[Federal Register Volume 69, Number 102 (Wednesday, May 26, 2004)]
[Rules and Regulations]
[Pages 30038-30040]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-11768]



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Part III





Environmental Protection Agency





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40 CFR Part 52



Final Determination To Extend Deadline for Promulgation of Action on 
Section 126 Petition From North Carolina; Final Rule

  Federal Register / Vol. 69, No. 102 / Wednesday, May 26, 2004 / Rules 
and Regulations  

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[OAR-2004-0076; FRL-7667-3]


Final Determination to Extend Deadline for Promulgation of Action 
on Section 126 Petition From North Carolina

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is extending by six additional months the deadline for 
taking final action on a petition submitted by the State of North 
Carolina under section 126 of the Clean Air Act (CAA). The petition 
requests that EPA make findings that certain sources located in 13 
States are significantly contributing to fine particulate matter and/or 
8-hour ozone nonattainment or maintenance problems in North Carolina. 
Under the CAA, EPA is authorized to grant this time extension if EPA 
determines that the extension is necessary, among other things, to meet 
the purposes of the CAA's rulemaking requirements. By this document, 
EPA is making that determination.

DATES: Effective Date: This action is effective on May 18, 2004.

ADDRESSES: The EPA has established a docket for the action on North 
Carolina's section 126 petition under Docket ID No. OAR-2004-0076. All 
documents in the docket are listed in the EDOCKET index at http://www.epa.gov/edocket. Although listed in the index, some information is 
not publicly available, i.e., confidential business information (CBI) 
or other information whose disclosure is restricted by statute. Certain 
other material, such as copyrighted material, is not placed on the 
Internet and will be publicly available only in hard copy form. 
Publicly available docket materials are available either electronically 
in EDOCKET or in hard copy at the Docket, EPA/DC, EPA West, Room B102, 
1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is 
open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding 
legal holidays. The telephone number for the Public Reading Room is 
(202) 566-1744, and the telephone number for the EPA Air Docket is 
(202) 566-1742.
    You may access this Federal Register document electronically 
through the EPA Internet under the ``Federal Register'' listings at 
http://www.epa.gov/fedrgstr/.

FOR FURTHER INFORMATION CONTACT: For general information and policy 
questions, contact Carla Oldham, U.S. EPA, Office of Air Quality 
Planning and Standards, Air Quality Strategies and Standards Division, 
C539-02, Research Triangle Park, NC 27711, telephone (919) 541-3347, e-
mail at [email protected]. For legal questions contact Howard J. 
Hoffman, U.S. EPA, Office of General Counsel, Mail Code 2344A, 1200 
Pennsylvania Avenue, NW., Washington, DC 20460, telephone (202) 564-
5582, e-mail at [email protected].

SUPPLEMENTARY INFORMATION: Today's action is procedural and is set in 
the context of a separate action that EPA is taking to address the 
problem of interstate transport of fine particulate matter and 8-hour 
ozone and their precursors in the eastern half of the United States.
    On January 30, 2004 (69 FR 4566), EPA proposed the ``Rule to Reduce 
Interstate Transport of Fine Particulate Matter and Ozone (Interstate 
Air Quality Rule),'' now known as the Clean Air Interstate Rule. This 
action proposes to require 29 States and the District of Columbia to 
revise their State implementation plans (SIPs) to include control 
measures to reduce specified amounts of emissions of sulfur dioxide 
(SO2) and/or nitrogen oxides (NOX). The proposal is designed 
to assure that the SIPs meet the requirements of CAA section 
110(a)(2)(D), which mandates that SIPs contain adequate provisions 
prohibiting emissions that contribute significantly to nonattainment 
problems in downwind States. Controlling the pollution transport will 
assist the downwind States in achieving the fine particulate matter and 
8-hour ozone national ambient air quality standards.
    On March 19, 2004, EPA received a petition from the State of North 
Carolina filed under CAA section 126. Section 126 is related to section 
110(a)(2)(D) and is also designed to remedy interstate pollution 
transport. Section 126(b) authorizes States or political subdivisions 
to petition EPA for a finding that major stationary sources or groups 
of sources in upwind States emit in violation of the prohibition of 
section 110(a)(2)(D), by contributing significantly to nonattainment 
problems in downwind States. If EPA makes such a finding, EPA is 
authorized to establish Federal emissions limits for the affected 
sources.
    Under section 126(b), EPA must make the finding requested in the 
North Carolina petition, or deny the petition, within 60 days of the 
March 19, 2004, receipt of the petition. Under section 126(c), any 
existing sources for which EPA makes the requested finding must cease 
operations within 3 months of the finding, except that those sources 
may continue to operate if they comply with emission limitations and 
compliance schedules that EPA may provide to bring about compliance 
with the applicable requirements.
    Section 126(b) further provides that EPA must allow a public 
hearing for the petition. In addition, EPA's action under section 126 
is subject to the procedural requirements of CAA section 307(d). See 
section 307(d)(1)(N). One of these requirements is notice-and-comment 
rulemaking, under section 307(d)(3).
    In addition, section 307(d)(10) provides for a time extension, 
under certain circumstances, for rulemaking subject to section 307(d). 
Specifically, section 307(d)(10) provides:

    Each statutory deadline for promulgation of rules to which this 
subsection applies which requires promulgation less than six months 
after date of proposal may be extended to not more than six months 
after date of proposal by the Administrator upon a determination 
that such extension is necessary to afford the public, and the 
agency, adequate opportunity to carry out the purposes of the 
subsection.

Section 307(d)(10) applies to section 126 rulemakings because the 60-
day time limit under section 126(b) necessarily limits the period after 
proposal to less than 6 months.
    In accordance with section 307(d)(10), EPA is today determining 
that the 60-day period afforded by section 126(b) is not adequate to 
allow the public and the Agency adequate opportunity to carry out the 
purposes of section 307(b). Specifically, the 60-day period is not 
sufficient for EPA to develop an adequate proposal on whether the 
sources identified in the section 126 petition contribute significantly 
to nonattainment problems downwind, and, further, to allow public input 
into the promulgation of any controls to mitigate or eliminate those 
contributions.
    The determination whether upwind emissions contribute significantly 
to downwind nonattainment areas is highly complex. The proposed Clean 
Air Interstate Rule, which proposes a somewhat comparable 
determination, relies on extensive computer modeling of air quality 
emissions and ambient impacts therefrom in the large geographic region 
of the eastern half of the United States.
    In action on the section 126 petition, EPA must make determinations 
that, generally, are at least as complex as those required for the 
Clean Air Interstate Rule. Moreover, if EPA determines that the 
petitions should be granted, EPA would promulgate

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appropriate controls for the affected sources.
    The EPA is in the process of determining what would be an 
appropriate schedule for action on the section 126 petition, in light 
of the complexity of the required determinations and the usefulness of 
coordinating generally with the procedural path for the Clean Air 
Interstate Rule. It is imperative that this schedule afford EPA 
adequate time to prepare a proposal that clearly elucidates the issues 
so as to facilitate public comments, as well as to afford the public 
adequate time to comment. The EPA is currently discussing an 
appropriate schedule with North Carolina.
    Extending the date for action on the section 126 petition for 6 
months is necessary to determine the appropriate overall schedule for 
action, as well as to continue to develop the technical analysis needed 
to develop a proposal.

II. Final Action

A. Rule

    Today, EPA is determining, under CAA section 307(d)(10), that a 6-
month period is needed to assure the development of an appropriate 
schedule for rulemaking on the North Carolina section 126 petition, 
which schedule would allow EPA adequate time to prepare a notice of 
proposed rulemaking that will best facilitate public comment, as well 
as allow the public sufficient time to comment. Accordingly, EPA is 
granting a 6-month extension to the time for rulemaking on the North 
Carolina section 126 petition. Under this extension, the date for 
action on the petition is November 18, 2004.

B. Notice-and-Comment Under the Administrative Procedures Act (APA)

    This document is a final agency action, but may not be subject to 
the notice-and-comment requirements of the APA, 5 U.S.C. 553(b). The 
EPA believes that because of the limited time provided to make a 
determination that the deadline for action on the section 126 petition 
should be extended, Congress may not have intended such a determination 
to be subject to notice-and-comment rulemaking. However, to the extent 
that this determination is subject to notice-and-comment rulemaking, 
EPA evokes the good cause exception pursuant to the EPA, 5 U.S.C. 
553(b)(3)(B). Providing for notice-and-comment would be impracticable 
because of the limited time provided for making this determination, and 
would be contrary to the public interest because it would divert Agency 
resources from the critical substantive review of the section 126 
petition.

C. Effective Date Under the APA

    Today's action is effective on May 18, 2004. Under the APA, 5 
U.S.C.(d)(3), agency rulemaking may take effect before 30 days after 
the date of publication in the Federal Register if the agency has good 
cause to mandate an earlier effective date. Today's action--a deadline 
extension--must take effect immediately because its purpose is to 
extend by 6 months the deadline for action on the petition. Moreover, 
EPA intends to use immediately the 6-month extension period to continue 
to develop an appropriate schedule for the ultimate action on the 
section 126 petition and to continue to develop the technical analysis 
needed for the notice of proposed rulemaking. These reasons support an 
effective date prior to 30 days after publication.

III. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Agency 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 OMB has exempted this 
regulatory action from Executive Order 12866 review. Accordingly, 
Executive Order 12866 does not apply to today's action.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
Today's rule does not create new requirements and is not subject to the 
Paperwork Reduction Act.

C. Regulatory Flexibility Act

    Today's final rule is not subject to the Regulatory Flexibility Act 
(RFA), which generally requires an agency to prepare a regulatory 
flexibility analysis for any rule that will have a significant economic 
impact on a substantial number of small entities. The RFA applies only 
to rules subject to notice-and-comment rulemaking requirements under 
the APA or any other statute. This rule is not subject to notice-and-
comment requirements under the APA or any other statute because 
although the rule is subject to the APA, the Agency has invoked the 
``good cause'' exemption under 5 U.S.C. 553(b), therefore it is not 
subject to the notice-and-comment requirement.
    Although this final rule is not subject to the RFA, EPA nonetheless 
has assessed the potential impact on small entities subject to the 
rule. Today's rule does not create new requirements for small entities 
or other sources.

D. 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 rules with ``Federal 
mandates'' that may result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any 1 year.
    The EPA has determined that these requirements do not apply to 
today's action because today's rulemaking is not a Federal mandate--
rather, it simply extends the date for EPA to take action on a 
petition--and it contains no regulatory requirements that might 
significantly or uniquely affect small governments.

E. 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.''
    Today's action does not have federalism implications. It imposes no 
regulatory burdens. Thus, the requirements of section 6 of the 
Executive Order do not apply to this rulemaking action.

F. 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

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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 rule does not have tribal implications. It will not have 
substantial direct effects on tribal governments, 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. 
Today's action does not significantly or uniquely affect the 
communities of Indian tribal governments. As discussed above, today's 
action imposes no new requirements that would impose compliance 
burdens. Accordingly, the requirements of Executive Order 13175 do not 
apply to this rule.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    Executive Order 13045: ``Protection of Children from Environmental 
Health and Safety Risks'' (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.
    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 Order has the 
potential to influence the regulation. This rule is not subject to 
Executive Order 13045 because it simply extends the deadline for EPA to 
take action on a petition and does not impose any regulatory 
requirements.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211, ``Actions 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. Today's action does not establish any new 
regulatory requirements.

I. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer Advancement Act 
of 1995 (``NTTAA,'' Public Law 104-113 section 12(d) 15 U.S.C. 272 
note) directs EPA to use voluntary consensus standards in its 
regulatory activities that establish technical standards, unless to do 
so would be inconsistent with applicable law or otherwise impractical.
    The NTTAA does not apply because today's action does not establish 
any new technical standards.

J. 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. 804(2).

K. 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.''
    Under CAA section 307(b)(1), a petition to review today's action 
must be filed in the Court of Appeals for the District of Columbia 
Circuit within 60 days of May 18, 2004.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Nitrogen oxides, Ozone, Reporting and recordkeeping 
requirements.

    Dated: May 18, 2004.
Michael O. Leavitt,
Administrator.
[FR Doc. 04-11768 Filed 5-25-04; 8:45 am]
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