[Federal Register Volume 71, Number 153 (Wednesday, August 9, 2006)]
[Proposed Rules]
[Pages 45487-45492]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-12966]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 60, 61, and 63

[EPA-HQ-OAR-2006-0085; FRL-8207-1]


Revisions to Standards of Performance for New Stationary Sources, 
National Emission Standards for Hazardous Air Pollutants, and National 
Emission Standards for Hazardous Air Pollutants for Source Categories

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA is proposing to revise the General Provisions for 
Standards of Performance for New Stationary Sources, for National 
Emission Standards for Hazardous Air Pollutants, and for National 
Emission Standards for Hazardous Air Pollutants for Source Categories 
to allow extensions to the deadline imposed for source owners and 
operators to conduct initial or other required performance tests in 
certain specified circumstances. The General Provisions do not 
currently provide for extensions of the deadlines for conducting 
performance tests.

DATES: Comments must be received on or before November 7, 2006.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2006-0085, by one of the following methods:
     http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     E-mail: [email protected].
     Fax: (202) 566-1741.
     Mail: Revisions to Standards of Performance for New 
Stationary Sources, National Emission Standards for Hazardous Air 
Pollutants, and National Emission Standards for Hazardous Air 
Pollutants for Source Categories, Docket ID No. EPA-HQ-OAR-2006-0085, 
Environmental Protection Agency, Mailcode 6102T, 1200 Pennsylvania 
Ave., NW., Washington, DC 20460. Please include a total of two copies. 
In addition, please mail a copy of your comments on the information 
collection provisions to the Office of Information and Regulatory 
Affairs, Office of Management and Budget (OMB), Attn: Desk Officer for 
EPA, 725 17th St., NW., Washington, DC 20503.
     Hand Delivery: EPA Docket Center, 1301 Constitution 
Avenue, NW., Room B102, Washington, DC 20460. Such deliveries are only 
accepted during the Docket's normal hours of operation, and special 
arrangements should be made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2006-0085. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or e-mail. 
The www.regulations.gov Web site is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through www.regulations.gov 
your e-mail address will be automatically captured and included as part 
of the comment that is placed in the public docket and made available 
on the Internet. If you submit an electronic comment, EPA recommends 
that you include your name and other contact information in the body of 
your comment and with any disk or CD ROM you submit. If EPA cannot read 
your comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket, visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the 
www.regulations.gov

[[Page 45488]]

index. Although listed in the index, some information is not publicly 
available, e.g., CBI or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, will be publicly available only in hard copy. Publicly 
available docket materials are available either electronically in 
www.regulations.gov or in hard copy at the Revisions to Standards of 
Performance for New Stationary Sources, National Emission Standards for 
Hazardous Air Pollutants, and National Emission Standards for Hazardous 
Air Pollutants for Source Categories 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 Air Docket is 
(202) 566-1742.

FOR FURTHER INFORMATION CONTACT: For questions concerning today's 
proposed rule, please contact Ms. Lula Melton, U.S. EPA, Office of Air 
Quality Planning and Standards, Air Quality Assessment Division (C304-
02), Research Triangle Park, North Carolina 27711; telephone number: 
(919) 541-2910; fax number: (919) 541-4511; e-mail address: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

    This action applies to any source whose owner or operator is 
required to conduct performance testing to demonstrate compliance with 
applicable standards under the General Provisions for Standards of 
Performance for New Stationary Sources, for National Emission Standards 
for Hazardous Air Pollutants, and for National Emission Standards for 
Hazardous Air Pollutants for Source Categories.

B. What should I consider as I prepare my comments for EPA?

    Do not submit information containing Confidential Business 
Information (CBI) to EPA through www.regulations.gov or e-mail. Send or 
deliver information identified as CBI only to the following address: 
Roberto Morales, OAQPS Document Control Officer (C404-02), U.S. EPA, 
Office of Air Quality Planning and Standards, Research Triangle Park, 
North Carolina 27711, Attention Docket ID No. EPA-HQ-OAR-2006-0085. 
Clearly mark the part or all of the information that you claim to be 
CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark 
the outside of the disk or CD ROM as CBI and then identify 
electronically within the disk or CD ROM the specific information that 
is claimed as CBI. In addition to one complete version of the comment 
that includes information claimed as CBI, a copy of the comment that 
does not contain the information claimed as CBI must be submitted for 
inclusion in the public docket. Information so marked will not be 
disclosed except in accordance with procedures set forth in 40 CFR part 
2.

C. Where can I get a copy of this document and other related 
information?

    In addition to being available in the docket, an electronic copy of 
today's proposed rule is also available on the Worldwide Web (WWW) 
through the Technology Transfer Network (TTN). Following the 
Administrator's signature, a copy of the proposed amendments will be 
placed on the TTN's policy and guidance page for newly proposed or 
promulgated rules at http://www.epa.gov/ttn/oarpg. The TTN provides 
information and technology exchange in various areas of air pollution 
control.

D. How is this document organized?

    The information presented in this preamble is organized as follows:

I. General Information
    A. Does this action apply to me?
    B. What should I consider as I prepare my comments for EPA?
    C. Where can I get a copy of this document and other related 
information?
    D. How is this document organized?
II. Summary of Proposed Amendments and Rationale
    A. What are the proposed requirements?
    B. Why are we amending the requirements for performance tests in 
the General Provisions?
III. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children from 
Environmental Health Risks and Safety Risks
    H. Executive Order 13211: Action that Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act

II. Summary of Proposed Amendments and Rationale

A. What are the proposed requirements?

    The proposed rule would allow source owners or operators, in the 
event of a force majeure, to petition the Administrator for an 
extension of the deadlines by which they are required to conduct 
initial and subsequent performance tests required by applicable 
regulations. Performance tests required as a result of enforcement 
orders or enforcement actions are not covered by this rule because 
enforcement agreements contain their own force majeure provisions. A 
force majeure would be defined as an event that will be or has been 
caused by circumstances beyond the control of the affected facility, 
its contractors, or any entity controlled by the affected facility that 
prevents the owner or operator from complying with the regulatory 
requirement to conduct performance tests within the specified timeframe 
despite the affected facility's best efforts to fulfill the obligation. 
Examples of such events are acts of nature, acts of war or terrorism, 
or equipment failure or safety hazard beyond the control of the 
affected facility.
    If a force majeure is about to occur, occurs, or has occurred for 
which the affected owner or operator intends to assert a claim of force 
majeure, the owner or operator must notify the Administrator, in 
writing, as soon as practicable following the date the owner or 
operator first knew, or through due diligence should have known, that 
the event may cause or caused a delay in testing beyond the regulatory 
deadline. The owner or operator must provide a written description of 
the event and a rationale for attributing the delay in testing beyond 
the regulatory deadline to the force majeure; describe the measures 
taken or to be taken to minimize the delay; and identify a date by 
which the owner or operator proposes to conduct the performance test. 
The test must be conducted as soon as practicable after the force 
majeure occurs.

B. Why are we amending the requirements for performance tests in the 
General Provisions?

    We recognize that there may be circumstances beyond a source 
owner's or operator's control constituting a force majeure event that 
could cause an owner or operator to be unable to conduct performance 
tests before the regulatory deadline. We are proposing this rule to 
provide a mechanism for consideration of these force majeure events and 
granting of extensions where

[[Page 45489]]

warranted. Under current rules, a source owner or operator who is 
unable to comply with performance testing requirements within the 
allotted timeframe due to a force majeure is regarded as being in 
violation and subject to enforcement action. As a matter of policy, EPA 
has exercised enforcement discretion when addressing such violations. 
However, where circumstances beyond the control of the source owner or 
operator constituting a force majeure prevent the performance of timely 
performance tests, we believe that it is appropriate to provide an 
opportunity to such owners and operators to make good faith 
demonstrations and obtain extensions of the performance testing 
deadline where approved by the Administrator in appropriate 
circumstances.

III. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Reviews

    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 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 is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and is 
therefore not subject to OMB review. We have determined that this 
regulation would result in none of the economic effects set forth in 
Section 1 of the Order because it does not impose emission measurement 
requirements beyond those specified in the current regulations, nor 
does it change any emission standard.

B. Paperwork Reduction Act

    The information collection requirements in this proposed rule have 
been submitted for approval to the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The 
Information Collection Request (ICR) document prepared by EPA has been 
assigned EPA ICR No. 2226.01.
    The proposed rule would require a written notification only if a 
plant owner or operator needs an extension of a performance test 
deadline due to certain rare events, such as acts of nature, acts of 
war or terrorism, or equipment failure or safety hazard beyond the 
control of the affected facility. Since EPA believes such events will 
be rare, the projected cost and hour burden will be minimal.
    The increased annual average reporting burden for this collection 
(averaged over the first 3 years of the ICR) is estimated to total 6 
labor hours per year at a cost of $377.52. This includes one response 
per year from six respondents for an average of 1 hour per response. No 
capital/startup costs or operation and maintenance costs are associated 
with the proposed reporting requirements. Burden means the total time, 
effort, or financial resources expended by persons to generate, 
maintain, retain, or disclose or provide information to or for a 
Federal agency. This includes the time needed to review instructions; 
develop, acquire, install, and utilize technology and systems for the 
purposes of collecting, validating, and verifying information, 
processing and maintaining information, and disclosing and providing 
information; adjust the existing ways to comply with any previously 
applicable instructions and requirements; train personnel to be able to 
respond to a collection of information; search data sources; complete 
and review the collection of information; and transmit or otherwise 
disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9.
    To comment on the Agency's need for this information, the accuracy 
of the provided burden estimates, and any suggested methods for 
minimizing respondent burden, including the use of automated collection 
techniques, EPA has established a public docket for this rule, which 
includes this ICR, under Docket ID number EPA-HQ-OAR-2006-0085. Submit 
any comments related to the ICR for this proposed rule to EPA and OMB. 
See ADDRESSES section at the beginning of this notice for where to 
submit comments to EPA. Send comments to OMB at the Office of 
Information and Regulatory Affairs, Office of Management and Budget, 
725 17th Street, NW., Washington, DC 20503, Attention: Desk Office for 
EPA. Since OMB is required to make a decision concerning the ICR 
between 30 and 60 days after August 9, 2006, a comment to OMB is best 
assured of having its full effect if OMB receives it by September 8, 
2006. The final rule will respond to any OMB or public comments on the 
information collection requirements contained in this proposal.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act generally requires an agency to 
prepare a regulatory flexibility analysis of any rule subject to notice 
and comment rulemaking requirements under the Administrative Procedure 
Act or any other statute unless the agency certifies that the rule will 
not have a significant economic impact on a substantial number of small 
entities. Small entities include small businesses, small not-for-profit 
enterprises, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's proposed rule on 
small entities, small entity is defined as: (1) A small business as 
defined by the Small Business Administration's (SBA) regulations at 13 
CFR 121.201; (2) a 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 (3) 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 proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. Extensions 
to deadlines for conducting performance tests will provide flexibility 
to small entities and reduce the burden on them by providing them an 
opportunity for additional time to comply with performance test 
deadlines during force majeure events.

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, EPA 
generally must prepare a written

[[Page 45490]]

statement, including a cost-benefit analysis, for proposed and final 
rules with ``Federal mandates'' that may result in expenditures to 
State, Local, and Tribal governments, in the aggregate, or to the 
private sector, of $100 million or more in any one 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.
    EPA has determined that the proposed rule does not contain a 
Federal mandate that may result in expenditures of $100 million or more 
for State, local, and Tribal governments, in the aggregate, or the 
private sector in any one year. The maximum total annual cost of this 
proposed rule for any year has been estimated to be less than $435.00. 
Thus, today's proposed rule is not subject to the requirements of 
sections 202 and 205 of the UMRA.
    EPA has determined that the proposed rule contains no regulatory 
requirements that might significantly or uniquely affect small 
governments. Therefore, the proposed rule is not subject to the 
requirements of section 203 of the UMRA.

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.''
    This proposed rule 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. None of the affected facilities 
are owned or operated by State governments, and the proposed rule 
requirements will not supercede State regulations that are more 
stringent. Thus, Executive Order 13132 does not apply to this rule.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and State and local 
governments, EPA specifically solicits comment on this proposed rule 
from State and local officials.

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 9, 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.'' This proposed rule does not 
have tribal implications as specified in Executive Order 13175. This 
proposed rule 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. Thus, Executive Order 13175 does not apply to 
this rule.

G. Executive Order 13045: Protection of Children From Environmental 
Health 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, the Agency must evaluate the environmental health or 
safety effects of the planned rule on children and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    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 is not subject to 
Executive Order 13045 because it is technology based and not based on 
health or safety risks. No children's risk was performed because no 
alternative technologies exist that would provide greater stringency at 
a reasonable cost. Further, this proposed rule has been determined not 
to be economically significant as defined under Executive Order 12866.

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

    The proposed rule is not a ``significant energy action'' as defined 
in Executive Order 13211, ``Actions Concerning Regulations that 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355, May 22, 2001) because it is not likely to have a significant 
adverse effect on the supply distribution, or use of energy. Further, 
we have concluded that this rule is not likely to have any adverse 
energy effects.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and 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 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. New 
test methods are not being proposed in this rulemaking, but EPA is 
allowing for extensions of the regulatory deadlines by which owners or 
operators are required to conduct performance tests when a force 
majeure is about to occur, occurs, or has occurred which prevents

[[Page 45491]]

owners or operators from testing within the regulatory deadline. 
Therefore, NTTAA does not apply.

List of Subjects in 40 CFR Parts 60, 61, and 63

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

    Dated: August 3, 2006.
Stephen L. Johnson,
Administrator.

    For the reasons stated in the preamble, title 40, chapter I, parts 
60, 61, and 63 of the Code of Federal Regulations are proposed to be 
amended as follows:

PART 60--[AMENDED]

    1. The authority citation for part 60 continues to read as follows:

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

Subpart A--[Amended]

    2. Section 60.2 is amended by adding, in alphabetical order, a 
definition of the term ``Force majeure'' to read as follows:


Sec.  60.2  Definitions.

* * * * *
    Force majeure means, for purposes of Sec.  60.8, an event that will 
be or has been caused by circumstances beyond the control of the 
affected facility, its contractors, or any entity controlled by the 
affected facility that prevents the owner or operator from complying 
with the regulatory requirement to conduct performance tests within the 
specified timeframe despite the affected facility's best efforts to 
fulfill the obligation. Examples of such events are acts of nature, 
acts of war or terrorism, or equipment failure or safety hazard beyond 
the control of the affected facility.
* * * * *
    3. Section 60.8 is amended by revising paragraph (a) to read as 
follows:


Sec.  60.8  Performance tests.

    (a) Except as specified in paragraphs (a)(1), (a)(2), (a)(3), and 
(a)(4) of this section, within 60 days after achieving the maximum 
production rate at which the affected facility will be operated, but 
not later than 180 days after initial startup of such facility, or at 
such other times specified by this part, and at such other times as may 
be required by the Administrator under section 114 of the Act, the 
owner or operator of such facility shall conduct performance test(s) 
and furnish the Administrator a written report of the results of such 
performance test(s).
    (1) If a force majeure is about to occur, occurs, or has occurred 
for which the affected owner or operator intends to assert a claim of 
force majeure, the owner or operator shall notify the Administrator, in 
writing, as soon as practicable following the date the owner or 
operator first knew, or through due diligence should have known, that 
the event may cause or caused a delay in testing beyond the regulatory 
deadline.
    (2) The owner or operator shall provide to the Administrator a 
written description of the force majeure event and a rationale for 
attributing the delay in testing beyond the regulatory deadline to the 
force majeure; describe the measures taken or to be taken to minimize 
the delay; and identify a date by which the owner or operator proposes 
to conduct the performance test. The performance test shall be 
conducted as soon as practicable after the force majeure occurs.
    (3) If in the Administrator's judgment, an owner's or operator's 
request for an extension of the performance test deadline is warranted, 
the Administrator will approve the extension. The Administrator will 
notify the owner or operator in writing of approval or disapproval of 
the request for an extension as soon as practicable.
    (4) Until an extension of the performance test deadline has been 
approved by the Administrator under paragraphs (a)(1), (2), and (3) of 
this section, the owner or operator of the affected facility remains 
strictly subject to the requirements of this part.
* * * * *

PART 61--[AMENDED]

    4. The authority citation for part 61 continues to read as follows:

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

Subpart A--[Amended]

    5. Section 61.02 is amended by adding, in alphabetical order, a 
definition of the term ``Force majeure'' to read as follows:


Sec.  61.02  Definitions.

* * * * *
    Force majeure means, for purposes of Sec.  61.13, an event that 
will be or has been caused by circumstances beyond the control of the 
affected facility, its contractors, or any entity controlled by the 
affected facility that prevents the owner or operator from complying 
with the regulatory requirement to conduct performance tests within the 
specified timeframe despite the affected facility's best efforts to 
fulfill the obligation. Examples of such events are acts of nature, 
acts of war or terrorism, or equipment failure or safety hazard beyond 
the control of the affected facility.
* * * * *
    6. Section 61.13 is amended by revising paragraph (a) introductory 
text, and adding paragraphs (a)(3), (a)(4), (a)(5), and (a)(6) to read 
as follows:


Sec.  61.13  Emission tests and waiver of emission tests.

    (a) Except as provided in paragraphs (a)(3), (a)(4), (a)(5), and 
(a)(6) of this section, if required to do emission testing by an 
applicable subpart and unless a waiver of emission testing is obtained 
under this section, the owner or operator shall test emissions from the 
source:
* * * * *
    (3) If a force majeure is about to occur, occurs, or has occurred 
for which the affected owner or operator intends to assert a claim of 
force majeure, the owner or operator shall notify the delegated agency, 
in writing, as soon as practicable following the date the owner or 
operator first knew, or through due diligence should have known, that 
the event may cause or caused a delay in testing beyond the regulatory 
deadline specified in paragraphs (a)(1) or (a)(2) of this section or 
beyond a deadline established pursuant to the requirements under 
paragraph (b) of this section.
    (4) The owner or operator shall provide to the Administrator a 
written description of the force majeure event and a rationale for 
attributing the delay in testing beyond the regulatory deadline to the 
force majeure; describe the measures taken or to be taken to minimize 
the delay; and identify a date by which the owner or operator proposes 
to conduct the performance test. The performance test shall be 
conducted as soon as practicable after the force majeure occurs.
    (5) If in the Administrator's judgment, an owner's or operator's 
request for an extension of the performance test deadline is warranted, 
the Administrator will approve the extension. The Administrator will 
notify the owner or operator in writing of approval or disapproval of 
the request for an extension as soon as practicable.
    (6) Until an extension of the performance test deadline has been 
approved by the Administrator under paragraphs (a)(3), (a)(4), and 
(a)(5) of this section, the owner or operator of the affected facility 
remains strictly subject to the requirements of this part.
* * * * *

[[Page 45492]]

PART 63--[AMENDED]

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

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

Subpart A--[Amended]

    8. Section 63.2 is amended by adding, in alphabetical order, a 
definition of the term ``Force majeure'' to read as follows:


Sec.  63.2  Definitions.

* * * * *
    Force majeure means, for purposes of Sec.  63.7, an event that will 
be or has been caused by circumstances beyond the control of the 
affected facility, its contractors, or any entity controlled by the 
affected facility that prevents the owner or operator from complying 
with the regulatory requirement to conduct performance tests within the 
specified timeframe despite the affected facility's best efforts to 
fulfill the obligation. Examples of such events are acts of nature, 
acts of war or terrorism, or equipment failure or safety hazard beyond 
the control of the affected facility.
* * * * *
    9. Section 63.7 is amended by revising paragraph (a)(2) 
introductory text and paragraph (a)(2)(ix) and by adding paragraph 
(a)(4) to read as follows:


Sec.  63.7  Performance testing requirements.

    (a) * * *
    (2) Except as provided in paragraph (a)(4) of this section, if 
required to do performance testing by a relevant standard, and unless a 
waiver of performance testing is obtained under this section or the 
conditions of paragraph (c)(3)(ii)(B) of this section apply, the owner 
or operator of the affected source must perform such tests within 180 
days of the compliance date for such source.
* * * * *
    (ix) Except as provided in paragraph (a)(4) of this section, when 
an emission standard promulgated under this part is more stringent than 
the standard proposed (see Sec.  63.6(b)(3)), the owner or operator of 
a new or reconstructed source subject to that standard for which 
construction or reconstruction is commenced between the proposal and 
promulgation dates of the standard shall comply with performance 
testing requirements within 180 days after the standard's effective 
date, or within 180 days after startup of the source, whichever is 
later. If the promulgated standard is more stringent than the proposed 
standard, the owner or operator may choose to demonstrate compliance 
with either the proposed or the promulgated standard. If the owner or 
operator chooses to comply with the proposed standard initially, the 
owner or operator shall conduct a second performance test within 3 
years and 180 days after the effective date of the standard, or after 
startup of the source, whichever is later, to demonstrate compliance 
with the promulgated standard.
* * * * *
    (4) If a force majeure is about to occur, occurs, or has occurred 
for which the affected owner or operator intends to assert a claim of 
force majeure:
    (i) The owner or operator shall notify the delegated agency, in 
writing, as soon as practicable following the date the owner or 
operator first knew, or through due diligence should have known, that 
the event may cause or caused a delay in testing beyond the regulatory 
deadline specified in paragraphs (a)(2), (a)(3) of this section, or 
elsewhere in this part.
    (ii) The owner or operator shall provide to the Administrator a 
written description of the force majeure event and a rationale for 
attributing the delay in testing beyond the regulatory deadline to the 
force majeure; describe the measures taken or to be taken to minimize 
the delay; and identify a date by which the owner or operator proposes 
to conduct the performance test. The performance test shall be 
conducted as soon as practicable after the force majeure occurs.
    (iii) If in the Administrator's judgment, an owner's or operator's 
request for an extension of the performance test deadline is warranted, 
the Administrator will approve the extension. The Administrator will 
notify the owner or operator in writing of approval or disapproval of 
the request for an extension as soon as practicable.
    (iv) Until an extension of the performance test deadline has been 
approved by the Administrator under paragraphs (a)(4)(i), (a)(4)(ii), 
and (a)(4)(iii) of this section, the owner or operator of the affected 
facility remains strictly subject to the requirements of this part.
* * * * *
    10. Section 63.91 is amended by adding paragraph (g)(1)(i)(O) to 
read as follows:


Sec.  63.91  Criteria for straight delegation and criteria common to 
all approval options.

* * * * *
     (g) * * *
    (1) * * *
    (i) * * *
    (O) Section 63.7(a)(4), Extension of Performance Test Deadline
* * * * *
 [FR Doc. E6-12966 Filed 8-8-06; 8:45 am]
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