[Federal Register Volume 72, Number 94 (Wednesday, May 16, 2007)]
[Rules and Regulations]
[Pages 27437-27443]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-9407]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 60, 61, and 63

[EPA-HQ-OAR-2006-0085; FRL-8315-2]
RIN 2060-AN84


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: Final rule.

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SUMMARY: This action promulgates revisions to 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 for extensions to the deadline imposed for source owners and 
operators to conduct an initial or subsequent performance test required 
by applicable regulations. The General Provisions do not currently 
provide for extensions of the deadlines for conducting performance 
tests.

DATES: This final rule is effective on May 16, 2007.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-HQ-OAR-2006-0085. All documents in the docket are listed on the 
www.regulations.gov Web site. 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 is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically through 
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 
3334, 1301 Constitution Ave., NW., Washington, DC. This Docket Facility 
is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding 
legal holidays. The Docket telephone number is 202-566-1742. 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.

FOR FURTHER INFORMATION CONTACT: Ms. Lula Melton, Air Quality 
Assessment Division, Office of Air Quality Planning and Standards, 
(C304-02), Environmental Protection Agency, 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. 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 
this final action will also be available on the Worldwide Web (WWW) 
through the Technology Transfer Network (TTN). Following the 
Administrator's signature, a copy of the final 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.

C. Public Comments on Proposed Rule

    The EPA received 15 sets of public comments on the proposed 
amendments to 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 during the 90-day comment period. 
These comments were submitted to the rulemaking docket. The EPA has 
carefully considered these comments in developing the final amendments. 
Summaries of the comments and EPA's responses are contained in this 
preamble.

D. Judicial Review

    Under section 307(b)(1) of the Clean Air Act (CAA), judicial review 
of this final rule is available by filing a petition for review in the 
United States Court of Appeals for the District of Columbia Circuit by 
July 16, 2007. Only those objections to this final rule that were 
raised with reasonable specificity during the period for public comment 
may be raised during judicial review. Under section 307(b)(2) of the 
CAA, the requirements that are the subject of this final rule may not 
be challenged later in civil or criminal proceedings brought by EPA to 
enforce these requirements.
    Section 307(d)(7)(B) of the CAA further provides a mechanism for us 
to convene a proceeding for reconsideration, ``[i]f the person raising 
an objection can demonstrate to the EPA that it was impracticable to 
raise such objection within [the period for public comment] or if the 
grounds for such objection arose after the period for public comment 
(but within the time specified for judicial review) and if such 
objection is of central relevance to the outcome of the rule.'' Any 
person seeking to make such a demonstration to us should submit a 
Petition for Reconsideration to the Office of the Administrator, U.S. 
EPA, Room 3000, Ariel Rios Building, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460, with a copy to both the person(s) listed in the 
preceding FOR FURTHER INFORMATION CONTACT section, and the Associate 
General Counsel for the Air and Radiation Law Office, Office of General 
Counsel (Mail Code 2344A), U.S. EPA, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460.

E. 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. Where can I get a copy of this document and other related 
information?
    C. Public Comments on Proposed Rule
    D. Judicial Review
    E. How is this document organized?
II. Summary of Final Action and Rationale
    A. What are the requirements?
    B. Why did we amend the requirements for performance tests in 
the General Provisions?
III. Responses to Comments
    A. Clarification of Approving Authority
    B. Force Majeure Concept
    C. Notifications
    D. Approvals
    E. Title V Deviations
    F. Other Comments
IV. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act

[[Page 27438]]

    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
    J. Congressional Review Act

II. Summary of Final Action and Rationale

A. What are the requirements?

    The final rule allows source owners or operators, in the event of a 
force majeure, to petition the Administrator for an extension of the 
deadline(s) by which they are required to conduct an initial or 
subsequent performance test 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'' is 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 an affected owner or operator intends to assert a claim that a 
force majeure is about to occur, occurs, or has occurred, 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.
    The decision as to whether or not to grant an extension to the 
performance test deadline is solely within the discretion of the 
Administrator. The Administrator will notify the owner or operator in 
writing of approval or disapproval of the request for an extension as 
soon as practicable. If an owner or operator misses its performance 
test deadline due to a force majeure event, and the request for an 
extension is subsequently approved, the owner or operator will not be 
held in violation for failure to conduct the performance test within 
the prescribed regulatory timeframe.

B. Why did we amend 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 developed this rule to provide 
a mechanism for consideration of these force majeure events and 
granting of extensions where 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 often exercises enforcement discretion regarding 
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. Responses to Comments

A. Clarification of Approving Authority

    Comment: Five commenters requested that we clarify or define the 
approving authority.
    Response: We inadvertently used two terms (Administrator and 
delegated agency) in the proposed rule. In 40 CFR Part 60 of the 
proposed rule, we stated that the owner or operator shall notify the 
Administrator of force majeure events, and in 40 CFR Parts 61 and 63 of 
the proposed rule, we stated that the owner or operator shall notify 
the delegated agency. We have replaced the term delegated agency with 
the term Administrator in 40 CFR Parts 61 and 63 of the final rule to 
be consistent with (1) the term (Administrator) used in 40 CFR Part 60 
and (2) the term (Administrator) used in Parts 61 and 63 of the General 
Provisions that this final rule amends. Nonetheless, we believe that it 
may be appropriate for the Administrator to assign the responsibility 
of evaluating and approving or denying requests for extensions to 
performance test deadlines due to force majeure events to a duly 
delegated agency according to applicable procedures.

B. Force Majeure Concept

    Comment: Six commenters stated that they thought the scope of the 
rule was too narrow and that circumstances beyond what they believed 
were covered by the definition of ``force majeure'' warranted similar 
extensions (e.g., pandemics, facility shutdowns, and process 
constraints that result in non-representative testing conditions).
    Response: The proposed rule is not as narrow as indicated by 
commenters. Force majeure is 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.'' Although we provide examples of events that 
could meet this definition (i.e., acts of nature, acts of war or 
terrorism, and equipment failure or safety hazards beyond the control 
of the affected facility), this list is not exhaustive. The focus of 
the rule and this definition is an event beyond the control of the 
affected facility. Similarly, two definitions of ``force majeure'' in 
dictionaries are ``an unexpected or uncontrollable event'' (The 
American Heritage Dictionary) and ``an event or effect that cannot be 
reasonably anticipated or controlled'' (Merriam-Webster's Online 
Dictionary). Thus, any event beyond the control of the affected 
facility may qualify for the extension. We can neither provide an 
exhaustive list of all of the possible events that may qualify as 
``force majeure'' under this rule, nor determine whether the generic 
additional examples provided in the public comments would or would not 
qualify under all circumstances. The Administrator will exercise his or 
her discretion when considering requests for extensions to performance 
test deadlines due to ``force majeure'' events.

[[Page 27439]]

    Comment: Six commenters requested that we expand the scope of the 
rule to allow the force majeure concept to justify extensions for 
additional regulatory requirements, such as monitoring, recordkeeping, 
reporting, maintenance, and inspections.
    Response: The purpose of this rulemaking is to address requests for 
extensions to performance test deadlines. Expanding the force majeure 
concept to include additional regulatory requirements is beyond the 
scope of the proposed rule. Therefore, the final rule covers petitions 
for extensions to performance test deadlines only.

C. Notifications

    Comment: Four commenters requested that we allow simplified 
notifications. One of these commenters requested that we allow a 
simplified notification initially followed by the timeline for 
completing the performance test later. In addition, one of these 
commenters requested that we allow initial notification to the 
Administrator in non-written formats followed by written communication 
later since during force majeure events means of communication may be 
disrupted. Two of these commenters stated that the Administrator should 
not require listing of every applicable test and rule for an entire 
facility.
    Response: We agree that phased notification may be appropriate in 
certain circumstances. For example, if a source owner or operator is 
unable to determine a date by which the performance test will be 
conducted at the time of the force majeure event, verbal notification 
to the Administrator that the original performance test deadline will 
be missed followed by written communication describing the details 
required by the rule may be appropriate. Also, if a force majeure event 
results in widespread power outages and no U.S. Postal mail service, an 
initial oral notification followed by written notification may be 
necessary. The written notification required by this rule does not 
include a listing of every applicable test and rule for an entire 
facility. The rule requires the source owner or operator to provide to 
the permitting authority a written description of the force majeure 
event, a rationale for attributing the delay in testing beyond the 
regulatory deadline to the force majeure event, a written description 
of the measures taken or to be taken to minimize the delay, and a date 
(as soon as practicable following the force majeure event) by which the 
owner or operator proposes to conduct the performance test.
    Comment: Two commenters requested that we clarify that written 
notification includes letters, faxes, e-mails, web-based submittals, 
etc.
    Response: We agree that written notification regarding force 
majeure events can be provided to the Administrator in such written 
formats as those listed above.
    Comment: Three commenters expressed the concern that a legitimate 
request for an extension may be denied based on the timing of the 
request. For example, source owners and operators may not be aware of 
an anticipated hurricane until one day prior to the event. Another 
commenter suggested that we require source owners and operators to 
notify the Administrator verbally within five days of the force majeure 
event and in writing within twenty-one days of the event.
    Response: We proposed that the owner or operator would notify the 
Administrator, in writing, as soon as practicable following the date 
the owner or operator first knew, or should have known that the event 
may cause or caused a delay in testing beyond the regulatory deadline. 
We do not believe that it is appropriate to establish specific 
timelines in the rule. The existence of a force majeure event typically 
necessitates flexibility. Thus, the final rule states that 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, but the 
notification must occur before the performance test deadline unless the 
initial force majeure or a subsequent force majeure event delays the 
notice, and in such cases, the notification shall occur as soon as 
practicable.

D. Approvals

    Comment: Four commenters suggested that we add a provision that 
allows requests for extensions to be automatically granted if the 
Administrator does not respond within a specific timeframe. Three of 
the four commenters suggested that the Administrator be given thirty 
days to respond. Two commenters are concerned that owners and operators 
will be subject to enforcement actions until their requests for 
extensions are approved.
    Response: We disagree with allowing automatic approvals and with 
requiring the Administrator to respond within 30 days. We do not 
believe that it is appropriate to place this burden on the 
Administrator since the Administrator may also have been affected by 
the force majeure event. We believe that it is appropriate to require 
the Administrator to notify the owner or operator of approval or 
disapproval of the request for an extension as soon as practicable. 
Furthermore, if an owner or operator misses its performance test 
deadline due to a force majeure event, and the request for an extension 
is subsequently approved, the owner or operator will not be held in 
violation for failure to conduct the performance test within the 
prescribed regulatory timeframe.
    Comment: Two commenters stated that circumstances, such as during 
acts of war, mandatory evacuations, or energy and supply restrictions, 
applying for an extension to a performance test deadline should be 
self-implementing.
    Response: We believe that the Administrator should have the 
discretion to determine if a request for an extension warrants approval 
and that self-implementation is not appropriate. During any situation 
that a source owner or operator believes qualifies as a force majeure 
event, the owner or operator must submit a request to the Administrator 
that includes the required information, such as a written description 
of the force majeure event, a rationale for attributing the delay in 
testing beyond the regulatory deadline to the force majeure event, a 
description of the measures taken to minimize the delay, and a date (as 
soon as practicable) by which the performance test is expected to 
occur. The Administrator will notify the owner or operator of approval 
or disapproval of the request for an extension as soon as practicable. 
Furthermore, if an owner or operator misses its performance test 
deadline due to a force majeure event, and the request for an extension 
is subsequently approved, the owner or operator will not be held in 
violation for failure to conduct the performance test within the 
prescribed regulatory timeframe.
    Comment: One commenter requested that we add the following 
statement to the rule (i.e., ``the Administrator shall approve a 
reasonable request for extension of the performance test deadline.'')
    Response: We do not believe that it is necessary to add this 
statement to the rule. The decision as to whether or not to grant an 
extension to the performance test deadline is solely within the 
discretion of the Administrator. The Administrator will notify the 
owner or operator in writing of approval or disapproval of the request 
as soon as practicable.
    Comment: Two commenters requested that EPA affirm that we already 
have the

[[Page 27440]]

authority to approve requests for extensions to performance tests.
    Response: We do not have this authority except through enforcement 
discretion. Therefore, we developed this rule to grant this authority.
    Comment: Three commenters believe that the Administrator should 
have the authority to issue blanket approvals for a designated area in 
advance of a force majeuere event.
    Response: We do not believe that blanket approvals are necessary 
since approvals for requests to extend performance test deadlines can 
be granted after the force majeure event occurs. Furthermore, we 
believe that requests to extend performance test deadlines should be 
reviewed and considered on a case-by-case basis because situations and 
circumstances may vary among facilities affected by the same force 
majeure event.

E. Title V Deviations

    Comment: Four commenters requested that we specify that extensions 
granted under this rule are not Title V deviations.
    Response: We agree that extensions granted under this rule are not 
Title V deviations since the original performance test deadline will 
not be applicable once a request for an extension has been approved. 
However, where the Administrator has not yet issued a decision on a 
request for an extension under today's rule, the failure to conduct the 
performance test within the originally prescribed timeframe is a 
deviation and should be reported as such.

F. Other Comments

    Comment: One commenter requested that we expand the concept of 
force majeure to cover regulations for other environmental media, such 
as water regulations.
    Response: We proposed that this rule address air regulations only 
and are maintaining that approach in the final rule.
    Comment: One commenter requested that denials for extensions be 
administratively appealable.
    Response: The commenter did not explain why this recommendation is 
appropriate or how it could be implemented. Therefore, we are not 
adopting this recommendation.
    Comment: One commenter requested that we delete the word 
``strictly'' from the statement ``Until an extension of the performance 
test deadline has been approved under * * *, the owner or operator of 
the affected facility remains strictly subject to the requirements of 
this part.''
    Response: We disagree with the request to remove the word 
``strictly'' because it is intended to emphasize that this rule is one 
of strict liability.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735 October 4, 1993) and is 
therefore not subject to review under the EO.

B. Paperwork Reduction Act

    The information collection requirements in this 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 requirements are not enforceable until OMB 
approves them.
    The final rule requires 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 final 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. When this ICR is 
approved by OMB, the Agency will publish a technical amendment to 40 
CFR part 9 in the Federal Register to display the OMB control number 
for the approved information collection requirements contained in this 
final rule.

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 final 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 final 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. We expect force majeure events 
to be rare since these events include circumstances such as, acts of 
nature, acts of war or terrorism, and equipment failure or safety 
hazard beyond the control of the affected facility.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. 
L. 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

[[Page 27441]]

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 final 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 final 
rule for any year has been estimated to be less than $435.00. Thus, 
today's final rule is not subject to the requirements of Sections 202 
and 205 of the UMRA.
    EPA has determined that the final rule contains no regulatory 
requirements that might significantly or uniquely affect small 
governments. The final rule requires source owners and operators to 
provide a written notification to the Agency only if an extension to a 
performance test deadline is necessary due to rare force majeure 
events. Therefore, the final 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 final 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. The final rule requirements will 
not supercede State regulations that are more stringent. In addition, 
the final rule requires 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. Thus, Executive Order 
13132 does not apply to this rule.

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 final rule does not have 
tribal implications as specified in Executive Order 13175. This final 
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 ``Protection of Children from Environmental 
Health Risks 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. 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.
    This final rule is not subject to the Executive Order because it is 
not economically significant as defined in Executive Order 12866 and 
because the Agency does not have reason to believe the environmental 
health or safety risks addressed by this action present a 
disproportionate risk to children. This rule does not affect the 
underlying control requirements established by the applicable standards 
but only the timeframe associated with performance testing in limited 
circumstances.

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

    This rule 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.

I. National Technology Transfer and Advancement Act

    As noted in the proposed rule, 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 owners or operators from testing 
within

[[Page 27442]]

the regulatory deadline. Therefore, NTTAA does not apply.

J. 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 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. 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. 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). This rule will be effective May 16, 2007.

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

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

    Dated: May 10, 2007.
Stephen L. Johnson,
Administrator.

0
For the reasons stated in the preamble, title 40, chapter I, parts 60, 
61, and 63 of the Code of Federal Regulations are amended as follows:

PART 60--[AMENDED]

0
1. The authority citation for part 60 continues to read as follows:

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

Subpart A--[Amended]

0
2. Section 60.2 is amended by adding, in alphabetical order, a 
definition for ``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.
* * * * *

0
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, 
but the notification must occur before the performance test deadline 
unless the initial force majeure or a subsequent force majeure event 
delays the notice, and in such cases, the notification shall occur as 
soon as practicable.
    (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) The decision as to whether or not to grant an extension to the 
performance test deadline is solely within the discretion of the 
Administrator. 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]

0
4. The authority citation for part 61 continues to read as follows:

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

Subpart A--[Amended]

0
5. Section 61.02 is amended by adding, in alphabetical order, a 
definition for ``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.
* * * * *

0
6. Section 61.13 is amended as follows:
0
a. By removing ``; or'' at the end of paragraph (a)(1) and adding in 
its place a period.
0
b. By revising paragraph (a) introductory text.
0
c. By adding paragraphs (a)(3) through (a)(6).


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 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 
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, but the notification must occur

[[Page 27443]]

before the performance test deadline unless the initial force majeure 
or a subsequent force majeure event delays the notice, and in such 
cases, the notification shall occur as soon as practicable.
    (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) The decision as to whether or not to grant an extension to the 
performance test deadline is solely within the discretion of the 
Administrator. 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.
* * * * *

PART 63--[AMENDED]

0
7. The authority citation for part 63 continues to read as follows:

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

Subpart A--[Amended]

0
8. Section 63.2 is amended by adding, in alphabetical order, a 
definition for ``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.
* * * * *

0
9. Section 63.7 is amended by revising paragraphs (a)(2) introductory 
text and (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 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 
specified in paragraph (a)(2) or (a)(3) of this section, or elsewhere 
in this part, but the notification must occur before the performance 
test deadline unless the initial force majeure or a subsequent force 
majeure event delays the notice, and in such cases, the notification 
shall occur as soon as practicable.
    (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) The decision as to whether or not to grant an extension to 
the performance test deadline is solely within the discretion of the 
Administrator. 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.
* * * * *

0
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. E7-9407 Filed 5-15-07; 8:45 am]
BILLING CODE 6560-50-P