[Federal Register Volume 63, Number 1 (Friday, January 2, 1998)]
[Rules and Regulations]
[Pages 26-27]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-34199]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[FRL-5937-7]


Final Determination to Extend Deadline for Promulgation of Action 
on Section 126 Petitions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is extending by an additional three-day period the 
deadline for taking final action on petitions that eight States have 
submitted to require EPA to make findings that sources upwind of those 
States contribute significantly to nonattainment problems in those 
States. Under the Clean Air Act (CAA), EPA is authorized to grant this 
time extension if EPA determines that the extension is necessary, among 
other things, to meet the purposes of the Act's rulemaking 
requirements. By this document, EPA is making that determination.

EFFECTIVE DATE: This action is effective as of December 15, 1997.

FOR FURTHER INFORMATION CONTACT: Howard J. Hoffman, Office of General 
Counsel, MC-2344, 401 M St., SW, Washington, D.C. 20460, (202) 260-
5892.

SUPPLEMENTARY INFORMATION:

I. Background

    Today's action follows closely EPA's final actions taken by notice 
dated October 22, 1997 (62 FR 54769) and November 20, 1997 (62 FR 
61914). Familiarity with those documents is assumed, and background 
information in them will not be repeated here.
    In the November 20, 1997 document, EPA extended by one month, 
pursuant to its authority under CAA section 307(d)(10), the time-frame 
for taking final action on petitions submitted by Connecticut, Maine, 
Massachusetts, New Hampshire, New York, Pennsylvania, Rhode Island, and 
Vermont under CAA section 126. This extension established the deadline 
at December 14, 1997, but because that date fell on a Sunday, the 
deadline became the following Monday, December 15, 1997. In the 
November 20, 1997 document, EPA indicated that it was reserving its 
option to extend the date for final action by all or part of the 
remaining four months of the six-month extension period provided under 
section 307(d)(10).
    EPA is today extending the deadline for an additional three days, 
to December 18, 1997. In the November 20, 1997 document, EPA justified 
the second one-month extension as necessary in part to allow the 
agency, working with the section 126 petitioners and other interested 
parties, to conclude the process for determining an appropriate 
schedule for action on the section 126 petitions. This schedule would 
include, as important elements, timetables for proposed rulemaking, a 
public hearing, and a public comment period. In this manner, the 
extension furthered the purposes of section 307(d)(10) by promoting 
public participation in the rulemaking process.
    EPA believes that these same reasons continue to apply to favor 
another, brief extension, at this time. In particular, EPA seems to be 
in the final stages of finalizing with the section 126 petitioners an 
appropriate schedule for section 126 rulemaking. Accordingly, EPA again 
concludes today that extending the date for action on the section 126 
petitions for another three days is necessary.
    As EPA indicated in its previous notices, EPA, even with today's 
action, continues not to use the entire six months provided under 
section 307(d)(10) for the extension. EPA continues to reserve the 
right to apply the remaining period, or a portion thereof, as an 
additional extension, if necessary, immediately following the 
conclusion of the three-day period, or to apply the remaining time to 
the period following EPA's proposed rulemaking.

II. Final Action

A. Rule

    Today, EPA is determining, under CAA section 307(d)(10), that an 
additional three-day period is necessary to assure the development of 
an appropriate schedule for rulemaking on the section 126 petitions, 
which schedule would allow EPA adequate time to prepare a notice for 
proposal that will best facilitate public comment, as well as allow the 
public sufficient time to comment. Under this extension, the date for 
action on each of the section 126 petitions is December 18, 1997.

[[Page 27]]

B. Notice-and-Comment Under the Administrative Procedures Act (APA)

    This document is a final agency action, but may not be subject to 
the notice-and-comment requirements of the APA, 5 U.S.C. 553(b). EPA 
believes that because of the limited time provided to make a 
determination that the deadline for action on the section 126 petitions 
should be extended, Congress may not have intended such a determination 
to be subject to notice-and-comment rulemaking. However, to the extent 
that this determination is subject to notice-and-comment rulemaking, 
EPA invokes the good cause exception pursuant to the APA, 5 U.S.C. 
553(b)(3)(B). Providing notice and comment would be impracticable 
because of the limited time provided for making this determination, and 
would be contrary to the public interest because it would divert agency 
resources from the critical substantive review of the section 126 
petitions.

C. Effective Date Under the APA

    Today's action will be effective on December 15, 1997. Under the 
APA, 5 U.S.C. 553(d)(3), agency rulemaking may take effect before 30 
days after the date of publication in the Federal Register if the 
agency has good cause to mandate an earlier effective date. Today's 
action--a deadline extension--must take effect immediately because its 
purpose is to move back by a three-day period the December 15, 1997 
deadline for the section 126 petitions. Moreover, EPA intends to use 
immediately the new extension period to continue to develop an 
appropriate schedule for ultimate action on the section 126 petitions, 
and to continue to develop the technical analysis needed to develop the 
notice of proposed rulemaking. These reasons support an effective date 
prior to 30 days after the date of publication.

D. Executive Order 12866

    The Office of Management and Budget has exempted this regulatory 
action from Executive Order 12866 review.

E. Unfunded Mandates

    Under the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501 et 
seq., EPA must undertake various actions in association with proposed 
or final rules that include a Federal mandate that may result in 
estimated costs of $100 million or more to the private sector or to 
State, local, or tribal governments in the aggregate. In addition, 
before EPA establishes any regulatory requirements that may 
significantly or uniquely affect small governments, EPA must have 
developed a small government agency plan. EPA has determined that these 
requirements do not apply to today's action because this rulemaking (i) 
is not a Federal mandate--rather, it simply extends the date for EPA 
action on a rulemaking; and (ii) contains no regulatory requirements 
that might significantly or uniquely affect small governments.

F. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 600 et seq., 
EPA must propose a regulatory flexibility analysis assessing the impact 
on small entities of any rule subject to the notice-and-comment 
rulemaking requirements. Because this action is exempt from such 
requirements, as described above, it is not subject to RFA.

G. Submission to Congress and the General Accounting Office

    Under 5 U.S.C. 801(a)(1)(A), added by the Small Business Regulatory 
Enforcement Fairness Act of 1996 (SBREFA), EPA submitted, by the date 
of publication of this rule, 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 General Accounting 
Office. This rule is not a ``major rule'' as defined by 5 U.S.C. 
804(2).

H. Paperwork Reduction Act

    This rule does not contain any information collection requirements 
which require OMB approval under the Paperwork Reduction Act (44 U.S.C. 
3501 et seq.)

I. Judicial Review

    Under CAA section 307(b)(1), a petition to review today's action 
may be filed in the Court of Appeals for the District of Columbia 
within 60 days of January 2, 1998.

    Dated: December 15, 1997.
Carol M. Browner,
Administrator.
[FR Doc. 97-34199 Filed 12-31-97; 8:45 am]
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