[Federal Register Volume 64, Number 119 (Tuesday, June 22, 1999)]
[Rules and Regulations]
[Pages 33200-33202]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-15543]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[FRL-6363-5]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final determination.

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SUMMARY: The EPA is extending by six months the deadline for taking 
final action on petitions that three States have submitted to require 
EPA to make findings that sources upwind of those States contribute 
significantly to ozone nonattainment problems in those States. Under 
the Clean Air Act (CAA or Act), 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. The 
three States that have submitted the petitions are Delaware, Maryland 
and New Jersey.

EFFECTIVE DATE: This action is effective as of June 14, 1999.

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

SUPPLEMENTARY INFORMATION:

I. Background

    Today's action is procedural, and is set in the context of a series 
of actions EPA is taking to address the problem of the transport of 
tropospheric ozone and its precursors--especially oxides of nitrogen 
(NOX)--across the eastern region of the United States.
    By a document dated May 25, 1999, 64 FR 28250, EPA promulgated a 
final rulemaking concerning petitions submitted by eight northeastern 
States under section 126(b), which authorizes States or political 
subdivisions to petition EPA for a finding that major stationary 
sources in upwind states emit in violation of the prohibition of 
section 110(a)(2)(D), by contributing significantly to nonattainment 
problems in downwind States. The eight States submitting the petitions 
were Connecticut, Maine, Massachusetts, New Hampshire, New York, 
Pennsylvania, Rhode Island, and Vermont.
    EPA has recently received additional petitions under section 126 
from the States of Delaware (received on June 11,

[[Page 33201]]

1999), Maryland (received on May 3, 1999), and New Jersey (received on 
April 15, 1999). These petitions seek findings, similar to those for 
which EPA granted affirmative technical determinations, for specified 
sources in specified upwind States.
    Under section 126(b), for each petition, EPA must make the 
requested finding, or deny the petition, within 60 days of receipt of 
the petition. This period would expire, for the Delaware petition, on 
August 10, 1999; for the Maryland petition, on July 2, 1999; and, for 
the New Jersey petition, on June 14, 1999.
    Under section 126(c), with respect to any existing sources for 
which EPA makes the requested finding, those sources must cease 
operations within three months of the finding, except that those 
sources may continue to operate if they comply with emissions 
limitations and compliance schedules that EPA may provide to bring 
about compliance with the applicable requirements.
    Section 126(b) provides that EPA must allow a public hearing for 
the submitted petitions. In addition, EPA's action under section 126 is 
subject to the procedural requirements of CAA section 307(d). See 
section 307(d)(1)(N). One of these requirements is notice-and-comment 
rulemaking, under section 307(d)(3).
    In addition, section 307(d)(10) provides for a time extension, 
under certain circumstances, for rulemaking subject to section 307(d). 
Specifically, section 307(d)(10) provides:

Each statutory deadline for promulgation of rules to which this 
subsection applies which requires promulgation less than six months 
after date of proposal may be extended to not more than six months 
after date of proposal by the Administrator upon a determination that 
such extension is necessary to afford the public, and the agency, 
adequate opportunity to carry out the purposes of this subsection.
    Section 307(d)(10) applies, by its terms, to section 126 
rulemakings because the 60-day time limit under section 126(b) 
necessarily limits the period after proposal to less than six months. 
In previous rulemaking concerning the earlier section 126 petitions, 
EPA granted itself several time extensions for acting on those 
petitions. See, e.g., 62 FR 54769 (Oct. 22, 1997).
    In accordance with section 307(d)(10), EPA is today determining 
that the 60-day period afforded by section 126(b) is not adequate to 
allow the public and the agency adequate opportunity to carry out the 
purposes of the section 307(d) procedures for developing an adequate 
proposal on whether the sources identified in the section 126 petitions 
contribute significantly to nonattainment problems downwind, and, 
further, to allow public input into the promulgation of any controls to 
mitigate or eliminate those contributions. The determination of whether 
upwind emissions contribute significantly to downwind nonattainment 
areas is highly complex, although much technical work has already been 
accomplished in the course of other rulemakings.
    EPA is in the process of determining what would be an appropriate 
schedule for action on the section 126 petitions, in light of the 
complexity of the required determinations and the other issues. The 
schedule must afford EPA adequate time to prepare a notice that clearly 
elucidates the issues so as to facilitate public comment, as well as 
afford the public adequate time to comment.
    Accordingly, extending the date for action on the section 126 
petitions for six months is necessary to determine the appropriate 
overall schedule for action, as well as to continue to develop the 
technical analysis needed to develop a proposal.

II. Final Action

A. Final Determination

    Today, EPA is determining, under CAA section 307(d)(10), that a 
six-month 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. Accordingly, EPA is granting a six-month 
extension to the time for rulemaking on the section 126 petitions. 
Under this extension, the dates for action on the section 126 petitions 
are:

Delaware: February 10, 2000
Maryland: January 3, 2000
New Jersey: December 14, 1999

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 June 14, 1999. 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 six months the upcoming deadlines for the three section 
126 petitions. Moreover, EPA intends to use immediately the six-month 
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 it (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

[[Page 33202]]

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. of the APA, 5 U.S.C. 801(a)(1)(A), as 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), as amended.

H. Paperwork Reduction Act

    This action 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 June 22, 1999.

    Dated: June 14, 1999.
Carol M. Browner,
Administrator.
[FR Doc. 99-15543 Filed 6-21-99; 8:45 am]
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