[Federal Register Volume 83, Number 232 (Monday, December 3, 2018)]
[Rules and Regulations]
[Pages 62268-62269]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-26224]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 68

[EPA-HQ-OEM-2015-0725; FRL-9987-23-OLEM]


Accidental Release Prevention Requirements: Risk Management 
Programs Under the Clean Air Act

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; announcement of effective date.

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SUMMARY: The Environmental Protection Agency (EPA) is announcing that 
the amendments to the Risk Management Program under the Clean Air Act 
put forward in a final rule published in the Federal Register on 
January 13, 2017 are in effect.

DATES: The rule amending 40 CFR part 68, published at 82 FR 4594 
(January 13, 2017) and delayed at 82 FR 8499 (January 26, 2017), 82 FR 
13968 (March

[[Page 62269]]

16, 2017), and 82 FR 27133 (June 14, 2017), is effective December 3, 
2018.

ADDRESSES: The EPA established a docket for the ``Accidental Release 
Prevention Requirements: Risk Management Programs Under the Clean Air 
Act'' under Docket ID No. EPA-HQ-OEM-2015-0725, which includes this 
announcement. All documents in the docket are listed on the https://www.regulations.gov website. 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 electronically through https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: James Belke, United States 
Environmental Protection Agency, Office of Land and Emergency 
Management, 1200 Pennsylvania Ave. NW (Mail Code 5104A), Washington, 
DC, 20460; telephone number: (202) 564-8023; email address: 
belke.jim@epa.gov, or Kathy Franklin, United States Environmental 
Protection Agency, Office of Land and Emergency Management, 1200 
Pennsylvania Ave. NW (Mail Code 5104A), Washington, DC 20460; telephone 
number: (202) 564-7987; email address: franklin.kathy@epa.gov.

SUPPLEMENTARY INFORMATION: On January 13, 2017, EPA finalized 
amendments to the Accidental Release Prevention Requirements for Risk 
Management Programs under the Clean Air Act, Section 112(r)(7) (RMP 
Amendments rule; 82 FR 4594). On January 26, 2017, the EPA published an 
action in the Federal Register that initially delayed the effective 
date of the RMP Amendments rule for a short period of time (82 FR 
8499). The EPA further delayed the effective date of the RMP Amendments 
rule through additional EPA actions published in the Federal Register 
on March 16, 2017 and June 14, 2017 (82 FR 13968 and 82 FR 27133, 
respectively). On August 17, 2018, the U.S. Court of Appeals for the 
District of Columbia Circuit issued its decision vacating the June 14, 
2017 rule (82 FR 27133) that had delayed the effective date of the RMP 
Amendments rule until February 19, 2019. On September 21, 2018, the 
Court issued its mandate which makes the RMP Amendments rule now 
effective.
    Section 553(b)(3)(B) of the Administrative Procedure Act, 5 U.S.C. 
553(b)(3)(B), provides that, when an agency for good cause finds that 
public notice and comment procedures are impracticable, unnecessary, or 
contrary to the public interest, the agency may issue a rule without 
providing notice and an opportunity for public comment. The EPA has 
determined that there is good cause for making this rule announcing the 
effectiveness of the RMP Amendments rule final without prior proposal 
and opportunity for comment because such notice and opportunity for 
comment is unnecessary.
    Specifically, updating the Code of Federal Regulations (CFR) to 
reflect the requirements of the RMP Amendments rule is a ministerial 
act. The Court specifically identified as vacated the June 14, 2017 
rule that had delayed the effectiveness of the RMP Amendments rule 
until February 19, 2019. The rule published today simply implements the 
decision of the Court. Since EPA lacks discretion to do otherwise, it 
would serve no useful purpose to provide an opportunity for public 
comment on this issue. The requirements of CAA section 307(d), 
including the requirement for public comment and a hearing on proposed 
rulemakings, do not apply to this action because 5 U.S.C. 553(b)(3)(B) 
applies.
    Moreover, the agency finds that the considerations outlined above 
to support issuance of this rule without prior notice and comment also 
provide good cause for making this action effective immediately under 
section 553(d) of the Administrative Procedure Act (APA), 5 U.S.C. 
553(d). Section 553(d) provides in pertinent part that final rules 
shall not become effective until 30 days after publication in the 
Federal Register, ``except . . . as otherwise provided by the agency 
for good cause.'' The purpose of section 553(d) of the APA is to ``give 
affected parties a reasonable time to adjust their behavior before the 
final rule takes effect.'' Omnipoint Corp. v. FCC, 78 F.3d 620, 630 (DC 
Cir. 1996); see also United States v. Gavrilovic, 551 F.2d 1099, 1104 
(8th Cir. 1977) (quoting legislative history). In determining whether 
good cause exists to waive the 30-day effective date under the APA, an 
agency should ``balance the necessity for immediate implementation 
against principles of fundamental fairness which require that all 
affected persons be afforded a reasonable amount of time to prepare for 
the effective date of its ruling.'' Gavrilovic, 551 F.2d at 1105. Here, 
the decision of the Court vacating the Delay Rule and the issuance of 
the mandate have taken the issue of timing out of EPA's control. As 
noted above, we are simply implementing the Court's mandate by 
undertaking the ministerial act necessary to update the Code of Federal 
Regulations. Accordingly, this rule will take effect upon publication 
in the Federal Register. 5 U.S.C. 553(d).

    Dated: November 21, 2018.
Andrew R. Wheeler,
Acting Administrator.

0
Accordingly, the rule amending 40 CFR part 68, published at 82 FR 4594 
(January 13, 2017), and delayed at 82 FR 8499 (January 26, 2017), 82 FR 
13968 (March 16, 2017), and 82 FR 27133 (June 14, 2017), is effective 
December 3, 2018.

[FR Doc. 2018-26224 Filed 11-30-18; 8:45 am]
 BILLING CODE 6560-50-P