[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 
[email protected].

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]
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