA with respect to certain pesticide applications on August
13, 2003. See 68 FR 48385 (Aug. 13, 2003). EPA provided a second
opportunity for public comment on its interpretation when it proposed
the regulation on which the Agency is today taking final action. See 70
FR 5093 (Feb. 1, 2005). EPA received many comments on its
interpretation during both comment periods, from a wide range of
interested parties including pesticide manufacturers and applicators,
public health control agencies, State agricultural agencies, State
environmental agencies, environmental groups, human health advocates,
farming interests, and other members of the public. Many commenters
supported EPA's interpretation, while others opposed it as inconsistent
with the CWA.
    The record for today's action contains EPA's detailed responses to
comments received during both public comment periods. See Docket ID No.
OW-2003-0063 at http://www.regulations.gov. EPA is providing a summary

below of its responses to some of the significant comments received.

A. Scope of Regulation

    Many of the commenters who supported EPA's proposed rule also
recommended that EPA broaden the scope of the final rule to cover all
pesticide applications, including agricultural applications over land,
that are conducted in accordance with the relevant requirements of
FIFRA. This final rule addresses only the following two circumstances
described in the proposed rule: The application of

aquatic pesticides directly to waters of the United States, and the
application of pesticides to control pests over, including near, such
waters.
    In the meantime, EPA will continue to follow its long-standing
practice of not requiring NPDES permits for agricultural pesticide
applications that are conducted in compliance with relevant FIFRA
requirements. EPA is continuing to consider the applicability of the
CWA to situations other than those EPA is addressing in today's action
where pesticides applied in accordance with relevant FIFRA requirements
may reach and enter waters of the United States, including drift of
pesticides applied aerially over land. Therefore, EPA does not believe
it is appropriate to broaden the scope of the regulation to include
additional types of pesticide applications at this time.
    To assist the Agency's consideration of these issues, EPA has
established a workgroup under the existing Pesticide Program Dialogue
Committee (PPDC) (an advisory committee chartered under the Federal
Advisory Committee Act (FACA)) to address issues involving pesticide
spray drift from agricultural and other applications. The goals of the
workgroup are the following: (1) Improving understanding of the
perspectives of all stakeholders regarding pesticide spray drift; (2)
finding common ground for further work toward minimizing both the
occurrence and potential adverse effects of pesticide spray drift; (3)
developing options for undertaking work where common ground exists; and
(4) exploring the extent of drift, even with proper usage, and the
range and effectiveness of potential responses to unacceptable levels
of off-target drift. The spray drift workgroup will provide advice to
EPA through the PPDC.
    The PPDC is a FACA-authorized forum for a diverse group of
stakeholders to provide feedback to the Agency's pesticide program on
various pesticide regulatory, policy, and program implementation
issues. Topics of discussion at past meetings have included the
disclosure of inert ingredients, registration review, nonanimal
testing, antimicrobial pesticides, endangered species, reduced risk
pesticides, labeling, minor uses, ecological standards, fees for
service, experimental use permits, environmental marketing claims,
outreach to the public, and several implementation issues emanating
from the Food Quality Protection Act of 1996.
    Members of the PPDC include representatives of environmental and
public interest groups, pesticide manufacturers and trade associations,
user and commodity groups, public health and academic institutions,
federal and State agencies, and the general public. Participants in the
Spray Drift workgroup reflect the range of stakeholder interests
represented on the full PPDC, and also include members with backgrounds
in water quality issues. By operating under the PPDC, the Spray Drift
workgroup will comply with FACA procedural requirements including
timely public notice of meetings, public access to meetings and
opportunity for the public to comment; public availability of documents
considered by the workgroup; and attendance of a federal officer or
employee at each meeting.

B. Sufficiency of FIFRA to Address Water Quality Impacts of Pesticide
Applications

    Many commenters objected to the proposed rule on the basis that
EPA's regulation of pesticides under FIFRA does not adequately protect
water quality, and thus pesticide applications should require an NPDES
permit. These commenters alleged both legal and policy shortcomings of
FIFRA. They also asserted that EPA's interpretation is improper because
FIFRA does not preempt CWA requirements and because EPA lacks authority
to exempt categories of discharges from the CWA's prohibition against
discharges without an NPDES permit.
    These commenters may have misinterpreted the legal interpretation
that provides the basis for today's action. First, EPA is not expressly
or by implication repealing any provision of the CWA in today's action,
nor is the Agency arguing that FIFRA registration preempts CWA section
301(a) or section 402(a). Moreover, EPA is not arguing that
registration under FIFRA or compliance with FIFRA requirements replaces
or satisfies an otherwise applicable requirement under the CWA to
obtain an NPDES permit. Nor is EPA exempting from section 301(a) or
section 402(a) any categories of pollutants, because the pesticide
applications at issue here are not pollutants under the Act. The
proscription in the CWA against discharging pollutants from point
sources to waters of the United States except in compliance with
section 402 continues to apply. Rather, EPA is exercising its authority
to interpret a term in a statute it administers. EPA is clarifying that
pesticides applied to or over, including near, water for their intended
purpose consistent with all relevant requirements under FIFRA in the
circumstances specified in the rule are not, at the time of
application, ``pollutants'' under the CWA, and therefore applications
are not discharges required to obtain permits.
    EPA's review, evaluation, and registration of pesticides used in
these two circumstances further demonstrate that this is a reasonable
interpretation, consistent with Congressional intent. EPA's regulatory
programs under FIFRA provide support for the Agency's conclusion that
the pesticides applied to or over, including near, water are not wastes
(and therefore not pollutants) and serve as an indicator of when a
pesticide is being applied as a product for its intended, beneficial
purpose. Under FIFRA, EPA receives applications from people who wish to
sell and distribute pesticides. The Agency may approve and issue a
registration for a product if EPA determines that the product will not
cause ``unreasonable adverse effects on the environment,'' which is
defined as ``any unreasonable risk to man or the environment, taking
into account the economic, social and environmental costs and benefits
of the use of [a] pesticide * * *.'' FIFRA Section 3(c)(5). In other
words, the Agency may register a pesticide only if the product provides
economic, social, and environmental benefits that outweigh risks from
its use. As part of FIFRA registration, EPA may establish requirements,
which are typically contained in the label for the pesticide, to ensure
that when used, it will not cause unreasonable adverse effects on the
environment, including the aquatic environment. Thus, registration and
use of a pesticide in accordance with its approved labeling or other
relevant FIFRA requirements indicates that a pesticide is a product
intended to be used for a beneficial purpose that is authorized by EPA
and is not a waste. For these reasons, comments regarding the adequacy
of EPA's pesticide regulatory program do not pertain to the legal
interpretation of whether a pesticide is a ``chemical waste'' or a
``biological material'' for purposes of the definition of ``pollutant''
under the CWA.
    Nonetheless, it is important to note that EPA disagrees with
commenters' concerns that EPA's registration process does not take into
account local conditions, existing water quality standards and use
designations, synergistic effects of multiple pesticides, inert
ingredients, non-target aquatic organisms, and the effect of multiple
applicators in the same area. The regulatory and non-regulatory tools
under FIFRA provide means of addressing water quality problems arising
from the use of pesticides. In

particular, the pesticide registration and re-registration processes
consider impacts on both human health from the presence of pesticides
in drinking water, and on aquatic resources (e.g., fish, invertebrates,
plants, and other species in fresh water, estuarine, and marine
environments). EPA requires a pesticide company to submit a substantial
body of data in support of an application for registration. EPA then
supplements this required database with information obtained through a
systematic search of the open literature on the ecotoxicity of
environmental substances. EPA compares the estimated environmental
concentrations expected to result from use of a pesticide with toxicity
values observed in required studies and studies from the open
literature. This database provides sufficient information to conduct
assessments of potential ecological and human health risks, including
the identification of toxicologically significant degradation products
and/or metabolites. For additional information on EPA's approach to
ecological risk assessment in general, and endangered and threatened
species in particular, see: http://www.epa.gov/espp/consultation/ecorisk-overview.pdf
.

C. EPA's Interpretation of the Term ``Pollutant'' Under the CWA

    Some commenters claimed that EPA's interpretation of the term
``pollutant'' is inconsistent with the Clean Water Act, with relevant
case law, or with prior Agency statements. EPA disagrees with the
commenters and believes its interpretation of the term ``pollutant'' is
reasonable and consistent with the language and legislative intent of
the Clean Water Act. As described above, pesticides applied in the
circumstances addressed in today's regulation, in compliance with
FIFRA, for their intended purpose, are not pollutants under the Act.
EPA also disagrees with commenters that the term ``biological
materials'' can only be read to include biological pesticides applied
in the circumstances addressed by today's regulation--i.e., application
to or over waters of the United States consistent with relevant
requirements of FIFRA. EPA's analysis of the terms ``chemical waste''
and ``biological materials'' in the circumstances addressed by today's
regulation is described in more detail above.
    In addition, the Ninth Circuit Court of Appeals recently held that
pesticides that do not generate a residue when applied directly to a
lake to eliminate a non-native fish species are not ``pollutants''
under the CWA because they are not chemical wastes. Fairhurst v.
Hagener, 422 F.3d 1146 (9th Cir. 2005). In so holding, the court
considered the plain meaning of the term ``chemical waste'' and noted
that its analysis was in accord with EPA's interpretation of the term
in its July 2003 Interim Statement, and that EPA's interpretation is
``reasonable and not in conflict with the expressed intent of
Congress.'' Id. at 1149-50. Today's regulation is based on the same
interpretation EPA first articulated in the Interim Statement, and is
consistent with the Fairhurst court's holding.
    Moreover, EPA's interpretation is not inconsistent with Talent and
Forsgren as some commenters have asserted. As explained below, these
cases do not interpret the term ``pollutant'' as including the
pesticide applications addressed in today's rule.
    In Headwaters v. Talent, the Ninth Circuit reversed the District
Court's dismissal of a CWA citizen suit against an irrigation district
alleging that application of the herbicide Magnacide H to irrigation
canals to control aquatic weeds and vegetation required an NPDES
permit. The District Court had concluded that the application of the
pesticide was adequately regulated under FIFRA, and further regulation
under the CWA was unnecessary. Headwaters v. Talent, No. 98-6004-AA
slip op. at 12 (D. Ore. Feb. 1, 1999). The Ninth Circuit found that
residual from the application of Magnacide H was a pollutant in this
case and that registration of the herbicide under FIFRA did not
preclude applicability of the CWA. Headwaters v. Talent, 243 F.3d at
532. This conclusion is consistent with EPA's interpretation. As
described above, EPA agrees that residual materials from pesticide
applications are ``pollutants'' under the Act. In addition, the
irrigation district in Talent failed to comply with a FIFRA
registration requirement to contain the herbicide-laden water in an
irrigation canal for a specified number of days. EPA's interpretation
codified in today's action is that pesticides applied in the
circumstances described in the rule are not ``pollutants'' where they
are applied consistent with relevant FIFRA requirements. Thus, EPA's
interpretation is consistent with the result reached by the Talent
court.
    In League of Wilderness Defenders v. Forsgren, the Ninth Circuit
held that the aerial application of insecticides over National Forest
lands in Washington and Oregon to control a predicted outbreak of the
Douglas fir tussock moth required an NPDES permit. However, the court
in Forsgren stated incorrectly that the parties in the case did not
dispute that the insecticides met the CWA definition of ``pollutant.''
League of Wilderness Defenders v. Forsgren, 309 F.3d at 1184, n.2. In
fact, the Forest Service in its brief before the District Court
reserved its arguments on that particular issue. Because the Ninth
Circuit erroneously assumed that the question of whether the
applications were pollutants was not in dispute, it did not analyze the
issue but simply stated that they were. Id. at 1185. The issue that the
Forsgren court did analyze in detail was whether the airplanes from
which the insecticides were sprayed are point sources under the CWA--a
different issue from that addressed in today's interpretation.\3\
---------------------------------------------------------------------------

    \3\ EPA's General Counsel issued a memorandum on September 3,
2003, addressing the Agency's views on the effect of the Forsgren
decision. Specifically, EPA stated that it did not acquiesce outside
the Ninth Circuit with the court's decision regarding the
application of EPA regulation defining ``silvicultural point
source'' at 40 CFR 122.27(b)(1), and would continue to follow its
longstanding interpretation of the statute and these regulations.
Memorandum from Robert E. Fabricant to Regional Administrators,
``interpretive Statement and Guidance Addressing Effect of Ninth
Circuit Decision in League of Wilderness Defenders v. Forsgren on
Application of Pesticides and Fire Retardants,'' Sept. 3, 2003.
---------------------------------------------------------------------------

    Commenters also claimed that EPA's interpretation is inconsistent
with the Clean Water Act because the purpose for which a pesticide is
applied is not relevant to the question of whether it is a pollutant
under the Act. The commenters pointed primarily to two cases--Hudson
River Fisherman's Assn. v. City of New York, 751 F.Supp. 1088
(S.D.N.Y.), affd., 940 F.2d 649 (2d Cir. 1991), and Minnehaha Creek
Watershed District v. Hoffman, 597 F.2d 617 (8th Cir. 1979)--as
supporting their assertion. However, both these cases are
distinguishable from EPA's interpretation.
    In Minnehaha Creek, the court was interpreting the terms ``rock,
sand, [and] cellar dirt'' in the definition of ``pollutant'' in CWA
Section 502(6). The federal appellants in that case appealed a District
Court decision finding that the U.S. Army Corps of Engineers did not
have jurisdiction under CWA Section 404 over the placement of riprap
and the construction of dams in Minnehaha Creek and adjacent Lake
Minnetonka. The District Court's decision was based on its conclusion
that the creek and the lake were not navigable waters of the United
States and that while the riprap and construction materials were ``rock
and sand,'' the activities at issue in the case were not within the
purview of the Act because they did not significantly affect water
quality. Minnehaha Creek Watershed District v. Hoffman, 449 F.Supp 876,
886 (D. Minnesota 1978). The Eighth Circuit disagreed and held

that a significant alteration in water quality need not be demonstrated
for a substance to be a pollutant. Minnehaha Creek Watershed District
v. Hoffman, 597 F.3d at 626-27.
    The Eighth Circuit stated in Minnehaha Creek that it found ``no
justification in the District Court's determination that whether the
discharge of a particular substance listed in s[ection] 502(6)
constitutes the discharge of a `pollutant' under the Act depends upon
the purpose for which the discharge is made.'' Id. at 627, emphasis
added. EPA notes that nowhere in its opinion does the District Court
reach such a conclusion. In any case, EPA is not concluding that the
question of whether a substance is a pollutant depends on the specific
purpose for which it is discharged. Rather, EPA is interpreting what
specific terms in section 502(6) mean in the context of certain
pesticide applications.
    The Second Circuit Court of Appeals decision in Hudson River
Fishermen's Assn. v. City of New York is also distinguishable from the
circumstances addressed in today's rule. In that case, the District
Court held that discharges of chlorine and aluminum sulfate (alum floc)
from an aqueduct into a reservoir were discharges of pollutants
requiring an NPDES permit. First, this case involved the discharge of
alum floc from a point source at a point when it was a ``chemical
waste'' and, therefore, consistent with EPA's interpretation, properly
constituted a pollutant under the statute. Hudson River Fishermen's
Assn. v. City of New York, 751 F.Supp 1088, 1102. In contrast, today's
rule addresses certain pesticides which are being applied in compliance
with relevant FIFRA requirements and, for the reasons described above,
are not pollutants.
    Moreover, the court's holding that chlorine was a pollutant also
referred to the chlorine in the aqueduct at the time it discharged into
the reservoir, not at the time it was first added to the water. The
court held that the chlorine was a pollutant, no matter how useful it
may earlier have been, citing to the Eighth Circuit's decision in
Minnehaha Creek. Id. at 1101. Similarly, EPA is not concluding that the
question of whether substances listed in section 502(6) are pollutants
depends on the purpose for which they are discharged. Rather, EPA is
interpreting what specific terms in section 502(6) (terms other than
those addressed in Minnehaha Creek) mean in the context of these two
types of pesticide applications.
    Finally, while EPA's interpretation is not inconsistent with either
Hudson River or Minnehaha Creek, it is further supported by the Ninth
Circuit's decision in Fairhurst v. Hagener. In Fairhurst, the Ninth
Circuit specifically considered the purpose for which the pesticide was
applied--the same factor commenters claim is not relevant under Hudson
River and Minnehaha Creek--and the fact that it was applied consistent
with the product's FIFRA label, in concluding that it was not a
pollutant under the CWA. Fairhurst v. Hagener, 422 F.3d 1146, 1150
(``Because intentionally applied and properly performing pesticides are
not `pollutants,' a potential discharger is not required to secure an
NPDES permit for such pesticides before discharge.'')
    Some commenters also claimed that EPA's interpretation is
inconsistent with positions taken by the government in several amicus
curiae briefs related to the issues addressed by the interpretation. As
mentioned above, these briefs reflected the government's evaluation of
the law in the context of the specific factual situations at issue and
did not result from the deliberative consideration through an
administrative process, as today's rule does. As such, the briefs were
not a comprehensive statement of EPA's legal position on the precise
questions addressed in today's rule, nor did they reflect the exercise
of EPA's legal and policy judgment after consideration of public
comments. See Memorandum from Ann R. Klee to Benjamin Grumbles and
Susan Hazen, ``Analysis of Previous Federal Government Statements on
Application of Pesticides to Waters of the United States in Compliance
with FIFRA,'' Jan. 24, 2005.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is a ``significant regulatory action.'' 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.

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.
This rule merely identifies two circumstances in which the application
of a pesticide to waters of the United States consistent with all
relevant requirements under FIFRA does not constitute the discharge of
a pollutant that requires an NPDES permit under the Clean Water Act.
    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 at 13 CFR 121.201;
(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.
    After considering the economic impacts of today's rule on small
entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. Because EPA
is identifying two circumstances in which the application of a
pesticide to waters of the United States consistent with all relevant
requirements under FIFRA does not constitute the discharge of a
pollutant

that requires a NPDES permit under the Clean Water Act, this action
will not impose any requirement on any small entity.

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 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 has 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. Thus, today's rule is not subject to the
requirements of sections 202 and 205 of the UMRA. For the same reason,
EPA has determined that this rule contains no regulatory requirements
that might significantly or uniquely affect small governments. Thus,
today's rule is not subject to the requirements of section 203 of UMRA.

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.''
    This final 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 is merely identifying two
circumstances in which the application of a pesticide to waters of the
United States consistent with all relevant requirements under FIFRA
does not constitute the discharge of a pollutant that requires a NPDES
permit under the Clean Water Act. Thus, Executive Order 13132 does not
apply to this rule.
    In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and State and local
governments, EPA specifically solicited comment on the proposed rule
from State and local officials. EPA additionally consulted with state
officials in the development of the final rule. Especially important
were consultations regarding the manner in which States in the Ninth
Circuit currently permit pesticides in response to the Talent decision
and how states use TMDLs and other authorities to address pesticide
residuals.

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 6, 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.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and the Indian tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian tribes.''
    This final rule 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.
EPA is merely identifying two circumstances in which the application of
a pesticide to waters of the United States consistent with all relevant
requirements under FIFRA does not constitute the discharge of a
pollutant that requires a NPDES permit under the Clean Water Act. Thus,
Executive Order 13175 does not apply to this rule. Moreover, in the
spirit of Executive Order 13175, and consistent with EPA policy to
promote communications between EPA and tribal governments, EPA
specifically solicited comment on the 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 Executive Order 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 regulation is not subject to Executive Order 13045 because it
is not economically significant as defined under Executive Order 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 regulation only interprets the
legal scope of the NPDES permit requirement under the CWA and does not
change how pesticide applications are addressed under FIFRA.

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

    This 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)). The only effect of
this rule is to identify two circumstances in which the application of
a pesticide to waters of the United States consistent with all relevant
requirements under FIFRA does not constitute the discharge of a
pollutant that requires a NPDES permit under the Clean Water Act.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 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
rulemaking does not involve technical 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 January 26, 2007.

List of Subjects in 40 CFR Part 122

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

    Dated: November 20, 2006.
Stephen L. Johnson,
Administrator.

0
For the reasons set forth in the preamble, chapter I of title 40 of the
Code of Federal Regulations is to be 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. Section 122.3 is amended by adding paragraph (h) to read as follows:

Sec.  122.3  Exclusions.

* * * * *
    (h) The application of pesticides consistent with all relevant
requirements under FIFRA (i.e., those relevant to protecting water
quality), in the following two circumstances:
    (1) The application of pesticides directly to waters of the United
States in order to control pests. Examples of such applications include
applications to control mosquito larvae, aquatic weeds, or other pests
that are present in waters of the United States.
    (2) The application of pesticides to control pests that are present
over waters of the United States, including near such waters, where a
portion of the pesticides will unavoidably be deposited to waters of
the United States in order to target the pests effectively; for
example, when insecticides are aerially applied to a forest canopy
where waters of the United States may be present below the canopy or
when pesticides are applied over or near water for control of adult
mosquitoes or other pests.

 [FR Doc. E6-20002 Filed 11-24-06; 8:45 am]

BILLING CODE 6560-50-P


[Federal Register Volume 79, Number 25 (Thursday, February 6, 2014)]
[Notices]
[Pages 7267-7269]
[FR Doc No: 2014-02498]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-71452; File No. SR-NYSE-2014-05]

Self-Regulatory Organizations; New York Stock Exchange LLC;
Notice of Filing and Immediate Effectiveness of Proposed Rule Change
Amending Its Price List To Introduce Fees and Credits for A New Order
Type Called a Midpoint Passive Liquidity Order

January 31, 2014.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of
1934 (the ``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby
given that, on January 22, 2014, New York Stock Exchange LLC (``NYSE''
or the ``Exchange'') filed with the Securities and Exchange Commission
(the ``Commission'') the proposed rule change as described in Items I,
II, and III below, which Items have been prepared by the self-
regulatory organization. The Commission is publishing this notice to
solicit comments on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes to amend its Price List to introduce fees for
a new order type called a Midpoint Passive Liquidity (``MPL'') Order.
The proposed fees would be operative on January 27, 2014. The text of
the proposed rule change is available on the Exchange's Web site at
www.nyse.com, at the principal office of the Exchange, and at the
Commission's Public Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the self-regulatory organization
included statements concerning the purpose of, and basis for, the
proposed rule change and discussed any comments it received on the
proposed rule change. The text of those statements may be examined at
the places specified in Item IV below. The Exchange has prepared
summaries, set forth in sections A, B, and C below, of the most
significant parts of such statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange proposes to amend its Price List to introduce fees for
a new order type called a MPL Order. The proposed fees would be
operative on January 27, 2014.
    The Exchange recently introduced the MPL Order type,\4\ which is an
undisplayed limit order that automatically executes at the mid-point of
the protected best bid or offer (``PBBO''). An MPL Order is not
eligible for manual executions, including openings, re-openings, or
closing transactions. An MPL Order also is not eligible to trade if it
would trade at a price below $1.00 or if the execution price would be
out to five decimal places above $1.00. All market participants--
customers, Floor brokers, Designated Market Makers (``DMMs''), and
Supplemental Liquidity Providers (``SLPs'')--may use the MPL order
type.
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    \4\ See Rule 13 and Securities Exchange Act Release No. 71330
(January 16, 2014) (SR-NYSE-2013-71).
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    The Exchange proposes to charge $0.0025 per share for all MPL
Orders that remove liquidity from the Exchange if the security is
priced $1.00 or more. The Exchange also proposes to offer a

credit of $0.0015 per share for all MPL Orders that provide liquidity
to the Exchange if the security is priced $1.00 or more.\5\ The fee and
credit will apply to all market participants. MPL Orders that add
liquidity will contribute to adding liquidity requirements, including
Tier 1 Adding Credit, Tier 2 Adding Credit, SLP credits for $0.0023 and
$0.0025 credits, and DMM providing liquidity. However, the Exchange
notes that MPL Orders will not be eligible for any tiered or additional
credits or reduced fees even if the MPL Orders contribute to a member
organization qualifying for an additional credit. For example, if a
member organization qualified for the Tier 1 Adding Credit, the member
organization will receive the proposed $0.0015 per share credit for MPL
Orders, not $0.0018 per share for such order under the tier. Where the
MPL Order fee or credit does not differ from the current fee or credit,
the Exchange has not proposed a change to the Price List.
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    \5\ The Exchange's current rates for transactions in securities
with a per share price less of than $1.00 would continue to apply.
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2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent
with Section 6(b) of the Act,\6\ in general, and furthers the
objectives of Sections 6(b)(4) and (5) of the Act,\7\ in particular,
because it provides for the equitable allocation of reasonable dues,
fees, and other charges among its members, issuers and other persons
using its facilities and does not unfairly discriminate between
customers, issuers, brokers or dealers.
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    \6\ 15 U.S.C. 78f(b).
    \7\ 15 U.S.C. 78f(b)(4) and (5).
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    The Exchange believes that the proposed fee of $0.0025 per share
for all MPL Orders that remove liquidity from the Exchange and the
proposed credit of $0.0015 per share for all MPL Orders that provide
liquidity to the Exchange if the security is priced $1.00 or more are
reasonable because the fee and credit would be the same as the fee and
credit that would otherwise apply for all other non-Floor broker
transactions (i.e., $0.0025 per share fee for taking liquidity from the
Exchange and $0.0015 per share credit under the non-Tier Adding
Credit). The Exchange notes that the proposed credit and fee are within
the same range as at least one other exchange for MPL Orders.\8\ The
Exchange also believes that the proposed fee and credit are equitable
and not unfairly discriminatory because they may provide opportunities
for market participants to interact with orders priced at the midpoint
of the PBBO, thus providing price improving liquidity to market
participants and thereby increase the quality of order execution on the
Exchange's market, which benefits all market participants. The Exchange
also believes that providing the same fees and credits for MPL Orders
that would otherwise apply is equitable and not unfairly
discriminatory. Moreover, all market participants will be eligible for
the proposed fee and credit. The Exchange believes that it is
reasonable, equitable, and not unfairly discriminatory to limit
additional or higher credits for MPL Orders for which market
participants may otherwise qualify because it will ensure that all
market participants pay the same fees and receive the same credits
regardless of Floor broker, DMM, or SLP designation. The Exchange
believes that it is reasonable to allow MPL Orders to count toward
adding liquidity because it is consistent with the purpose of those
credits. The Exchange also believes it is equitable and not unfairly
discriminatory because all market participants that use the MPL Order
type will pay the same fee and receive the same credit.
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    \8\ For Tape A Securities under its Tier 1, Tier 2, and Basic
Rate Tier, the Exchange's affiliate, NYSE Arca Equities, Inc.,
currently charges $0.0030 per share for all MPL Orders that remove
liquidity and provides a credit of $0.0015 per share for all MPL
Orders that provide liquidity. See NYSE Arca Equities, Inc. Schedule
of Fees and Charges, available at https://usequities.nyx.com/sites/usequities.nyx.com/files/nyse_arca_marketplace_fees__for_1-2-14.pdf.
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B. Self-Regulatory Organization's Statement on Burden on Competition

    In accordance with Section 6(b)(8) of the Act,\9\ the Exchange does
not believe that the proposed rule change will impose any burden on
competition that is not necessary or appropriate in furtherance of the
purposes of the Act. The Exchange believes the proposed MPL Order fees
and credits will enhance order execution opportunities for member
organizations. Further, the Exchange believes that providing the same
fees and credits for MPL Orders that would otherwise apply will enhance
competition between the Exchange and other exchanges that currently
offer similar order types by offering investors another option to
access liquidity at the midpoint of the PBBO.
---------------------------------------------------------------------------

    \9\ 15 U.S.C. 78f(b)(8).
---------------------------------------------------------------------------

    Finally, the Exchange notes that it operates in a highly
competitive market in which market participants can readily favor
competing venues if they deem fee or credit levels at a particular
venue to be unattractive. In such an environment, the Exchange must
continually review, and consider adjusting, its fees and credits to
remain competitive with other exchanges. For these reasons, the
Exchange believes that the proposed rule change reflects this
competitive environment and is therefore consistent with the Act.

C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others

    No written comments were solicited or received with respect to the
proposed rule change.

III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action

    The foregoing rule change is effective upon filing pursuant to
Section 19(b)(3)(A) \10\ of the Act and subparagraph (f)(2) of Rule
19b-4 \11\ thereunder, because it establishes a due, fee, or other
charge imposed by the Exchange.
---------------------------------------------------------------------------

    \10\ 15 U.S.C. 78s(b)(3)(A).
    \11\ 17 CFR 240.19b-4(f)(2).
---------------------------------------------------------------------------

    At any time within 60 days of the filing of such proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act. If the Commission
takes such action, the Commission shall institute proceedings under
Section 19(b)(2)(B) \12\ of the Act to determine whether the proposed
rule change should be approved or disapproved.
---------------------------------------------------------------------------

    \12\ 15 U.S.C. 78s(b)(2)(B).
---------------------------------------------------------------------------

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views and
arguments concerning the foregoing, including whether the proposal is
consistent with the Act. Comments may be submitted by any of the
following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File Number SR-NYSE-2014-05 on the subject line.

Paper Comments

     Send paper comments in triplicate to Elizabeth M. Murphy,
Secretary,

Securities and Exchange Commission, 100 F Street NE., Washington, DC
20549-1090.

All submissions should refer to File Number SR-NYSE-2014-05. This file
number should be included on the subject line if email is used. To help
the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for Web site viewing and
printing in the Commission's Public Reference Room, 100 F Street NE.,
Washington, DC 20549, on official business days between the hours of
10:00 a.m. and 3:00 p.m. Copies of the filing also will be available
for inspection and copying at the principal office of the Exchange. All
comments received will be posted without change; the Commission does
not edit personal identifying information from submissions. You should
submit only information that you wish to make available publicly. All
submissions should refer to File Number SR-NYSE-2014-05 and should be
submitted on or before February 27, 2014.
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    \13\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\13\
Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2014-02498 Filed 2-5-14; 8:45 am]
BILLING CODE 8011-01-P