[Federal Register Volume 64, Number 121 (Thursday, June 24, 1999)]
[Rules and Regulations]
[Pages 33956-33961]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-15712]
[[Page 33955]]
_______________________________________________________________________
Part II
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 52
Interim Final Stay of Action on Section 126 Petitions for Purposes of
Reducing Interstate Ozone Transport; Interim Final Rule
40 CFR Part 52
Findings of Significant Contribution and Rule-making on Section 126
Petitions for Purposes of Reducing Interstate Ozone Transport; Proposed
Rule
Federal Register / Vol. 64, No. 121 / Thursday, June 24, 1999 / Rules
and Regulations
[[Page 33956]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[FRL-6364-4]
RIN 2060-AH88
Interim Final Stay of Action on Section 126 Petitions for
Purposes of Reducing Interstate Ozone Transport
AGENCY: Environmental Protection Agency (EPA).
ACTION: Interim final rule.
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SUMMARY: In today's action, EPA is temporarily staying, until November
30, 1999, the effectiveness of a final rule regarding petitions filed
under section 126 of the Clean Air Act (CAA). Eight Northeastern States
filed the petitions seeking to mitigate transport of one of the main
precursors of ground-level ozone, nitrogen oxides (NOX),
across State boundaries. On April 30, 1999, EPA made final
determinations that portions of the petitions are technically
meritorious.
Subsequently, two recent rulings of the U.S. Court of Appeals for
the District of Columbia Circuit (D.C. Circuit) have affected EPA's
rulemaking under section 126. In one ruling, 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. In a separate action, the D.C.
Circuit granted a motion to stay the State implementation plan (SIP)
submission deadlines established in a related EPA action, the
NOX State implementation plan call (NOX SIP
call). In the April 30 notice of final rulemaking (NFR), EPA had
deferred making final findings under section 126 as long as States and
EPA remained on schedule to meet the requirements of the NOX
SIP call.
In response to these rulings, EPA is today staying the
effectiveness of the April 30 NFR for a short period while EPA conducts
a notice-and-comment rulemaking to address further issues arising from
the court rulings.
EFFECTIVE DATE: This interim final rule is effective on July 26, 1999,
until November 30, 1999.
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 completed April
30, 1999, 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). EPA is adding a new
section to that docket for purposes of today's interim final rule. 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 at http://
www.epa.gov/ttn/rto/126.
Outline
I. Background
A. Findings Under Section 126 Petitions To Reduce Interstate
Ozone Transport
B. Effect of Court Decisions
1. 8-Hour Ozone NAAQS
2. Stay of Compliance Schedule for NOX SIP Call
II. Interim Final Stay
III. Rulemaking Procedures
IV. Status of Upcoming Related Actions
A. Section 126 Control Remedy NFR
B. New Petitions
V. Administrative Requirements
A. Executive Order 12866: Regulatory Impact Analysis
B. Impact on Small Entities
C. Unfunded Mandates Reform Act
D. Paperwork Reduction Act
E. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
F. Executive Order 12898: Environmental Justice
G. Executive Order 12875: Enhancing the Intergovernmental
Partnership
H. Executive Order 13084: Consultation and Coordination with
Indian Tribal Governments
I. National Technology Transfer and Advancement Act
J. Judicial Review
K. Congressional Review Act
I. Background
A. Findings Under Section 126 Petitions To Reduce Interstate Ozone
Transport
On April 30, 1999, EPA took final action on petitions filed by
eight Northeastern States seeking to mitigate what they describe as
significant transport of one of the main precursors of ground-level
ozone, NOX, across State boundaries (64 FR 28250, May 25,
1999). The eight States (Connecticut, Maine, Massachusetts, New
Hampshire, New York, Rhode Island, Pennsylvania, and Vermont) filed the
petitions under section 126 of the CAA. Section 126 provides that if
EPA finds that identified stationary sources emit in violation of the
section 110(a)(2)(D) prohibition on emissions that significantly
contribute to ozone nonattainment or maintenance problems in a
petitioning State, EPA is authorized to establish Federal emissions
limits for the sources.
In the April 30 NFR, EPA made final determinations that portions of
six of these petitions are technically meritorious. Specifically, with
respect to the 1-hour and 8-hour NAAQS for ozone, EPA made affirmative
technical determinations that certain new and existing emissions
sources in certain States emit or would emit NOX in amounts
that contribute significantly to nonattainment in, or interfere with
maintenance by, one or more States that submitted petitions in 1997-
1998 under section 126. The sources that emit NOX in amounts
that significantly contribute to downwind nonattainment problems are
large electric generating units (EGUs) and large non-EGUs for which
highly cost-effective controls are available.
All of the eight petitioning States requested findings under
section 126 under the 1-hour standard, and five of the petitioning
States also requested findings under the 8-hour standard. The EPA took
action under the 1-hour and 8-hour standards as specifically requested
in each State's petition. The EPA made independent technical
determinations for each standard with respect to the individual
petitions. (See the part 52 regulatory text in the April 30, 1999 NFR.)
Under the 1-hour standard, in aggregate for the 8 petitions, EPA made
affirmative technical determinations of significant contribution for
sources located in the following States: Delaware, Indiana, Kentucky,
Maryland, Michigan, North Carolina, New Jersey, New York, Ohio,
Pennsylvania, Virginia, West Virginia, and the District of Columbia.
Under the 8-hour standard, in aggregate for the five petitions, EPA
made affirmative
[[Page 33957]]
technical determinations of significant contribution for sources
located in the same States as under the 1-hour standard plus seven
additional States: Alabama, Connecticut, Illinois, Massachusetts,
Missouri, Rhode Island, and Tennessee.
The EPA also provided that the portions of the petitions for which
EPA made affirmative technical determinations would be automatically
deemed granted or denied at certain later dates pending certain actions
by the States and EPA regarding State submittals in response to the
final NOX SIP call. Interpreting the interplay between
sections 110 and 126, EPA believes that a State's compliance with the
NOX SIP call would eliminate the basis for a finding under
section 126 for sources located in that State, under these petitions.
See 64 FR 28271-28274. As a consequence, EPA concluded that it was
appropriate to structure its action on the section 126 petitions to
account for the existence of the NOX SIP call, given that it
had an explicit and expeditious schedule for compliance. See 64 FR
28274-28277.
Under EPA's interpretation of section 126 of the CAA, a source or
group of sources is emitting in violation of the prohibition of section
110(a)(2)(D)(i) where the applicable SIP fails to prohibit (and EPA has
not remedied this failure through a FIP) a quantity of emissions from
that source or group of sources that EPA has determined contributes
significantly to nonattainment or interferes with maintenance in a
downwind State. See 64 FR 28271-28274. Under both the section 126
petitions and the NOX SIP call, EPA was operating on
basically the same set of facts regarding the same pollutants and
largely the same amounts of upwind reductions affecting the same
downwind States. Thus, where a State has complied with the
NOX SIP call and EPA has approved its SIP revision, EPA
would not find that sources in that State were emitting in violation of
the prohibition of section 110 and therefore would not subject those
sources to a Federal remedy under section 126. See 64 FR 28271-28274.
In the absence of the NOX SIP call, EPA would simply
have made a finding under section 126 in the final rule as to whether
sources named in the petitions were emitting in violation of the
prohibition of section 110. However, under the NOX SIP call
there was both a requirement for States to reduce their contribution to
downwind nonattainment problems and an explicit and expeditious
schedule for States to do so. In light of this existing requirement and
a reasonable expectation that States would comply with it within a
short and known time frame, EPA believed it was reasonable to make
final only technical determinations as to which sources would be in
violation of the prohibition of section 110 if the States or EPA failed
to meet a schedule based on the schedule established in the
NOX SIP call. See 64 FR 28274-28277. Deferring the actual
findings under section 126 allowed States subject to the NOX
SIP call an opportunity to comply with the NOX SIP call
before triggering the findings.
The EPA coordinated its section 126 findings with the
NOX SIP call compliance schedule in the following manner.
EPA provided that for each source for which EPA had made an affirmative
technical determination of significant contribution, EPA would be
deemed to find that the source emits or would emit NOX in
violation of the prohibition of section 110(a)(2)(D)(i) under the
following circumstances. First, the finding was deemed to be made for
such sources in a State if by November 30, 1999, EPA had not either (a)
proposed to approve a State's SIP revision to comply with the
NOX SIP call or (b) promulgated a FIP for the State. Second,
the finding was deemed to be made for such sources in a State if by May
1, 2000, EPA had not either (a) approved a State's SIP revision to
comply with the NOX SIP call or (b) promulgated
implementation plan provisions meeting the section 110(a)(2)(D)(i)
requirements. Upon EPA's approval of a State's SIP revision to comply
with the NOX SIP call or promulgation of a FIP, the final
rule provided that corresponding portions of the petitions would
automatically be deemed denied. Also, if a finding is deemed to be
made, it would be deemed to be withdrawn, and the corresponding
portions of the petitions would also be deemed to be denied, upon EPA's
approval of a State's SIP revision to comply with the NOX
SIP call or promulgation of a FIP. See 40 CFR 52.34(i).
B. Effect of Court Decisions
1. 8-Hour Ozone NAAQS
On May, 14, 1999, the D.C. Circuit issued an opinion questioning
the constitutionality of the CAA authority to review and revise the
NAAQS, as applied in EPA's revision to the ozone and particulate matter
NAAQS. The Court stopped short of finding the statutory grant of
authority unconstitutional, instead providing EPA with another
opportunity to develop a determinate principle for promulgating NAAQS
under the statute. The court continued by addressing other issues,
including EPA's authority to classify and set attainment dates for a
revised ozone standard. Based on the statutory provisions regarding
classifications and attainment dates under sections 172(a) and 181(a),
the court's ruling curtailed EPA's ability to require States to comply
with a more stringent ozone NAAQS. The EPA has recommended to the
Department of Justice that the government seek rehearing on this and
other portions of the court's opinion. However, EPA also believes that
unless and until the court's decision is revised or vacated, EPA should
not continue implementation efforts with respect to the 8-hour standard
that could be construed as inconsistent with the court's ruling. This
reservation would not apply to any EPA actions based on the 1-hour
standard.
2. Stay of Compliance Schedule for NOX SIP Call
On May 25, 1999, the D.C. Circuit issued a partial stay of the
submission of the SIP revisions required under the NOX SIP
call. The NOX SIP call had required submission of the SIP
revisions by September 30, 1999. State Petitioners challenging the
NOX SIP Call moved to stay the submission schedule until
April 27, 2000. The D.C. Circuit issued a stay of the SIP submission
deadline pending further order of the court. Michigan v. EPA, No. 98-
1497 (D.C. Cir. May 25, 1999) (order granting stay in part).
II. Interim Final Stay
In light of the change in circumstances created by the court
rulings, EPA believes it is appropriate to stay temporarily the section
126 April 30 NFR, while proceeding with a notice-and-comment rulemaking
to address the issues raised by the rulings. In particular, with
respect to the ruling on the 8-hour NAAQS, although EPA continues to
believe that the 8-hour NAAQS has a compelling basis in public health
protection, EPA believes that the court decision creates substantial
uncertainty concerning the statutory authority both for revising the
NAAQS and for implementing any such revised NAAQS. Accordingly, EPA
believes that the portion of the section 126 April 30 NFR that requires
sources in upwind States to implement controls for the purpose of
reducing their impact on downwind 8-hour nonattainment areas should be
stayed on an interim basis while EPA takes public comment on, and
further considers, the matter.
With respect to the court's decision staying the SIP submission
schedule for the NOX SIP call, EPA believes it is no
[[Page 33958]]
longer appropriate to link its findings under section 126 to the
compliance schedule for the NOX SIP call by deferring making
final findings as long as States and EPA are meeting that schedule. EPA
believed that, while not explicitly contemplated by the statutory
language, its initial approach was a reasonable way to address the
requirement to act on the section 126 petitions in the same general
time frame as that in which States were required to comply with the
NOX SIP call. Under this approach, EPA gave upwind States an
opportunity to address the ozone transport problem themselves, but did
not delay implementation of the remedy beyond May 1, 2003. The EPA had
determined that requiring controls to be in place for the 2003 summer
ozone season, i.e., by May 1, 2003, would bring about downwind
compliance ``as expeditiously as practicable,'' as required by Title I,
and would require sources emitting in violation of the prohibition of
section 110 to reduce emissions ``as expeditiously as practicable,'' as
required by section 126. Now, in the absence of any requirement that
States submit SIP revisions under the NOX SIP call by
September 30, 1999, as previously required, it is unlikely that States
will submit such revisions in time for EPA to propose approval by
November 30, 1999, and finalize approval by May 1, 2000. It is not
possible or appropriate to coordinate the section 126 action with the
requirements of the NOX SIP call without a schedule for
compliance with the NOX SIP call. Absent such action,
deferring final action on the petitions and providing an automatic
trigger mechanism tied to specific dates for action on the SIP
revisions no longer makes sense.
In its upcoming proposal, EPA plans to address the concerns raised
by the court rulings in the following manner. First, EPA plans to
propose to stay indefinitely the affirmative technical determinations
with respect to sources implicated on the basis of the 8-hour standard,
pending further developments in the NAAQS litigation.1
Second, EPA plans to propose to delete the automatic trigger mechanism
and simply take final action granting or denying the petitions with
respect to the sources for which EPA has made affirmative technical
determinations. EPA intends to take final action on proposed changes by
November 30, 1999. If necessary, however, as EPA plans to discuss in
the proposal, EPA intends to extend this stay to the extent needed to
ensure that the stay does not expire before EPA completes final action
on the proposed changes.
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\1\ At this time, in light of the court's order staying the SIP
submission deadline under the NOX SIP call, EPA does not
see a need to take similar action for the 8-hour NAAQS portions of
the NOX SIP call rule.
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III. Rulemaking Procedures
The EPA is taking this action as an interim final rule without
benefit of prior proposal and public comment because EPA finds that the
Administrative Procedure Act (APA) good cause exception to the
requirement for notice-and-comment rulemaking applies here. See 5
U.S.C. 553(b)(B). EPA believes that providing for notice-and-comment
rulemaking before taking this action is impracticable and contrary to
the public interest. In light of the impact that the court rulings have
on key elements of the April 30 NFR, it would be contrary to the public
interest for the rule to remain in effect while EPA conducts rulemaking
to address the consequences of the court rulings on the April 30 NFR.
In particular, the April 30 NFR imposes a potential compliance
burden on a number of sources based on the 8-hour ozone standard. While
EPA disagrees with the holding and expects to take further action to
address it, the form of the court's ruling on that standard and the
status of the litigation have created substantial uncertainty as to
whether and when these sources may become subject to control
requirements under section 126 based on the 8-hour standard. Thus, EPA
believes it is important to immediately inform these sources of the
Agency's intent regarding their potential control obligations. In
addition, States may view the automatic trigger mechanism now in place
as pressuring them to comply with the NOX SIP call schedule,
even though that schedule has been stayed by the court. The EPA
believes that preserving the linkage with the NOX SIP call
deadlines is inappropriate in light of the court's decision staying the
submission deadlines, and might be viewed by the court as placing
improper pressure on States. Today's action is necessary to immediately
eliminate any such concerns. It would be impracticable to achieve these
purposes of immediate clarification, and hence, would also be contrary
to the public interest, if this action were delayed by providing for
prior public notice-and-comment.
In addition, this interim final stay will expire in approximately
five months and this action will not have any effect on the ultimate
deadlines for control of emissions. EPA will soon follow this action
with a proposal requesting comment on changes to the April 30 NFR
consistent with the approach taken here to address the court decisions.
In light of the short time period that this interim stay is in effect
and the imminent rulemaking to take comment on a long-term resolution
of the issues this interim stay is intended to address, EPA believes
that providing for prior public comment is unnecessary.
This interim final stay is effective as of July 26, 1999. Given the
need to provide immediate clarification regarding the effects of the
court decisions and the fact that this action relieves a potential
burden on certain affected parties, EPA finds good cause to make this
rule effective July 26, 1999, which is the effective date of the rule
stayed by this action. The EPA believes this is consistent with 5
U.S.C. 553(d)(1) and (3), as well as with 5 U.S.C. 801 and 808. While
this interim final stay is effective for a limited period, EPA will
also conduct full notice-and-comment rulemaking on similar changes to
the April 30 NFR to address the court decisions.
IV. Status of Upcoming Related Actions
A. Section 126 Control Remedy NFR
The EPA proposed to implement a new Federal NOX Budget
Trading Program as the section 126 control remedy (63 FR 56292, October
21, 1998). The program will apply to all sources for which EPA makes a
final section 126 finding. The EPA intended to finalize all aspects of
the section 126 remedy by April 30, 1999. However, as discussed in the
April 30 NFR, EPA needed additional time to evaluate the numerous
comments it received on the trading program proposal and the source-
specific emission inventory data. In the April 30 NFR, EPA finalized
the general parameters of the section 126 remedy, including the
decision to implement a capped, market-based trading program,
identification of the sources subject to the program, specification of
the basis for the total tonnage cap, and specification of the
compliance date. The EPA committed to finalizing the details of the
trading program, including the unit-by-unit allocations, by July 15,
1999.
As discussed in Section I.E. of the April 30 NFR, EPA entered into
a consent decree with the petitioning States that, among other things,
committed the EPA to issuing a final section 126 remedy by April 30,
1999. In order to satisfy that consent decree, EPA promulgated, on an
interim basis, emission limitations that would be imposed on individual
sources only in the event a finding under section 126 was automatically
deemed made and
[[Page 33959]]
EPA had not yet finalized the Federal NOX Budget Trading
Program regulations. The EPA emphasized it did not expect this default
remedy, set forth in Sec. 52.34(k), ever to be applied because the
trading program would be finalized in July 1999, while the earliest a
section 126 finding would be made was November 30 of the same year.
Because of the need to conduct a further rulemaking to address the
impact of the recent court decisions on the section 126 rulemaking, EPA
will be delaying the promulgation of the Federal NOX Budget
Trading Program for a short period of time. The EPA now intends to
finalize the trading program and make the section 126 findings in the
same rulemaking action. At that time, EPA would delete the default
remedy from the rule. Therefore, under these new circumstances, the
default remedy would also never be applied.
B. New Petitions
The EPA has recently received two additional section 126 petitions
from the States of New Jersey (dated April 14, 1999) and Maryland
(dated April 29, 1999). (See Docket A-99-21.) These petitions seek
findings under both the 1-hour and 8-hour standards for large EGUs and
large non-EGUs located in specified upwind States. The EPA is currently
developing a schedule to take action on at least the 1-hour portions of
these new section 126 petitions. Under section 126, EPA is required to
take action to grant or deny the petitions within 60 days of receipt.
However, section 307(d) of the CAA authorizes EPA to extend the
timeframe for action up to 6 months if EPA determines that the
extension is necessary to meet the CAA's rulemaking requirements. The
EPA is issuing a final rule determining that a 6-month extension is
necessary for both of the new petitions to allow EPA adequate time to
develop the proposals and to provide the public sufficient time to
comment. The EPA is also evaluating these petitions in light of the
recent court decisions.
V. Administrative Requirements
A. Executive Order 12866: Regulatory Impact Analysis
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 interim final stay of pre-existing
regulatory requirements is not a ``significant regulatory action''
because it relieves, rather than imposes, regulatory requirements, and
raises no novel legal or policy issues.
B. Impact on Small Entities
The Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA), provides that
whenever an agency is required to publish a general notice of final
rulemaking, it must prepare and make available a final Regulatory
Flexibility Analysis, unless it certifies that the proposed rule, if
promulgated, will not have ``a significant economic impact on a
substantial number of small entities.''
This rule will not have a significant impact on a substantial
number of small entities because it does not create any new
requirements. Therefore, because this rule does not create any new
requirements, I certify that this action 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), Pub.
L. 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 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 interim 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
The Executive Order 13045 applies to any rule that EPA determines
is (1) ``economically significant'' as defined under Executive Order
12866, and (2) addressed an environmental health or safety risk that
has 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 interim
final rule is not subject to Executive Order 13045, entitled
``Protection of Children From Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997), because it is not economically
significant under E.O. 12866 and does not involve decisions on
environmental health risks or safety risks that may disproportionately
affect 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
[[Page 33960]]
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 result from
this action.
G. Executive Order 12875: Enhancing the Intergovernmental Partnership
Under Executive Order 12875, EPA may not issue a regulation that is
not required by statute and that creates a mandate upon a State, local
or tribal government, unless the Federal Government provides the funds
necessary to pay the direct compliance costs incurred by those
Governments or EPA consults with those governments. If EPA complies by
consulting, Executive Order 12875 requires EPA to provide to the Office
of Management and Budget a description of the extent of EPA's prior
consultation with representatives of affected State, local and tribal
governments, the nature of their concerns, any written communications
from the governments, and a statement supporting the need to issue the
regulation. In addition, Executive Order 12875 requires EPA to develop
an effective process permitting elected officials and other
representatives of State, local and tribal governments ``to provide
meaningful and timely input in the development of regulatory proposals
containing significant unfunded mandates.''
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. Accordingly, the requirements of section 1(a) of E.O. 12875
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), Pub. L. No. 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 interim final rule does not involve the promulgation of any
new technical standards. Therefore, NTTAA 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 April 30 NFR, 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. Section 808 of the CRA provides an
exception to this requirement. For any rule for which an agency for
good cause finds that notice and comment are impracticable,
unnecessary, or contrary to the public interest, the rule may take
effect on the date set by the Agency. 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 publication of the rule in the Federal Register.
This action is not a ``major rule'' as defined by 5 U.S.C. Sec. 804(2).
As EPA is finding good cause to promulgate this rule without prior
notice and comment, this rule will be effective July 26, 1999.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Emissions trading,
Nitrogen oxides, Ozone transport, Reporting and recordkeeping
requirements.
Dated: June 11, 1999.
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.
[[Page 33961]]
Subpart A--General Provisions
2. Section 52.34 is amended by adding paragraph (l) to read as
follows:
Sec. 52.34 Action on petitions submitted under section 126 relating to
emissions of nitrogen oxides.
* * * * *
(l) Temporary stay of rules. Notwithstanding any other provisions
of this subpart, the effectiveness of 40 CFR 52.34 is stayed from July
26, 1999 until November 30, 1999.
[FR Doc. 99-15712 Filed 6-23-99; 8:45 am]
BILLING CODE 6560-50-P
