82 FR 55542 - Definition of “Waters of the United States”-Addition of an Applicability Date to 2015 Clean Water Rule
DEPARTMENT OF DEFENSE
Department of the Army, Corps of Engineers
ENVIRONMENTAL PROTECTION AGENCY Federal Register Volume 82, Issue 224 (November 22, 2017)
Department of the Army, Corps of Engineers
ENVIRONMENTAL PROTECTION AGENCY
Federal Register Volume 82, Issue 224 (November 22, 2017)
| Page Range | 55542-55547 | |
| FR Document | 2017-25321 |
[Federal Register Volume 82, Number 224 (Wednesday, November 22, 2017)] [Proposed Rules] [Pages 55542-55547] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2017-25321] [[Page 55542]] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF DEFENSE Department of the Army, Corps of Engineers 33 CFR Part 328 ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 110, 112, 116, 117, 122, 230, 232, 300, 302, and 401 [EPA-HQ-OW-2017-0644; FRL-9970-57-OW] RIN 2040-AF80 Definition of ``Waters of the United States''--Addition of an Applicability Date to 2015 Clean Water Rule AGENCY: Department of the Army, Corps of Engineers, Department of Defense; and Environmental Protection Agency (EPA). ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: The Environmental Protection Agency and the Department of the Army (``the agencies'') are proposing to add an applicability date to the ``Clean Water Rule: Definition of `Waters of the United States''' (the ``2015 Rule'') to two years from the date of final action on this proposal. On October 9, 2015, the Sixth Circuit stayed the 2015 Rule nationwide pending further action of the court, but the Supreme Court is currently reviewing the question of whether the court of appeals has original jurisdiction to review challenges to the 2015 Rule. On February 28, 2017, the President signed an Executive Order, ``Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the `Waters of the United States' Rule.'' With this proposed rule, the agencies intend to maintain the status quo by proposing to add an applicability date to the 2015 Rule and thus provide continuity and regulatory certainty for regulated entities, the States and Tribes, agency staff, and the public while the agencies continue to work to consider possible revisions to the 2015 Rule. DATES: Comments must be received on or before December 13, 2017. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW- 2017-0644, at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The agencies may publish any comment received to the public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The agencies will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets. FOR FURTHER INFORMATION CONTACT: Ms. Donna Downing, Office of Water (4504-T), Environmental Protection Agency, 1200 Pennsylvania Avenue NW., Washington, DC 20460; telephone number: (202) 566-2428; email address: [email protected]; or Ms. Stacey Jensen, Regulatory Community of Practice (CECW-CO-R), U.S. Army Corps of Engineers, 441 G Street NW., Washington, DC 20314; telephone number: (202) 761-5903; email address: [email protected]. SUPPLEMENTARY INFORMATION: The Environmental Protection Agency and the Department of the Army (``the agencies'') are proposing to add an applicability date to the 2015 Clean Water Rule of two years from the date of final action on this proposal. The effective date of the 2015 Rule was August 28, 2015. On July 27, 2017, the agencies published a proposed rule to initiate the first step in a comprehensive, two-step process intended to review and revise, as appropriate and consistent with law, the definition of ``waters of the United States'' under with Executive Order 13778 signed on February 28, 2017, ``Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the `Waters of the United States' Rule.'' The first step in the process (the ``Step One rule'') proposed to rescind the definition of ``waters of the United States'' promulgated by the agencies in 2015 in the Code of Federal Regulations and to re-codify the previous definition of ``waters of the United States,'' which defines the scope of the Clean Water Act. The previous definition is currently in effect pursuant to a decision issued by the U.S. Court of Appeals for the Sixth Circuit staying the 2015 definition of ``waters of the United States.'' In a second step (the ``Step Two rule''), the agencies intend to pursue a public notice- and-comment rulemaking in which the agencies would conduct a substantive re-evaluation of the definition of ``waters of the United States.'' With this proposed rule to add an applicability date to the 2015 Rule, the agencies intend to provide, for an interim period, greater regulatory certainty about the definition of ``waters of the United States'' in effect while they continue to work on the two-step rulemaking process. The addition of the applicability date to the 2015 Rule to two years after the date of a final rule under this proposed rulemaking effort would ensure that the regulatory definition of ``waters of the United States'' that existed prior to promulgation of the rule in 2015 and that has been in effect nationwide since the 2015 Rule was stayed on October 9, 2015, would remain in effect during the ongoing actions undertaken in response to the Executive Order. This proposed rule to add an applicability date to the 2015 Rule would maintain the legal status quo and thus provide continuity and certainty for regulated entities, the States and Tribes, agency staff, and the public. The agencies would administer the regulations as they are currently being implemented, consistent with Supreme Court decisions and longstanding practice as informed by applicable agency guidance documents. State, tribal, and local governments have well-defined and longstanding relationships with the federal government in implementing CWA programs and these relationships are not altered by this proposed rule. This proposed rule would not establish any new regulatory requirements. Rather, this rule would simply add an applicability date to the 2015 Rule leaving in place the current legal status quo while the agencies continue to engage in substantive rulemaking to reconsider the definition of ``waters of the United States.'' I. Background and Discussion of Addition of Applicability Date A. What This Proposed Rule Does In 2015, the agencies published the ``Clean Water Rule: Definition of `Waters of the United States''' (80 FR 37054, June 29, 2015), and on October 9, 2015, the U.S. Court of Appeals for the Sixth Circuit stayed the 2015 Rule nationwide pending further action of the court. The 2015 Rule had an effective date of August 28, 2015. The agencies propose to add an applicability date of two years from the date of final action on this proposal. The effective date of the 2015 Rule was established by a document published by the agencies in the Federal Register (80 FR 37054, June 29, 2015). [[Page 55543]] The Code of Federal Regulations text does not include an applicability date; therefore, the agencies are proposing to amend the text of the Code of Federal Regulations to add a new applicability date. Until the new applicability date, the agencies would continue to implement the prior regulatory definitions, informed by applicable agency guidance documents and consistent with Supreme Court decisions and longstanding agency practice, as the agencies have been operating pursuant to the Sixth Circuit's October 9, 2015, order. B. History and the Purpose of This Rulemaking Congress enacted the Federal Water Pollution Control Act Amendments of 1972, Public Law 92-500, 86 Stat. 816, as amended, Public Law 95- 217, 91 Stat. 1566, 33 U.S.C. 1251 et seq. (``Clean Water Act'' or ``CWA'' or ``Act'') ``to restore and maintain the chemical, physical and biological integrity of the Nation's waters.'' Section 101(a). A primary tool in achieving that purpose is a prohibition on the discharge of any pollutants, including dredged or fill material, to ``navigable waters'' except in accordance with the Act. Section 301(a). The CWA provides that ``[t]he term `navigable waters' means the waters of the United States, including the territorial seas.'' Section 502(7). The regulations defining the ``waters of the United States'' currently in effect were established in large part in 1977 (42 FR 37122, July 19, 1977). While EPA administers most provisions in the CWA, the U.S. Army Corps of Engineers (Corps) administers the permitting program under section 404. During the 1980s, both of these agencies adopted substantially similar definitions (51 FR 41206, Nov. 13, 1986, amending 33 CFR 328.3; 53 FR 20764, June 6, 1988, amending 40 CFR 232.2). In 2015, following public notice and comment on a proposed rule, the agencies published a final rule defining the ``waters of the United States'' (80 FR 37054). Thirty-one States and other parties sought judicial review in multiple actions in Federal district courts and Circuit Courts of Appeal, raising concerns about the scope and legal authority of the 2015 Rule. One district court issued an order granting a motion for preliminary injunction one day prior to the rule's effective date that applies to the thirteen plaintiff States in that case, State of North Dakota et al. v. US EPA, No. 15-00059, slip op. at 1-2 (D.N.D. Aug. 27, 2015, as clarified by order issued on September 4, 2015), and several weeks later, the Sixth Circuit stayed the 2015 Rule nationwide to restore the ``pre-Rule regime, pending judicial review.'' In re U.S. Dep't. of Def. and U.S. Envtl. Protection Agency Final Rule: Clean Water Rule, No. 15-3751 (lead), slip op. at 6. Pursuant to the Sixth Circuit's order, the agencies are applying the definition of ``waters of the United States'' that preceded the 2015 Rule nationwide. On January 13, 2017, the U.S. Supreme Court granted certiorari on the question of whether the court of appeals has original jurisdiction to review challenges to the 2015 Rule. The Sixth Circuit granted petitioners' motion to hold in abeyance the briefing schedule in the litigation challenging the 2015 Rule pending a Supreme Court decision on the question of the court of appeals' jurisdiction. On October 11, 2017, the Supreme Court held oral argument on the question of whether the court of appeals has original jurisdiction to review challenges to the 2015 Rule. The Supreme Court could issue a decision resolving the question at any time. On February 28, 2017, the President of the United States issued an Executive Order entitled ``Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the `Waters of the United States' Rule.'' Section 1 of the Order states, ``[i]t is in the national interest to ensure that the Nation's navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution.'' The Executive Order directed the EPA and the Army to review the 2015 Rule for consistency with the policy outlined in section 1 of the Order, and to issue a proposed rule rescinding or revising the 2015 Rule as appropriate and consistent with law. Section 2. The Executive Order also directed the agencies to consider interpreting the term ``navigable waters'' in a manner consistent with Justice Scalia's plurality opinion in Rapanos v. United States, 547 U.S. 715 (2006). Section 3. On July 27, 2017, the agencies proposed a rule to rescind the 2015 Rule and replace it with a recodification of the regulatory text that governed the legal regime prior to the 2015 Rule (82 FR 34899), and that the agencies are currently implementing under the court stay, informed by applicable guidance documents (e.g., 2003 and 2008 guidance documents, as well as relevant memoranda and regulatory guidance letters), and consistent with Supreme Court decisions and longstanding agency practice. The agencies received many comments on the Step One proposed recodification and it remains under active consideration. C. Today's Proposed Rule In this proposed rule, the agencies would add an applicability date to the 2015 Rule such that it is not implemented until two years from the date of a final action on this proposal. During that time, the agencies will continue to implement nationwide the previous regulatory definition of ``waters of the United States'' as they are currently doing under the Sixth Circuit's stay, informed by applicable guidance documents (e.g., 2003 and 2008 guidance documents, as well as relevant memoranda and regulatory guidance letters), and consistent with Supreme Court decisions and longstanding agency practice. The scope of CWA jurisdiction is an issue of great national importance and therefore the agencies will provide for robust deliberations to re-evaluate the definition of ``waters of the United States.''. While engaging in such deliberations, however, the agencies recognize the need to provide an interim step for regulatory continuity and clarity for the many stakeholders affected by the definition of ``waters of the United States.'' The pre-2015 Rule regulatory regime is in effect as a result of the Sixth Circuit's stay of the 2015 Rule but that regime depends upon the pendency of the Sixth Circuit's order and could be altered at any time by factors beyond the control of the agencies. The Supreme Court's resolution of the question as to which courts have original jurisdiction over challenges to the 2015 Rule could impact the Sixth Circuit's exercise of jurisdiction and its stay. If, for example, the Supreme Court were to decide that the Sixth Circuit lacks original jurisdiction over challenges to the 2015 Rule, the Sixth Circuit case would be dismissed and its nationwide stay would expire, leading to possible inconsistencies, uncertainty, and confusion as to the regulatory regime that could be in effect pending substantive rulemaking under the Executive Order. As noted previously, prior to the Sixth Circuit's stay order, the District Court for North Dakota had preliminarily enjoined the rule in 13 States (North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota, Wyoming and New Mexico). Therefore, if the Sixth Circuit's nationwide stay were to expire, the 2015 Rule would be enjoined under the North Dakota order in States covering a large geographic area of the country, but the rule would be in effect in the rest of the [[Page 55544]] country pending further judicial decision-making or substantive rulemaking under the Executive Order. Adding to the confusion that could be caused if the Sixth Circuit's nationwide stay of the 2015 Rule were to expire, there are multiple other district court cases pending on the 2015 Rule, including several where challengers have filed motions for preliminary injunctions. These cases--and the pending preliminary injunction motions--could be reactivated if the Supreme Court were to determine that the Sixth Circuit lacks original jurisdiction over challenges to the 2015 Rule. In addition, if the Supreme Court were to decide that the courts of appeal do have original jurisdiction over challenges to the 2015 Rule, the litigation in the Sixth Circuit could resume and therefore control over which regulatory definition of ``waters of the United States'' is in effect while the agencies engage in deliberations on the ultimate regulation could remain outside of the agencies. The proposed interim rule would establish a clear regulatory framework that could avoid the possible inconsistencies, uncertainty and confusion that could result from a Supreme Court ruling while the agencies reconsider the 2015 Rule. It would ensure that, during this interim period, the scope of CWA jurisdiction will be administered exactly the way it is now, and as it has been for many years prior to the promulgation of the 2015 Rule. The agencies are proposing an applicability date two years after the date of publication of the final rule in order to ensure that there is sufficient time for the regulatory process for reconsidering the definition of ``waters of the United States'' to be fully completed. The agencies are undertaking an extensive outreach effort to gather information and recommendations from States and tribes, regulated entities, academia, and the public. The geographic scope of the Clean Water Act is of great national interest and there were more than 680,000 public comments on the Step One proposed rule. The agencies continue to work as expeditiously as possible to complete the two-step rulemaking process. However, in light of the great interest in this rulemaking, the agencies are proposing an applicability date for the 2015 Rule that is two years after the publication date of the final rule to ensure that there is sufficient time for a consideration of the results of the outreach process, robust discussion with other federal agencies, an appropriate public comment period, and consideration of the resulting comments during the Step Two rulemaking. The agencies recognize that there may be some confusion because there is an existing proposal to rescind the 2015 Rule and replace it with the previous definition of ``waters of the United States,'' as well as ongoing pre-proposal stakeholder outreach and engagement about the scope of the Step Two rulemaking that would substantively reconsider the definition of ``waters of the United States.'' The comment period for the July Step One proposed rule is now closed and the agencies are considering those comments and developing the Step Two proposal. In light of the public interest in these rules and the length of time involved in these rulemakings, the agencies today are proposing this more narrowly targeted and focused interim rule to ensure the consistency of implementation of the definition of ``waters of the United States'' during this interim period. Because the request for comment is on such a narrow topic, and because a Supreme Court ruling could come at any time, the agencies believe that a short comment period is reasonable. II. General Information A. How can I get copies of this document and related information? 1. Docket. An official public docket for this action has been established under Docket ID No. EPA-HQ-OW-2017-0644. The official public docket consists of the documents specifically referenced in this action, and other information related to this action. The official public docket is the collection of materials that is available for public viewing at the OW Docket, EPA West, Room 3334, 1301 Constitution Ave. NW., Washington, DC 20004. This Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The OW Docket telephone number is 202-566-2426. A reasonable fee will be charged for copies. 2. Electronic Access. You may access this Federal Register document electronically under the ``Federal Register'' listings at http://www.regulations.gov. An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may access EPA Dockets at http://www.regulations.gov to view public comments as they are submitted and posted, access the index listing of the contents of the official public docket, and access those documents in the public docket that are available electronically. For additional information about EPA's public docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the Docket Facility. B. What is the agencies' authority for taking this action? The authority for this action is the Federal Water Pollution Control Act, 33 U.S.C. 1251, et seq., including sections 301, 304, 311, 401, 402, 404 and 501. C. What are the economic impacts of this action? The agencies have determined that there are no economic costs or benefits associated with this action. In light of the ongoing, complex litigation over the 2015 Rule, the agencies believe it is reasonable and appropriate for purposes of considering economic impacts for this proposal to presume that the legal status quo is likely to remain the same. This proposal, if finalized, would have the effect of providing the public with regulatory certainty while the agencies pursue a substantive rulemaking process. This proposal would eliminate one source of uncertainty for the regulated community as they consider investments. While the agencies recognize that there could be benefits associated with greater regulatory certainty, we are unable to quantify those benefits. The agencies have prepared a memorandum to the record to provide the public with information about this conclusion with respect to the potential economic impacts associated with this action. A copy of the memorandum is available in the docket for this action. III. Public Comments The agencies solicit comment as to whether it is desirable and appropriate to add an applicability date to the 2015 Rule. The agencies are proposing to establish an applicability date of two years after a final rule and seek comment on whether the time period should be shorter or longer, and whether adding the applicability date contributes to regulatory certainty. The agencies have prepared a memorandum to the record to provide the public with information about the activities envisioned in support of a comprehensive rulemaking process. A copy of the memorandum is available in the docket for this action. Because the agencies propose to simply add the applicability date and ensure continuance of the legal status quo and because it is a temporary, [[Page 55545]] interim measure pending substantive rulemaking, the agencies believe that a short comment period is reasonable. In addition, please note that this proposed rulemaking does not undertake any substantive reconsideration of the pre-2015 ``waters of the United States'' definition nor are the agencies soliciting comment on the specific content of those longstanding regulations. See P&V Enterprises v. Corps of Engineers, 516 F.3d 1021,1023-24 (D.C. Cir. 2008). For the same reason, the agencies are not at this time soliciting comment on the scope of the definition of ``waters of the United States'' that the agencies should ultimately adopt in the Step Two rule in this process, as the agencies will address those issues as appropriate, including those related to the 2015 Rule, in the notice and comment rulemaking to consider adopting a revised definition of ``waters of the United States'' in light of the February 28, 2017, Executive Order. The agencies do not intend to engage in substantive re-evaluation of the definition of ``waters of the United States'' until the Step Two rulemaking. See P&V, 516 F.3d at 1025-26. IV. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review; and Executive Order 13563: Improving Regulation and Regulatory Review This action is a significant regulatory action because policy issues with respect to the definition of ``waters of the United States'' are novel for purposes of Executive Order 12866 and it was submitted to the Office of Management and Budget (OMB) for review. It is not an economically significant action. Any changes made in response to OMB recommendations have been documented in the docket. In addition, the agencies prepared a memorandum to the record regarding analysis of the potential economic impacts associated with this action. The agencies have determined that there are no costs or benefits associated with this action. This action would simply add an applicability date to the 2015 Rule which is stayed nationwide and the legal status quo continues to remain in place. A copy of the memorandum is available in the docket for this action. B. Executive Order 13771: Reducing Regulation and Controlling Regulatory Costs This action is not expected to be subject to Executive Order 13771 because this proposed rule is expected to result in no additional costs. C. Paperwork Reduction Act (PRA) This proposed rule does not involve any information collection activities subject to the PRA, 44 U.S.C. 3501 et seq. D. Regulatory Flexibility Act (RFA) We certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, the impact of concern is any significant adverse economic impact on small entities. An agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, has no net burden or otherwise has a positive economic effect on the small entities subject to the rule. This action would simply add an applicability date to the 2015 Rule which is stayed nationwide and the legal status quo continues to remain in place. We have therefore concluded that this action will not have a significant impact on small entities. This analysis is contained in a memorandum to the record, which is available in the docket for this action. E. Unfunded Mandates Reform Act (UMRA) This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local or tribal governments or the private sector. The definition of ``waters of the United States'' applies broadly to all CWA programs. F. Executive Order 13132: Federalism This action 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. G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments This action does not have Tribal implications, as specified in Executive Order 13175. This action would simply add an applicability date to the 2015 Rule which is stayed nationwide and the legal status quo continues to remain in place. Thus, Executive Order 13175 does not apply to this action. H. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks The agencies interpret Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the agencies have reason to believe may disproportionately affect children, per the definition of ``covered regulatory action'' in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk. I. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use This action is not a ``significant energy action'' because it is not likely to have a significant adverse effect on the supply, distribution or use of energy. This action would simply add an applicability date to the 2015 Rule which is stayed nationwide and the legal status quo continues to remain in place. J. National Technology Transfer and Advancement Act (NTTAA) This rulemaking does not involve technical standards. K. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations The agencies believe that this action is not subject to Executive Order 12898 (59 FR 7629, February 16, 1994) because it does not establish an environmental health or safety standard. This is a proposal to add an applicability date to the 2015 Rule. The agencies believe it is more appropriate to consider the impact on minority and low-income populations in the context of possible substantive changes as part of any reconsideration of the 2015 Rule. List of Subjects 33 CFR Part 328 Environmental protection, Administrative practice and procedure, Intergovernmental relations, Navigation, Water pollution control, Waterways. 40 CFR Parts 110, 112, 116, 117, 122, 230, 232, 300, 302, and 401 Environmental protection, Water pollution control. [[Page 55546]] Dated: November 16, 2017. E. Scott Pruitt, Administrator, Environmental Protection Agency. Dated: November 16, 2017. Ryan A. Fisher, Acting Assistant Secretary of the Army (Civil Works). Title 33--Navigation and Navigable Waters For the reasons set out in the preamble, title 33, chapter II of the Code of Federal Regulations is proposed to be amended as follows: PART 328--DEFINITION OF WATERS OF THE UNITED STATES 0 1. The authority citation for part 328 continues to read as follows: Authority: 33 U.S.C. 1251 et seq. 0 2. Section 328.3 is amended by adding paragraph (e) to read as follows: Sec. 328.3 Definitions. * * * * * (e) Applicability date. Paragraphs (a) through (c) of this section are applicable beginning on [DATE TWO YEARS AFTER DATE OF PUBLICATION OF FINAL RULE IN THE Federal Register]. Title 40--Protection of Environment For reasons set out in the preamble, title 40, chapter I of the Code of Federal Regulations is proposed to be amended as follows: PART 110--DISCHARGE OF OIL 0 3. The authority citation for part 110 continues to read as follows: Authority: 33 U.S.C. 1251 et seq., 33 U.S.C. 1321(b)(3) and (b)(4) and 1361(a); E.O. 11735, 38 FR 21243, 3 CFR parts 1971-1975 Comp., p. 793. 0 4. Section 110.1 is amended by adding paragraph (4) to the definition of ``Navigable waters'' to read as follows: Sec. 110.1 Definitions. * * * * * Navigable waters * * * (4) Applicability date. This definition is applicable beginning on [DATE TWO YEARS AFTER DATE OF PUBLICATION OF FINAL RULE IN THE Federal Register]. * * * * * PART 112--OIL POLLUTION PREVENTION 0 5. The authority citation for part 112 continues to read as follows: Authority: 33 U.S.C. 1251 et seq. 0 6. Section 112.2 is amended by adding paragraph (4) to the definition of ``Navigable waters'' to read as follows: Sec. 112.2 Definitions. * * * * * Navigable waters * * * (4) Applicability date. This definition is applicable beginning on [DATE TWO YEARS AFTER DATE OF PUBLICATION OF FINAL RULE IN THE Federal Register]. * * * * * PART 116--DESIGNATION OF HAZARDOUS SUBSTANCES 0 7. The authority citation for part 116 continues to read as follows: Authority: 33 U.S.C. 1251 et seq. 0 8. Section 116.3 is amended by adding paragraph (4) to the definition of ``Navigable waters'' to read as follows: Sec. 116.3 Definitions. * * * * * Navigable waters * * * (4) Applicability date. This definition is applicable beginning on [DATE TWO YEARS AFTER DATE OF PUBLICATION OF FINAL RULE IN THE Federal Register]. * * * * * PART 117--DETERMINATION OF REPORTABLE QUANTITIES FOR HAZARDOUS SUBSTANCES 0 9. The authority citation for part 117 continues to read as follows: Authority: 33 U.S.C. 1251 et seq., and Executive Order 11735, superseded by Executive Order 12777, 56 FR 54757. 0 10. Section 117.1 is amended by adding paragraph (i)(4) to read as follows: Sec. 117.1 Definitions. * * * * * (i) * * * (4) Applicability date. This paragraph (i) is applicable beginning on [DATE TWO YEARS AFTER DATE OF PUBLICATION OF FINAL RULE IN THE Federal Register]. * * * * * PART 122--EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM 0 11. The authority citation for part 122 continues to read as follows: Authority: The Clean Water Act, 33 U.S.C. 1251 et seq. 0 12. Section 122.2 is amended by adding paragraph (4) to the definition of ``Waters of the United States'' read as follows: Sec. 122.2 Definitions. * * * * * Navigable waters * * * (4) Applicability date. This definition is applicable beginning on [DATE TWO YEARS AFTER DATE OF PUBLICATION OF FINAL RULE IN THE Federal Register]. * * * * * PART 230--SECTION 404(b)(1) GUIDELINES FOR SPECIFICATION OF DISPOSAL SITES FOR DREDGED OR FILL MATERIAL 0 13. The authority citation for part 230 continues to read as follows: Authority: 33 U.S.C. 1251 et seq. 0 14. Section 230.3 is amended by adding paragraph (o)(4) to read as follows: Sec. 230.3 Definitions. * * * * * (o) * * * (4) Applicability date. This paragraph (o) is applicable beginning on [DATE TWO YEARS AFTER DATE OF PUBLICATION OF FINAL RULE IN THE Federal Register]. PART 232--404 PROGRAM DEFINITIONS; EXEMPT ACTIVITIES NOT REQUIRING 404 PERMITS 0 15. The authority citation for part 232 continues to read as follows: Authority: 33 U.S.C. 1251 et seq. 0 16. Section 232.2 is amended by adding paragraph (4) to the definition of ``Waters of the United States'' to read as follows: Sec. 232.2 Definitions. * * * * * Waters of the United States * * * (4) Applicability date. This definition is applicable beginning on [DATE TWO YEARS AFTER DATE OF PUBLICATION OF FINAL RULE IN THE Federal Register]. PART 300--NATIONAL OIL AND HAZARDOUS SUBSTANCES POLLUTION CONTINGENCY PLAN 0 17. The authority citation for part 300 continues to read as follows: Authority: 33 U.S.C. 1321(d); 42 U.S.C. 9601-9657; E.O. 13626, 77 FR 56749, 3 CFR, 2013 Comp., p. 306; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR 2923, 3 CFR, 1987 Comp., p. 193. 0 18. Section 300.5 is amended by adding paragraph (4) to the definition of ``Navigable waters'' to read as follows: [[Page 55547]] Sec. 300.5 Definitions. * * * * * Navigable waters * * * (4) Applicability date. This definition is applicable beginning on [DATE TWO YEARS AFTER DATE OF PUBLICATION OF FINAL RULE IN THE Federal Register]. * * * * * 0 19. In appendix E to part 300, section 1.5 Definitions is amended by adding paragraph (4) to the definition of ``Navigable waters'' to read as follows: Appendix E to Part 300--Oil Spill Response * * * * * 1.5 * * * Navigable waters * * * (4) Applicability date. This definition is applicable beginning on [DATE TWO YEARS AFTER DATE OF PUBLICATION OF FINAL RULE IN THE Federal Register]. * * * * * PART 302--DESIGNATION, REPORTABLE QUANTITIES, AND NOTIFICATION 0 20. The authority citation for part 302 continues to read as follows: Authority: 33 U.S.C. 1251 et seq. 0 21. Section 302.3 is amended by adding paragraph (4) to the definition of ``Navigable waters'' to read as follows: Sec. 302.3 Definitions. * * * * * Navigable waters * * * (4) Applicability date. This definition is applicable beginning on [DATE TWO YEARS AFTER DATE OF PUBLICATION OF FINAL RULE IN THE Federal Register]. * * * * * PART 401--GENERAL PROVISIONS 0 22. The authority citation for part 401 continues to read as follows: Authority: 33 U.S.C. 1251 et seq. 0 23. Section 401.11 is amended by adding paragraph (1)(4) to read as follows: Sec. 401.11 General definitions. * * * * * (l) * * * (4) Applicability date. This paragraph (l) is applicable beginning on [DATE TWO YEARS AFTER DATE OF PUBLICATION OF FINAL RULE IN THE Federal Register]. * * * * * [FR Doc. 2017-25321 Filed 11-21-17; 8:45 am] BILLING CODE 6560-50-P
![55542 Federal Register / Vol. 82, No. 224 / Wednesday, November 22, 2017 / Proposed Rules
DEPARTMENT OF DEFENSE information whose disclosure is which the agencies would conduct a
restricted by statute. Multimedia substantive re-evaluation of the
Department of the Army, Corps of submissions (audio, video, etc.) must be definition of ‘‘waters of the United
Engineers accompanied by a written comment. States.’’ With this proposed rule to add
The written comment is considered the an applicability date to the 2015 Rule,
33 CFR Part 328 official comment and should include the agencies intend to provide, for an
discussion of all points you wish to interim period, greater regulatory
ENVIRONMENTAL PROTECTION make. The agencies will generally not certainty about the definition of ‘‘waters
AGENCY consider comments or comment of the United States’’ in effect while
contents located outside of the primary they continue to work on the two-step
40 CFR Parts 110, 112, 116, 117, 122, submission (i.e. on the web, cloud, or rulemaking process.
230, 232, 300, 302, and 401 other file sharing system). For The addition of the applicability date
[EPA–HQ–OW–2017–0644; FRL–9970–57– additional submission methods, the full to the 2015 Rule to two years after the
OW] EPA public comment policy, date of a final rule under this proposed
information about CBI or multimedia rulemaking effort would ensure that the
RIN 2040–AF80 submissions, and general guidance on regulatory definition of ‘‘waters of the
making effective comments, please visit United States’’ that existed prior to
Definition of ‘‘Waters of the United promulgation of the rule in 2015 and
http://www2.epa.gov/dockets/
States’’—Addition of an Applicability that has been in effect nationwide since
commenting-epa-dockets.
Date to 2015 Clean Water Rule the 2015 Rule was stayed on October 9,
FOR FURTHER INFORMATION CONTACT: Ms.
AGENCY: Department of the Army, Corps Donna Downing, Office of Water (4504– 2015, would remain in effect during the
of Engineers, Department of Defense; T), Environmental Protection Agency, ongoing actions undertaken in response
and Environmental Protection Agency 1200 Pennsylvania Avenue NW., to the Executive Order. This proposed
(EPA). Washington, DC 20460; telephone rule to add an applicability date to the
ACTION: Proposed rule. number: (202) 566–2428; email address: 2015 Rule would maintain the legal
CWAwotus@epa.gov; or Ms. Stacey status quo and thus provide continuity
SUMMARY: The Environmental Protection Jensen, Regulatory Community of and certainty for regulated entities, the
Agency and the Department of the Army Practice (CECW–CO–R), U.S. Army States and Tribes, agency staff, and the
(‘‘the agencies’’) are proposing to add an Corps of Engineers, 441 G Street NW., public. The agencies would administer
applicability date to the ‘‘Clean Water Washington, DC 20314; telephone the regulations as they are currently
Rule: Definition of ‘Waters of the United number: (202) 761–5903; email address: being implemented, consistent with
States’’’ (the ‘‘2015 Rule’’) to two years USACE_CWA_Rule@usace.army.mil. Supreme Court decisions and
from the date of final action on this SUPPLEMENTARY INFORMATION: The longstanding practice as informed by
proposal. On October 9, 2015, the Sixth Environmental Protection Agency and applicable agency guidance documents.
Circuit stayed the 2015 Rule nationwide the Department of the Army (‘‘the State, tribal, and local governments
pending further action of the court, but agencies’’) are proposing to add an have well-defined and longstanding
the Supreme Court is currently applicability date to the 2015 Clean relationships with the federal
reviewing the question of whether the Water Rule of two years from the date government in implementing CWA
court of appeals has original jurisdiction of final action on this proposal. The programs and these relationships are not
to review challenges to the 2015 Rule. effective date of the 2015 Rule was altered by this proposed rule. This
On February 28, 2017, the President August 28, 2015. On July 27, 2017, the proposed rule would not establish any
signed an Executive Order, ‘‘Restoring agencies published a proposed rule to new regulatory requirements. Rather,
the Rule of Law, Federalism, and initiate the first step in a this rule would simply add an
Economic Growth by Reviewing the comprehensive, two-step process applicability date to the 2015 Rule
‘Waters of the United States’ Rule.’’ intended to review and revise, as leaving in place the current legal status
With this proposed rule, the agencies appropriate and consistent with law, the quo while the agencies continue to
intend to maintain the status quo by definition of ‘‘waters of the United engage in substantive rulemaking to
proposing to add an applicability date to States’’ under with Executive Order reconsider the definition of ‘‘waters of
the 2015 Rule and thus provide 13778 signed on February 28, 2017, the United States.’’
continuity and regulatory certainty for ‘‘Restoring the Rule of Law, Federalism, I. Background and Discussion of
regulated entities, the States and Tribes, and Economic Growth by Reviewing the Addition of Applicability Date
agency staff, and the public while the ‘Waters of the United States’ Rule.’’ The
agencies continue to work to consider first step in the process (the ‘‘Step One A. What This Proposed Rule Does
possible revisions to the 2015 Rule. rule’’) proposed to rescind the definition In 2015, the agencies published the
DATES: Comments must be received on of ‘‘waters of the United States’’ ‘‘Clean Water Rule: Definition of ‘Waters
or before December 13, 2017. promulgated by the agencies in 2015 in of the United States’’’ (80 FR 37054,
ADDRESSES: Submit your comments, the Code of Federal Regulations and to June 29, 2015), and on October 9, 2015,
identified by Docket ID No. EPA–HQ– re-codify the previous definition of the U.S. Court of Appeals for the Sixth
OW–2017–0644, at http:// ‘‘waters of the United States,’’ which Circuit stayed the 2015 Rule nationwide
www.regulations.gov. Follow the online defines the scope of the Clean Water pending further action of the court. The
ethrower on DSK3G9T082PROD with PROPOSALS
instructions for submitting comments. Act. The previous definition is currently 2015 Rule had an effective date of
Once submitted, comments cannot be in effect pursuant to a decision issued August 28, 2015. The agencies propose
edited or removed from Regulations.gov. by the U.S. Court of Appeals for the to add an applicability date of two years
The agencies may publish any comment Sixth Circuit staying the 2015 definition from the date of final action on this
received to the public docket. Do not of ‘‘waters of the United States.’’ In a proposal. The effective date of the 2015
submit electronically any information second step (the ‘‘Step Two rule’’), the Rule was established by a document
you consider to be Confidential agencies intend to pursue a public published by the agencies in the Federal
Business Information (CBI) or other notice-and-comment rulemaking in Register (80 FR 37054, June 29, 2015).
VerDate Sep<11>2014 17:48 Nov 21, 2017 Jkt 244001 PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 E:\FR\FM\22NOP1.SGM 22NOP1](https://thefederalregister.org/doc/82_FR_55766/page/1.svg)
![Federal Register / Vol. 82, No. 224 / Wednesday, November 22, 2017 / Proposed Rules 55543
The Code of Federal Regulations text restore the ‘‘pre-Rule regime, pending proposed recodification and it remains
does not include an applicability date; judicial review.’’ In re U.S. Dep’t. of Def. under active consideration.
therefore, the agencies are proposing to and U.S. Envtl. Protection Agency Final
C. Today’s Proposed Rule
amend the text of the Code of Federal Rule: Clean Water Rule, No. 15–3751
Regulations to add a new applicability (lead), slip op. at 6. Pursuant to the In this proposed rule, the agencies
date. Until the new applicability date, Sixth Circuit’s order, the agencies are would add an applicability date to the
the agencies would continue to applying the definition of ‘‘waters of the 2015 Rule such that it is not
implement the prior regulatory United States’’ that preceded the 2015 implemented until two years from the
definitions, informed by applicable Rule nationwide. On January 13, 2017, date of a final action on this proposal.
agency guidance documents and the U.S. Supreme Court granted During that time, the agencies will
consistent with Supreme Court certiorari on the question of whether the continue to implement nationwide the
decisions and longstanding agency court of appeals has original jurisdiction previous regulatory definition of
practice, as the agencies have been to review challenges to the 2015 Rule. ‘‘waters of the United States’’ as they are
operating pursuant to the Sixth Circuit’s The Sixth Circuit granted petitioners’ currently doing under the Sixth
October 9, 2015, order. motion to hold in abeyance the briefing Circuit’s stay, informed by applicable
schedule in the litigation challenging guidance documents (e.g., 2003 and
B. History and the Purpose of This 2008 guidance documents, as well as
Rulemaking the 2015 Rule pending a Supreme Court
decision on the question of the court of relevant memoranda and regulatory
Congress enacted the Federal Water appeals’ jurisdiction. On October 11, guidance letters), and consistent with
Pollution Control Act Amendments of 2017, the Supreme Court held oral Supreme Court decisions and
1972, Public Law 92–500, 86 Stat. 816, argument on the question of whether the longstanding agency practice.
as amended, Public Law 95–217, 91 The scope of CWA jurisdiction is an
court of appeals has original jurisdiction
Stat. 1566, 33 U.S.C. 1251 et seq. issue of great national importance and
to review challenges to the 2015 Rule.
(‘‘Clean Water Act’’ or ‘‘CWA’’ or ‘‘Act’’) therefore the agencies will provide for
The Supreme Court could issue a
‘‘to restore and maintain the chemical, robust deliberations to re-evaluate the
decision resolving the question at any
physical and biological integrity of the definition of ‘‘waters of the United
time.
Nation’s waters.’’ Section 101(a). A States.’’. While engaging in such
On February 28, 2017, the President deliberations, however, the agencies
primary tool in achieving that purpose
of the United States issued an Executive recognize the need to provide an interim
is a prohibition on the discharge of any
pollutants, including dredged or fill Order entitled ‘‘Restoring the Rule of step for regulatory continuity and clarity
material, to ‘‘navigable waters’’ except Law, Federalism, and Economic Growth for the many stakeholders affected by
in accordance with the Act. Section by Reviewing the ‘Waters of the United the definition of ‘‘waters of the United
301(a). The CWA provides that ‘‘[t]he States’ Rule.’’ Section 1 of the Order States.’’ The pre-2015 Rule regulatory
term ‘navigable waters’ means the states, ‘‘[i]t is in the national interest to regime is in effect as a result of the Sixth
waters of the United States, including ensure that the Nation’s navigable Circuit’s stay of the 2015 Rule but that
the territorial seas.’’ Section 502(7). waters are kept free from pollution, regime depends upon the pendency of
The regulations defining the ‘‘waters while at the same time promoting the Sixth Circuit’s order and could be
of the United States’’ currently in effect economic growth, minimizing altered at any time by factors beyond the
were established in large part in 1977 regulatory uncertainty, and showing due control of the agencies. The Supreme
(42 FR 37122, July 19, 1977). While EPA regard for the roles of the Congress and Court’s resolution of the question as to
administers most provisions in the the States under the Constitution.’’ The which courts have original jurisdiction
CWA, the U.S. Army Corps of Engineers Executive Order directed the EPA and over challenges to the 2015 Rule could
(Corps) administers the permitting the Army to review the 2015 Rule for impact the Sixth Circuit’s exercise of
program under section 404. During the consistency with the policy outlined in jurisdiction and its stay. If, for example,
1980s, both of these agencies adopted section 1 of the Order, and to issue a the Supreme Court were to decide that
substantially similar definitions (51 FR proposed rule rescinding or revising the the Sixth Circuit lacks original
41206, Nov. 13, 1986, amending 33 CFR 2015 Rule as appropriate and consistent jurisdiction over challenges to the 2015
328.3; 53 FR 20764, June 6, 1988, with law. Section 2. The Executive Rule, the Sixth Circuit case would be
amending 40 CFR 232.2). Order also directed the agencies to dismissed and its nationwide stay
In 2015, following public notice and consider interpreting the term would expire, leading to possible
comment on a proposed rule, the ‘‘navigable waters’’ in a manner inconsistencies, uncertainty, and
agencies published a final rule defining consistent with Justice Scalia’s plurality confusion as to the regulatory regime
the ‘‘waters of the United States’’ (80 FR opinion in Rapanos v. United States, that could be in effect pending
37054). Thirty-one States and other 547 U.S. 715 (2006). Section 3. substantive rulemaking under the
parties sought judicial review in On July 27, 2017, the agencies Executive Order.
multiple actions in Federal district proposed a rule to rescind the 2015 Rule As noted previously, prior to the
courts and Circuit Courts of Appeal, and replace it with a recodification of Sixth Circuit’s stay order, the District
raising concerns about the scope and the regulatory text that governed the Court for North Dakota had
legal authority of the 2015 Rule. One legal regime prior to the 2015 Rule (82 preliminarily enjoined the rule in 13
district court issued an order granting a FR 34899), and that the agencies are States (North Dakota, Alaska, Arizona,
motion for preliminary injunction one currently implementing under the court Arkansas, Colorado, Idaho, Missouri,
ethrower on DSK3G9T082PROD with PROPOSALS
day prior to the rule’s effective date that stay, informed by applicable guidance Montana, Nebraska, Nevada, South
applies to the thirteen plaintiff States in documents (e.g., 2003 and 2008 Dakota, Wyoming and New Mexico).
that case, State of North Dakota et al. v. guidance documents, as well as relevant Therefore, if the Sixth Circuit’s
US EPA, No. 15–00059, slip op. at 1–2 memoranda and regulatory guidance nationwide stay were to expire, the 2015
(D.N.D. Aug. 27, 2015, as clarified by letters), and consistent with Supreme Rule would be enjoined under the North
order issued on September 4, 2015), and Court decisions and longstanding Dakota order in States covering a large
several weeks later, the Sixth Circuit agency practice. The agencies received geographic area of the country, but the
stayed the 2015 Rule nationwide to many comments on the Step One rule would be in effect in the rest of the
VerDate Sep<11>2014 17:48 Nov 21, 2017 Jkt 244001 PO 00000 Frm 00017 Fmt 4702 Sfmt 4702 E:\FR\FM\22NOP1.SGM 22NOP1](https://thefederalregister.org/doc/82_FR_55766/page/2.svg)
![55546 Federal Register / Vol. 82, No. 224 / Wednesday, November 22, 2017 / Proposed Rules
Dated: November 16, 2017. ■ 6. Section 112.2 is amended by adding ‘‘Waters of the United States’’ read as
E. Scott Pruitt, paragraph (4) to the definition of follows:
Administrator, Environmental Protection ‘‘Navigable waters’’ to read as follows:
§ 122.2 Definitions.
Agency.
§ 112.2 Definitions. * * * * *
Dated: November 16, 2017.
Ryan A. Fisher,
* * * * * Navigable waters * * *
Navigable waters * * * (4) Applicability date. This definition
Acting Assistant Secretary of the Army (Civil
(4) Applicability date. This definition is applicable beginning on [DATE TWO
Works).
is applicable beginning on [DATE TWO YEARS AFTER DATE OF
Title 33—Navigation and Navigable YEARS AFTER DATE OF PUBLICATION OF FINAL RULE IN
Waters PUBLICATION OF FINAL RULE IN THE Federal Register].
For the reasons set out in the THE Federal Register]. * * * * *
preamble, title 33, chapter II of the Code * * * * *
PART 230—SECTION 404(b)(1)
of Federal Regulations is proposed to be
PART 116—DESIGNATION OF GUIDELINES FOR SPECIFICATION OF
amended as follows:
HAZARDOUS SUBSTANCES DISPOSAL SITES FOR DREDGED OR
PART 328—DEFINITION OF WATERS FILL MATERIAL
■ 7. The authority citation for part 116
OF THE UNITED STATES continues to read as follows: ■ 13. The authority citation for part 230
continues to read as follows:
■ 1. The authority citation for part 328 Authority: 33 U.S.C. 1251 et seq.
Authority: 33 U.S.C. 1251 et seq.
continues to read as follows: ■ 8. Section 116.3 is amended by adding
Authority: 33 U.S.C. 1251 et seq. paragraph (4) to the definition of ■ 14. Section 230.3 is amended by
‘‘Navigable waters’’ to read as follows: adding paragraph (o)(4) to read as
■ 2. Section 328.3 is amended by adding follows:
paragraph (e) to read as follows: § 116.3 Definitions.
§ 230.3 Definitions.
* * * * *
§ 328.3 Definitions. * * * * *
Navigable waters * * *
* * * * * (4) Applicability date. This definition (o) * * *
(e) Applicability date. Paragraphs (a) is applicable beginning on [DATE TWO (4) Applicability date. This paragraph
through (c) of this section are applicable YEARS AFTER DATE OF (o) is applicable beginning on [DATE
beginning on [DATE TWO YEARS PUBLICATION OF FINAL RULE IN TWO YEARS AFTER DATE OF
AFTER DATE OF PUBLICATION OF THE Federal Register]. PUBLICATION OF FINAL RULE IN
FINAL RULE IN THE Federal Register]. THE Federal Register].
* * * * *
Title 40—Protection of Environment PART 232—404 PROGRAM
PART 117—DETERMINATION OF
For reasons set out in the preamble, DEFINITIONS; EXEMPT ACTIVITIES
REPORTABLE QUANTITIES FOR
title 40, chapter I of the Code of Federal NOT REQUIRING 404 PERMITS
HAZARDOUS SUBSTANCES
Regulations is proposed to be amended ■ 15. The authority citation for part 232
as follows: ■ 9. The authority citation for part 117
continues to read as follows:
continues to read as follows:
PART 110—DISCHARGE OF OIL Authority: 33 U.S.C. 1251 et seq.
Authority: 33 U.S.C. 1251 et seq., and
Executive Order 11735, superseded by ■ 16. Section 232.2 is amended by
■ 3. The authority citation for part 110 Executive Order 12777, 56 FR 54757. adding paragraph (4) to the definition of
continues to read as follows: ‘‘Waters of the United States’’ to read as
■ 10. Section 117.1 is amended by
Authority: 33 U.S.C. 1251 et seq., 33 U.S.C. adding paragraph (i)(4) to read as follows:
1321(b)(3) and (b)(4) and 1361(a); E.O. 11735,
38 FR 21243, 3 CFR parts 1971–1975 Comp.,
follows: § 232.2 Definitions.
p. 793. § 117.1 Definitions. * * * * *
* * * * * Waters of the United States * * *
■ 4. Section 110.1 is amended by adding
(i) * * * (4) Applicability date. This definition
paragraph (4) to the definition of
(4) Applicability date. This paragraph is applicable beginning on [DATE TWO
‘‘Navigable waters’’ to read as follows:
(i) is applicable beginning on [DATE YEARS AFTER DATE OF
§ 110.1 Definitions. TWO YEARS AFTER DATE OF PUBLICATION OF FINAL RULE IN
* * * * * PUBLICATION OF FINAL RULE IN THE Federal Register].
Navigable waters * * * THE Federal Register]. PART 300—NATIONAL OIL AND
(4) Applicability date. This definition * * * * * HAZARDOUS SUBSTANCES
is applicable beginning on [DATE TWO POLLUTION CONTINGENCY PLAN
YEARS AFTER DATE OF PART 122—EPA ADMINISTERED
PUBLICATION OF FINAL RULE IN PERMIT PROGRAMS: THE NATIONAL ■ 17. The authority citation for part 300
THE Federal Register]. POLLUTANT DISCHARGE continues to read as follows:
ethrower on DSK3G9T082PROD with PROPOSALS
* * * * * ELIMINATION SYSTEM Authority: 33 U.S.C. 1321(d); 42 U.S.C.
9601–9657; E.O. 13626, 77 FR 56749, 3 CFR,
■ 11. The authority citation for part 122 2013 Comp., p. 306; E.O. 12777, 56 FR 54757,
PART 112—OIL POLLUTION
continues to read as follows: 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52
PREVENTION
Authority: The Clean Water Act, 33 U.S.C. FR 2923, 3 CFR, 1987 Comp., p. 193.
■ 5. The authority citation for part 112 1251 et seq.
■ 18. Section 300.5 is amended by
continues to read as follows: ■ 12. Section 122.2 is amended by adding paragraph (4) to the definition of
Authority: 33 U.S.C. 1251 et seq. adding paragraph (4) to the definition of ‘‘Navigable waters’’ to read as follows:
VerDate Sep<11>2014 17:48 Nov 21, 2017 Jkt 244001 PO 00000 Frm 00020 Fmt 4702 Sfmt 4702 E:\FR\FM\22NOP1.SGM 22NOP1](https://thefederalregister.org/doc/82_FR_55766/page/5.svg)
![Federal Register / Vol. 82, No. 224 / Wednesday, November 22, 2017 / Proposed Rules 55547
§ 300.5 Definitions. DEPARTMENT OF VETERANS Affairs, 810 Vermont Avenue NW.,
* * * * * AFFAIRS Washington, DC 20420, (303–370–1637).
Navigable waters * * * (This is not a toll-free number.)
38 CFR Part 17 SUPPLEMENTARY INFORMATION: Many
(4) Applicability date. This definition
is applicable beginning on [DATE TWO RIN 2900–AP20 veterans enrolled in VA’s health care
YEARS AFTER DATE OF system also have private insurance. VA
PUBLICATION OF FINAL RULE IN Third Party Billing for Medical Care is authorized by law under 38 U.S.C.
THE Federal Register]. Provided Under Special Treatment 1729 to recover or collect reasonable
Authorities charges from third parties under certain
* * * * *
situations for care and services provided
■ 19. In appendix E to part 300, section AGENCY: Department of Veterans Affairs.
for non-service-connected disabilities.
1.5 Definitions is amended by adding ACTION: Proposed rule. For example, VA may recover or collect
paragraph (4) to the definition of such charges when a veteran requires
‘‘Navigable waters’’ to read as follows: SUMMARY: The Department of Veterans
Affairs (VA) proposes to amend its medical care following a motor vehicle
Appendix E to Part 300—Oil Spill medical regulations to clarify that VA accident or an injury at work. 38 U.S.C.
Response will not bill third party payers for care 1729(a)(2)(A)–(B). These provisions are
and services provided by VA under reflected in regulation at 38 CFR 17.101.
* * * * * VA does not have authority to recover
1.5 * * * certain statutory provisions, which we
Navigable waters * * * refer to as ‘‘special treatment or collect charges from third parties for
(4) Applicability date. This definition is authorities.’’ These special treatment care or services provided for service-
applicable beginning on [DATE TWO YEARS authorities direct VA to provide care connected disabilities.
AFTER DATE OF PUBLICATION OF FINAL and services to veterans based upon Under the statutes referred to as the
RULE IN THE Federal Register].
discrete exposures or experiences that special treatment authorities, which are
* * * * * occurred during active military, naval, codified at 38 U.S.C. 1710(a)(2)(F) and
or air service. VA is authorized, but not (e), 1720D, and 1720E, VA provides care
PART 302—DESIGNATION, required by law, to recover or collect and services to veterans for conditions
REPORTABLE QUANTITIES, AND charges for care and services provided and disabilities that are related to
NOTIFICATION to veterans for non-service connected certain exposures or experiences during
disabilities. This proposed rule would active military, naval, or air service,
■ 20. The authority citation for part 302 regardless of whether such condition or
continues to read as follows: establish that VA would not exercise its
authority to recover or collect disability is formally adjudicated by the
Authority: 33 U.S.C. 1251 et seq. reasonable charges from third party Veterans Benefits Administration (VBA)
payers for care and services provided to be service-connected. Specifically,
■ 21. Section 302.3 is amended by these statutory provisions do not
adding paragraph (4) to the definition of under the special treatment authorities.
expressly refer to the conditions or
‘‘Navigable waters’’ to read as follows: DATES: Comments must be received by
disabilities resulting from such
VA on or before January 22, 2018. exposures or experiences as service-
§ 302.3 Definitions.
ADDRESSES: Written comments may be connected. Therefore, if veterans meet
* * * * * submitted by email through http:// the eligibility criteria of these discrete
Navigable waters * * * www.regulations.gov; by mail or hand- categories in law, they receive the
(4) Applicability date. This definition delivery to Director, Regulations health care benefits enumerated in the
is applicable beginning on [DATE TWO Management (00REG), Department of special treatment authorities. A brief
YEARS AFTER DATE OF Veterans Affairs, 810 Vermont Avenue description of each of the special
PUBLICATION OF FINAL RULE IN NW., Room 1063B, Washington, DC treatment authorities follows.
THE Federal Register]. 20420; or by fax to (202) 273–9026 (this Subject to the availability of
* * * * * is not a toll-free number). Comments appropriations, under 38 U.S.C.
should indicate that they are submitted 1710(a)(2)(F), VA provides hospital care
PART 401—GENERAL PROVISIONS in response to ‘‘RIN 2900–AP20, Third and medical services, and may furnish
Party Billing for Medical Care Provided nursing home care, to veterans who
■ 22. The authority citation for part 401 under Special Treatment Authorities.’’ were exposed to a toxic substance,
continues to read as follows: Copies of comments received will be radiation, or other conditions identified
Authority: 33 U.S.C. 1251 et seq. available for public inspection in the in 38 U.S.C. 1710(e) for the treatment of
Office of Regulation Policy and the disabilities described in subsection
■ 23. Section 401.11 is amended by Management, Room 1063B, between the (e). More specifically, subject to the
adding paragraph (1)(4) to read as hours of 8:00 a.m. and 4:30 p.m. requirements in 38 U.S.C. 1710(e)(2)-(4),
follows: Monday through Friday (except such care and services are available
§ 401.11 General definitions. holidays). Please call (202) 461–4902 for under 38 U.S.C. 1710(a)(2)(F) and
an appointment (this is not a toll-free 1710(e) (at no cost to the veteran) as
* * * * * number). In addition, during the follows:
(l) * * * comment period, comments may be • For the treatment of any disability
ethrower on DSK3G9T082PROD with PROPOSALS
(4) Applicability date. This paragraph viewed online through the Federal of a Vietnam-era, herbicide-exposed
(l) is applicable beginning on [DATE Docket Management System (FDMS) at veteran, notwithstanding that there is
TWO YEARS AFTER DATE OF http://www.regulations.gov. insufficient medical evidence to
PUBLICATION OF FINAL RULE IN FOR FURTHER INFORMATION CONTACT: conclude that such disability may be
THE Federal Register]. Joseph Duran, Director, Policy and associated with such exposure;
* * * * * Planning VHA Office of Community • For the treatment of any disease
[FR Doc. 2017–25321 Filed 11–21–17; 8:45 am] Care (10D1A1), Veterans Health specified by 38 U.S.C. 1112(c)(2) or for
BILLING CODE 6560–50–P Administration, Department of Veterans which the Secretary, based on the
VerDate Sep<11>2014 17:48 Nov 21, 2017 Jkt 244001 PO 00000 Frm 00021 Fmt 4702 Sfmt 4702 E:\FR\FM\22NOP1.SGM 22NOP1](https://thefederalregister.org/doc/82_FR_55766/page/6.svg)
Document Created: 2017-11-22 00:48:40
Document Modified: 2017-11-22 00:48:40
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Proposed rule. | |
| Dates | Comments must be received on or before December 13, 2017. | |
| Contact | Ms. Donna Downing, Office of Water (4504-T), Environmental Protection Agency, 1200 Pennsylvania Avenue NW., Washington, DC 20460; telephone number: (202) 566-2428; email | |
| FR Citation | 82 FR 55542 | |
| RIN Number | 2040-AF80 | |
| CFR Citation | 33
CFR
328 40 CFR 110 40 CFR 112 40 CFR 116 40 CFR 117 40 CFR 122 40 CFR 230 40 CFR 232 40 CFR 300 40 CFR 302 40 CFR 401 | |
| CFR Associated | Environmental Protection; Administrative Practice and Procedure; Intergovernmental Relations; Navigation; Water Pollution Control and Waterways |
2025 Federal Register | Disclaimer | Privacy Policy
USC | CFR | eCFR