[Federal Register Volume 76, Number 204 (Friday, October 21, 2011)]
[Proposed Rules]
[Pages 65431-65458]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-27189]



[[Page 65431]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 9 and 122

[EPA-HQ-OW-2011-0188; FRL-9481-7]
RIN 2040-AF22


National Pollutant Discharge Elimination System (NPDES) 
Concentrated Animal Feeding Operation (CAFO) Reporting Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA co-proposes two options for obtaining basic information 
from CAFOs to support EPA in meeting its water quality protection 
responsibilities under the Clean Water Act (CWA). The purpose of this 
co-proposal is to improve and restore water quality by collecting 
facility-specific information that would improve EPA's ability to 
effectively implement the NPDES program and to ensure that CAFOs are 
complying with the requirements of the CWA. Under one co-proposed 
option, EPA would use the authority of CWA section 308 to obtain 
certain identifying information from all CAFOs. Under the other option, 
EPA could use the authority of CWA section 308 to obtain this 
information from CAFOs that fall within areas that have been identified 
as having water quality concerns likely associated with CAFOs (focus 
watersheds). However, EPA would make every reasonable effort to assess 
the utility of existing publicly available data and programs to obtain 
identifying information about CAFOs by working with partners at the 
Federal, state, and local level before determining whether an 
information collection request is necessary. This information would 
allow EPA to achieve more efficiently and effectively the water quality 
protection goals and objectives of the CWA. EPA also requests comment 
on three alternative approaches to gather information about CAFOs, 
which could be used to achieve the objectives of this proposed action 
in protecting water quality.

DATES: Comments on this proposed action must be received on or before 
December 20, 2011. EPA plans to hold two Webinars in November, 2011 to 
provide an overview of, and answer questions about, the proposed rule 
requirements.

ADDRESSES: Comments: Submit your comments, identified by Docket ID No. 
EPA-HQ-OW-2011-0188, by one of the following methods:
     http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     E-mail: ow-docket@epa.gov, Attention Docket ID No. EPA-HQ-
OW-2011-0188.
     Fax: (202) 566-9744.
     Mail: Water Docket, Environmental Protection Agency, 
Mailcode: 28221T, Attention Docket ID No. EPA-HQ-OW-2011-0188, 1200 
Pennsylvania Ave., NW., Washington, DC 20460. In addition, please mail 
a copy of your comments on the information collection provisions to the 
Office of Information and Regulatory Affairs, Office of Management and 
Budget (OMB), Attn: Desk Officer for EPA, 725 17th St., NW., 
Washington, DC 20503.
     Hand Delivery: EPA Docket Center, EPA West, Room 3334, 
1301 Constitution Avenue, NW., Washington, DC, Attention Docket ID No. 
EPA-HQ-OW-2011-0188. Such deliveries are accepted only during the 
Docket Center's normal hours of operation, and special arrangements 
should be made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OW-2011-
0188. EPA's policy is that all comments received will be included in 
the public docket without change and could be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means that EPA will not know 
your identity or contact information unless you provide it in the body 
of your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment because of 
technical difficulties and cannot contact you for clarification, EPA 
might not be able to consider your comment. Electronic files should 
avoid the use of special characters, any form of encryption, and be 
free of any defects or viruses. For additional information about EPA's 
public docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. For additional instructions on 
submitting comments, go to the SUPPLEMENTARY INFORMATION section of 
this document.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Water Docket, EPA/
DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC 
20004. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., 
Monday through Friday, excluding Federal holidays. The telephone number 
for the Public Reading Room is (202) 566-1744, and the telephone number 
for the Water Docket is (202) 566-2426.
    Webinar: EPA plans to hold two Webinars in November, 2011 to 
provide an overview of, and answer questions about, the proposed rule 
requirements. Information about how to register and access the Webinar 
can be found on EPA's Web site at http://cfpub.epa.gov/npdes/afo/aforule.cfm no later than October 24, 2011.

FOR FURTHER INFORMATION CONTACT: For additional information contact, 
Becky Mitschele, Water Permits Division, Office of Wastewater 
Management (4203M), U.S. Environmental Protection Agency, 1200 
Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (202) 
564-6418; fax number (202) 564-6384; e-mail address: 
mitschele.becky@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. General Information
    A. Does this action apply to me?
    B. What should I consider as I prepare my comments for EPA?
    C. Under what legal authority is this rule proposed?
II. Background
    A. The Clean Water Act
    B. Environmental and Human Health Impacts of CAFOs
    C. United States Government Accountability Office Report
    D. United States Office of Management and Budget Report
    E. Litigation Regarding the 2008 Revised NPDES Permit Regulation 
and Effluent Limitations Guidelines for CAFOs in Response to the 
Waterkeeper Decision

[[Page 65432]]

III. This Proposed Action
    A. Proposed Action Overview and Objectives
    B. CWA Section 308 Data Collection and EPA's Approach Toward 
Collecting Facility-Specific Information From CAFOs Through 
Rulemaking
    C. Option 1 Would Apply to All CAFOs
    1. What information would EPA require as part of an information 
gathering survey for CAFOs and why is EPA proposing to require this 
information?
    2. What information would EPA not require as part of the 
collection request survey for CAFOs?
    3. Who would be required to submit the information?
    4. When would States that choose to submit the information be 
allowed to provide the information to EPA and when would CAFOs be 
required to submit the information to EPA?
    5. How would CAFOs submit the information to EPA?
    6. How would States submit the information to EPA?
    D. Option 2 Would Apply to CAFOs in a Focus Watershed
    1. How would EPA identify a focus watershed?
    2. Considerations When Determining Whether a Focus Watershed 
Meets the Criteria for Water Quality Protection
    3. How would EPA identify CAFOs from which additional 
information is needed?
    4. What information would EPA require as part of an information 
gathering survey for CAFOs in a focus watershed?
    5. How would EPA geographically define a focus watershed?
    6. How would EPA inform CAFOs of their responsibility if they 
were required to respond to an information request?
    7. When would CAFOs in a focus watershed be required to submit 
the information to EPA?
    8. How would CAFOs in a focus watershed submit information to 
EPA?
    E. Failure To Provide the Information as Required by This 
Proposed Action
    F. Alternative Approaches To Achieve Rule Objectives
    1. Use of Existing Data Sources
    2. Alternative Mechanisms for Promoting Environmental 
Stewardship and Compliance
    3. Require Authorized States to Submit CAFO Information From 
Their CAFO Regulatory Programs and Only Collect Information From 
CAFOs if a State Does Not Report
IV. Impact Analysis
    A. Benefits and Costs Overview
    B. Administrative Burden Impacts
V. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations

I. General Information

A. Does this action apply to me?

    This proposed rulemaking would apply to concentrated animal feeding 
operations (CAFOs) as defined in the National Pollutant Discharge 
Elimination System (NPDES) regulations at 40 CFR 122.23(b)(2), pursuant 
to section 502(14) of the Clean Water Act (``CWA''). An animal feeding 
operation (AFO) is a CAFO if it meets the regulatory definition of a 
Large or Medium CAFO (40 CFR 122.23 (b)(4) or (6)) or has been 
designated as a CAFO (40 CFR 122.23 (c)) by the NPDES permitting 
authority or by EPA. The following table provides the size thresholds 
for Large, Medium and Small CAFOs in each animal sector.

                            Table 1--Summary of CAFO Size Thresholds for All Sectors
----------------------------------------------------------------------------------------------------------------
               Sector                        Large                Medium \1\                 Small \2\
----------------------------------------------------------------------------------------------------------------
Cattle or cow/calf pairs...........  1,000 or more........  300-999..............  Less than 300.
Mature diary cattle................  700 or more..........  200-699..............  Less than 200.
Veal calves........................  1,000 or more........  300-999..............  Less than 300.
Swine (weighing over 55 pounds)....  2,500 or more........  750-2,499............  Less than 750.
Swine (weighing less than 55         10,000 or more.......  3,000-9,999..........  Less than 3,000.
 pounds).
Horses.............................  500 or more..........  150-499..............  Less than 150.
Sheep or lambs.....................  10,000 or more.......  3,000-9,999..........  Less than 3,000.
Turkeys............................  55,000 or more.......  16,500-54,999........  Less than 16,500.
Laying hens or broilers (liquid      30,000 or more.......  9,000-29,999.........  Less than 9,000.
 manure handling system).
Chickens other than laying hens      125,000 or more......  37,500-124,999.......  Less than 37,500.
 (other than a liquid manure
 handling system).
Laying hens (other than a liquid     82,000 or more.......  25,000-81,999........  Less than 25,000.
 manure handling system).
Ducks ( other than a liquid manure   30,000 or more.......  10,000-29,999........  Less than 10,000.
 handling system).
Ducks (liquid manure handling        5,000 or more........  1,500-4,999..........  Less than 1,500.
 system).
----------------------------------------------------------------------------------------------------------------
Notes:
\1\ May be designated or must meet one of the following two criteria to be defined as a medium CAFO: (A)
  Discharges pollutants through a man-made device; or (B) directly discharges pollutants into waters of the
  United States which pass over, across, or through the facility or otherwise come into direct contact with the
  confined animals. 40 CFR 122.23(b)(6).
\2\ Not a CAFO by regulatory definition, but may be designated as a CAFO on a case-by-case basis. 40 CFR
  122.23(b)(9).

     That table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
proposed rulemaking. The table lists the types of entities that EPA is 
currently aware of that could be regulated by this action. Other types 
of entities not listed in the table could also be CAFOs. The owners or 
operators of AFOs that have not been designated and that do not confine 
the required number of animals to meet the definition of a Large or 
Medium CAFO are not required to submit information.
    To determine whether your operation is a CAFO, 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.

[[Page 65433]]

B. What should I consider as I prepare my comments for EPA?

1. Tips for Preparing Your Comments
    When submitting comments, remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Follow directions--The agency might ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree, suggest alternatives, 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible.
     Make sure to submit your comments by the comment period 
deadline identified.
2. Submitting Comments to EPA
    Direct your comments to Docket ID No. EPA-HQ-OW-2011-0188. EPA's 
policy is that all comments received will be included in the public 
docket without change and could be made available online at http://www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. The http://www.regulations.gov Web site is an 
``anonymous access'' system, which means that EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment because of 
technical difficulties and cannot contact you for clarification, EPA 
might not be able to consider your comment. Electronic files should 
avoid the use of special characters, any form of encryption, and be 
free of any defects or viruses. For additional information about EPA's 
public docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
3. Submitting Confidential Business Information
    Do not submit CBI information to EPA through http://www.regulations.gov or e-mail. Clearly mark the part of or all the 
information that you claim to be CBI. For CBI information on a disk or 
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as 
CBI and then identify electronically within the disk or CD-ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.

C. Under what legal authority is this proposed action issued?

    Today's proposed rulemaking is issued under the authority of 
sections 301, 304, 305, 308, 309, 402, 501, and 504 of the CWA, 33 
U.S.C. 1311, 1314, 1315, 1318, 1319, 1342, and 1361.

II. Background

A. The Clean Water Act

    Congress passed the Federal Water Pollution Control Act Amendments 
of 1972, (``Clean Water Act'' or ``CWA'') to ``restore and maintain the 
chemical, physical, and biological integrity of the nation's waters'' 
33 U.S.C. 1251(a). Section 301(a) of the CWA prohibits the ``discharge 
of any pollutant by any person'' except in compliance with the Act. 33 
U.S.C. 1311(a). Among the core provisions, the CWA establishes the 
National Pollutant Discharge Elimination System (NPDES) permit program 
to authorize and regulate the discharge of pollutants from point 
sources to waters of the United States. 33 U.S.C. 1342. Section 502(14) 
of the CWA includes the term ``CAFO'' in the definition of ``point 
source;'' specifically, the term ``point source'' is defined as ``any 
discernible, confined and discrete conveyance, including but not 
limited to any * * * concentrated animal feeding operation * * * from 
which pollutants are or may be discharged * * *'' 33 U.S.C. 1362(14). 
Section 501 authorizes the Administrator to promulgate rules to carry 
out the Administrator's functions under the CWA. EPA has issued 
comprehensive regulations that implement the NPDES program at 40 CFR 
parts 122-124.
    Section 308 of the CWA authorizes EPA to collect information from 
the ``owner or operator of any point source'' for the following 
purpose:

To carry out the objectives of [the CWA], including but not limited 
to (1) developing or assisting in the development of any effluent 
limitation, or other limitation, prohibition, or effluent standard, 
pretreatment standard, or standard of performance under [the CWA]; 
(2) determining whether any person is in violation of any such 
effluent limitation, or other limitation, prohibition or effluent 
standard, pretreatment standard, or standard of performance; (3) any 
requirement established under [Sec.  308 of the CWA]; or (4) 
carrying out [sections 305, 311, 402, 404 (relating to state permit 
programs), 405 and 504 of the CWA]. * * * 33 U.S.C. 1318(a).

    Section 308(a)(3)(A) of the Act provides that, in furtherance of 
the stated objectives, EPA may require owners or operators of point 
sources to establish and maintain records; make reports; install, use, 
and maintain monitoring equipment; sample effluent; and provide such 
other information as EPA may reasonably require to carry out the 
objectives of the Act. 33 U.S.C. 1318(a). Section 309 of the CWA 
authorizes EPA to assess penalties for violations of section 308 of the 
CWA. 33 U.S.C. 1319.

B. Environmental and Human Health Impacts of CAFOs

    Despite more than 35 years of regulating CAFOs, reports of water 
quality impacts from large animal feeding operations persist. At the 
time of the 2003 CAFO rulemaking, the Agency received estimates from 
USDA indicating that livestock operations where animals are confined 
produce more than 300 million tons of manure annually. 68 FR 7180. On 
the basis of that figure, EPA estimated that animals raised in 
confinement generate more than three times the amount of raw waste than 
the amount of waste that is generated by humans in the United States. 
Id. For the 2003 CAFO rulemaking, EPA estimated that CAFOs collectively 
produce 60 percent of all manure generated by farms that confine 
animals. Id.
    Pollutants from manure, litter, and process wastewater can affect 
human health and the environment. Whether from poultry, cattle, or 
swine, the manure, litter and process wastewater contains substantial 
amounts of nutrients (nitrogen, phosphorus, and

[[Page 65434]]

potassium), pathogens, heavy metals, and smaller amounts of other 
elements and pharmaceuticals. This manure, litter, and process 
wastewater commonly is applied to crops associated with CAFO operations 
or transferred off site. Where over-applied or applied before 
precipitation events, excess nutrients can flow off of agricultural 
fields, causing harmful aquatic plant growth, commonly referred to as 
``algal blooms,'' which can cause fish kills and contribute to ``dead 
zones.'' In addition, algal blooms often release toxins that are 
harmful to human health.
    To improve the Agency's ability to estimate ecological and human 
risk for chemical and microbial contaminants that enter water 
resources, EPA is continuing research to evaluate the effect of CAFOs 
on surface and ground water quality. Effective control of pathogens 
originating in livestock manure or poultry litter could improve human 
and ecosystem health through reductions in waterborne disease organisms 
and chemicals. More than 40 diseases found in manure can be transferred 
to humans, including causative agents for Salmonellosis, Tuberculosis, 
Leptospirosis, infantile diarrheal disease, Q-Fever, Trichinosis, and 
Giardiasis. Exposure to waterborne pathogen contaminants can result 
from both recreational use of affected surface water (accidental 
ingestion of contaminated water and dermal contact during swimming) and 
from ingestion of drinking water derived from either contaminated 
surface water or groundwater. JoAnn Burkholder, et al., Impacts of 
Waste from Concentrated Animal Feeding Operations on Water Quality, 115 
Env't Health Perspectives 310 (2007).
    Heavy metals such as arsenic, cadmium, iron, lead, manganese, and 
nickel are commonly found in CAFO manure, litter, and process 
wastewater. Some heavy metals, such as copper and zinc, are essential 
nutrients for animal growth--especially for cattle, swine and poultry. 
However, farm animals excrete excess heavy metals in their manure, 
which in turn is spread as fertilizer, causing potential runoff 
problems. U.S. EPA, Risk Assessment Evaluation for Concentrated Animal 
Feeding Operations, EPA-600-R-04-042 (2004); and U.S. EPA, Development 
Document for the Final Revisions to the National Pollutant Discharge 
Elimination System Regulation and the Effluent Guidelines for 
Concentrated Animal Feeding Operation, EPA-821-R-032-001 (2002). EPA 
reported approximately 80 to 90 percent of the copper, zinc, and 
arsenic consumed is excreted. Possible adverse effects reported in the 
literature include the risk of phytotoxicity, groundwater contamination 
and deposition in river sediment that may eventually release to pollute 
the water. U.S. EPA, Risk Assessment Evaluation for Concentrated Animal 
Feeding Operations, EPA-600-R-04-042 (2004), pp. 43-46. Repeated 
application of manure above agronomic rates could result in exceedances 
of the cumulative metal loading rates established in EPA regulations at 
40 CFR part 503, thereby potentially impacting human health and the 
environment. U.S. EPA, Preliminary Data Summary Feedlots Point Source 
Category Study, EPA-821-R-99-002 (1999), pp. 26-27. The health hazards 
that may result from chronic exposure to heavy metals at certain 
concentrations can include kidney problems from cadmium, Public Health 
Statement Cadmium (CAS 7440-43-9), available at http://www.atsdr.cdc.gov/PHS/PHS.asp?id=46&tid=15; nervous system disorders, 
and neurodevelopmental problems (IQ deficits) from lead, Lead and 
Compounds (inorganic) (CASRN 7439-92-1), available at http://www.epa.gov/iris/subst/0277.htm; and cardiovascular effects, diabetes, 
respiratory effects, nervous system problems, and reproductive effects 
and cancers from multiple tissues from arsenic, NRC Arsenic in Drinking 
Water, National Academy Press (2001), available at http://www.nap.edu/openbook/0309076293/html/R1.html.
    To promote growth and to control the spread of disease, 
antibiotics, growth hormones and other pharmaceutical agents are often 
added to feed rations or water, directly injected into animals, or 
administered via ear implants or tags. The annual amount of 
antimicrobial drugs sold and distributed in 2009 for use in food 
animals was 13.3 million kilograms or 28.8 million pounds. U.S. Food 
and Drug Administration, 2009 Summary Report on Antimicrobials Sold or 
Distributed for Use in Food-producing Animals (2010). This was a 
significant increase in the annual use from 8.8 million kilograms or 
approximately 18 million pounds reported in 1995. U.S. Congress, Office 
of Technology Assessment, Impacts of Antibiotic-Resistant Bacteria, 
OTA-H-629 (1995).
    Most antibiotics are not metabolized completely and are excreted 
from the treated animal shortly after medication. As much as 80-90 
percent of some administered antibiotics occur as parent compounds in 
animal wastes. Scott Bradford et al., Reuse of Concentrated Animal 
Feeding Operation Wastewater on Agricultural Lands, 37 J. Env't Quality 
97 (2008). Synthetic steroid hormones are extensively used as growth 
promoters for cattle in the United States. Id. Steroid hormones are of 
particular concern because there is laboratory evidence that very low 
concentrations of these chemicals can adversely affect the reproduction 
of fish and other aquatic species. Id. The dosing of livestock animals 
with antimicrobial agents for growth promotion and prophylaxis may 
promote antimicrobial resistance in pathogens, increasing the severity 
of disease and limiting treatment options for sickened individuals. 
U.S. EPA, Detecting and Mitigating the Environmental Impact of Fecal 
Pathogens Originating from Confined Animal Feeding Operations: Review, 
EPA600-R-06-021 (2005).
    In the most recent National Water Quality Inventory, 29 states 
specifically identified animal feeding operations as contributing to 
water quality impairment. U.S. EPA, National Water Quality Inventory: 
Report to Congress--2004 Reporting Cycle, January 2009. EPA-841-R-08-
001. The findings of this report are corroborated by numerous reports 
and studies conducted by government and independent researchers that 
identify the animal livestock industry as an important contributor of 
surface water pollution. For example, the GAO found in its 2008 Report 
to Congressional Requesters that since 2002, 68 studies had been 
completed that examined air and water quality issues associated with 
animal feeding operations. Fifteen of those have directly linked air 
and water pollutants from animal waste to specific health or 
environmental impacts. GAO-08-944 (2008). For further discussion of 
this Report, see the section United States Government Accountability 
Office Report of this preamble.
    Water quality impacts from CAFOs may be due, in part, to inadequate 
compliance with existing regulations or to limitations in CAFO 
permitting programs. EPA believes that basic information about CAFOs 
would assist the Agency in addressing those problems. Complete and 
accurate information allows governments, regulated communities, 
interest groups and the public to make more informed decisions 
regarding ways to protect the environment.

C. United States Government Accountability Office Report

    In September 2008, the United States Government Accountability 
Office (GAO) issued a report to congressional requesters, recommending 
that EPA ``should complete the Agency's effort to develop a national 
inventory of

[[Page 65435]]

permitted CAFOs and incorporate appropriate internal controls to ensure 
the quality of the data.'' U.S. Gov't Accountability Office, 
Concentrated Animal Feeding Operations--EPA Needs More Information and 
a Clearly Defined Strategy to Protect Air and Water Quality, GAO-08-944 
5 (2008), page 48. EPA officials stated that ``EPA does not have data 
on the number and location of CAFOs nationwide and the amount of 
discharges from these operations. Without this information and data on 
how pollutant concentrations vary by type of operation, it is difficult 
to estimate the actual discharges occurring and to assess the extent to 
which CAFOs may be contributing to water pollution.'', Id. page 31. The 
report also stated that ``despite its long-term regulation of CAFOs, * 
* * EPA has neither the information it needs to assess the extent to 
which CAFOs may be contributing to water pollution, nor the information 
it needs to ensure compliance with the Clean Water Act.'' Id. page 48.
    The GAO report contains a review of EPA's data on permitted CAFOs, 
and the GAO determined that data obtained from state agencies ``are 
inconsistent and inaccurate and do not provide EPA with the reliable 
data it needs to identify and inspect permitted CAFOs nationwide.'' Id. 
page 17. EPA had received its data from EPA Regional offices and from 
the states relating to permits issued to CAFOs between 2003 and 2008. 
GAO interviewed officials in 47 states to determine the accuracy and 
reliability of the data EPA collected. On the basis of that 
information, GAO determined that EPA's data was not reliable and could 
not be used to identify trends in permitted CAFOs over the five-year 
period. In addition to reviewing EPA's data on CAFOs, the GAO also 
reviewed data from other Federal agencies. GAO concluded that no 
Federal agency currently collects accurate and consistent data on the 
number, size, and location of CAFOs as defined by the CAFO regulations. 
Id. page 4. EPA responded to the draft GAO report stating that the 
Agency would develop a comprehensive national inventory of CAFOs. Id. 
page 76.

D. United States Office of Management and Budget Report

    More recently, the Office of Management and Budget (OMB) issued a 
report to Congress that describes the value of data collection efforts 
that minimize burden on reporting entities and have practical utility. 
In this report, OMB identifies the benefits and costs of Federal 
regulations and unfunded mandates on states, local and tribal entities. 
U.S. Office of Management and Budget, 2011 Report to Congress on the 
Benefits and Costs of Federal Regulations and Unfunded Mandates on 
State, Local, and Tribal Entities (2001). This report stressed the 
importance of ensuring that regulations are ``evidence-based and data-
driven and hence based on the best available work in both science and 
social science.'' Id. page 5. Specifically, the report briefly outlines 
steps and best practices that are consistent with OMB's recent 
recommendations for ``flexible, empirically informed approaches; 
increased openness about costs and benefits; and the use of disclosure 
as a regulatory tool.'' Id. page 5. EPA believes that today's co-
proposed rulemaking would be consistent with OMB's recommendations by 
promoting transparency and providing a comprehensive body of data that 
would serve as a basis for sound decision-making about EPA's CAFO 
program.

E. Litigation Regarding the 2008 Revised NPDES Permit Regulation and 
Effluent Limitations Guidelines for CAFOs in Response to the 
Waterkeeper Decision

    EPA's regulation of discharges from CAFOs dates to the 1970s. EPA 
initially issued national effluent limitations guidelines and standards 
(ELGs) for feedlots, on February 14, 1974 and NPDES CAFO regulations on 
March 18, 1976. 39 FR 5704; 41 FR 11458. In February 2003, EPA issued 
revised CWA permitting requirements, ELGs and new source performance 
standards for CAFOs. 68 FR 7176. The 2003 CAFO rule required the owners 
or operators of all CAFOs to seek coverage under an NPDES permit, 
unless they demonstrated no potential to discharge. With implementation 
of the 2003 rule, EPA and state permitting authorities would have 
obtained information about the universe of CAFOs. However, both 
environmental groups and industry challenged the 2003 final rule, and 
in February 2005, the U.S. Court of Appeals for the Second Circuit 
issued its decision in Waterkeeper Alliance et al. v. EPA, 399 F.3d 486 
(2d Cir. 2005). Among other things, the court held that EPA does not 
have authority under the CWA to require CAFOs that have only a 
potential to discharge to obtain NPDES permits.
    In 2008, EPA issued revised regulations in response to the 
Waterkeeper decision. Among other changes, the revised regulations 
required only those CAFOs that discharge or propose to discharge to 
obtain an NPDES permit. Subsequently, environmental groups and industry 
filed petitions for review of the 2008 rule, which were consolidated in 
the U.S. Court of Appeals for the Fifth Circuit. EPA signed a 
settlement agreement with the environmental petitioners in which EPA 
committed to propose a rule, pursuant to CWA section 308, that would 
require CAFOs to provide certain information to EPA. The settlement 
agreement provides the context and timeline for this proposed 
rulemaking.
    The settlement agreement commits EPA to propose, by October 14, 
2011, a rule under section 308 of the CWA, 33 U.S.C. 1318, to require 
all owners or operators of CAFOs, whether or not they have NPDES 
permits, to submit certain information to EPA. EPA agreed to propose a 
rule requiring CAFOs to submit the information listed below; or, if EPA 
decides not to include one of the items in the proposal, EPA would 
identify the item(s), explain why EPA chose not to propose requiring 
that information and request comment on the excluded items. EPA 
committed to take final action on the rule by July 13, 2012. The 
settlement agreement does not commit EPA to the substance of any final 
action. The settlement agreement expressly states that nothing in the 
agreement shall be construed to limit or modify the discretion accorded 
EPA by the CWA or by general principals of administrative law. Nor does 
the CWA require EPA to collect the information proposed in today's 
notice.
    The items listed in the settlement agreement to be addressed in the 
proposal include the following:
    1. Name and address of the owner and operator;
    2. If contract operation, name and address of the integrator;
    3. Location (longitude and latitude) of the operation;
    4. Type of facility;
    5. Number and type(s) of animals;
    6. Type and capacity of manure storage;
    7. Quantity of manure, process wastewater, and litter generated 
annually by the CAFO;
    8. Whether the CAFO land-applies;
    9. Available acreage for land application;
    10. If the CAFO land-applies, whether it implements a nutrient 
management plan for land application;
    11. If the CAFO land-applies, whether it employs nutrient 
management practices and keeps records on site consistent with 40 CFR 
122.23(e);
    12. If the CAFO does not land apply, alternative uses of manure, 
litter and/or wastewater;
    13. Whether the CAFO transfers manure off site, and if so, quantity 
transferred to recipient(s) of transferred manure; and

[[Page 65436]]

    14. Whether the CAFO has applied for an NPDES permit
    On March 15, 2011, the Fifth Circuit Court of Appeals vacated the 
requirement in EPA's 2008 CAFO rule that CAFOs that ``propose'' to 
discharge obtain NPDES permits and held that CAFOs are not liable under 
the CWA for failing to apply for NPDES permits. Nat'l Pork Producers 
Council (NPPC) v. EPA, 635 F.3d 738 (5th Cir. 2011) (herein referred to 
as NPCC). The Fifth Circuit held that there must be an ``actual 
discharge to trigger the CWA requirement to obtain a permit.'' NPPC, 
635 F.3d at 751. EPA's authority to collect information under section 
308 from ``point sources'' is broader than EPA's authority to require 
and enforce a requirement to apply for an NPDES permit, as interpreted 
by NPPC. In particular, EPA is authorized under section 308 to collect 
information from any point source, and point sources are defined to 
include ``any discernible, confined and discrete conveyance, including 
* * * any * * * concentrated animal feeding operation * * * from which 
pollutants are or may be discharged.'' 33 U.S.C. 1362(14). Today's 
proposed rulemaking is therefore not affected by this ruling of the 
Fifth Circuit Court of Appeals.
    In vacating the requirement that CAFOs that propose to discharge 
apply for an NPDES permit (the ``duty to apply'' provision), the court 
held that ``there must be an actual discharge into navigable waters to 
trigger the CWA's requirements and the EPA's authority. Accordingly, 
EPA's authority is limited to the regulation of CAFOs that discharge.'' 
NPPC, 635 F.3d at 751. The court's holding that EPA may regulate only 
those CAFOs that discharge is limited to the specific type of 
regulation at issue before the court: the duty to apply for a permit. 
Today's notice proposes options for gathering basic information from 
CAFOs; it does not require them to obtain permits.
    EPA proposes to gather information from CAFOs pursuant to its 
authority in CWA section 308 to collect information. This information-
gathering authority is broader than EPA's authority to require permit 
coverage, which was at issue in NPPC. Section 308 authorizes 
information collection from ``point sources,'' which includes CAFOs 
that discharge or may discharge. 33 U.S.C 1318(a); 1362(14) (the term 
``point source'' is defined as ``any discernible, confined, and 
discrete conveyance, including * * * any * * * concentrated animal 
feeding operation * * * from which pollutants are or may be discharged 
* * *''). The plain language of section 308 expressly authorizes 
information collection for a list of purposes including assistance in 
developing, implementing, and enforcing effluent limitations or 
standards, such as the prohibition against discharging without a 
permit. 33 U.S.C. 1318(a). The information EPA proposes to collect is 
limited to basic information about CAFOs and would enable EPA, states, 
and others to determine the number of CAFOs in the United States and 
where they are located and would assist EPA in developing, 
implementing, and enforcing the requirements of the Act.

III. This Proposed Action

A. Proposed Action Overview and Objectives

    The purpose of this co-proposal is to improve and restore water 
quality by collecting facility-specific information that would improve 
EPA's ability to effectively implement the NPDES program and to ensure 
that CAFOs are complying with the requirements of the CWA, including 
the requirement to obtain an NPDES permit if they discharge pollutants 
to waters of the U.S. Section 402 of the CWA authorizes EPA to regulate 
all point source discharges through the NPDES permitting program. The 
NPDES program regulates discharges from such industries as 
manufacturing and processing plants (e.g., textile mills, pulp and 
paper mills), municipal wastewater treatment plants, construction sites 
and CAFOs. Unlike many other point source industries, EPA does not have 
facility-specific information for all CAFOs in the United States. 
Facility location and basic operational characteristics that relate to 
how and why a facility may discharge is essential information needed to 
carry out NPDES programmatic functions, which include the following:
     Evaluating NPDES program effectiveness;
     Identifying and permitting CAFOs that discharge;
     Conducting education and outreach to promote best 
management practices;
     Determining potential sources of water quality impairments 
and taking steps to address those impairments;
     Estimating CAFO pollutant loadings--by facility, by 
watershed, or some other geographical area; and
     Targeting resources for compliance assistance or 
enforcement.
    The six categories listed above represent key activities necessary 
to ensure that CAFOs are meeting their obligations under the CWA 
regarding protection of water quality from CAFO discharges and can be 
carried out most efficiently and effectively when EPA and states have 
access to facility contacts and other basic information about CAFOs. 
This information could be used to better protect public health and 
welfare of communities near CAFOs, including environmental justice for 
minority, indigenous or low-income communities.
    In today's proposed rulemaking, EPA co-proposes two options by 
which the Agency may achieve today's rule objectives: Option 1 (Section 
C.) would apply to all CAFOs; Option 2 (Section D) would identify focus 
watersheds where CAFO discharges may be causing water quality concerns 
and EPA could use its section 308 authority to obtain information from 
CAFOs in these areas. However, EPA would make every reasonable effort 
to assess the utility of existing publicly available data and programs 
to identify CAFOs by working with partners at the Federal, state, and 
local level before determining whether requiring CAFOs to provide the 
information is necessary. Both of these options propose revisions to 
the NPDES regulations, which would allow EPA to obtain necessary 
information from CAFOs, including their contact information, location 
of the CAFO's production area, NPDES permitting status, number, and 
type of animals, and number of acres available for land application. 
Section F. Alternative Approaches to Achieve Rule Objectives discusses 
alternative approaches to a regulatory information request for CAFOs 
that may achieve similar outcomes (i.e., ensuring that CAFOs are 
complying with their obligations under the CWA).

B. CWA Section 308 Data Collection and EPA's Approach Toward Collecting 
Facility-Specific Information From CAFOs Through Rulemaking

    The proposed rulemaking utilizes EPA's authority under section 308 
of the CWA, which authorizes EPA to collect information from point 
sources when necessary to carry out the objectives of the CWA. Since 
the 1970s, EPA routinely has used its authority under section 308 of 
the Act to collect information from large groups of point sources when 
developing and reviewing ELGs. An ELG survey typically will request 
industrial sources to provide information such as the type and amount 
of pollutants discharged, technologies available to treat waste 
streams, the performance capability of these technologies, and 
financial data. EPA uses this information to determine the appropriate 
control requirements and to assess the economic feasibility of such 
additional controls. As an

[[Page 65437]]

example, when reviewing the ELGs applicable to the steam electric 
industry, EPA determined that the data available at that time did not 
include all wastewater streams generated by the steam electric 
industry. To address this deficiency, EPA issued detailed 
questionnaires to the industry, which required the industry to respond 
to questions including contact information, facility address, 
pollutants in wastewater discharges, volume of discharges, and types 
and performance of technologies employed to treat the wastewater along 
with financial information. When developing ELGs for coal bed methane 
extractions, EPA conducted an industry survey to evaluate the volume of 
water produced from extraction; the management, storage, treatment and 
disposal options; and the environmental impacts of surface discharges. 
Information collection under the CWA, thus, has been a frequently used 
tool to develop appropriate and environmentally protective standards.
    There is precedent for EPA using its section 308 authority to 
collect information from entities not currently required to obtain 
NPDES permits. Recently, EPA conducted surveys to gather information to 
help assess the impact of potential changes that the Agency is 
considering to its existing stormwater requirements. As part of this 
effort, EPA sent questionnaires to regulated Municipal Separate Storm 
Sewer System (MS4s), non-regulated MS4s, transportation MS4s, NPDES 
permitting authorities, and owners and operators of developed sites.
    EPA can use a variety of methods to obtain data required by 
information collection requests under section 308. The most common 
method is to mail questionnaires directly to industry contacts. 
However, because EPA does not know the names and addresses of all 
CAFOs, mailing surveys to CAFOs is not possible; therefore, a rule is 
necessary to collect the information. The final Federal Register notice 
would contain the information collection request form (see the proposed 
form at the end of this preamble). Under Option 1, CAFOs would be 
required to respond to the request as issued in the Federal Register 
unless a state chooses to provide the information on behalf of a CAFO. 
Under Option 2, CAFOs in a focus watershed would be required to 
respond, but EPA would make every reasonable effort to assess the 
utility of existing publicly available data and programs to identify 
CAFOs by working with partners at the Federal, state, and local level 
before determining whether requiring CAFOs to respond to a survey 
request is necessary. This request would be accomplished through a 
locally-applicable notice in the Federal Register along with other 
forms of local outreach. In the Federal Register, EPA also would 
include the description of the focus watershed and the reasons for its 
selection. To implement the rule effectively, EPA intends to conduct 
extensive outreach to the CAFO industry to ensure that all CAFOs know 
of the existence of this rule and any requirement to respond. The 
owners or operators of AFOs that have not been designated and that do 
not confine the required number of animals to meet the definition of a 
Large or Medium CAFO are not required to submit information under this 
proposed rulemaking.
    The rulemaking process is an appropriate way to collect information 
from CAFOs because rulemaking is a transparent, equitable, and 
efficient method of collecting information from a large universe of 
entities. Moreover, allowing the states to submit the information 
required by this proposed action on behalf of a CAFO, included in the 
proposed option that would require all CAFOs to submit information, 
would allow states to collaborate with EPA in reducing the burden on 
some CAFOs to report the information to EPA. The proposed rule is a 
reasonable exercise of CWA section 308 authority because the 
information to be submitted would enable EPA to carry out and ensure 
compliance with the NPDES permitting program and other CWA requirements 
for CAFOs. See, e.g. Natural Resources Def. Council, Inc. v. EPA, 822 
F.2d 104, 119 (DC Cir. 1987); In re Simpson Paper Co. and Louisiana-
Pacific Corp., 3 E.A.D. 541, 549 (1991).
    EPA requests comment on obtaining the information through options 
in this co-proposed rulemaking or whether EPA should explore 
alternative approaches as described in the Alternative Approaches to 
Achieve Rule Objectives section of this preamble.

C. Option 1 Would Apply to All CAFOs

1. What information would EPA require as part of an information 
gathering survey for CAFOs and why is EPA proposing to require this 
information?
    Proposed paragraph Sec.  122.23(k)(2) specifies the information EPA 
would require respondents to provide to the Agency. Under this proposed 
option, EPA would require respondents to submit the following 
information:
    (i) The legal name of the owner of the CAFO or an authorized 
representative, their mailing address, e-mail address (if available) 
and primary telephone number. An authorized representative must be an 
individual who is involved with the management or representation of the 
CAFO. The authorized representative must be located within reasonable 
proximity to the CAFO, and must be authorized and sufficiently informed 
to respond to inquiries from EPA on behalf of the CAFO;
    (ii) The location of the CAFO's production area identified by the 
latitude and longitude or by the street address.
    (iii) If the owner or operator has NPDES permit coverage as of [the 
effective date of final rule], the date of issuance of coverage under 
the NPDES permit, and the permit number. If the owner or operator has 
submitted an NPDES permit application or a Notice of Intent as of [the 
effective date of final rule] but has not received coverage, the date 
the owner or operator submitted the permit application or Notice of 
Intent;
    (iv) For the previous 12-month period, identification of each 
animal type confined either in open confinement including partially 
covered area, or housed totally under roof at the CAFO for 45 days or 
more, and the maximum number of each animal type confined at the CAFO 
for 45 days or more; and
    (v) Where the owner or operator land applies manure, litter, and 
process wastewater, the total number of acres under the control of the 
owner or operator available for land application.
    Proposed paragraph Sec.  122.23(k)(2)(i) would require CAFOs to 
provide a point of contact for the CAFO. EPA proposes to allow CAFOs to 
provide contact information for either the owner of the CAFO or an 
authorized representative. An authorized representative must be an 
individual who is involved with the management or representation of the 
CAFO. The authorized representative must be located within reasonable 
proximity to the CAFO, and must be authorized and sufficiently informed 
to respond to inquiries from EPA on behalf of the CAFO. For example, an 
employee who manages the CAFO or an attorney employed by the CAFO could 
be an appropriate authorized representative. Respondents would be 
required to provide complete contact information, including name, 
telephone number, e-mail (if available), and mailing address. Owners or 
authorized representatives may provide a P.O. Box in lieu of a street 
address in the contact information section. All individuals who qualify 
under 40 CFR. 122.22 can serve as a CAFO's authorized representative, 
including the operator of a CAFO. EPA proposes to allow qualifying 
individuals to serve as a CAFO's point of contact to preserve the 
privacy of a CAFO owner

[[Page 65438]]

if desired. With this information, EPA would be able to communicate 
directly with CAFOs when necessary. EPA seeks comment on whether an 
authorized representative should be permitted to sign the survey form 
instead of the CAFO owner or operator.
    In addition to providing contact information, proposed paragraph 
Sec.  122.23(k)(2)(ii) would require CAFOs to provide the location of 
the CAFO's production area in either latitude and longitude or by the 
street address of the CAFO's production area. (Note that a P.O. Box 
would not substitute for a street address in the location information 
section, since it would not identify a CAFO's location). EPA believes 
that knowing the location of the CAFO's production area, as specified 
in proposed paragraph Sec.  122.23(k)(2)(ii), is essential for 
determining sources of water quality impairments and potential 
mitigation measures. A CAFO's proximity to waterbodies also is relevant 
to whether it may cause water quality impacts. Comprehensive compliance 
assistance and education and outreach efforts, which are facilitated by 
knowing facility location and contact information, are tools a 
regulatory program can use in partnerships with industry to proactively 
protect and maintain water quality.
    Information related to a CAFO's permit status (proposed paragraph 
Sec.  122.23(k)(2)(iii)) would indicate whether additional information 
is publicly available, thus avoiding duplicative efforts to seek 
information from NPDES permitted CAFOs. Permitting status information 
also would show which CAFOs are operating without NPDES permit 
coverage. Even where a facility is not discharging and therefore is not 
required to be covered by a permit, knowing about the existence of 
these facilities gives EPA a basis for understanding how many 
facilities within each sector are actually able to completely prevent 
discharges. This information might be transferable to other facilities 
in that sector that currently discharge. EPA or states would be able to 
provide technical assistance, extend compliance assistance, or inspect 
such CAFOs where appropriate.
    EPA proposes (as specified in proposed paragraph Sec.  
122.23(k)(2)(iv)) to collect data on the number and type (cattle, 
poultry, swine, etc.) of animals because the scale of the operation and 
the types of animals confined relate to the type and volume of manure 
generated and related environmental considerations, and also determine 
applicable CWA permitting requirements. Specifically, the number and 
type of animals provides an indication of the quantity and 
characteristics of the CAFOs' manure (i.e., wet or dry and possible 
constituents), which then informs EPA as to the possible environmental 
effects of that manure. EPA also proposes to collect information about 
the amount of land available for application (proposed paragraph Sec.  
122.23(k)(2)(v)). A CAFO's available land application area is likely to 
affect the amount of manure that can be land applied for agronomic 
purposes and the potential amount of nutrients that could flow into 
surrounding waters of the United States. Combining information about 
manure quantity and characteristics with land available for application 
would indicate where issues might exist regarding excess manure.
    Section 308(b)(1) of the CWA requires that information collected by 
the Agency shall be available to the public, except upon a satisfactory 
showing to the Administrator that any part of the information, report, 
or record is confidential business information. Under existing 
regulations, an owner or operator may assert a claim of confidential 
business information (CBI) with respect to specific information 
submitted to EPA. 40 CFR part 2, subpart B. Under section 2.208, 
business information is entitled to confidential treatment if, ``the 
business has satisfactorily shown that disclosure of the information is 
likely to cause substantial harm to the business's competitive 
position.'' A claim of confidentiality must be made at the time of 
submission and in accordance with the requirements of 40 CFR 2.203(b). 
Id. at Sec.  2.203(c). EPA would follow all the requirements related to 
information submitted with a claim of confidentiality including the 
required notification to the submitter and rights of appeal available 
before releasing any information claimed to be confidential. EPA seeks 
comment on whether any information required by this proposed rule could 
reasonably be claimed as CBI and the reasons for making this claim.
    EPA requests comment on the information that CAFOs would be 
required to submit as specified by proposed paragraph Sec.  
122.23(k)(2). Specifically, EPA is aware that providing latitude and 
longitude information might raise security or privacy concerns for CAFO 
owner/operators, many of whom are family farmers. EPA seeks comment on 
alternatives to submission of the latitude and longitude that would 
provide general information on a facility's location but not specific 
coordinates. For example, the survey could request the name of the 
nearest waterbody to the CAFO. Local knowledge, U.S. Geological Survey 
topographical maps or internet programs such as Google Maps could be 
used by the CAFO to make this determination of the nearest waterbody to 
the CAFO. This would allow EPA to identify the watershed in which a 
CAFO is located, and to potentially model discharges from the CAFO and 
their impacts on water quality, but without providing specific 
information that could be misused to target the CAFO for inappropriate 
or illegal purposes. EPA also seeks comment on using other systems such 
as the Public Land Survey System (PLSS) (i.e. township, range and 
county information) to identify the location of a CAFO's production 
area. The PLSS encompasses major portions of the land area of 30 
southern and western United States. EPA seeks comment on other possible 
alternatives as well, such as requesting a business address and county 
where located, or some other general locational information. Commenters 
suggesting such alternative should discuss the advantages and 
limitations of such information both for protecting the security and 
privacy of CAFOs, and for fulfilling the CWA purposes for which EPA 
needs the data (discussed above). EPA also seeks comment on how this 
type of location information would compare with respect to operator 
burden, accuracy of location identification, and usefulness of the 
information to identify the production area location. EPA also seeks 
comment on whether CAFOs would know the operation's latitude and 
longitude.
    Related to the concern discussed above is a concern that providing 
specific information on the type and number of animals at a CAFO might 
also raise potential security issues. EPA requests comment on allowing 
CAFOs to report numbers of animals confined in ranges, rather than 
providing specific numbers. One option would be to use ranges 
corresponding to the definitions of large, medium and small CAFOs. EPA 
also requests comment on collecting the information as specific 
numbers, but making it available to the public only as ranges.
    Additionally, EPA requests comment on the most appropriate 12-month 
span of time for a CAFO to determine the number of animals at the CAFO 
(i.e. fiscal year or calendar year, or the previous 12 months prior to 
completing the survey).
    EPA seeks comment on whether CAFOs would understand the questions 
asked and on the technical appropriateness of the questions. The

[[Page 65439]]

proposed survey form that EPA would use to collect the information is 
included as an appendix to this preamble.
    The settlement agreement with the environmental petitioners 
specifies that EPA would release the information collected pursuant to 
this rule to the public, except where it is entitled to protection as 
confidential business information. This is required by section 308 of 
the CWA. However, neither the settlement agreement nor section 308 
specify the venue or format in which the information is to be released. 
EPA is aware of both security and privacy concerns, referenced above, 
regarding the potential public release of the information to be 
collected by this rule. EPA requests comment on any such concerns, on 
appropriate ways to address those concerns (consistent with section 
308), and on appropriate formats or venues to make it available to the 
public. EPA also requests comment on whether the requirement to make 
any information collected pursuant to section 308 available to the 
public (except confidential business information) should factor into 
its determination about what information, if any, to collect from 
CAFOs.
2. What information would EPA not require as part of the collection 
request survey for CAFOs?
    In the settlement agreement with the environmental petitioners, 
arising out of litigation over the 2008 CAFO rule, EPA agreed to 
propose a rule that would require CAFOs to submit information on 14 
items of information; or, if EPA decided not to include one of the 
items from the settlement agreement in the proposed rule, EPA would 
identify the item(s), explain why EPA chose not to propose requiring 
that information and request comment on the excluded items.
    This proposed rulemaking requests information on only some of those 
14 items because the Agency believes it can effectively obtain site-
specific answers for the remaining questions directly from states, 
other Federal agencies, specific CAFOs, or other sources, when 
necessary. EPA also is striving to balance the need for information 
with the burden associated with providing the information to EPA.
    EPA seeks comment on its proposal not to collect the following 
items specified in the settlement agreement:
     Name and address of owner/operator (if the name and 
address of an authorized representative is provided instead of the name 
and address of an owner or operator of the CAFO);
     The survey would allow the CAFO's a choice in providing 
location data of the production area either by the longitude and 
latitude or the street address of the production area, instead of 
requiring both;
     If contract operation, name and address of the integrator;
     Type and capacity of manure storage;
     Quantity of manure, process wastewater, and litter 
generated annually by the CAFO;
     If the CAFO land-applies, whether it implements a nutrient 
management plan for land application;
     If the CAFO land-applies, whether it employs nutrient 
management practices and keeps records on site consistent with 40 CFR 
122.23(e);
     If the CAFO does not land apply, alternative uses of 
manure, litter and/or wastewater; and
     Whether the CAFO transfers manure off site, and if so, 
quantity transferred to recipient(s) of transferred manure.
3. Who would be required to submit the information?
    Under this option, proposed paragraph Sec.  122.23(k)(1) would 
require all owners or operators of CAFOs to submit the information 
specified in proposed paragraph 40 CFR 122.23(k)(2). However, an 
exception is provided by proposed paragraph Sec.  122.23(k)(5), that 
would allow states with an authorized NPDES program to provide the 
information proposed to be collected to EPA for CAFOs in the state. The 
option for a state to submit the information specified by proposed 
paragraph Sec.  122.23(k)(2) is voluntary. This proposed option would 
allow states to submit the information because states may have 
collected all of the information required to be submitted by this 
proposed rule. A state may have obtained this information through 
permit applications, annual reports, inspection documentation, or other 
means and may keep records of this information in a form that is 
readily transferable to EPA. EPA does not have a preference regarding 
whether individual CAFOs submit the information or whether states 
submit it for them. EPA expects that states that do not possess the 
CAFO information requested would not choose to participate. In other 
words, EPA does not anticipate that states would submit the data, if it 
would require them to undertake additional efforts to collect this 
information from CAFOs. Proposed paragraph Sec.  122.23(k)(2) provides 
flexibility to states by allowing each state to determine if it can 
easily submit the information to EPA given the state's resources.
    Under proposed paragraph Sec.  122.23(k)(5), in order to submit the 
information on behalf of its CAFOs, a state would only be allowed to 
provide information on behalf of a CAFO if it submits all items of 
information as specified by proposed paragraph Sec.  122.23(k)(2). 
States that choose to submit this information would be required to use 
the Agency's information management system to ensure reporting 
consistency among states choosing to provide the information to EPA. 
CAFOs for which a state submits all of the required information would 
be referred to as ``listed'' CAFOs. States may submit information for 
CAFOs with NPDES permit coverage or CAFOs without NPDES permit 
coverage, such as CAFOs with state permits only.
    In the case of states for which EPA is the NPDES permit authority 
and where the NDPES CAFO general or individual permits have been 
updated in accordance with the 2008 CAFO rule, EPA would provide the 
information as if it were the state. EPA issues updated NPDES CAFO 
permits in the states of Idaho, New Mexico, Oklahoma, New Hampshire, 
and Massachusetts.
    The voluntary state submission option does not preclude any CAFO 
that wishes to do so from submitting the information required by the 
proposed rule even where a state previously submitted the information 
for that CAFO. The next section of this preamble, When would states 
that choose to submit the information be allowed to provide the 
information to EPA and when would CAFOs be required to submit the 
information to EPA?, identifies the time frames for submitting the 
information to EPA that would be required by proposed paragraph Sec.  
122.23(k)(2).
    Under this proposed option, EPA seeks comment on whether to allow 
the state submission option as proposed by paragraph Sec.  
122.23(k)(5), or whether all CAFOs should be individually required to 
submit information to EPA. Specifically, EPA solicits comment from CAFO 
owners or operators as to their willingness to have the state 
permitting agency submit operation information to EPA on their behalf. 
EPA also solicits comment from states on the availability of the 
information as specified by proposed paragraph Sec.  122.23(k)(2); 
whether states plan to provide all the required information on behalf 
of CAFOs; and alternatively, if given the opportunity, whether states 
would provide partial information on behalf of CAFOs. EPA also solicits 
comments on whether NPDES authorized states

[[Page 65440]]

should be required to provide the information for their permitted 
CAFOs.
4. When would states that choose to submit the information be allowed 
to provide the information to EPA and when would CAFOs be required to 
submit the information to EPA?
    Following the release of the Agency's information management system 
and the availability of the proposed survey form, the proposed rule 
would allow an owner or operator of a CAFO or states to submit the 
information to EPA any time during their respective reporting periods. 
EPA proposes the following submission deadlines:
     Required Reporting Period for States Who Chose to Report: 
As specified by proposed paragraph Sec.  122.23(k)(5)(iii), states that 
choose to submit information would be required to submit the 
information in proposed paragraph Sec.  122.23(k)(2) [within 90 days 
from the effective date of the rule].
     Notification Period: [Within 60 days after the end of the 
state reporting period], EPA plans to make publicly available a list of 
all CAFOs by name, permit number, if applicable, and state (``listed 
CAFOs'').
     CAFO Reporting Period: CAFOs that do not appear on the 
CAFO list would be required to submit the information on an individual 
facility basis to EPA within [90 days after the end of the notification 
period]. CAFOs that appear on the CAFO list may choose to review the 
information submitted by the state and override the state's submission 
by submitting its own information, but CAFOs must do so within [90 days 
after the end of the notification period].
    Table 2 summarizes the timeframes for submitting the information as 
specified in proposed paragraph Sec.  122.23(k)(2) to EPA.

 Table 2--Proposed Timelines for Submitting the Information Required as
           Specified by Proposed Paragraph Sec.   122.23(k)(2)
------------------------------------------------------------------------
                 Entity                             Timeframe
------------------------------------------------------------------------
States that choose to report...........  Must submit information within
                                          90 days of the effective date
                                          of the rule.
EPA....................................  Makes publicly available within
                                          60 days of the end of the
                                          state reporting period a list
                                          of CAFOs for which the states
                                          have submitted data.
CAFOs not appearing on the CAFO list...  Must submit information within
                                          90 days of the end of the
                                          notification period.
CAFOs on the CAFO list that prefer to    May submit information within
 provide information themselves.          90 days of the end of the
                                          notification period.
------------------------------------------------------------------------

    EPA requests comment on allowing 180 days rather than 90 days for 
states to submit information to EPA on behalf of CAFOs. This would 
allow additional time for unpermitted CAFOs wishing to be covered by 
NPDES permits to apply for permit coverage (e.g., submit an NOI in the 
case of a general permit) such that states could submit the information 
for them.
    To maintain an updated inventory, EPA proposes that CAFOs without 
NPDES permits submit the information specified by proposed paragraph 
Sec.  122.23(k)(2) or update previously submitted information every ten 
years. EPA proposes a ten-year resubmission period for unpermitted 
CAFOs because the Agency does not expect the information to change 
significantly within this ten-year period. Specifically, proposed 
paragraph Sec.  122.23(k)(4)(iii) would require CAFOs without NPDES 
permit coverage to submit or update the required information between 
[January 1 and June 1, 2022] and every tenth year thereafter between 
those dates. Operations that have NPDES permit coverage or obtain 
permits before the 2022 resubmission date, or that become CAFOs after 
[July 2012]--either newly defined, designated, or a new source--and 
obtain NPDES permit coverage would not be required to submit or update 
the required information. For example, a CAFO that does not have an 
NPDES permit as of [July 2012] but obtains NPDES permit coverage before 
January 1, 2022, would not be required to re-submit the information 
that today's rulemaking proposes to collect.
    Under this proposed option, CAFOs with NPDES permits would not need 
to update their information every ten years because EPA believes it 
would be able to maintain an updated inventory for permitted CAFOs from 
their annual reports and permit applications when renewing permit 
coverage. EPA invites comments on the schedule for when states and 
CAFOs would be required to submit the information to EPA. EPA also 
seeks comment on the requirement for CAFOs without NPDES permit 
coverage to resubmit the information as specified in proposed paragraph 
Sec.  122.23(k)(2) every ten years.
5. How would CAFOs submit the information to EPA?
    Proposed paragraph Sec.  122.23(k)(3) would require owners and 
operators of CAFOs to use an official survey form provided by EPA to 
submit, either electronically or by certified mail, the required 
information to EPA. EPA would not mail surveys to individual CAFOs to 
request information, as the locations of many CAFO operations are 
unknown. Rather, the survey form would be available on EPA's Web site 
or by requesting a hard copy from EPA Headquarters from the EPA contact 
information provided in the final rule. EPA would conduct extensive 
outreach with the regulated community, industry groups, environmental 
groups and states in its effort to notify all stakeholders about the 
requirements of the rule and how to submit the required information.
    Proposed paragraph Sec.  122.23(k)(3) would require the owner or 
operator of a CAFO to submit the survey form electronically using the 
Agency's information management system available on EPA's Web site. The 
Agency's Web-based information management system would be the most 
effective, inexpensive way to submit the information. The Web-based 
information management system would leverage components of the Central 
Data Exchange (CDX) on the Environmental Information Exchange Network. 
CDX provides a single and centralized point of access for states and 
CAFO owners or operators to submit information electronically to EPA. 
CDX is supported by the Cross-Media Electronic Reporting Regulation 
(CROMERR), which provides the legal framework for electronic reporting 
under EPA's regulations. CROMERR requires any entity that submits 
electronic documents directly to EPA to use CDX or an alternative 
system designated by the Administrator. CDX would ensure the legal 
dependability of electronically submitted documents and provide a 
secure environment for data exchange

[[Page 65441]]

that would also protect personally identifiable information (PII).
    The supporting CAFO information management system would leverage 
Agency standards and enterprise technologies to perform logic checks on 
the data entered to ensure quality assurance and quality control. Logic 
checks would reduce the reporting errors and limit the time involved in 
investigating, checking and correcting submission errors at all levels. 
While not required, the CAFO owner or operator would be able to print a 
copy of the information submitted through the Agency's information 
management system to maintain on site or at a nearby location.
    EPA proposes an option to waive the electronic submission 
requirement if the information management system is otherwise 
unavailable or the use of the Agency's information management system 
would cause undue burden or expense over the use of a paper survey 
form. A CAFO owner or operator would be allowed to request a waiver 
from this electronic reporting requirement at the time of submission 
and would not need to obtain approval from EPA before submitting a hard 
copy of the form. If submitting a hard copy of the survey form, the 
CAFO owner or operator would be required to check the electronic 
submission waiver box and explain why electronic submission causes an 
undue burden on page 1 of the proposed survey form. EPA requests 
comment on whether it should allow CAFOs to submit a hard copy of the 
form without requesting a waiver.
    CAFOs completing a hard copy of the survey form would submit the 
information in proposed paragraph Sec.  122.23(k)(2) to EPA via 
certified mail. The official paper survey form is attached as an 
appendix to this preamble. There are two ways that a CAFO owner or 
operator who cannot submit the information electronically would be able 
to access the official paper survey form and instruction sheet, which 
are included as Attachment A of this preamble. First, the owner or 
operator would be able to request a form and instructions from EPA. A 
form may be requested from EPA Headquarters from the EPA contact 
information provided in the final rule. Alternatively, the owner or 
operator would be able to download the form and instructions, which 
would be available at http://www.epa.gov/npdes/afo/. After receiving 
the official form, the CAFO owner or operator would complete and return 
the survey form to EPA using certified mail postmarked by the 
appropriate deadline specified by proposed paragraph Sec.  
122.23(k)(4).
    EPA plans to coordinate with states, tribal governments, and 
interested stakeholders to notify CAFOs about the proposed official 
survey form and the availability of the Agency's information management 
system. EPA seeks comment on the data submission approach in proposed 
paragraph Sec.  122.23(k)(3). EPA also seeks comment on the most 
effective ways to notify CAFOs, when the rule is finalized, that they 
must submit the information required as specified by proposed paragraph 
Sec.  122.23(k)(2).
6. How would states submit the Information to EPA?
    Only states with an authorized NPDES program would have the option 
to submit the information on behalf of CAFOs within their states. EPA 
requests comment on this limitation. In states where EPA is the 
permitting authority for CAFOs, EPA would submit the information. To 
participate in the voluntary submission option provided by proposed 
paragraph Sec.  122.23(k)(5), states would electronically submit the 
information required by proposed paragraph Sec.  122.23(k)(2) using the 
Agency's information management system. The electronic submission 
process for states is similar to the electronic submission process for 
CAFOs. The electronic submission process would entail submitting 
information via the information management system through CDX. Proposed 
paragraph Sec.  122.23(k)(5)(ii) would limit states to providing only 
current data, including data obtain from the state's most recent 
application process or from a CAFO's most recent annual report. Because 
states choose whether to submit information on behalf of CAFOs, EPA 
anticipates that a state would submit the information only when 
electronic submission is not overly burdensome.
    To clearly identify which CAFOs would not need to submit the 
information to EPA during the CAFO reporting period, EPA proposes to 
make available on the Agency's Web site (http://www.epa.gov/npdes/) a 
final list of CAFOs for which the states have submitted information on 
behalf of a CAFO. The CAFOs would be listed by name, location and 
permit number for NPDES permitted CAFOs, and by name and location for 
unpermitted CAFOs. EPA would also make available the information 
provided by the states for each CAFO [within 60 days after the end of 
the 90-day state submission timeframe]. As explained in the section, 
When would states that choose to submit the information be allowed to 
provide the information to EPA and when would CAFOs be required to 
submit the information to EPA?, of this preamble, CAFOs that do not 
appear on the CAFO list would be required to submit the information 
[within 90 days of the list and responses being published]. CAFOs on 
the CAFO list would not be required to submit the information; however, 
they would be able review and change any information provided by a 
state.
    States would be required to provide the electronic data files in an 
Extensible Markup Language (XML) format that is prescribed by EPA and 
compatible with Agency standards in support of regulatory data and 
information flows by the deadline specified in proposed paragraph Sec.  
122.23(k)(5)(iii). If states already store CAFO information within 
their respective databases, states would need to map their CAFO 
database elements to the prescribed XML CAFO schema for data exchange. 
States that do not store CAFO information electronically or maintain 
records in hardcopy would need to manually populate the CAFO survey 
using the Web-based submission form, thus using the same submission 
process as an individual CAFO owner or operator.
    In contrast to implementing and enforcing the existing CAFO 
regulations in 40 CFR part 122, which is a required program element for 
authorized states, EPA emphasizes that the state submission option 
would be voluntary. This proposed option would not require that states 
divert resources from regulatory implementation and enforcement efforts 
to submit the information required by proposed paragraph Sec.  
122.23(k)(2) to EPA. EPA anticipates that states that choose to report 
on behalf of their state's CAFOs would already possess this information 
and therefore, would not need to undertake additional efforts to 
collect this information from CAFOs. EPA assumes the states that choose 
to provide the information to EPA would be the states for which this 
task would not be overly burdensome. This proposed option does not 
express a preference as to whether states or CAFOs submit the 
information. EPA plans to coordinate with states to help them prepare 
to submit the information if the state chooses to provide the 
information to EPA. EPA seeks comment on the proposed data collection 
approach regarding the way in which states would submit the information 
to EPA on behalf of CAFOs, and on whether NPDES authorized states 
should be required to submit the information on behalf of permitted 
CAFOs.

[[Page 65442]]

D. Option 2 Would Apply to CAFOs in a Focus Watershed

    EPA also proposes an option that would first identify focus 
watersheds with water quality problems likely attributable to CAFOs, 
and then potentially identify CAFOs in a focus watershed to respond to 
a survey request. EPA would make every reasonable effort to assess the 
utility of existing publicly available data and programs to identify 
CAFOs by working with partners at the Federal, state, and local level 
before determining whether an information collection request is 
necessary. This proposed rulemaking option would allow EPA to list the 
criteria used to define the focus watersheds, specify the methods to 
determine the geographic scope of the focus watersheds, survey groups 
of CAFOs in the selected focus watersheds if the necessary information 
was not available from other sources, and define the amount of time 
required for outreach so that CAFOs in these focus watersheds know if 
and when they are required to respond to a survey request.
    Under this proposed option, EPA would focus on collecting 
information regarding CAFOs in focus watersheds where there are water 
quality concerns likely associated with CAFOs. EPA would use existing 
data sources to determine which geographic areas would be identified as 
a focus watershed for collecting information about CAFOs and to attempt 
to obtain the necessary data before using its 308 authority to collect 
it directly from CAFOs.
    EPA could use existing data sources to identify areas of water 
quality concern that correspond with locations of CAFOs. For example, 
modeling estimates could be used to identify watersheds at an 
appropriate Hydrologic Unit Codes (HUCs) level with high nitrogen and 
phosphorus loadings likely originating from agricultural sources. 
Publicly available data could also be used to identify watersheds with 
high concentrations of CAFOs. Data from these sources could be further 
complemented by numerous other existing data from EPA, states, 
universities, research centers and other sources. EPA would collaborate 
with states, other Federal agencies, and interested stakeholders to 
identify other available sources of data pertaining to CAFOs and water 
quality, including but not limited to watershed characteristics, 
sources of water quality impairments, pollutant loadings from 
agriculture, CAFO locations, characteristics of CAFO operations, and 
CAFO manure management practices when selecting focus watersheds. EPA 
would make its methodology for identifying focus watersheds and the 
results of its assessments available to the public.
    EPA, other Federal, state, and local agencies, and interested 
stakeholders could also use the collected information to target their 
outreach to CAFO owners and operators, target technical and financial 
assistance that helps CAFOs apply the most effective manure management 
practices, and implement monitoring and assessments of the effects of 
these practices. Leveraging stakeholder resources and more precisely 
focusing on areas of concern could yield strong results in a shorter 
period.
    Identifying focus watersheds could produce additional benefits in 
addressing water quality impairments. In focus watersheds, Federal and 
state agencies could partner with industry groups and non-governmental 
organizations to increase outreach and education to CAFO owners and 
operators. Additionally, this option could assist EPA and other Federal 
and state agencies in working with agricultural producers in the focus 
watershed to develop and implement a coordinated program of manure 
management practices needed to attain water quality goals, including 
state water quality standards. EPA could also evaluate results from 
existing or future water quality monitoring and modeling and provide 
these results to the public periodically. Such education and outreach 
efforts could promote the implementation of best management practices. 
Interested stakeholders could use information collected by this 
proposed option to target delivery of its technical and financial 
assistance including conservation systems tailored to the water quality 
needs and resource profile of each livestock producer.
    With this proposed rulemaking option, EPA would collect the 
information specified in proposed paragraph Sec.  122.23(k)(3) only 
from CAFOs located in identified focus watersheds. EPA would make every 
reasonable effort to assess the utility of existing publicly available 
data and programs to identify CAFOs by working with partners at the 
Federal, state, and local level before determining whether an 
information collection request is necessary. EPA seeks comment on this 
proposed option that would require CAFOs in focus watersheds to report 
the information specified in proposed paragraph Sec.  122.23(k)(4) if 
it were not otherwise available.
1. How would EPA identify a focus watershed?
    EPA would identify focus watersheds based on water quality concerns 
associated with CAFOs, including but not limited to nutrients (nitrogen 
and phosphorus), pathogens (bacteria, viruses, protozoa), total 
suspended solids (turbidity), and organic enrichment (low dissolved 
oxygen). EPA also recognizes that there is a variety of sources, 
including sewage treatment plants, and industrial discharges that are 
sources of nutrients and sediment related to water quality impairments. 
However, for purposes of this survey, this proposed option would 
require that a focus watershed be one associated with water quality 
concerns likely to be associated with CAFOs or land application of 
manure.
    Under section 303(d) of the CWA, states are required to assess 
their waters and list as impaired those that do not meet water quality 
standards. The 303(d) impairment listings would be one source to 
consult in identifying a focus watershed based on water quality 
concerns. EPA's ATTAINS database, which includes listings of impaired 
waters reported to EPA by states, pursuant to CWA section 303(d), is 
available to help identify impacted watersheds.
    However, relying on impaired waterbody information is limited 
because many waterbodies have not been assessed or the impairment cause 
has not been identified. Additionally, in these impaired waterbodies 
some states have not established water quality standards for all of the 
pollutants in these impaired waterbodies that might be associated with 
CAFO discharges. In particular, many states have not set standards for 
nutrients, which are a key indicator for animal agriculture's impact on 
water quality. To address this limitation, EPA also could use other 
data indicating water quality concerns relating to CAFOs, such as 
nutrient monitoring data from state or Federal agencies. EPA solicits 
comment on what sources of data could be used to determine where 
waterbodies are likely to be impacted due to CAFOs.
    EPA also could rely on existing partnerships to identify 
waterbodies with impacts associated with CAFOs. For example, a March, 
2011 memorandum reaffirmed EPA's commitment to partnering with states 
and collaborating with stakeholders to make greater progress in 
accelerating the reduction of nitrogen and phosphorus loadings to the 
nation's waters. In addition, some states are working on strategies for 
reducing nitrogen and

[[Page 65443]]

phosphorus pollution. U.S. EPA Memorandum, Working Effectively in 
Partnership with States to Address Phosphorus and Nitrogen Pollution 
Through Use of a Framework for State Nutrient Reductions (2011), 
available at http://water.epa.gov/scitech/swguidance/standards/criteria/nutrients/upload/memo_nitrogen_framework.pdf. The 
information collected by today's proposed rulemaking could assist 
states as they identify areas with water quality concerns by providing 
data for their strategy development and implementation. EPA requests 
comments on sources of information that could be used to identify 
watersheds with a likelihood of water quality impacts associated with 
CAFOs.
    In addition to being areas where water quality issues of concern 
are likely to exist due to CAFOs, a focus watershed would be identified 
based on one or more of the additional following proposed criteria:
    a. High priority watershed due to other factors such as vulnerable 
ecosystems, drinking water source supply, watersheds with high 
recreational value, or outstanding natural resources waters (Tier 3 
waters);
    b. Vulnerable soil types;
    c. High density of animal agriculture; and/or
    d. Other relevant information (such as an area with minority, 
indigenous, or low-income populations).
    EPA solicits comment on whether minimum standards for selection of 
a focus watershed should be adopted and what such standards might be. 
EPA also solicits comment on whether the results of a focus watershed 
assessment, including decisions to focus or not to focus on an area, 
should be made available to the public. EPA also solicits comment on 
how frequently EPA should review and/or revise its identification of 
focus watersheds.
2. Considerations When Determining Whether a Focus Watershed Meets the 
Criteria for Water Quality Protection
a. High Priority Watershed Due to Other Factors (Such as Vulnerable 
Ecosystems, Drinking Water Supply Source, Watersheds With High 
Recreational Value or Outstanding National Resource Waters (Tier 3 
Waters))
    EPA could identify focus watersheds where waters require a greater 
degree of protection than other waters of the United States. These 
include waters with excellent water quality, including high quality 
waters, where water quality conditions must be maintained and protected 
in accordance with 40 CFR 131.12(a)(2) and outstanding national 
resource waters, where the waters have exceptional recreational, 
environmental or economic significance and must be protected in 
accordance with 40 CFR 131.12(a)(3). Areas near drinking water sources 
may also be areas identified for survey requests. EPA and its partners 
would work with CAFOs located within these watersheds in order to 
promote improved nutrient management practices and to ensure that the 
applicable CWA requirements are met. EPA would review state and tribal 
water quality standard data to locate these watersheds. EPA seeks 
comment on high priority watershed due to other factors as a criterion 
to identify a focus watershed.
b. Vulnerable Soil Types
    Vulnerable soil types include soils with high nutrient levels. High 
nutrient soils in a watershed indicate that there may be more nutrients 
being land applied than being utilized by the crops. For example, there 
is an increased risk of phosphorus runoff in areas where phosphorus 
soil test levels are high, particularly in areas that are close to 
surface waters or have steep slopes. To evaluate and determine which 
watersheds have soils with high nutrient levels, EPA could review 
reports on nutrient levels such as the Mid-Atlantic Watershed Program's 
report of phosphorus; reports prepared for Congress, such as Animal 
Waste Management and the Environment: Background for Current Issues and 
Animal Waste Pollution in America: An Emerging National Problem. U.S. 
Congressional Research Service, CRS-98-451 (1998) available as of 
September 2011 at http://www.cnie.org/nle/CRSreports/Agriculture/ag-48.cfm; Tom Harkin, Animal Waste Pollution in America: An Emerging 
National Problem, Report Compiled by the Minority Staff of the United 
States Senate Committee on Agriculture, Nutrition, & Forestry for 
Senator Tom Harkin (Dec. 1997). Data compiled by state conservation 
districts and data from land grant universities that evaluate the 
nutrient levels of soils also could be sources of information to 
support identifying a focus watershed because of high nutrient levels 
in the soil. In addition to soil nutrient level, estimating areas where 
manure production is more than the surrounding crop lands can utilize 
may also be an indicator to focus information collection requests. For 
example, where the amount of manure generated greatly exceeds the 
capacity of available land for agronomic application of manure, it is 
more likely that CAFOs will apply manure in excess of crop nutrient 
requirements or experience issues associated with inadequate storage 
capacity. EPA seeks comment on vulnerable soil types as a criterion to 
identify a focus watershed.
c. High Density of Animal Agriculture
    EPA could target outreach and information collection efforts to 
those geographic regions where Ag Census data, which is publicly 
available aggregate data, shows a high density of animals or reports a 
high number of operations that meet the CAFO animal size thresholds as 
specified by paragraph 40 CFR 122.23(b). EPA could review the aggregate 
data from the Ag Census to determine counties, geographic regions or 
sub-regions that have a high density of CAFOs. This type of census data 
is accessible to both EPA and the public through USDA's existing on-
line report generating function and other sources. EPA seeks comment on 
using high densities of CAFOs as a criterion to identify a focus 
watershed.
d. Other Relevant Information
    EPA anticipates cases in which a need to collect information from 
CAFOs could arise because of factors other than the three criteria 
described above. For example, CAFOs often are located in minority, low-
income, and indigenous communities that are or may be 
disproportionately impacted by environmental pollution. Supporting this 
statement is a report from The Lawyers' Committee for Civil Rights 
Under Law stated that ``there are 19 times more CAFOs in North 
Carolina's poorest communities than in wealthier communities and five 
times more in nonwhite neighborhoods than in white neighborhoods.'' 
(Daria E Neal et al. Now is the Time: Environmental Injustice in the 
U.S. and Recommendations for Eliminating Disparities, page 56 (2010) 
available as of July 2011 at http://www.lawyerscommittee.org/admin/site/documents/files/Final-Environmental-Justice-Report-6-9-10.pdf). 
Working with CAFOs in those communities to address water quality 
problems would help fulfill the Agency's environmental justice goals. 
EPA seeks comment on the factors listed above and seeks suggestions of 
other factors the Agency could use as a criteria to identify a focus 
watershed. EPA would consider other factors suggested for inclusion in 
taking final action on this proposal.

[[Page 65444]]

3. How would EPA identify CAFOs from which additional information is 
needed?
    After establishing an area with a water quality impairment or water 
quality concerns likely associated with CAFOs, or otherwise identified 
as a focus watershed based on the factors identified above, EPA would 
make every reasonable effort to assess the utility of existing publicly 
available data and programs to identify CAFOs by working with partners 
at the Federal, state, and local level before determining whether an 
information collection request is necessary. However, where EPA was 
unable to obtain the necessary basic information from such sources, EPA 
would require CAFOs in the focus watershed to provide the necessary 
information. EPA requests comment on alternative sources of information 
that could be used to gather the necessary information.
4. What information would EPA require as part of an information 
gathering survey for CAFOs in a focus watershed?
    Under this proposed option, EPA would seek to collect the same 
information as under the proposed option for using section 308 to 
collect information from all CAFOs, outlined in section III.(C)(2). 
Specifically, EPA might require CAFOs in a focus watershed to submit 
the following information as specified by proposed paragraph Sec.  
122.23(k)(4), if the information were not available from other sources:
    (i) The legal name of the owner of the CAFO or an authorized 
representative,\1\ their mailing address, e-mail address (if available) 
and primary telephone number;
---------------------------------------------------------------------------

    \1\ An authorized representative must be an individual who is 
involved with the management or representation of the CAFO. The 
authorized representative must be located within reasonable 
proximity to the CAFO, and must be authorized and sufficiently 
informed to respond to inquiries from EPA or the state about the 
CAFO.
---------------------------------------------------------------------------

    (ii) The location of the CAFO's production area identified by the 
latitude and longitude or by the street address;
    (iii) If the owner or operator has NPDES permit coverage as of [the 
effective date of final rule], the date of issuance of coverage under 
the NPDES permit, and the permit number. If the owner or operator has 
submitted an NPDES permit application or a Notice of Intent as of [the 
effective date of final rule] but has not received coverage, the date 
the owner or operator submitted the permit application or Notice of 
Intent;
    (iv) For the previous 12-month period, identification of each 
animal type confined either in open confinement including partially 
covered area, or housed totally under roof at the CAFO for 45 days or 
more, and the maximum number of each animal type confined at the CAFO 
for 45 days or more; and
    (v) Where the owner or operator land applies manure, litter, and 
process wastewater, the total number of acres under the control of the 
owner or operator available for land application.
    Under this proposed option as well as the other proposed option, 
CAFOs in a targeted area would be able to assert a claim of 
confidential business information with respect to specific information 
submitted to EPA. 40 CFR part 2, subpart B. A claim of confidentiality 
must be made at the time of submission and in accordance with the 
requirements of 40 CFR 2.203(b). For further discussion of CBI, see 
section, What information would EPA require as part of an information 
gathering survey for CAFOs and why is EPA proposing to require this 
information?, of this preamble.
5. How would EPA geographically define a focus watershed?
    If EPA did ultimately need to use section 308 to focus on CAFOs in 
a specific geographic area, that area must be defined in some way so 
that CAFOs would know if their operation is located within the area, 
and thus, would be required to respond to the survey request. EPA 
proposes to define the targeted areas geographically by either Zip 
Codes, counties, HUC codes, or watersheds. EPA solicits comment on the 
most effective way to define a focus watershed so that CAFOs would know 
of their need to respond to EPA.
6. How would EPA inform CAFOs of their responsibility if they were 
required to respond to an information request?
    Where certain areas or groups of CAFOs are required to respond to 
an information collection request, EPA would conduct a variety of 
informational outreach efforts. First, EPA would publish in the Federal 
Register a notice describing the boundaries of the targeted area(s) and 
the information submission requirements for CAFOs within those areas at 
least [30] days before the beginning of any information submission 
period. EPA would also conduct extensive outreach with the regulated 
community and interested stakeholders to notify CAFOs in the focus 
watershed of their responsibility to provide information. EPA would 
work with the state and local authorities in providing this outreach. 
For example, EPA might hold public meetings in the area, place notices 
in newspapers, and use other available local media. EPA notes that the 
owners or operators of AFOs that have not been designated and that do 
not confine the required number of animals to meet the definition of a 
Large or Medium CAFO would not be required to submit information as 
specified in proposed paragraph Sec.  122.23(k)(4) to EPA.
    Under proposed paragraph Sec.  122.23(k)(3), EPA would conduct 
outreach to CAFOs in the targeted area for at least [30 days] prior to 
the start of any reporting period to notify operations that they are 
required to report the information specified in proposed paragraph 
Sec.  122.23(k)(4) to EPA. EPA seeks comment on ways to inform and 
reach CAFOs in targeted areas if they are required to provide 
information. EPA also seeks comment on the timeframe provided for 
outreach to CAFOs in targeted areas.
7. When would CAFOs in a focus watershed be required to submit the 
information to EPA?
    If EPA needed to use 308 authority to collect information from 
CAFOs, after the end of EPA's outreach period for CAFOs in the targeted 
area, CAFOs would have [90 days] to submit the information to EPA. EPA 
would identify the specific deadline for submitting the information 
during EPA's outreach period as well as by publishing the deadline in 
the Federal Register notice, which is required at least [30] days 
before the beginning of any information submission period.
    EPA seeks comment on the amount of time a CAFO in a targeted area 
would need to submit the information to EPA.
8. How would CAFOs in a focus watershed submit information to EPA?
    If EPA needed to use 308 authority to collect information from 
CAFOs, CAFOs in focus watersheds would submit the information in the 
same manner as specified in proposed option 1 for collecting 
information from all CAFOs. Specifically, proposed paragraph Sec.  
122.23(k)(5) would require the owner or operator of a CAFO to submit 
the official survey form electronically using the Agency's information 
management system available on EPA's Web site. EPA proposes to waive 
the electronic submission requirement if the information management 
system is otherwise unavailable or the use of the Agency's information 
management system would cause undue burden or expense over the use of a 
paper survey form. See section How would CAFOs

[[Page 65445]]

submit the information to EPA of this preamble for a detailed 
discussion. EPA seeks comment on the data submission approach in 
proposed paragraph Sec.  122.23(k)(5).

E. Failure To Provide the Information as Required by This Proposed 
Rulemaking

    Under Option 1, and under Option 2 in cases where EPA used its 
section 308 authority to collect information from CAFOs in focus 
watersheds, CAFO owners or operators that failed to submit the 
information in accordance with the requirements specified in proposed 
paragraph Sec.  122.23(k) would be in violation of the CWA. Section 309 
of the CWA provides for administrative, civil and criminal penalties 
for violations of section 308 of the Act. 33 U.S.C. 1319. EPA assesses 
monetary penalties associated with civil noncompliance using a national 
approach as outlined by the Agency's general penalty policy. More 
information on the amounts and calculations of civil penalties is 
available at http://cfpub.epa.gov/compliance/resources/policies/civil/penalty/. Additional information on criminal noncompliance, is 
available at http://cfpub.epa.gov/compliance/resources/policies/civil/penalty/.

F. Alternative Approaches To Achieve Rule Objectives

    The objective of this proposed action is to improve and protect 
water quality impacted by CAFOs. However, EPA recognizes that there may 
be other ways to achieve this objective, and the Agency solicits 
comment on alternative approaches to meet the objectives of this 
proposed rule. Such alternative approaches may require rulemaking. EPA 
would consider any such suggested alternative approaches in developing 
the final rule.
    EPA describes three such alternative approaches in this section and 
seeks public comment on these approaches. EPA seeks public comment on 
alternative approaches to a data collection request for CAFOs 
including: (1) An approach that would obtain data from existing data 
sources, (2) an approach that would expand EPA's network of compliance 
assistance and outreach tools and (3) an approach requiring NPDES 
authorized states to submit the information as specified by proposed 
paragraph Sec.  122.23(k)(2) to EPA, which would require rulemaking. 
EPA also seeks comment on other alternative approaches besides the 
three discussed herein that could achieve the same objectives. Any one 
of these three alternative approaches could be enhanced by stewardship 
and recognition programs, education or assistance programs or incentive 
based programs, carried out in coordination with other partners such as 
states, industry or USDA, and could result in improvements in industry 
practices more quickly than a data collection effort. EPA solicits 
comment on programs such as these that could be employed to ensure that 
CAFOs are implementing measures to protect water quality.
1. Use of Existing Data Sources
    One alternative approach to the proposed rule would be to rely on 
the use of available existing sources of data on CAFOs, such as 
information from USDA, states, environmental organizations and other 
interested stakeholder groups. The discussion below describes the 
sources of information that currently exist, identifies some of the 
limitations EPA faces in using these sources and seeks comment on ways 
in which EPA could leverage these sources collectively to address 
impacts from CAFOs.
a. U.S. Department of Agriculture Data
    The U.S. Department of Agriculture is a leading source of national, 
publicly aggregated agricultural data. Federal law prohibits USDA from 
disclosing or using data collected unless the information has been 
converted into a statistical or aggregate form that does not allow the 
identification of the person who supplied particular information 7 
U.S.C. 2276(a); see also 7 U.S.C. 8791(b)(2)(A); Confidential 
Information Protection and Statistical Efficiency Act, 44 U.S.C. 
3501(2002). Accordingly, USDA withholds any county-level data if that 
information would identify individual producers. In counties where no 
data are available, the USDA indicates where data is omitted because of 
disclosure limitations or because no CAFOs are in operation.
    EPA currently uses the publicly available aggregate data from USDA 
categorized by animal size thresholds defined by the CAFO rule to 
refine estimates of the CAFO universe, assess animal densities by 
counties, and identify the number of operations in those counties. EPA 
also can determine from the USDA aggregate data the cumulative number 
of acres that are available for land application at CAFOs, as the total 
number of acres by county but not by facility. To obtain facility-
specific data, EPA is considering ways in which the Agency could 
combine the publicly available, aggregated data from USDA with other 
data sources to obtain a comprehensive, consistent national inventory 
of CAFOs to assess and address their impacts on water quality.
b. State Permitting Programs
    State NPDES permitting programs should have data on permitted 
CAFOs, which could provide answers to the proposed survey questions in 
today's notice. EPA estimates that approximately 8,000 CAFOs out of a 
total universe of 20,000 CAFOs have obtained permit coverage under the 
NPDES program. Authorized states have information from permit 
applications and annual reports for CAFOs with permit coverage. 
Although not all states have made this information electronically 
accessible, some states have online databases or maps that display CAFO 
data. For example, Missouri requires permit coverage for all CAFOs as 
well as a subset of operations with less than 1,000 animal units and 
displays a map of these operations in relation to waters of the state 
(http://www.dnr.mo.gov/env/wpp/afo.htm). Missouri Department of Natural 
Resources uses this information to link permitted operations with 
specific classified stream segments in order to facilitate water 
quality based planning, total maximum daily load (TMDL) development and 
reports required under section 305(b) of the CWA. Similarly, in North 
Carolina all animal feeding operations with a permit, whether under the 
NPDES program or under other state permitting programs, are listed in a 
spreadsheet that can be downloaded (http://portal.ncdenr.org/web/wq/aps/afo/perm). The spreadsheet contains information on the number of 
animals at the operation, type of permit issued to an operation and 
latitude and longitude information for 2,711 operations.
    While those two states are examples of comprehensive sources of 
information that are electronically available, other states maintain 
CAFO records in paper copy, which may not be complete or readily 
available. In addition, information on unpermitted CAFOs generally is 
not available via state records. Currently, EPA provides registered 
users, such as states, the ability to track permit issuance, permit 
limits and monitoring data through the Integrated Compliance 
Information System (ICIS) or through the Online Tracking Information 
System (OTIS), which integrates ICIS data with information from other 
databases such as EPA's Permit Compliance System (PCS). EPA estimates 
that only 15 to 20 percent of CAFO permit data is stored in one of 
these two systems because many states use separate databases to manage 
and implement permitting programs. A further challenge in

[[Page 65446]]

aggregating state permitting data is that the information collected is 
not based on a national standardized reporting scheme. Reporting 
inconsistencies across jurisdictions would prevent EPA from compiling a 
consistent national summary of CAFO information. Thus, a national 
inventory based solely on state data would not be comprehensive.
    EPA solicits comment on ways in which data from state permitting 
authorities could be used in conjunction with other sources of 
information, such as the publicly available aggregate data from USDA, 
to obtain a comprehensive, consistent national inventory of CAFOs to 
assess and address their impacts on water quality.
c. State Registration or Licensing Programs
    Permitting programs administered by the state are not the sole 
source of state information on CAFOs. Many state agriculture 
departments have registration or licensing programs that collect 
information from livestock farms separately from environmental 
permitting requirements. Such sources could be used as a source of 
information for the unpermitted universe. However, EPA's investigation 
of those data sources indicates that registration or licensing programs 
typically provide only contact information.
    Despite the limited information available from registration and 
licensing programs, these sources may nevertheless provide a 
comprehensive list of facilities in a particular sector, which EPA 
could use to supplement information available from a state permitting 
program. For example, in Arkansas, state law requires poultry 
operations confining 2,500 or more birds on any given day to register 
with the county conservation districts. Information that could be 
obtained from this registration list includes: Number and kind of 
poultry housed; location of the operation; litter management system 
used and its capacity; acreage controlled by the operation; litter land 
applied during the last year; amount and destination of litter 
transferred; amount of litter utilized by the producer and the type of 
utilization; and the name of the poultry operation's processor.
    Similarly, dairy licensing programs contain site-specific 
information, which may be publicly available. For example, the Ohio 
Department of Agriculture requires milk producers of grade A and 
manufactured milk to obtain a license prior to operation. As part of 
this process, a milk producer must provide evidence of a safe water 
supply and submit prepared plans for the milkhouses, milking barns, 
stables and parlors at the operation. Ohio Department of Agriculture 
provides a list by county of the number of active dairy farms in the 
state (http://www.agri.ohio.gov/apps/DairyFarmsReport/FarmsReportPage.aspx). This information could be used in conjunction 
with the USDA's publicly available aggregate data to determine CAFO 
locations by county in Ohio.
    EPA seeks comment on the availability of registration and licensing 
lists and whether information obtained from such programs could be 
shared with EPA. If so, such data could also be used as part of a 
comprehensive effort to address CAFO impact on water quality. EPA seeks 
input on ways in which data from these lists could be used in 
conjunction with other sources of information, such as USDA's publicly 
available aggregated data, to obtain a comprehensive, consistent 
national inventory of CAFOs to assess and address their impacts on 
water quality.
d. Satellite Imagery and Aerial Photographs
    EPA, states, and academic institutions have used satellite imagery 
to locate and map CAFOs. For example, through a cooperative agreement 
with EPA, Jacksonville State University and Friends of Rural Alabama 
(JSU and FRA) created the American Environmental Geographic Information 
System (http://www.aegis.jsu.edu/) to assist in watershed analyses and 
planning. This system provides maps and environmental data for a 
variety of industries, including animal feeding operations, in a select 
number of eastern states. JSU and FRA visually scanned satellite images 
for structures commonly used to confine animals. Clusters of long, 
white buildings were identified as poultry operations or as swine 
operations, when an open-air pit or lagoon system was visible.
    EPA also has used aerial flyovers to obtain real time aerial 
photography for a variety of purposes, including identifying and 
updating the universe of CAFOs, identifying potential illegal 
discharges from CAFOs to waters of the United States. and prioritizing 
follow-up site inspections. While resource intensive, flyovers can be 
used to cover specific geographic areas and/or areas with difficult 
terrain.
    These methodologies present certain limitations as a source of data 
on CAFOs. While satellite imagery and aerial photographs may identify 
location information for some animal feeding operations, a user may not 
be able to determine whether structures actually contained animals, 
whether an operation met the regulatory definition of a CAFO or had 
NPDES permit coverage. Therefore, this information source is most 
useful when supplemented by on-the-ground efforts to confirm site-
specific information. For example, location information from aerial 
photography or satellite images may be combined with state and county 
Web sites that provide tax parcel information, building histories and 
permit histories, so as to identify animal feeding operations that may 
meet the CAFO requirements for obtaining a permit. EPA solicits comment 
on other ways to augment information from satellite images and aerial 
photography location information to obtain a comprehensive, consistent 
national inventory of CAFOs to assess and address their impacts on 
water quality.
e. Reporting Requirements Under Other Programs
    EPA's Assessment, TMDL Tracking and Implementation System (ATTAINS) 
database (http://www.epa.gov/waters/ir) displays water quality findings 
reported by the states under section 305(b) and section 303(d) of the 
Clean Water Act. These findings represent state decisions as to whether 
assessed waters are meeting their water quality standards. Assessment 
decisions are made by the states based primarily on monitoring targeted 
to areas known or suspected to be impaired and may not fully represent 
all conditions within a state. While not all waters are assessed, the 
database identifies which watersheds are impaired. The findings are 
updated in the database as new state Integrated Reports (305b and 303d) 
are received, reviewed and posted and may reflect 2010, 2008, or 2006 
data from states, depending on their latest submission. EPA seeks 
comment on ways in which impairment information from this source can be 
compared to CAFO data, such as animal density or number of operations, 
to inform efforts to address water quality impacts from CAFOs.
    Although on a separate track from this proposed rule, EPA is 
currently in the process of developing a rulemaking to amend reporting 
requirements for livestock operations on air emissions under the 
Comprehensive Environmental Response, Compensation, and Liability Act 
(CERCLA) section 103 and (Emergency Planning & Community Right-to-Know 
Act) EPCRA section 304. This information collection effort may offer an 
alternative means of collecting data on livestock operations that would 
meet the Agency's Clean Water Act needs. As the Agency moves forward 
with the CERCLA/EPCRA reporting requirements

[[Page 65447]]

proposed rulemaking, there is an opportunity to explore how to leverage 
reporting to EPA from livestock operations to meet information needs 
under CERCLA/EPCRA and the CWA simultaneously. EPA solicits comment on 
ways in which this could be achieved to obtain a comprehensive, 
consistent national inventory of CAFOs to assess and address their 
impacts on water quality.
f. Other Sources of Data
    Nongovernmental entities have published reports on CAFOs, such as 
the Food & Water Watch Report--Factory Farm Nation: How American Turned 
Its Livestock Farms into Factories and the Pew Commission report--
Putting Meat on the Table: Industrial Farm Animal Production in 
America. These reports provide helpful background information and case 
studies. EPA currently uses the results of these studies to identify 
research needs but solicits comments on how such reports could enhance 
additional EPA efforts to reduce water quality impairments from CAFOs.
    Extension agents and conservation programs also have information on 
CAFOs. EPA solicits comment on how the Agency could work with state 
cooperative extension programs, land grant universities and other 
conservation programs to gather information on CAFOs and to coordinate 
efforts to protect water quality. In general, these sources only 
release aggregated data and may not specifically focus on operations 
that meet EPA's definition of a CAFO.
    In summary, through this alternative approach, EPA could combine a 
variety of existing data sources to determine where CAFOs are located 
and overlay this information with existing data on impaired waterbodies 
to determine where regulatory activities should be focused. While 
existing data sources are not consistent and are not comprehensive 
nationwide, the Agency seeks comment on how these sources, as well as 
additional sources not described herein, could be used collectively to 
protect water quality from CAFO discharges rather than promulgating a 
survey requirement for all CAFOs to provide information.
2. Alternative Mechanisms for Promoting Environmental Stewardship and 
Compliance
    Under this alternative approach, EPA would expand its network of 
compliance assistance, outreach tools and partnerships with industry to 
assist in addressing the most significant water quality problems. 
Comprehensive compliance assistance and outreach efforts are tools a 
regulatory program can use in partnerships with industry to proactively 
protect and maintain water quality.
    EPA recognizes that stewardship and recognition programs, education 
or technical assistance programs and incentive based programs, often 
carried out in coordination with other partners such as states, 
industry, or USDA, could result in improvements in industry practices 
more quickly than a data collection effort. Two current examples of 
such programs are: (1) The Ag Center, (http://www.epa.gov/agriculture), 
which provides compliance and environmental stewardship information 
related to animal feeding operations and partners with USDA and state 
land grant universities to promote environmental stewardship and 
improve manure and nutrient management practices; and (2) EPA's 
partnership with USDA's extension program, offering a wide range of 
compliance and environmental stewardship information for livestock 
operators through the Livestock and Poultry Environmental Learning 
Center available at http://www.extension.org/animal_manure_management. EPA solicits comment on how best to use alternative 
mechanisms such as these to ensure CAFOs are implementing measures to 
protect water quality. This approach would not require a rulemaking; 
rather it would focus on the use of activities that already are 
authorized under existing regulations. The success of such efforts 
would depend in large part on coordination with EPA's state partners 
and the cooperation and assistance of industry and environmental 
groups.
3. Require Authorized States To Submit CAFO Information From Their CAFO 
Regulatory Programs and Only Collect Information From CAFOs if a State 
Does Not Report
    This alternative regulatory approach, is a variation of the 
proposed approach and would require NPDES authorized state regulatory 
agencies to submit the information proposed by paragraph Sec.  
122.23(k)(2). Many states may know the universe of CAFOs in their state 
to ensure proper implementation and enforcement of the CWA's permitting 
requirements and to protect water quality.
    Although EPA recognizes that states may not have information on all 
CAFOs in their state, this alternative approach would require states to 
provide information for CAFOs for which they do have information as 
part of their CAFO regulatory programs. As a result, the data EPA would 
collect would not necessarily be comprehensive. Under this approach, 
EPA would only require information from CAFOs where a state failed to 
provide the required information to EPA.
    It is likely that a number of states already have the information 
that would be required by proposed paragraph Sec.  122.23(k)(2) for 
NPDES permitted CAFOs. Some states require CAFOs that have not sought 
coverage under an NPDES permit to obtain a separate state permit. For 
example, Maryland requires CAFOs that discharge to obtain NPDES CAFO 
permits and CAFOs that do not discharge to obtain state Maryland Animal 
Feeding Operation (MAFO) permits. Other states may have access to other 
data sources for CAFOs that could be used to provide the information.
    Under this alternative approach, each state would be required to 
report the information to EPA. States would be required to submit the 
information within a given timeframe, and EPA would compile that 
information into a database. CAFOs would be required to provide 
whatever information a state fails to provide.
    EPA seeks comment on whether authorized states should be required 
to provide information from their CAFO regulatory programs on behalf of 
the CAFOs within their boundaries. EPA also seeks comment on whether it 
should allow states to submit data from CAFO from sources other than a 
state regulatory program. EPA also seeks comment on, if it selects this 
alternative, whether EPA should allow or require CAFOs to review the 
information in the database.

IV. Impact Analysis

A. Benefits and Costs Overview

    When EPA issued the revised CAFO regulations on February 12, 2003, 
it estimated annual pollutant reductions due to the revisions at 56 
million pounds of phosphorus, 110 million pounds of nitrogen and two 
billion pounds of sediment. This proposed rulemaking would not alter 
the benefits calculated in the 2003 rule. The effect of the proposed 
rule would be to enable full attainment of the benefits calculated in 
the 2003 rule by furnishing EPA with information on the universe of 
CAFOs. To date, EPA estimates that approximately 58 percent of CAFOs do 
not have NPDES permits. The information collected under this proposal 
would help ensure that CAFOs that discharge have NPDES permit coverage 
necessary to achieve these environmental benefits.
    The proposed rulemaking would not alter any permitting requirements 
or the

[[Page 65448]]

technical requirements under the Effluent Limitations Guidelines and 
Standards (ELGs), so CAFOs would not incur any compliance costs 
associated with modifications to structures or operational practices. 
The only cost associated with this rule to affected entities is the 
reporting burden to provide the required information to EPA as 
specified in this proposal.

B. Administrative Burden Impacts

    Since there is no change in technical requirements, cost impacts to 
CAFOs are exclusively due to changes in the information collection 
burden. To determine the administrative burden for the Paperwork 
Reduction Act (PRA) analysis, the Agency projected the burden that 
CAFOs would incur because of the new requirements.
    To complete this projection, the Agency started with its current 
estimate of the total number of CAFOs in the U.S. and then examined the 
administrative burden that would be incurred by these operations. It is 
important to note that while EPA's estimates of CAFOs are adequate for 
purposes of completing the impact analyses required under statute and 
executive order, the data are insufficiently detailed for purposes of 
identifying precise locations of specific CAFOs or clusters of CAFOs, 
understanding their operational practices and assessing their potential 
environmental impacts.
    EPA's most recent information on the number of CAFOs in the U.S. 
shows that as of 2010 there were approximately 20,000 CAFOs, both 
permitted and unpermitted. To estimate the reporting burden faced by 
these CAFOs under the proposed rule requirements, EPA examined its 
prior PRA analyses. These analyses had assumed that CAFOs applying for 
NPDES permit coverage would incur a nine hour administrative burden to 
complete and file NPDES permit applications or notices of intent. Based 
on comparing the reporting items for permit applications to the 
reporting items in the proposed rulemaking, EPA estimated that a CAFO 
would need one hour to gather and submit the information on the 
proposed survey form to EPA as indicated in the proposed rulemaking. 
This burden estimate reflects both the time to understand the reporting 
requirements as well as time to complete the survey form electronically 
or by paper, when necessary.
    EPA's PRA analysis combines the updated estimates of numbers of 
CAFOs and the estimates of the reporting burden to project that CAFO 
operators would collectively experience an increase in total annual 
administrative burden of approximately $0.2 million under the first 
proposed option where all CAFOs would submit their information to EPA. 
The costs associated with the option to collect information only from 
CAFOs in focus watersheds would be a subset of these costs.
    Under the requirements as laid out in proposed paragraph Sec.  
122.23(k)(5) for the first proposed option, state permitting 
authorities would not incur any administrative burden arising out of 
the rulemaking since CAFOs would report their information directly to 
EPA. States would have the option of submitting information on their 
CAFOs electronically; however, EPA anticipates that the states that 
would choose this option are those for whom this type of batch 
reporting would not impose an undue burden.
    This Federal Register notice also includes an alternative approach 
that would require states to provide information on CAFOs in their 
state. EPA costed this alternative approach separately in the proposed 
rule supporting analysis. Under this approach, the reporting burden 
would shift from CAFOs to states since states would be responsible for 
reporting the data proposed to be collected to EPA. To complete a cost 
estimate for this approach, EPA estimated a cumulative incremental cost 
based on an assumption that all states would submit their CAFO records 
as paper files to the Agency. For purposes of costing this scenario, 
EPA estimated that it would take states one hour to prepare and submit 
records for 20 facilities. This labor burden combined with photocopying 
costs yielded a total state respondent average incremental annual cost 
of $16,391. EPA solicits comment on the burden analysis regarding the 
requirement for states to submit CAFO information from their regulatory 
programs.
    The documentation in the public record on the PRA analysis for this 
proposed rulemaking discusses more fully the assumptions used to 
project the associated administrative burden, including the burden 
faced by CAFOs that subsequently may need to update any information 
submitted previously.

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    Under Executive Order 12866 (58 FR 51,735; October 4, 1993), this 
proposed action is a ``significant regulatory action.'' Accordingly, 
EPA submitted this proposed action to the Office of Management and 
Budget (OMB) for review under Executive Orders 12866 and 13563 (76 FR 
3821, January 21, 2011) and any changes made in response to OMB 
recommendations have been documented in the docket for this proposed 
action.
    In addition, EPA prepared an analysis of the potential costs and 
benefits associated with this proposed action. This analysis is 
summarized in Section IV of this preamble above, entitled Impact 
Analysis. A copy of the supporting analysis is available in the docket 
for this action.

B. Paperwork Reduction Act

    The information collection requirements in this proposed rule have 
been submitted for approval to the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The 
Information Collection Request (ICR) document prepared by EPA was 
assigned EPA ICR No. 1989.08.
    The proposed rule would require CAFOs to provide EPA with basic 
facility information. This action would provide EPA with the 
information on the universe of CAFOs it needs to ensure compliance with 
the CWA. EPA projects that the proposed rule would cause CAFO operators 
to experience an increase in annual administrative burden of 6,960 
labor hours annually, which translates into an increased annual 
administrative cost of $0.2 million. The increase in administrative 
costs is based on projecting submission costs for all CAFOs, and is 
derived exclusively from the recordkeeping and reporting requirements 
associated with submitting the required information to EPA as detailed 
in the proposed rule. EPA assumed for purposes of the PRA analysis that 
a CAFO would incur a labor burden of one hour for filing the required 
information. The proposed action would not impose any new capital costs 
on affected entities. The burden for the initial reporting is averaged 
over three years for purposes of calculating burden under the PRA. EPA 
requests comment on its estimate of burden and costs for CAFOs to 
comply with the reporting requirements in the two co-proposed rule 
options.
    Under the proposed rule, states would have the option of providing 
EPA with datasets on their CAFOs with existing NPDES permits. However, 
the effort to generate these datasets is not costed as part of the ICR 
since EPA assumes that the states that choose to provide the datasets 
to EPA would be the ones for whom this task would not be overly

[[Page 65449]]

burdensome, and the burden the states would incur would be in lieu of a 
comparable burden avoided by CAFOs that the states reported for.
    Additional details on the assumptions and parameters of the PRA 
analysis are available in the ICR document referenced above, which is 
available in the docket supporting this proposed rulemaking. Burden is 
defined at 5 CFR 1320.3(b).
    A Federal 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.
    To comment on the Agency's need for this information, the accuracy 
of the provided burden estimates, and any suggested methods for 
minimizing respondent burden, EPA has established a public docket for 
this proposed rule, which includes the ICR, under Docket ID number EPA-
HQ-OW-2011-0188. Please submit any comments related to the ICR to EPA 
and OMB. See ADDRESSES section at the beginning of this notice for 
where to submit comments to EPA. Send comments to OMB at the Office of 
Information and Regulatory Affairs, Office of Management and Budget, 
725 17th Street, NW., Washington, DC 20503, Attention: Desk Office for 
EPA. Since OMB is required to make a decision concerning the ICR 
between 30 and 60 days after October 21, 2011, a comment to OMB is best 
assured of having its full effect if OMB receives it by November 21, 
2011. The final rule would respond to any OMB or public comments on the 
information collection requirements contained in this proposal.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires a Federal 
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 would 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 this 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 this rule on small 
entities, I certify that this proposed action would not have a 
significant economic impact on a substantial number of small entities. 
This proposed rule does not change any of the substantive requirements 
for CAFO operators. While it does increase the net paperwork burden 
faced by facilities compared to the burden imposed under the 2003 CAFO 
rule, these incremental costs are small compared to the existing 
paperwork burden faced by CAFOs and represent an increase in annualized 
compliance costs that is significantly less than one percent of 
estimated annual sales for any of the affected entities. To reach this 
determination, EPA examined sales figures reported in USDA's publicly 
available aggregated data and concluded that it is unlikely that the 
estimated upper-bound burden impact of one hour per CAFO would exceed 
one percent of the average annual sales of any of the livestock 
operations for whom sales figures were reported.
    Additionally, this proposed rule would not affect small 
governments, as the permitting authorities are state or Federal 
agencies and the information would be submitted directly to EPA.
    EPA continues to be interested in the potential impacts of the 
proposed rule on small entities and welcomes comments on issues related 
to such impacts.

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, tribal governments 
and the private sector. Under section 202 of 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 by 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 the 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 proposed 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. The proposed rule also presents an 
alternative approach that would require states to submit information on 
CAFOs. EPA determined that this alternative approach, which principally 
would involve photocopying, would also not result in a burden above the 
threshold. Thus, this rule is not subject to the requirements of 
sections 202 and 205 of the UMRA.
    EPA has determined that this rule would contain no regulatory 
requirements that might significantly or uniquely affect small 
governments. There are no local or tribal governments authorized to 
implement the NPDES permit program and the Agency is unaware of any 
local or tribal governments who are owners or operators of CAFOs. Thus, 
this rule is not subject to the requirements of section 203 of UMRA.

E. Executive Order 13132: Federalism

    This proposed action does not have federalism implications. Since 
the reporting under the proposed rule would require CAFOs to submit 
their information directly to EPA, it would 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. The proposed rule would offer states the 
option of submitting information on behalf of the state's CAFOs. 
However, the proposed rule would not require states to adopt

[[Page 65450]]

this option; therefore, EPA does not consider this proposed rule to 
have a substantial impact on states. Thus, Executive Order 13132 does 
not apply to this proposed action.
    EPA is requesting comment on alternative approaches for gathering 
CAFO information. One of these approaches would require States to 
submit information on their CAFOs. EPA examined costs associated with 
this alterative and concluded based on a conservative estimate of 
burden impacts that the alternative would not trigger federalism 
concerns.
    In the spirit of Executive Order 13132 and consistent with EPA 
policy to promote communications between EPA and state and local 
governments, EPA specifically solicits comment on this proposed action 
from state and local officials.

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

    This proposed action does not have tribal implications, as 
specified in Executive Order 13175 (65 FR 67249, November 9, 2000), 
because there are currently no tribal governments authorized for the 
NPDES program. In addition, EPA is not aware of any Indian tribal 
governments that own CAFOs that would be subject to the proposed 
reporting requirements. Thus, Executive Order 13175 does not apply to 
this action.
    This proposed rulemaking could have the effect of providing 
increased opportunities for the tribal governments to obtain 
information on all CAFOs within their governmental boundaries and, as 
such, may facilitate their interactions with entities of possible 
concern.
    In the spirit of Executive Order 13175 and consistent with EPA 
policy to promote communications between EPA and tribal governments, 
EPA would also distribute information on the outcome of the rulemaking 
process once the rulemaking action is finalized.
    EPA solicits comment on the Agency's approach to meeting its 
obligations under E.O. 13175 for the proposed action.

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 19,885; 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 proposed rule is not subject to Executive Order 13045 because 
it is not economically significant as defined in Executive Order 12866 
and because the Agency does not have reason to believe the 
environmental health or safety risks addressed by this proposed action 
present a disproportionate risk to children. The benefits analysis 
performed for the 2003 CAFO rule determined that the rule would result 
in certain significant benefits to children's health. (Please refer to 
the Benefits Analysis in the record for the 2003 CAFO final rule.) This 
proposed action does not affect the environmental benefits of the 2003 
CAFO rule.

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

    This rule is not a ``significant energy action'' as defined in 
Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. EPA has concluded that this rule is not 
likely to have any adverse energy effects since CAFOs in general do not 
figure significantly in the energy market, and the regulatory revisions 
finalized in this rule are not likely to change existing energy 
generation or consumption profiles for CAFOs.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law No. 104-113, 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 standards bodies. NTTAA directs EPA to 
provide Congress, through OMB, explanations when the Agency decides not 
to use available and applicable voluntary consensus standards.
    This proposed rulemaking does not involve the use of technical 
standards. Therefore, EPA is not considering the use of any voluntary 
consensus standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that the information collected by this rule 
could benefit minority and low-income populations by providing 
information on nearby CAFOs with potential effects on neighboring 
communities. In addition, the Agency anticipates that the information 
to be collected under the rulemaking would aid EPA's consideration of 
environmental justice concerns as the Agency moves forward with 
implementation of the NPDES CAFO program.
    As part of EPA's continued effort to meet its obligations under 
E.O. 12898, the Agency has completed an analysis to identify those 
portions of the country where there are both large numbers of CAFOs as 
well as concentrations of minority and low-income populations. These 
regions include parts of the Carolina lowlands, central California and 
the Delmarva Peninsula on the Chesapeake Bay.
    EPA solicits comment on the ability of the questions as proposed to 
support consideration of environmental justice (EJ) concerns related to 
future design and implementation of the NPDES CAFO program. EPA seeks 
comment on what other questions beyond those proposed would support EJ 
concerns and be valuable to EJ communities. EPA welcomes suggestions 
for EJ groups who could help shape the Agency's outreach to EJ 
communities. EPA also seeks comment on its analysis supporting E.O. 
12898, which shows where large numbers of CAFOs and EJ communities co-
exist. The supporting analysis is contained in the docket for the 
proposed rulemaking.

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[[Page 65453]]


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INSTRUCTION SHEET

GENERAL INSTRUCTIONS

Defined Terms
    Terms in italics below are specifically defined in the Survey Form 
Definitions section of these instructions. Refer to this section for 
specific meaning of these terms.
Purpose of Form
    Owners of concentrated animal feeding operations (CAFOs) must use 
this survey form to submit the information required by 40 CFR 
122.23(k).
Who Must File
    Owners of CAFOs are required to submit the information specified at 
40 CFR 122.23(k) regardless of whether the CAFO is required to seek 
NPDES permit coverage. For the purposes of this survey, a CAFO means an 
animal feeding operation (AFO) that is defined as a Large CAFO or 
Medium CAFO by 40 CFR 122.23(b), or that is designated as a CAFO in 
accordance with 40 CFR 122.23(c). Further definitions for the purpose 
of this form are in the section, Survey Form Definitions. The owners of 
AFOs that have not been designated and that do not confine the required 
number of animals to meet the definition of a Large or Medium CAFO are 
not required to submit information.
Where to Submit
    Send the completed and signed survey form to:

U.S. EPA, Office of Water, Office of Wastewater Management, Mail Code 
4203M, 1200 Pennsylvania Avenue, NW., Washington, DC 20460

When to Submit
    Under proposed option 1, owners of CAFOs must submit the survey 
form to EPA [within 90 days after EPA makes available a list of CAFOs 
for which a state has provided the information] and under proposed 
option 2, owners of CAFOs must submit the survey form by [the deadline 
specified in a separate Federal Register Notice]. NPDES authorized 
states that choose to submit the information on behalf of a CAFO would 
be required to submit the information to EPA [within 90 days after the 
effective date of the rule]. Subsequently, under proposed option 1, 
owners of CAFOs not authorized by an NPDES permit must resubmit the 
survey form between [January 1 and June 1, 2022] and every subsequent 
tenth year thereafter between [January 1 and June 1]. The survey form 
provides a checkbox that indicates such resubmissions.
Entering Responses
    CAFOs must provide the information on this survey form 
electronically except where electronic submission would cause an undue 
burden or expense. Electronic submissions may be made via the Agency's 
information management system. Please go to www.epa.gov/npdes/afo for 
more information on how to submit.
    However, EPA is making paper filing available in recognition that 
not everyone has internet access. If using a hardcopy of the form to 
submit the information, use blue or black ink only to complete a 
hardcopy of the survey form. Mark the electronic submission waiver box 
and provide a reason why the respondent is providing the information by 
completing and submitting a hard copy of this survey form.
    Please print clearly. Mark all applicable checkboxes with an ``X''.
    Changes at the operation after the owner submits this information 
are not required to be reported, except that CAFOs not authorized by an 
NPDES permit must resubmit the survey form every 10 years as specified 
above.
Confidential Business Information
    Regulations governing the confidentiality of business information 
are contained in the Code of Federal Regulations (CFR) at Title 40 Part 
2, Subpart B. Under sections 2.208, business information is entitled to 
confidential treatment if, ``the business has satisfactorily shown that 
disclosure of the information is likely to cause substantial harm to 
the business's competitive position. You may assert a business 
confidentiality claim covering part or all of the information you 
submit, as described in 40 CFR 2.203(b):

    ``(b) Method and time of asserting business confidentiality claim. 
A business which is submitting information to EPA may assert a business 
confidentiality claim covering the information by placing on or 
attaching to the information, at the time it is submitted to EPA, a 
cover sheet, stamped or typed legend, or other suitable form of notice 
complying language such as `trade secret', `proprietary,' or `company 
confidential.' Allegedly confidential portions of otherwise 
nonconfidential documents should be clearly identified by the business, 
and may be submitted separately to facility identification and handling 
by EPA. If the business desires confidential treatment only until a 
certain date or until the occurrence of a certain event, the notice 
should so state''


[[Page 65454]]


    If you claim any response as CBI, you must specify the portion of 
the response or document for which you assert a claim of 
confidentiality by reference to page numbers, paragraphs, and lines, or 
specify the entire response or document. This information must be 
provided as part of the submission of the completed survey form. Note 
that EPA will review the information submitted and may request your 
cooperation in providing information to identify and justify the basis 
of your CBI claim. Information covered by a claim of confidentiality 
will be disclosed by EPA only to the extent of, and by means of, the 
procedures set forth in 40 CFR Part 2, Subpart B. In general, submitted 
information protected by a business confidentially claim may be 
disclosed to other employees, officers, or authorized representatives 
of the United States concerned with implementing the Clean Water Act.

SURVEY FORM INSTRUCTIONS

Submission Information
    Please check the appropriate box to indicate whether the CAFO is 
supplying information for the first time or resubmitting the survey 
form. A CAFO may also voluntarily update their information if the 
operation is no longer a CAFO.
Section 1. Contact Information
    Use legal names. Provide the mailing address for the owner of the 
CAFO or authorized representative. The address may be a business 
address, a post office box, or the address of the CAFO owner or 
authorized representative. A county road number may indicate the 
operation's street address.
Section 2. Location Information
    Provide location of the production area either by the latitude and 
longitude for the production area or by the street address of the 
CAFO's production area. Please provide latitude or longitude in degree 
decimals. For CAFOs that have multiple production areas, such as 
facilities under common ownership, that either adjoin each other or use 
a common area or system for waste disposal, the entrance to the 
production area for the largest portion of the CAFO should be provided.
    For the purposes of this form, the entrance to the production area 
may be a road leading to the confinement houses or the central point of 
access to the operation. This information is commonly included in a 
nutrient management plan or, alternatively, the respondent may 
determine the latitude and longitude for the entrance to the production 
area by using interactive maps available on the internet. Latitude or 
longitude information can be obtained at the following websites: http://www.satsig.net/maps/lat-long-finder.htm, http://earth.google.com/, and 
http://www.census.gov/geo/landview/. If the units for the CAFO's 
latitude or longitude is in minutes/seconds, this information can be 
readily converted through a variety of free internet applications.
    The respondent need only provide either the CAFO's latitude and 
longitude or the street address of the CAFO's production area.
Section 3. NPDES Permit Information
    Use the appropriate checkbox to indicate whether the CAFO has a 
current NPDES permit. A current NPDES permit would provide coverage to 
the CAFO as of the date the report is submitted. If you have an NPDES 
permit, check the ``Yes'' box and provide the NPDES permit number and 
the date of issuance for NPDES permit coverage. NPDES permit coverage 
may have been issued to the CAFO after submitting an individual NPDES 
permit application or a Notice of Intent (NOI) for coverage under a 
general NPDES permit. CAFOs should find their NPDES permit number on 
the copy of the permit for an individual permit or on the written 
notification from the permitting authority acknowledging receipt of the 
NOI. States may refer to the NPDES permit number as a tracking number, 
operating permit number, or state identification number. For example, 
Maryland identifies its general NPDES permit as ``MDG01,'' whereas, 
Missouri's general operating permit number ``MO-G010000.''
    If you do not have an NPDES permit, check the ``No'' box and go to 
Section 4. Type and Number of Animals. If you applied for an NPDES 
permit but have not received any notice of coverage, please check the 
``Pending'' box and provide the date that the NOI or NPDES permit 
application was submitted.
Section 4. Type and Number of Animals
    Use the table to indicate the maximum number of animals for each 
animal type held either in open confinement including partially covered 
or housed totally under roof held at the CAFO for a total of 45 days or 
more in the previous 12 months.
    CAFOs with multiple production cycles should provide the maximum 
number of animals confined for any given production cycle. Multiple 
production cycles are common at poultry and swine operations. CAFOs 
under common ownership should report the cumulative number of animals 
confined for 45 days or more.
    It is important to note that the 45 days do not have to be 
consecutive, and the 12-month period does not have to correspond to the 
calendar year. The 12-month does not have to correspond to the calendar 
year. If an animal is confined at an operation for any portion of a 
day, it is considered to be confined for a full day. Please see 
definition of an animal feeding operation of these instructions.
    EXAMPLE: A calf/cow operation that has the capacity to hold 2,000 
head of cattle. The facility operates year-round and never confines 
less than 1,000 head of cattle at any one time. The facility has both 
pasture and partially opened barns. The operation meets the definition 
of a CAFO because: 1) it confines the required animal numbers to meet 
the Large CAFO threshold, 2) confines the animals for more than 45 
days, and 3) the confinement area does not sustain vegetation. For the 
last 12-month period, the cow/calf operation split its calving between 
fall and spring. During the fall, the operation confined 1,500 head of 
cattle for 45 days or more and during the spring, the operation 
confined 1,000 head of cattle. This operation should report in the 
table under calf/cow pairs and list 1,500 under the column for ``Open 
Confinement (include partially covered)''.
Section 5. Land Application
    Provide the amount of acres available for land application. Report 
in whole acres, rounding up to the nearest whole number if necessary. 
Include land associated with the CAFO, whether in production or not. 
Include all land that the owner or operator owned or rented during the 
previous 12-month period, even if only for part of the year, and any 
land that is owned by or rented or leased to others in which the owner 
or operator of the CAFO retains nutrient management decisions. This may 
also include situations where a farmer releases control over the land 
application area, and the CAFO determines when and how much manure is 
applied to fields not otherwise owned, rented, or leased by the CAFO. 
Exclude residential or other land not used for agricultural purposes.
Section 6. Signature Requirements
    A responsible official in accordance with 40 CFR 122.22 must sign 
the certification statement provided on the form. Print the name of the 
signatory. Provide the date of signature and title of the signatory.

[[Page 65455]]

SURVEY FORM DEFINITIONS

    The definitions provided below are for the purposes of this 
information gathering survey form. All terms not defined below shall 
have their ordinary meaning, unless such terms are defined in the Clean 
Water Act, 33 U.S.C. Sec.  1362, or its implementing regulations found 
at 40 CFR parts 122 and 412 respectively, in which case the statutory 
or regulatory definitions apply.
    1. ``Animal feeding operation'' means a lot or facility (other than 
an aquatic animal production facility) where animals have been, are, or 
will be, stabled, confined, and fed or maintained for a total of 45 
days or more in any 12-month period and crops, vegetation, forage 
growth, or post-harvest residues are not sustained in the normal 
growing season over any portion of the lot or facility. (40 CFR 
122.23(b)(1)). Two or more AFOs under common ownership are considered 
to be a single AFO for purposes of determining the number of animals at 
an operation, if they adjoin each other, are next to, sharing property 
lines or if they use a common area or system for manure management or 
the disposal of wastes. (40 CFR 122.23(b)(2)).
    2. ``Authorized representative'' means an individual who is 
involved with the management or representation of the CAFO. An 
authorized representative must be located within reasonable proximity 
to the CAFO, and must be authorized and sufficiently informed to 
respond to inquiries from EPA on behalf of the CAFO.
    3. ``Concentrated animal feeding operation'' (CAFO) means an AFO 
that is defined as a Large CAFO or as a Medium CAFO by the terms of 
this paragraph, or that is designated as a CAFO in accordance with 
paragraph (c) of this section. Two or more AFOs under common ownership 
are considered to be a single AFO for the purposes of determining the 
number of animals at an operation, if they adjoin each other or if they 
use a common area or system for the disposal of wastes.
    4. ``Large concentrated animal feeding operation'' means an AFO 
that stables or confines as many as or more than the numbers of animals 
specified in any of the following categories: (i) 700 mature dairy 
cows, whether milked or dry; (ii) 1,000 veal calves; (iii) 1,000 cattle 
other than mature dairy cows or veal calves. Cattle includes but is not 
limited to heifers, steers, bulls and cow/calf pairs; (iv) 2,500 swine 
each weighing 55 pounds or more; (v) 10,000 swine each weighing less 
than 55 pounds; (vi) 500 horses; (vii) 10,000 sheep or lambs; (viii) 
55,000 turkeys; (ix) 30,000 laying hens or broilers, if the AFO uses a 
liquid manure handling system; (x) 125,000 chickens (other than laying 
hens), if the AFO uses other than a liquid manure handling system; (xi) 
82,000 laying hens, if the AFO uses other than a liquid manure handling 
system; (xii) 30,000 ducks (if the AFO uses other than a liquid manure 
handling system); or (xiii) 5,000 ducks (if the AFO uses a liquid 
manure handling system).
    5. ``Manure'' includes manure, or bedding or bedding material, hay, 
compost, and raw material or other materials commingled with manure 
that is to be land applied or set aside for disposal.
    6. ``Medium concentrated animal feeding operation'' means any AFO 
with the type and number of animals that fall within any of the ranges 
listed in paragraph (b)(6)(i) of this section and which has been 
defined or designated as a CAFO. An AFO is defined as a Medium CAFO if: 
(i) The type and number of animals that it stables or confines falls 
within any of the following ranges: (A) 200 to 699 mature dairy cows, 
whether milked or dry; (B) 300 to 999 veal calves; (C) 300 to 999 
cattle other than mature dairy cows or veal calves. Cattle includes but 
is not limited to heifers, steers, bulls and cow/calf pairs; (D) 750 to 
2,499 swine each weighing 55 pounds or more; (E) 3,000 to 9,999 swine 
each weighing less than 55 pounds; (F) 150 to 499 horses; (G) 3,000 to 
9,999 sheep or lambs; (H) 16,500 to 54,999 turkeys; (I) 9,000 to 29,999 
laying hens or broilers, if the AFO uses a liquid manure handling 
system; (J) 37,500 to 124,999 chickens (other than laying hens), if the 
AFO uses other than a liquid manure handling system; (K) 25,000 to 
81,999 laying hens, if the AFO uses other than a liquid manure handling 
system; (L) 10,000 to 29,999 ducks (if the AFO uses other than a liquid 
manure handling system); or (M) 1,500 to 4,999 ducks (if the AFO uses a 
liquid manure handling system); and (ii) Either one of the following 
conditions are met: (A) Pollutants are discharged into waters of the 
United States through a man-made ditch, flushing system, or other 
similar man-made device; or (B) Pollutants are discharged directly into 
waters of the United States which originate outside of and pass over, 
across, or through the facility or otherwise come into direct contact 
with the animals confined in the operation.
    7. ``Owner or operator'' means the property owner or any person who 
owns, leases, operates, controls, or supervises the operations at the 
CAFO. Any person who operates an AFO subject to regulation under the 
NPDES program may be involved with making day-to-day decisions about, 
or doing, such things as planting, harvesting, feeding, waste 
management, and/or marketing. The operator can include, but is not 
limited to, the owner, a member of the owner's household, a hired 
manager, a tenant, a renter, or a sharecropper.
    8. ``NPDES Permit'' means an authorization, license, or equivalent 
control document issued by EPA or an ``approved State'' to implement 
the requirements of the CWA NPDES permitting program and implementing 
regulations at 40 CFR parts 122, 123, and 124.
    9. ``Process wastewater'' means water directly or indirectly used 
in the operation of the AFO including but not limited to: spillage or 
overflow from animal or poultry watering systems; washing; cleaning, or 
flushing pens, barns, manure pits, or other AFO facilities; direct 
contact swimming, washing, or spray cooling of animals; or dust 
control. Process wastewater also includes any water which comes into 
contact with any raw materials, products, or byproduct including, 
manure, litter, feed, milk, eggs, or bedding.
    10. ``Producer'' means any grower, breeder, or person who otherwise 
raises animals for production.
    11. ``Production area'' means that part of an AFO that includes the 
animal confinement area, the manure storage area, the raw materials 
storage area, and the waste containment areas. The animal confinement 
area includes but is not limited to open lots, housed lots, feedlots, 
confinement houses, stall barns, free stall barns, milkrooms, milking 
centers, cowyards, barnyards, medication pens, walkers, animal 
walkways, and stables. The manure storage area includes but is not 
limited to lagoons, runoff ponds, storage sheds, stockpiles, under-
house or pit storages, liquid impoundments, static piles, and 
composting piles. The raw materials storage area includes but is not 
limited to feed silos, silage bunkers, and bedding materials. The waste 
containment area includes but is not limited to settling basins, and 
areas within berms and diversions which separate uncontaminated storm 
water. Also included in the definition of production area is any egg 
washing or egg processing facility, and any area used in the storage, 
handling, treatment, or disposal of mortalities.
    12. ``Storage pond'' means an earthen impoundment used to retain 
manure, bedding, process wastewater (such as parlor water) and runoff 
liquid.

[[Page 65456]]

    13. ``Waste'' and/or ``wastes'' 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, including but not 
limited to manure, litter, and/or process wastewater, discharged into 
water.
    Federal regulations require the certification to be signed as 
follows:
    A. For a corporation, by a principal executive officer of at least 
the level of vice president.
    B. For a partnership or sole proprietorship, by a general partner 
or the proprietor, respectively; or
    C. For a municipality, State, Federal, or other public facility, by 
either a principal executive officer or ranking elected official.
Paper Reduction Act Notice
    The public reporting and recordkeeping burden for this collection 
of information is estimated to average one hour per response. The 
estimate includes time for reviewing instructions, searching existing 
data sources, gathering and maintaining the needed data, and completing 
and reviewing the collection of information. Send comments on the 
Agency's need for this information, the accuracy of the provided burden 
estimates, and any suggested methods for minimizing respondent burden, 
including through the use of automated collection techniques to the 
Director, Collection Strategies Division, U.S. Environmental Protection 
Agency (2822T), 1200 Pennsylvania Ave., NW., Washington, DC 20460. 
Include the OMB control number in any correspondence. Do not send the 
completed survey form to this address.

List of Subjects

40 CFR Part 9

    Environmental protection, Reporting and recordkeeping requirements.

40 CFR Part 122

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

    Dated: October 14, 2011.
Lisa P. Jackson,
Administrator.
    For the reasons set out in the preamble, chapter I of Title 40 of 
the Code of Federal Regulations is proposed to be amended as follows:

PART 9--OMB APPROVALS UNDER THE PAPERWORK REDUCTION ACT

    1. The authority citation for part 9 continues to read as follows:

    Authority:  7 U.S.C. 135 et seq., 136-136y; 15 U.S.C. 2001, 
2003, 2005, 2006, 2601-2671; 21 U.S.C. 331j, 346a, 348; 31 U.S.C. 
9701; 33 U.S.C. 1251 et seq., 1311, 1313d, 1314, 1318, 1321, 1326, 
1330, 1342, 1344, 1345(d) and (e), 1361; Executive Order 11735, 38 
FR 21243, 3 CFR, 1971-1975 Comp. p. 973; 42 U.S.C. 241, 242b, 243, 
246, 300f, 300g-1, 300g-2, 300g-3, 300g-4, 300g-5, 300g-6, 300j-1, 
300j-2, 300j-3, 300j-4, 300j-9, 1857 et seq., 6901-6992k, 7401-
7671q, 7542, 9601-9657, 11023, 11048.

    2. In Sec.  9.1 the table is amended by adding an entry in 
numerical order under the indicated heading to read as follows:


Sec.  9.1  OMB approvals under the Paperwork Reduction Act.

* * * * *

------------------------------------------------------------------------
              40 CFR citation                     OMB  Control  No.
------------------------------------------------------------------------
 
                                * * * * *
   EPA Administered Permit Programs: The National Pollutant Discharge
                           Elimination System
 
                                * * * * *
122.23(k).................................  2040-0250
 
                                * * * * *
------------------------------------------------------------------------

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

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

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

    4. Section 122.23 is amended by adding paragraph (k) to read as 
follows:


Sec.  122.23  Concentrated animal feeding operations (applicable to 
state NPDES programs, see Sec.  1223.25)

* * * * *

Option 1 for Paragraph (k)

    (k) Information Gathering Survey for CAFOs. (1) All CAFOs must 
submit information to EPA. The owner(s) or operator(s) of a CAFO, as 
defined in 40 CFR 122.23(b), must provide the information specified in 
paragraph (k)(2) of this section to the Administrator, except in cases 
where a state voluntarily fulfills this requirement on behalf of the 
owner(s) or operator(s) of CAFOs located within that state, according 
to the procedures specified in paragraph (k)(5) of this section.
    (2) Information to be submitted to the Administrator. The owner or 
operator of a CAFO or a state must provide the following information to 
the Administrator:
    (i) The legal name of the owner of the CAFO or an authorized 
representative, and their mailing address, e-mail address (if 
available) and primary telephone number. (An authorized representative 
must be an individual who is involved with the management or 
representation of the CAFO. The authorized representative must be 
located within reasonable proximity to the CAFO, and must be authorized 
and sufficiently informed to respond to inquiries from EPA on behalf of 
the CAFO);
    (ii) The location of the CAFO's production area identified by the 
latitude and longitude; or by the street address;
    (iii) If the owner or operator has NPDES permit coverage as of [the 
effective date of final rule], the date of issuance of coverage under 
the NPDES permit, and the permit number. If the owner or operator has 
submitted an NPDES permit application or a Notice of Intent as of [the 
effective date of final rule] but has not received coverage, the date 
the owner or operator submitted the NPDES permit application or Notice 
of Intent;
    (iv) For the previous 12-month period, identification of each 
animal type confined either in open confinement including partially 
covered areas, or housed totally under roof at the CAFO for 45 days or 
more, and the maximum number of each animal type confined at the CAFO 
for 45 days or more; and
    (v) Where the owner or operator land applies manure, litter and 
process wastewater, the total number of acres under the control of the 
owner or operator available for land application.
    (3) Submission process for CAFOs. The owner or operator of a CAFO 
must submit the information specified in paragraph (k)(2) of this 
section using the survey form provided by the Administrator. The owner 
or operator of a CAFO must submit the survey form to the Administrator, 
either by certified mail, or electronically, through the Agency's 
electronic information management system by the deadline specified in 
(k)(4) of this section. If submitting the survey form by certified 
mail, the owner or operator of a CAFO must indicate on the survey form 
that an electronic submission waiver applies and provide justification 
as to why

[[Page 65457]]

electronic submission would cause an undue burden or expense.
    (4) Deadline for submissions by owners or operators of CAFOs. (i) 
An operation defined or designated as a CAFO as of [the effective date 
of the final rule], where a state did not provide the required 
information to EPA in accordance with paragraph (k)(5) of this section. 
Where a state does not provide the information required by paragraph 
(k)(2) of this section in accordance with paragraph (k)(5) of this 
section, a CAFO must submit the information required by paragraph 
(k)(2) in accordance with paragraph (k)(3) [within 90 days] after EPA 
makes available a list of CAFOs for which a state has provided the 
information.
    (ii) CAFOs for which a state has provided the required information 
to EPA in accordance with paragraph (k)(5) of this section. CAFOs for 
which a state submitted the information required by paragraph (k)(2) of 
this section in accordance with paragraph (k)(5) of this section, may, 
but are not required to, provide information to EPA [within 90 days] 
after EPA makes available a list of CAFOs for which a state has 
provided the information.
    (iii) Resubmission requirement for CAFOs not authorized by an NPDES 
permit. CAFOs not authorized by an NPDES permit must submit the 
information specified in paragraph (k)(2) of this section or update 
information previously submitted, pursuant to the procedures specified 
by paragraph (k)(3) of this section, between January 1 and June 1 every 
ten years following 2012 (e.g., 2022, 2032, etc.). The periodic 
submission requirement applies to all CAFOs not authorized by an NPDES 
permit at the time of these dates, whether or not CAFOs at one point 
had permit coverage at any time prior to these dates. CAFOs established 
after the first 2012 information submission period that do not have 
NPDES permits are subject to this ten-year resubmission requirement.
    (5) Elements of state voluntary submissions. In order to fulfill 
the requirements of paragraphs (k)(1) and (k)(2) of this section on 
behalf of CAFOs, a state must:
    (i) Use the Agency's electronic information management system to 
submit the information.
    (ii) Submit information from the state's most recent application 
process, from a CAFO's most recent annual report, or from another 
current information source,
    (iii) Submit the information [within 90 days after the effective 
date of the rule].

Option 2 for Paragraph (k)

    (k) Information Gathering Survey for CAFOs in Focus Watersheds. (1) 
CAFOs in focus watersheds must submit information to EPA. The owner(s) 
or operator(s) of a CAFO, as defined in 40 CFR 122.23(b), located in a 
focus watershed as identified by EPA as provided in paragraph (k)(2) of 
this section, must, if so notified as provided in paragraph (k)(3), 
provide the information specified in paragraph (k)(4) of this section 
to the Administrator according to the procedures specified in paragraph 
(k)(5) of this section by the deadline specified in (k)(6) of this 
section.
    (2) How will EPA identify a focus watershed? To identify a focus 
watershed, EPA shall:
    (i) Determine that the area has water quality concerns associated 
with CAFOs, including but not limited to nutrients (nitrogen and 
phosphorus), pathogens (bacteria, viruses, protozoa), total suspended 
solids (turbidity) and organic enrichment (low dissolved oxygen), and 
consider one or more of the following criteria;
    (A) High priority watershed due to other factors such as vulnerable 
ecosystems, drinking water source supplies, watersheds with high 
recreational value, or watersheds that are outstanding natural resource 
waters (Tier 3 waters);
    (B) Vulnerable soil type;
    (C) High density of animal agriculture; and/or
    (D) Other relevant information; and
    (ii) Define the geographical location and extent of the focus 
watershed using Zip Codes, counties, hydrologic unit codes (HUCs), or 
other relevant information that would define the geographical location 
and extent of an area.
    (3) How will EPA notify CAFOs in a focus watershed if they have an 
obligation to provide information? If EPA is unable, after reasonable 
effort, to obtain the information in paragraph (k)(4) of this section 
from all CAFOs in a focus watershed, EPA will:
    (i) Conduct outreach in the focus watershed regarding the need for 
CAFOs to submit the information specified in paragraph (k)(4) of this 
section for a minimum of [30] days.
    (ii) Provide notice to the CAFOs of the need to submit information 
and the timing for such request by notice in the Federal Register and 
other appropriate means in the focus watershed.
    (4) Information to be submitted to the Administrator. The owner or 
operator of a CAFO located in a focus watershed identified by EPA as 
provided in paragraph (k)(2) of this section must provide the following 
information to the Administrator, if so notified in accordance with 
paragraph (k)(3) of this section:
    (i) The legal name of the owner of the CAFO or an authorized 
representative, and their mailing address, e-mail address (if 
available) and primary telephone number. (An authorized representative 
must be an individual who in involved with the management or 
representation of the CAFO. The authorized representative must be 
located within reasonable proximity to the CAFO, and must be authorized 
and sufficiently informed to respond to inquiries from EPA on behalf of 
the CAFO);
    (ii) The location of the CAFO's production area identified by the 
latitude and longitude; or by the street address;
    (iii) If the owner or operator has NPDES permit coverage as of [the 
effective date of final rule], the date of issuance of coverage under 
the NPDES permit, and the permit number. If the owner or operator has 
submitted an NPDES permit application or a Notice of Intent as of [the 
effective date of final rule] but has not received coverage, the date 
the owner or operator submitted the NPDES permit application or Notice 
of Intent;
    (iv) For the previous 12-month period, identification of each 
animal type confined either in open confinement including partially 
covered areas, or housed totally under roof at the CAFO for 45 days or 
more, and the maximum number of each animal type confined at the CAFO 
for 45 days or more; and
    (v) Where the owner or operator land applies manure, litter and 
process wastewater, the total number of acres under the control of the 
owner or operator available for land application.
    (5) Submission process for CAFOs in focus watersheds. The owner or 
operator of a CAFO located in a final focus watershed, if so notified 
by EPA, must submit the information specified in paragraph (k)(4) of 
this section using the survey form provided by the Administrator. The 
owner or operator of a CAFO located in a focus watershed and so 
notified must submit the survey form to the Administrator, either by 
certified mail, or electronically, through the Agency's electronic 
information management system by the deadline specified in paragraph 
(k)(5) of this section. If submitting the survey form by certified 
mail, the owner or operator of a CAFO located in a focus watershed must 
indicate on the survey form that an electronic submission waiver 
applies and provide justification as to why

[[Page 65458]]

electronic submission would cause an undue burden or expense.
    (6) Deadline for submissions by owners or operators of CAFOs in 
focus watersheds. The owner or operator of a CAFO located in a focus 
watershed and so notified must submit the information required by 
paragraph(k)(4) of this section in accordance with paragraph (k)(5) of 
this section [within 90 days] after EPA notifies CAFOs of such 
obligation in accordance with paragraph (k)(3).

[FR Doc. 2011-27189 Filed 10-20-11; 8:45 am]
BILLING CODE 6560-50-P