[Federal Register Volume 64, Number 232 (Friday, December 3, 1999)]
[Rules and Regulations]
[Pages 67781-67784]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-31355]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[FRL-6484-2]
RIN 2060-AH88


Final Rule To Extend the Stay of Action on Section 126 Petitions 
for Purposes of Reducing Interstate Ozone Transport

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: Today, EPA is taking final action to extend the temporary stay 
of the effective date of the May 25, 1999 final rule (64 FR 28250) 
regarding petitions filed under section 126 of the Clean Air Act (CAA) 
until January 10, 2000. This stay provides EPA time to finalize its 
work on these petitions and publish its decision in the Federal 
Register. On June 24, 1999 (64 FR 33956) EPA issued an interim final 
rule that temporarily stayed the effective date of the May 25 final 
rule regarding petitions filed under section 126 of the CAA until 
November 30, 1999. This final action to extend the temporary stay will 
prevent the findings under section 126 from being triggered 
automatically on November 30, 1999, under the mechanism EPA established 
in the May 25 final rule.

EFFECTIVE DATE: This final rule is effective 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 May 25, 1999 section 126 rulemaking, as 
well as the public version of the record, has been established under 
docket number A-97-43 (including comments and data submitted 
electronically as described below). The public version of this record, 
including printed, paper versions of electronic comments, which does 
not include any information claimed as confidential business 
information, is available for inspection from 8:00 a.m. to 5:30 p.m., 
Monday through Friday, excluding legal holidays. The official 
rulemaking record is located at the address in ADDRESSES at the 
beginning of this document. In addition, the Federal Register 
rulemakings and associated documents are located at http://www.epa.gov/
ttn/rto/126.

I. Background

A. Interim Final Rule To Stay Affirmative Technical Determinations 
Under Section 126 Petitions To Reduce Interstate Ozone Transport

    On May 25, 1999 (64 FR 28250), EPA made final determinations that 
portions of the petitions filed by eight Northeastern States under 
section 126 of the CAA were technically meritorious. The petitions 
sought to mitigate what they described as significant transport of one 
of the main precursors of ground-level ozone, nitrogen oxides 
(NOX), across State boundaries. Each petition specifically 
requested that EPA make a finding that certain stationary sources emit 
NOX in violation of the CAA's prohibition on emissions that 
significantly contribute to nonattainment problems in the petitioning 
State.
    On June 24, 1999 (64 FR 33956), EPA issued an interim final rule to 
temporarily stay the effectiveness of the May 25 final rule regarding 
the section 126 petitions until November 30, 1999. The purpose of the 
interim final rule was to provide EPA time to conduct notice-and-
comment rulemaking addressing issues raised by two recent rulings of 
the U.S. Court of Appeals for the District of Columbia Circuit (D.C. 
Circuit). In one ruling in American Trucking Assn., Inc., v. EPA, 175 
F.3d 1027 (D.C. Cir. 1999), the court remanded the 8-hour national 
ambient air quality standard (NAAQS) for ozone, which formed part of 
the underlying technical basis for certain of EPA's determinations 
under section 126. On October 29, 1999, the D.C. Circuit granted in 
part EPA's Petition for Rehearing and Rehearing En Banc (filed on June 
28, 1999) in American Trucking, and modified portions of its opinion 
addressing EPA's ability to implement the eight-hour standard. See 
American Trucking, 1999 WL 979463 (Oct. 29, 1999). The court denied the 
remainder of EPA's rehearing petition. Id. EPA continues to evaluate 
the effect of American Trucking, as modified by the D.C. Circuit's 
October 29, 1999 opinion and order. EPA expects, however, that the 
status of the eight-hour standard will be uncertain for some time to 
come. 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 SIP call (October 27, 1998 63 
FR 57356). In the interim final rule, EPA explained why it would be 
contrary to the public interest for the May 25 rule to remain in effect 
while EPA conducted rulemaking to respond to issues raised by the court 
rulings. The reader should refer to the June 24, 1999 interim final 
rule (64 FR 33956) and May 25, 1999 final rule (64 FR 28250) for 
further details and background information.

B. Proposal To Amend the May 25, 1999 Final Rule

    On June 24, 1999 (64 FR 33962), EPA proposed to amend two aspects 
of the May 25 final rule. The EPA proposed to stay indefinitely the 
affirmative technical determinations based on the 8-hour standard 
pending further developments in the NAAQS litigation. The EPA also 
proposed to remove the trigger mechanism for making section 126 
findings that was based on the NOX SIP call deadlines and 
instead make the findings in a final rule to be issued in November 
1999. In the June 24 proposal, EPA explained why it originally made 
sense to link the section 126 action to the NOX SIP call and 
why EPA believes it is no longer appropriate to do so in the absence of 
a compliance schedule for the NOX SIP call. At that time, 
the EPA indicated that it expected to promulgate the final rule based 
on the proposal by November 30, 1999, when the interim final rule would 
expire. To address the possibility that there could be a delay in 
amending the May 25 final rule, EPA requested comments in the June 24 
proposal on extending the temporary stay beyond November 30 until EPA 
completed the final rule. The EPA noted that if additional time were 
needed, it would likely not be more than two or three months. Two 
commenters agreed that it would be appropriate for EPA to further 
extend the stay under such circumstances, while one commenter expressed 
concern that an extension of time would increase the likelihood of 
delay.

[[Page 67782]]

II. Today's Final Rule To Extend the Temporary Stay

    Today's final rule, which is effective November 30, 1999, 
temporarily extends the stay of the May 25 rule until January 10, 2000. 
Today's action will prevent findings under section 126 from being 
automatically triggered on November 30, 1999 under the mechanism in the 
May 25 rule. The EPA plans to sign the final rule to modify the May 25, 
1999 rule no later than early to mid December 1999. However, a stay 
needs to apply until the effective date of the final section 126 rule. 
As the final section 126 rule will not become effective until 30 days 
after publication in the Federal Register, EPA is extending the stay 
until January 10, 2000. If necessary, given the ultimate date of 
publication of the final section 126 rule, EPA will further extend the 
stay for a few additional weeks.
    This extension of the stay does not affect the compliance date of 
May 1, 2003 for emission reductions under the section 126 rule. Also, 
the affected entities will have notice of the requirements under 
section 126 as of the date that EPA signs and releases the final 
section 126 rule to the public.

III. Rulemaking Procedures

    As noted above, this rule will be effective on November 30, 1999. 
Providing for a delay of the effective date of this final rule (either 
30 or 60 days after publication) would be unnecessary and contrary to 
the public interest. Because the final rule relieves a regulatory 
burden that would otherwise be imposed, there is no need to provide 
time for education and compliance with a new regulatory requirement. 
Moreover, allowing the stay to lapse before the final rule becomes 
effective would allow the section 126 findings to be automatically 
triggered upon November 30, 1999 for sources potentially subject to the 
section 126 findings in all States that had not submitted SIPs in 
compliance with the NOX SIP call and for which EPA had not 
proposed approval of such SIPs. As explained in the June 24 proposal 
(64 FR 33962), EPA believes it is no longer appropriate to link the 
section 126 findings with compliance with the NOX SIP call, 
in light of the judicial stay of the compliance dates under the 
NOX SIP call. Thus, allowing the findings to be triggered 
automatically would be contrary to the purposes of the ongoing section 
126 rulemaking and contrary to the public interest. In addition, under 
the automatic trigger mechanism, findings would be made on November 30 
based on both the 1-hour and 8-hour standards. The EPA believes it is 
appropriate in light of the court's decision in American Trucking Ass'n 
v. EPA to stay the findings based on the 8-hour standard at this time. 
Given the lack of burden upon affected parties and the need to make 
this final rule effective on November 30, 1999, EPA finds good cause 
for expediting the effective date of this portion of today's rule. EPA 
believes that this is consistent with 5 U.S.C. 553(d)(1) and (3).

V. Administrative Requirements

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Agency must determine whether a regulatory action is ``significant'' 
and therefore subject to Office of Management and Budget (OMB) review 
and the requirements of the Executive Order. The Order defines 
``significant regulatory action'' as one that is likely to result in a 
rule that may:
    (1) have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    The EPA believes that this final rule is not a ``significant 
regulatory action'' because it relieves, rather than imposes, 
regulatory requirements, and raises no novel legal or policy issues.

B. Regulatory Flexibility

    EPA has determined that it is not necessary to prepare a regulatory 
flexibility analysis in connection with this final rule. EPA has also 
determined that this rule will not have a significant economic impact 
on a substantial number of small entities. Small entities include small 
businesses, small organizations, and small governmental jurisdictions. 
Today's action does not create any new requirements. Thus, this rule 
will not have a significant economic impact on a substantial number of 
small entities.

C. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, 2 
U.S.C. 1532, EPA generally must prepare a written statement, including 
a cost-benefit analysis, for any proposed or final rule that ``includes 
any Federal mandate that may result in the expenditure by State, local, 
and tribal governments, in the aggregate, or by the private sector, of 
$100,000,000 or more * * * in any one year.'' A ``Federal mandate'' is 
defined to include a ``Federal intergovernmental mandate'' and a 
``Federal private sector mandate'' (2 U.S.C. 658(6)). A ``Federal 
intergovernmental mandate,'' in turn, is defined to include a 
regulation that ``would impose an enforceable duty upon State, local, 
or tribal governments (2 U.S.C. 658(5)(A)(i)), except for, among other 
things, a duty that is ``a condition of Federal assistance (2 U.S.C. 
658(5)(A)(i)(I)).'' A ``Federal private sector mandate'' includes a 
regulation that ``would impose an enforceable duty upon the private 
sector,'' with certain exceptions (2 U.S.C. 658(7)(A)).
    The EPA has determined that this action does not include a Federal 
mandate that may result in estimated costs of $100 million or more to 
either State, local, or tribal governments in the aggregate, or to the 
private sector. This Federal action imposes no new requirements. 
Accordingly, no additional costs to State, local, or tribal 
governments, or to the private sector, result from this action.

D. Paperwork Reduction Act

    This final rule does not impose any new information collection 
requirements. Therefore, an Information Collection Request document is 
not required.

E. Executive Order 13045--Protection of Children From Environmental 
Health Risks and Safety Risks

    Executive Order 13045 applies to any rule that (1) is determined to 
be ``economically significant'' as defined under Executive Order 12866, 
and (2) concerns an environmental health or safety risk that EPA has 
reason to believe may have a disproportionate effect on children. If 
the regulatory action meets both criteria, the Agency must evaluate the 
environmental health or safety effects of the rule on children, and 
explain why the regulation is preferable to other potentially effective

[[Page 67783]]

and reasonably feasible alternatives considered by the Agency.
    This rule is not subject to Executive Order 13045 because it is not 
``economically significant'' as defined under Executive Order 12866 and 
because the Agency does not have reason to believe the environmental 
health risks or safety risks addressed by this action present a 
disproportionate risk to children.

F. Executive Order 12898: Environmental Justice

    Executive Order 12898 requires that each Federal agency make 
achieving environmental justice part of its mission by identifying and 
addressing, as appropriate, disproportionately high and adverse human 
health or environmental effects of its programs, policies, and 
activities on minorities and low-income populations. This Federal 
action imposes no new requirements and will not delay achievement of 
emissions reductions under existing requirements. Accordingly, no 
disproportionately high or adverse effects on minorities or low-income 
populations result from this action.

G. Executive Order 13132 (Federalism)

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.'' Under 
Executive Order 13132, EPA may not issue a regulation that has 
federalism implications, that imposes substantial direct compliance 
costs, and that is not required by statute, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by State and local governments, or EPA consults with 
State and local officials early in the process of developing the 
proposed regulation. EPA also may not issue a regulation that has 
federalism implications and that preempts State law unless the Agency 
consults with State and local officials early in the process of 
developing the proposed regulation.
    If EPA complies by consulting, Executive Order 13132 requires EPA 
to provide to the Office of Management and Budget (OMB), in a 
separately identified section of the preamble to the rule, a federalism 
summary impact statement (FSIS). The FSIS must include a description of 
the extent of EPA's prior consultation with State and local officials, 
a summary of the nature of their concerns and the agency's position 
supporting the need to issue the regulation, and a statement of the 
extent to which the concerns of State and local officials have been 
met. Also, when EPA transmits a draft final rule with federalism 
implications to OMB for review pursuant to Executive Order 12866, EPA 
must include a certification from the agency's Federalism Official 
stating that EPA has met the requirements of Executive Order 13132 in a 
meaningful and timely manner.
    This final rule will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132. 
Today's rule does not create a mandate on State, local or Tribal 
governments. The rule does not impose any enforceable duties on these 
entities. Thus, the requirements of section 6 of the Executive Order do 
not apply to this rule.

H. Executive Order 13084: Consultation and Coordination With Indian 
Tribal Governments

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments, or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting elected officials and other 
representatives of Indian tribal governments ``to provide meaningful 
and timely input in the development of regulatory policies on matters 
that significantly or uniquely affect their communities.''
    Today's rule does not significantly or uniquely affect the 
communities of Indian tribal governments. This action does not impose 
any requirements that affect Indian Tribes. Accordingly, the 
requirements of section 3(b) of E.O. 13084 do not apply to this rule.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), 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 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 May 25 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.

[[Page 67784]]

K. Congressional Review Act

    The Congressional Review Act (CRA), 5 U.S.C. 801 et seq., as added 
by the Small Business Regulatory Enforcement Fairness Act of 1996, 
generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. The EPA will submit a report containing 
this rule and other required information to the U.S. Senate, the U.S. 
House of Representatives, and the Comptroller General of the United 
States prior to November 30, 1999. This action is not a ``major rule'' 
as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Emissions trading, 
Nitrogen oxides, Ozone transport, Reporting and recordkeeping 
requirements.

    Dated: November 29, 1999.
Carol M. Browner,
Administrator.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

    1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart A--General Provisions

    2. Section 52.34 is amended by revising paragraph (l) to read as 
follows:


Sec. 52.34  Action on petitions submitted under section 126 relating to 
emissions of nitrogen oxides.

* * * * *
    (l) Temporary stay of rules. Notwithstanding any other provisions 
of this subpart, the effectiveness of this section is stayed from July 
26, 1999 until January 10, 2000.

[FR Doc. 99-31355 Filed 12-3-99; 3:02 pm]
BILLING CODE 6560-50-P