[Federal Register Volume 66, Number 225 (Wednesday, November 21, 2001)]
[Rules and Regulations]
[Pages 58396-58400]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-29098]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[FRL-7106-6]


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: On June 23, 1999 (64 FR 33550), EPA promulgated national 
emission standards for hazardous air pollutants (NESHAP) for Pesticide 
Active Ingredient (PAI) Production. On August 19, 20, and 23, 1999, 
petitions for review of the June 1999 rule were filed in the U.S. Court 
of Appeals for the District of Columbia Circuit. This action is in 
response to issues raised by one of those petitioners--the American 
Coke and Coal Chemicals Institute (ACCCI). The EPA is taking direct 
final action to amend the NESHAP for PAI Production by revising the 
definition of the term ``process tank'' for clarity. We view this 
revision to be minor and noncontroversial, and we anticipate no adverse 
comment.

DATES: This direct final rule will be effective on February 4, 2002 
without further notice, unless the EPA receives adverse comments by 
December 21, 2001, or by January 7, 2002 if a public hearing is 
requested. See the proposed rule in this Federal Register for 
information on the hearing. If we receive any adverse comments on the 
amended definition, we will publish a timely withdrawal of this direct 
final rule in the Federal Register indicating that the revisions in 
this notice 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. The EPA requests 
that a separate copy of each public comment 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 (MD-13), U.S. EPA, Research Triangle 
Park, North Carolina 27711, 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 (Room 740B), U.S. EPA, 411 W. Chapel 
Hill Street, Durham, NC 27701. 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

[[Page 58397]]

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 regulated
              Category                     NAICS codes              SIC codes                  entities
----------------------------------------------------------------------------------------------------------------
Industry...........................  Typically, 325199 and   Typically, 2869 and      Producers of
                                      325320.                 2879.                   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.
----------------------------------------------------------------------------------------------------------------

    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 
part 63, subpart MMM. If you have questions regarding the applicability 
of these amendments 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?

    On June 23, 1999, we promulgated NESHAP for Pesticide Active 
Ingredient Production as subpart MMM in 40 CFR part 63 (64 FR 33550). 
On August 23, 1999, ACCCI filed a petition for review of the 
promulgated PAI Production NESHAP in the U.S. Court of Appeals for the 
District of Columbia Circuit, ACCCI v. EPA, No. 99-1339 (consolidated 
with American Crop Protection Association v. EPA, No. 99-1332) (D.C. 
Circuit). On June 15, 2001, ACCCI and EPA signed a settlement agreement 
which provides that EPA will undertake a rulemaking to revise the 
definition of the term ``process tank.'' The settlement agreement also 
provides that EPA will sign final rule amendments no later than 12 
months after the signature date of the settlement.

II. What Amendments Are We Making to the Rule?

    This direct final rule revises the definition of the term ``process 
tank'' in 40 CFR 63.1361 because the current definition is ambiguous 
and internally inconsistent. The current provision defines ``process 
tank'' as:

* * * a tank that is used to collect material discharged from a 
feedstock storage vessel or equipment within the process and 
transfer of this material to other equipment within the process or a 
product storage vessel. Processing steps occur both upstream and 
downstream of the tank within a given process unit. Surge control 
vessels and bottoms receivers that fit these conditions are 
considered process tanks.

    According to the first sentence of the current definition, tanks 
that transfer material to other equipment within the process or to a 
product storage vessel are process tanks. At the same time, according 
to the second sentence of the current definition, processing steps are 
required upstream and downstream of the tank for it to be a process 
tank. Some tanks covered by the first sentence would not seem to be 
covered by the second sentence because the downstream storage vessels 
would not provide the downstream processing that the second sentence 
seems to require. To eliminate this inconsistency, we are revising the 
definition by deleting the reference to processing upstream and 
downstream of the process tank. In addition, we are revising the 
definition to clarify that process tanks may include both tanks used 
for certain unit operations (e.g., reactions and blending), and tanks 
that are not used for unit operations (e.g., a surge control vessel or 
bottom receiver). Tanks that are clearly omitted from the definition of 
a process tank include feedstock and product storage vessels.

III. Why Are We Publishing These Amendments as a Direct Final Rule?

    In this direct final rule, we are revising the definition of the 
term ``process tank.'' The revised definition is consistent with our 
original intent, and we believe that the revision will not change the 
number of affected sources, the number of emission points subject to 
control, or the required level of control. The clearer definition also 
may preclude the need for certain applicability determinations, thereby 
reducing the burden on State and local agencies implementing the rule.
    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 rule 
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 amended 
definition in the event that we receive an adverse

[[Page 58398]]

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 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 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 one year. For

[[Page 58399]]

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 USC 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 
only clarifies the definition of one term; no additional regulatory 
requirements are imposed 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 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 15, 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 Pesticide

Active Ingredient Production

    2. Section 63.1361 is amended by revising the definition for 
process tank to read as follows:


Sec. 63.1361  Definitions.

* * * * *
    Process tank means a tank that is used within a process to collect 
material discharged from a feedstock storage vessel or equipment within 
the process before the material is transferred to other equipment 
within the process or a product storage vessel. In many

[[Page 58400]]

process tanks, unit operations such as reactions and blending are 
conducted. Other process tanks, such as surge control vessels and 
bottom receivers, however, may not involve unit operations.
* * * * *
[FR Doc. 01-29098 Filed 11-20-01; 8:45 am]
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