[Federal Register Volume 65, Number 9 (Thursday, January 13, 2000)]
[Rules and Regulations]
[Pages 2039-2042]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-849]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[FRL-6522-9]
RIN: 2060-AH88
Final Rule To Extend the Stay of Action on Section 126 Petitions
for Purposes of Reducing Interstate Ozone Transport
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: Today, EPA is taking final action to extend the temporary stay
of the effective date of the May 25, 1999 final rule (64 FR 28250)
regarding petitions filed under section 126 of the Clean Air Act (CAA)
until February 17, 2000. This action to extend the temporary stay will
prevent the section 126 findings from being triggered automatically
under the mechanism EPA established in the May 25, 1999 rule. The EPA
revised the May 25, 1999 rule in a final rule signed on December 17,
1999. Today's action extends the stay of the May 25, 1999 rule until
the revised rule becomes effective on February 17, 2000.
EFFECTIVE DATE: This final rule is effective January 10, 2000.
ADDRESSES: Documents relevant to this action are available for
inspection at the Air and Radiation Docket and Information Center
(6102), Attention: Docket No. A-97-43, U.S. Environmental Protection
Agency, 401 M Street SW, room M-1500, Washington, DC 20460, telephone
(202) 260-7548 between 8:00 a.m. and 5:30 p.m., Monday though Friday,
excluding legal holidays. A reasonable fee may be charged for copying.
FOR FURTHER INFORMATION CONTACT: Questions concerning today's action
should be addressed to Carla Oldham, Office of Air Quality Planning and
Standards, Air Quality Strategies and Standards Division, MD-15,
Research Triangle Park, NC, 27711, telephone (919) 541-3347, e-mail at
oldham.carla@epa.gov.
SUPPLEMENTARY INFORMATION:
Availability of Related Information
The official record for the section 126 rulemaking, as well as the
public version of the record, has been established under docket number
A-97-43 (including comments and data submitted electronically as
described below). The public version of this record, including printed,
paper versions of electronic comments, which does not include any
information claimed as confidential business information, is available
for inspection from 8:00 a.m. to 5:30 p.m., Monday through Friday,
excluding legal holidays. The official rulemaking record is located at
the address in ADDRESSES at the beginning of this document. In
addition, the Federal Register rulemakings and associated documents are
located on EPA's website at http://www.epa.gov/ttn/rto/126.
I. Background
A. Temporary Stay of May 25, 1999 Final Rule on the Section 126
Petitions
On May 25, 1999 (64 FR 28250), EPA made final determinations that
portions of the petitions filed by eight Northeastern States under
section 126 of the CAA are technically meritorious. The petitions
sought to mitigate what they described as significant transport of one
of the main precursors of ground-level ozone, nitrogen oxides
(NOX), across State boundaries. Each petition specifically
requested that EPA make a finding that certain stationary sources emit
NOX in violation of the CAA's prohibition on emissions that
significantly contribute to nonattainment problems in the petitioning
State.
On June 24, 1999 (64 FR 33956), EPA issued an interim final rule to
temporarily stay the effectiveness of the May 25, 1999 final rule until
November 30, 1999. The purpose of the interim final rule was to provide
EPA time to conduct notice-and-comment rulemaking to address issues
raised by two rulings of the U.S. Court of Appeals for the District of
Columbia Circuit (D.C. Circuit). In one ruling in American Trucking
Assn., Inc., v. EPA, 175 F.3d 1027 (D.C. Cir. 1999), the court remanded
the 8-hour national ambient air quality standard (NAAQS) for ozone,
which formed part of the underlying technical basis for certain of
EPA's determinations under section 126. On October 29, 1999, the D.C.
Circuit granted in part EPA's Petition for Rehearing and Rehearing En
Banc (filed on June 28, 1999) in American Trucking, and modified
portions of its opinion addressing EPA's ability to implement the 8-
hour standard. See American Trucking, 1999 WL 979463 (Oct. 29, 1999).
The court denied the remainder of EPA's rehearing petition. Id. The EPA
continues to evaluate the effect of American Trucking, as modified by
the D.C. Circuit's October 29, 1999 opinion and order. The EPA expects,
however, that the status of the 8-hour standard will be uncertain for
some time to come. In a separate action, on May 25, 1999, the D.C.
Circuit granted a motion to stay the State implementation plan (SIP)
submission deadlines established in a related EPA action, the
NOX SIP call (October 27, 1998, 63 FR 57356).
In the interim final rule staying the May 25, 1999 rule, EPA
explained why it would be contrary to the public interest for the May
25, 1999 rule to remain in effect while EPA conducted rulemaking to
respond to issues raised by the court rulings. The reader should refer
to the June 24, 1999 interim final rule (64 FR 33956) and May 25, 1999
final rule (64 FR 28250) for further details and background
information. On November 30, 1999, EPA extended the temporary stay
until January 10, 2000 because EPA had not yet finalized the revisions
to the May 25, 1999 final rule (64 FR 67781; December 3, 1999). In that
action to extend the stay, EPA indicated that the stay should remain in
place until the effective date of the revised rule, which would be 30
days after the date the revised rule was published in
[[Page 2040]]
the Federal Register. Thus, EPA noted that it would further extend the
stay for a few additional weeks, if necessary.
B. Revisions to the May 25, 1999 Final Rule
On June 24, 1999 (64 FR 33962), EPA proposed to revise two aspects
of the May 25, 1999 final rule. The EPA proposed to stay indefinitely
the affirmative technical determinations based on the 8-hour standard
pending further developments in the NAAQS litigation. The EPA also
proposed to remove the trigger mechanism for making section 126
findings that was based on the NOX SIP call deadlines and to
instead make the findings under the 1-hour standard in a final rule to
be issued in November 1999. In the proposal, EPA indicated that it
expected to promulgate the final rule based on the proposal by November
30, 1999, when the interim final rule would expire. To address the
possibility that there could be a delay in amending the May 25, 1999
final rule, EPA requested comments in the June 24, 1999 proposal on
extending the temporary stay beyond November 30 until EPA completed the
final rule. The EPA noted that if additional time were needed, it would
likely not be more than 2 or 3 months. Two commenters agreed that it
would be appropriate for EPA to further extend the stay under such
circumstances, while one commenter expressed concern that an extension
of time would increase the likelihood of delay.
In a rule signed on December 17, 1999, EPA finalized the revisions
to the May 25, 1999 final rule. The revised rule removes the trigger
mechanism and instead directly makes the section 126 findings based on
the 1-hour standard. The revised rule also indefinitely stays the
portion of the May 25, 1999 rule that is based on the 8-hour standard.
In addition, the revised rule includes a Federal NOX Budget
Trading Program as the control remedy for sources subject to section
126 findings under the 1-hour standard. The revised rule will be
published in the Federal Register on January 18, 2000, and hence will
become effective 30 days later on February 17, 2000.
II. Today's Final Rule To Extend the Temporary Stay
Today's final rule, which is effective January 10, 2000,
temporarily extends the stay of the May 25, 1999 rule until February
17, 2000. This action will prevent the section 126 findings from being
automatically triggered under the mechanism in the May 25, 1999 rule.
The EPA signed the final rule to modify the May 25, 1999 rule on
December 17, 1999. However, the stay needs to apply until the effective
date of the final section 126 rule. As the revised final section 126
rule will not become effective until February 17, 2000, EPA is
extending the stay until that date.
This extension of the stay does not affect the compliance date of
May 1, 2003 for emissions reductions under the section 126 rule. Also,
the affected entities have had notice of the requirements under section
126 as of the date that EPA signed and released the final section 126
rule to the public. The rule was signed on December 17, 1999 and
immediately placed on EPA's website listed above.
III. Rulemaking Procedures
As noted above, this rule will be effective on January 10, 2000.
Providing for a delay of the effective date of this final rule (either
30 or 60 days after publication) would be unnecessary and contrary to
the public interest. Because the final rule relieves a regulatory
burden that would otherwise be imposed, there is no need to provide
time for education and compliance with a new regulatory requirement.
Moreover, the current stay expires January 10, 2000. Allowing the stay
to lapse before the final rule becomes effective would allow the
section 126 findings to be automatically triggered for sources
potentially subject to the section 126 findings in all States that had
not submitted SIPs in compliance with the NOX SIP call and
for which EPA had not proposed approval of such SIPs. As explained in
the June 24, 1999 proposal (64 FR 33962), EPA believes it is no longer
appropriate to link the section 126 findings with compliance with the
NOX SIP call, in light of the judicial stay of the
compliance dates under the NOX SIP call. Thus, allowing the
findings to be triggered automatically would be contrary to the
purposes of the ongoing section 126 rulemaking and contrary to the
public interest. In addition, under the automatic trigger mechanism,
findings would be made based on both the 1-hour and 8-hour standards.
The EPA believes it is appropriate in light of the court's decision in
American Trucking Ass'n v. EPA to stay the findings based on the 8-hour
standard at this time. Given the lack of burden upon affected parties
and the need to make this final rule effective on January 10, 2000, EPA
finds good cause for expediting the effective date of this portion of
today's rule. The EPA believes that this is consistent with 5 U.S.C.
553(d)(1) and (3).
IV. Administrative Requirements
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether a regulatory action is ``significant''
and therefore subject to Office of Management and Budget (OMB) review
and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
The EPA believes that this final rule is not a ``significant
regulatory action'' because it relieves, rather than imposes,
regulatory requirements, and raises no novel legal or policy issues.
B. Regulatory Flexibility
The EPA has determined that it is not necessary to prepare a
regulatory flexibility analysis in connection with this final rule. The
EPA has also determined that this rule will not have a significant
economic impact on a substantial number of small entities. Small
entities include small businesses, small organizations, and small
governmental jurisdictions. Today's action does not create any new
requirements. Thus, this rule will not have a significant economic
impact on a substantial number of small entities.
C. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, 2
U.S.C. 1532, EPA generally must prepare a written statement, including
a cost-benefit analysis, for any proposed or final rule that ``includes
any Federal mandate that may result in the expenditure by State, local,
and tribal
[[Page 2041]]
governments, in the aggregate, or by the private sector, of
$100,000,000 or more * * * in any one year.'' A ``Federal mandate'' is
defined to include a ``Federal intergovernmental mandate'' and a
``Federal private sector mandate'' (2 U.S.C. 658(6)). A ``Federal
intergovernmental mandate,'' in turn, is defined to include a
regulation that ``would impose an enforceable duty upon State, local,
or tribal governments (2 U.S.C. 658(5)(A)(i)), except for, among other
things, a duty that is ``a condition of Federal assistance (2 U.S.C.
658(5)(A)(i)(I)). A ``Federal private sector mandate'' includes a
regulation that ``would impose an enforceable duty upon the private
sector,'' with certain exceptions (2 U.S.C. 658(7)(A)).
The EPA has determined that this action does not include a Federal
mandate that may result in estimated costs of $100 million or more to
either State, local, or tribal governments in the aggregate, or to the
private sector. This Federal action imposes no new requirements.
Accordingly, no additional costs to State, local, or tribal
governments, or to the private sector, result from this action.
D. Paperwork Reduction Act
This final rule does not impose any new information collection
requirements. Therefore, an Information Collection Request document is
not required.
E. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
Executive Order 13045 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 rule on children, and
explain why the regulation is preferable to other potentially effective
and reasonably feasible alternatives considered by the Agency.
This rule is not subject to Executive Order 13045 because it is not
``economically significant'' as defined under Executive Order 12866 and
because the Agency does not have reason to believe the environmental
health risks or safety risks addressed by this action present a
disproportionate risk to children.
F. Executive Order 12898: Environmental Justice
Executive Order 12898 requires that each Federal agency make
achieving environmental justice part of its mission by identifying and
addressing, as appropriate, disproportionately high and adverse human
health or environmental effects of its programs, policies, and
activities on minorities and low-income populations. This Federal
action imposes no new requirements and will not delay achievement of
emissions reductions under existing requirements. Accordingly, no
disproportionately high or adverse effects on minorities or low-income
populations will result from this action.
G. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
Under section 6 of Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the proposed regulation. The EPA also may not issue a
regulation that has federalism implications and that preempts State
law, unless the Agency consults with State and local officials early in
the process of developing the proposed regulation.
This final rule does not have federalism implications. It will not
have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. Today's rule does not create a
mandate on State, local or Tribal governments. The rule does not impose
any enforceable duties on these entities. Thus, the requirements of
section 6 of the Executive Order do not apply to this rule.
H. Executive Order 13084: Consultation and Coordination With Indian
Tribal Governments
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to provide to the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected officials and other
representatives of Indian tribal governments ``to provide meaningful
and timely input in the development of regulatory policies on matters
that significantly or uniquely affect their communities.''
Today's rule does not significantly or uniquely affect the
communities of Indian tribal governments. This action does not impose
any requirements that affect Indian Tribes. Accordingly, the
requirements of section 3(b) of E.O. 13084 do not apply to this rule.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113, 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. The NTTAA directs EPA to provide Congress, through
OMB, explanations when the Agency decides not to use available and
applicable voluntary consensus standards.
This final rule does not involve the promulgation of any new
technical standards. Therefore, NTTAA
[[Page 2042]]
requirements are not applicable to today's rule.
J. Judicial Review
Section 307(b)(1) of the CAA indicates which Federal Courts of
Appeal have venue for petitions of review of final actions by EPA. This
section provides, in part, that petitions for review must be filed in
the Court of Appeals for the District of Columbia Circuit (i) when the
agency action consists of ``nationally applicable regulations
promulgated, or final actions taken, by the Administrator,'' or (ii)
when such action is locally or regionally applicable, if ``such action
is based on a determination of nationwide scope or effect and if in
taking such action the Administrator finds and publishes that such
action is based on such a determination.''
For the reasons discussed in the May 25, 1999 final rule, the
Administrator determined that final action regarding the section 126
petitions is of nationwide scope and effect for purposes of section
307(b)(1). Thus, any petitions for review of final actions regarding
the section 126 rulemaking must be filed in the Court of Appeals for
the District of Columbia Circuit within 60 days from the date final
action is published in the Federal Register.
K. Congressional Review Act
The Congressional Review Act (CRA), 5 U.S.C. 801 et seq., as added
by the Small Business Regulatory Enforcement Fairness Act of 1996,
generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and to the Comptroller
General of the United States. The EPA will submit a report containing
this rule and other required information to the U.S. Senate, the U.S.
House of Representatives, and the Comptroller General of the United
States prior to this rule going into effect. This action is not a
``major rule'' as defined by 5 U.S.C. 804(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Emissions trading,
Nitrogen oxides, Ozone, Ozone transport, Reporting and recordkeeping
requirements.
Dated: January 7, 2000.
Carol M. Browner,
Administrator.
For the reasons set forth in the preamble, part 52 of chapter 1 of
title 40 of the Code of Federal Regulations is amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart A--General Provisions
2. Section 52.34 is amended by revising paragraph (l) to read as
follows:
Sec. 52.34 Action on petitions submitted under section 126 relating to
emissions of nitrogen oxides.
* * * * *
(1) Temporary stay of rules. Notwithstanding any other provisions
of this subpart, the effectiveness of this section is stayed from July
26, 1999 until February 17, 2000.
[FR Doc. 00-849 Filed 1-10-00; 4:02 pm]
BILLING CODE 6560-50-P
