[Federal Register Volume 66, Number 225 (Wednesday, November 21, 2001)]
[Rules and Regulations]
[Pages 58393-58396]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-29067]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[FRL-7106-1]


National Emission Standards for Hazardous Air Pollutants for 
Pesticide Active Ingredient Production

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule; amendment.

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SUMMARY: We are taking direct final action to amend the national 
emission standards for hazardous air pollutants (NESHAP) for Pesticide 
Active Ingredient (PAI) Production. Rather than requiring the 
precompliance plans 6 months in advance of the compliance date, the 
amended rule will require the plans 3 months in advance. Under the 
promulgated rule, precompliance plans for existing sources would be due 
December 23, 2001. With this action, these plans will be due by March 
23, 2002.

DATES: This direct final rule will be effective on December 21, 2001, 
without further notice, unless the EPA receives adverse comments by 
December 6, 2001. If we receive any adverse comments on the amendment, 
we will publish a timely withdrawal of this direct final rule in the 
Federal Register indicating that the amendment in this rule will not 
take effect.

ADDRESSES: Comments. Written comments should be submitted (in 
duplicate, if possible) to: Air and Radiation Docket and Information 
Center (6102), Attention Docket Number A-95-20, Room M-1500, U.S. EPA, 
1200 Pennsylvania Avenue, NW, Washington, DC 20460. A separate copy of 
each public comment must also be sent to the contact person listed in 
FOR FURTHER INFORMATION CONTACT. Comments may also be submitted 
electronically by following the instructions provided in SUPPLEMENTARY 
INFORMATION.
    Docket. Docket No. A-95-20 contains supporting information used in 
developing the PAI Production NESHAP. The docket is located at the U.S. 
EPA, 401 M Street, SW., Washington, DC 20460 in Room M-1500, Waterside 
Mall (ground floor), and may be inspected from 8:30 a.m. to 5:30 p.m., 
Monday through Friday, excluding legal holidays.

FOR FURTHER INFORMATION CONTACT: Mr. Randy McDonald, Organic Chemicals 
Group, Emission Standards Division (Mail Code C504-04), U.S. EPA, 
Research Triangle Park, North Carolina 27711 (express packages to 4930 
Old Page Road, Research Triangle Park, NC 27709), telephone number 
(919) 541-5402, electronic mail address [email protected].

SUPPLEMENTARY INFORMATION: Comments. Comments and data may be submitted 
by electronic mail (e-mail) to: [email protected]. Electronic 
comments must be submitted as an ASCII file to avoid the use of special 
characters and encryption problems and will also be accepted on disks 
in WordPerfect version 5.1, 6.1, or Corel 8 file format. All comments 
and data submitted in electronic form must note the docket number A-95-
20. No confidential business information (CBI) should be submitted by 
e-mail. Electronic comments may be filed online at many Federal 
Depository Libraries.
    Commenters wishing to submit proprietary information for 
consideration must clearly distinguish such information from other 
comments and clearly label it as CBI. Send submissions containing such 
proprietary information directly to the following address, and not to 
the public docket, to ensure that proprietary information is not 
inadvertently placed in the docket: Attention: Mr. Randy McDonald, c/o 
OAQPS Document Control Officer (MD-C404-02), U.S. EPA, Research 
Triangle Park, NC 27709. The EPA will disclose information identified 
as CBI only to the extent allowed by the procedures set forth in 40 CFR 
part 2. If no claim of confidentiality accompanies a submission when it 
is received by EPA, the information may be made available to the public 
without further notice to the commenter.
    Docket. The docket is an organized and complete file of all the 
information considered by the EPA in the development of this 
rulemaking. The docket is a dynamic file because material is added 
throughout the rulemaking process. The docketing system is intended to 
allow members of the public and industries involved to readily identify 
and locate documents so that they can effectively participate in the 
rulemaking process. Along with the proposed and promulgated standards 
and their preambles, the contents of the docket will serve as the 
record in the case of judicial review. (See section 307(d)(7)(A) of the 
Clean Air Act (CAA).) The regulatory text and other materials related 
to this rulemaking are available for review in the docket or copies may 
be mailed on request from the Air Docket by calling (202) 260-7548. A 
reasonable fee may be charged for copying docket materials.
    Worldwide Web (WWW). In addition to being available in the docket, 
an electronic copy of this action will also be available through the 
WWW. Following signature, a copy of this action will be posted on the 
EPA's Technology Transfer Network (TTN) policy and guidance page for 
newly proposed or promulgated rules http://www.epa.gov/ttn/oarpg. The 
TTN at EPA's web site provides information and technology exchange in 
various areas of air pollution control. If more information regarding 
the TTN is needed, call the TTN HELP line at (919) 541-5384.
    Regulated Entities. The regulated category and entities affected by 
this action include:

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                                                                                                 Examples of
             Category                       NAICS codes                  SIC codes           regulated entities
----------------------------------------------------------------------------------------------------------------
Industry..........................  Typically, 325199 and       Typically, 2869 and 2879..  Producers of
                                     325320.                                                 pesticide active
                                                                                             ingredients that
                                                                                             contain organic
                                                                                             compounds that are
                                                                                             used in herbicides,
                                                                                             insecticides, or
                                                                                             fungicides.
                                                                                            Producers of any
                                                                                             integral
                                                                                             intermediate used
                                                                                             in onsite
                                                                                             production of an
                                                                                             active ingredient
                                                                                             used in an
                                                                                             herbicide,
                                                                                             insecticide, or
                                                                                             fungicide.
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    This table is not intended to be exhaustive, but rather provides a 
guide for readers likely to be interested in the revisions to the 
regulation affected by this action. To determine whether your facility, 
company, business, organization, etc., is regulated by this action, you 
should carefully examine all of the applicability criteria in 40 CFR

[[Page 58394]]

part 63, subpart MMM. If you have questions regarding the applicability 
of the amendment to a particular entity, consult the person listed in 
the preceding FOR FURTHER INFORMATION CONTACT section.
    Judicial Review. Under section 307(b)(1) of the CAA, judicial 
review of this direct final rule is available only by filing a petition 
for review in the U.S. Court of Appeals for the District of Columbia by 
January 22, 2002. Under section 307(d)(7)(B) of the CAA, only an 
objection to this rule that was raised with reasonable specificity 
during the period for public comment can be raised during judicial 
review.

I. Why Are We Amending the Rule?

    We are currently engaged in litigation settlement discussions with 
a number of pesticide manufacturers that would otherwise be required to 
file precompliance plans by December 23, 2001. In order to avoid 
potentially unnecessary filings and possible confusion related to 
compliance should we agree to make changes to the rule, we believe it 
is reasonable to grant a short extension of the precompliance reporting 
deadline to allow time for the settlement negotiations to conclude. 
This amendment does not change the actual compliance deadline for 
sources, but merely shortens the advance notice that these sources must 
provide the Agency. We believe 3 months advance notice is still 
adequate for purposes of implementing the rule and will not impair our 
ability to ensure compliance by June 23, 2002.

II. What Amendment Are We Making to the Rule?

    Today's action changes the deadline for existing sources submitting 
precompliance plans under 40 CFR Sec. 63.1368(e). Rather than requiring 
the precompliance plans 6 months in advance of the compliance date, the 
amended rule will require the plans 3 months in advance. Under the 
promulgated rule, precompliance plans for existing sources would be due 
December 23, 2001. With today's action, these plans will be due by 
March 23, 2002.

III. Why Are We Publishing the Amendment as a Direct Final Rule?

    We are granting a short extension of the precompliance reporting 
deadline in an expeditious manner in order to avoid potentially 
unnecessary filings and possible confusion related to compliance. We 
view this amendment as noncontroversial and anticipate no adverse 
comments. Therefore, we are publishing this amendment in a direct final 
rule. If we receive an adverse comment on the amended definition, we 
will withdraw it. To withdraw the amended definition, we will publish a 
timely notice before the effective date of this amendment indicating 
that the amended definition is being withdrawn. In the ``Proposed 
Rules'' section of this Federal Register, we are publishing a separate 
document that will serve as the proposal for the amendment in the event 
that we receive an adverse comment. We will respond to all public 
comments in a subsequent final rule based on the proposed rule. We will 
not institute a second comment period on the subsequent final rule. Any 
parties interested in commenting must do so at this time.

IV. What Are the Administrative Requirements for This Direct Final 
Rule?

A. Executive Order 12866, Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA 
must determine whether the regulatory action is ``significant'' and 
therefore subject to Office of Management and Budget (OMB) review and 
the requirements of the Executive Order. The Executive 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.
    It has been determined that this rule amendment is a not a 
``significant regulatory action'' under the terms of Executive Order 
12866 and is therefore not subject to OMB review.

B. Executive Order 13132, Federalism

    Executive Order 13132 (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.''
    This direct final rule amendment does not have federalism 
implications. It 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, 
because State and local governments do not own or operate any sources 
that would be subject to the PAI Production NESHAP. Thus, Executive 
Order 13132 does not apply to this direct final rule amendment.

C. Executive Order 13175, Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.''
    This direct final rule amendment does not have tribal implications. 
It will not have substantial direct effects on tribal governments, or 
on the relationship between the Federal government and Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes, as specified in Executive Order 
13175 because no tribal governments own or operate PAI production 
facilities. Thus, Executive Order 13175 does not apply to this rule 
amendment.

D. Executive Order 13045, Protection of Children from Environmental 
Health Risks and Safety Risks

    Executive Order 13045 (62 FR 19885, April 23, 1997) 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

[[Page 58395]]

EPA has reason to believe may have a disproportionate effect on 
children. If the regulatory action meets both criteria, EPA 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 EPA.
    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that are based on health or safety risks, such that 
the analysis required under section 5-501 of the Executive Order has 
the potential to influence the regulation. This rule amendment is not 
subject to Executive Order 13045 because it is based on technology 
performance, not health or safety risks. Furthermore, this rule 
amendment has been determined not to be ``economically significant'' as 
defined under Executive Order 12866.

E. Unfunded Mandates Reform Act of 1995

    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, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures by State, local, and tribal governments, in 
the aggregate, or by the private sector, of $100 million or more in any 
1 year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective, or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective, or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    The EPA has determined that this rule amendment does not contain a 
Federal mandate that may result in expenditures of $100 million or more 
for State, local, or tribal governments, in the aggregate, or the 
private sector in any 1 year. For existing sources, the total annual 
cost of the PAI Production NESHAP has been estimated to be 
approximately $39.4 million (64 FR 33559, June 23, 1999). Today's 
amendment does not add new requirements that would increase this cost. 
Thus, this rule amendment is not subject to the requirements of 
sections 202 and 205 of the UMRA. In addition, EPA has determined that 
this rule amendment contains no regulatory requirements that might 
significantly or uniquely affect small governments because it contains 
no requirements that apply to such governments or impose obligations 
upon them. Therefore, this rule amendment is not subject to the 
requirements of section 203 of the UMRA.

F. Regulatory Flexibility Act (RFA), as Amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et 
seq.

    The EPA has determined that it is not necessary to prepare a 
regulatory flexibility analysis in connection with this direct final 
rule amendment. The EPA has also determined that this direct final rule 
amendment will not have a significant impact on a substantial number of 
small entities. For purposes of assessing the impacts of this direct 
final rule amendment on small entities, a small entity is defined as: 
(1) A small business in the North American Industrial Classification 
System (NAICS) code 325320 that has as many as 500 employees; (2) a 
small business in NAICS code 325199 that has as many as 1,000 
employees; (3) a small governmental jurisdiction that is a government 
of a city, county, town, school district or special district with a 
population of less than 50,000; and (4) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of today's amendment on 
small entities, EPA has concluded that this action will not have a 
significant economic impact on a substantial number of small entities. 
In determining whether a rule has a significant economic impact on a 
substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities, since the 
primary purpose of the regulatory flexibility analyses is to identify 
and address regulatory alternatives ``which minimize any significant 
economic impact on small entities'' (5 U.S.C. Sections 603 and 604). 
Thus, an agency may conclude that a rule will not have a significant 
economic impact on a substantial number of small entities if the rule 
relieves regulatory burden, or otherwise has a positive economic effect 
on all of the small entities subject to the rule. Today's amendment 
imposes no additional regulatory requirements on owners or operators of 
affected sources. We have, therefore, concluded that today's final rule 
amendment will have no impact on small entities.

G. Paperwork Reduction Act

    The OMB has approved the information collection requirements 
contained in the 1999 PAI Production NESHAP under the provisions of the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and has assigned OMB 
control No. 2060-0370. An Information Collection Request (ICR) document 
has been prepared by EPA (ICR No. 1807.01), and a copy may be obtained 
from Sandy Farmer by mail at U.S. EPA, Office of Environmental 
Information, Collection Strategies Division (2822), 1200 Pennsylvania 
Avenue, NW., Washington, DC 20460, by email at [email protected], or 
by calling (202) 260-2740.
    The amendment contained in this direct final rule will have no 
impact on the information collection burden estimates made previously. 
Consequently, the ICR has not been revised.

H. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act (NTTAA), Public Law 104-113 (15 U.S.C. 272 note), directs all 
Federal agencies to use voluntary consensus standards in their 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., material specifications, test methods, 
sampling and analytical procedures, and business practices) that are 
developed or adopted by one or more voluntary consensus bodies. The 
NTTAA requires Federal agencies like EPA to provide Congress, through 
OMB, with explanations when an agency does not

[[Page 58396]]

use available and applicable voluntary consensus standards.
    Today's action does not involve technical standards. Therefore, EPA 
did not consider the use of any voluntary consensus standards.

I. Congressional Review Act

    The Congressional Review Act, 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 
adopting 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 
amendment 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 this rule amendment in the Federal 
Register. A major rule cannot take effect until 60 days after it is 
published in the Federal Register. This action is not a ``major rule'' 
as defined by 5 U.S.C. 804(2).

J. Executive Order 13211, Actions Concerning Regulations that 
Significantly Affect Energy Supply, Distribution or Use

    This direct final rule amendment is not subject to Executive Order 
13211, ``Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001) 
because it is not a significant regulatory action under Executive Order 
12866.

List of Subjects in 40 CFR Part 63

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Hazardous substances, Intergovernmental 
relations, Reporting and recordkeeping requirements.

    Dated: November 16, 2001.
Christine Todd Whitman,
Administrator.

    For the reasons set out in the preamble, part 63 of title 40, 
chapter I of the Code of Federal Regulations is amended as follows:

PART 63--[AMENDED]

    1. The authority citation for part 63 continues to read as follows:

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

Subpart MMM--National Emission Standards for Hazardous Air 
Pollutants for Pesticide Active Ingredient Production

    2. Section 63.1368 is amended by revising the first sentence of 
paragraph (e) introductory text as follows:


Sec. 63.1368  Reporting Requirements.

* * * * *
    (e) Precompliance plan. The Precompliance plan shall be submitted 
at least 3 months prior to the compliance date of the standard. ***
* * * * *
[FR Doc. 01-29067 Filed 11-20-01; 8:45 am]
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