Interim Final Stay of Action on Section 126 Petitions for Purposes of Reducing Interstate Ozone Transport

SUMMARY: In today's action, EPA is temporarily staying, until November

30, 1999, the effectiveness of a final rule regarding petitions filed

under section 126 of the Clean Air Act (CAA). Eight Northeastern States

filed the petitions seeking to mitigate transport of one of the main

precursors of ground-level ozone, nitrogen oxides (NOX),

across State boundaries. On April 30, 1999, EPA made final

determinations that portions of the petitions are technically

meritorious.

Subsequently, two recent rulings of the U.S. Court of Appeals for

the District of Columbia Circuit (D.C. Circuit) have affected EPA's

rulemaking under section 126. In one ruling, the court remanded the 8-

hour national ambient air quality standard (NAAQS) for ozone, which

formed part of the underlying technical basis for certain of EPA's

determinations under section 126. In a separate action, the D.C.

Circuit granted a motion to stay the State implementation plan (SIP)

submission deadlines established in a related EPA action, the

NOX State implementation plan call (NOX SIP

call). In the April 30 notice of final rulemaking (NFR), EPA had

deferred making final findings under section 126 as long as States and

EPA remained on schedule to meet the requirements of the NOX

SIP call.

In response to these rulings, EPA is today staying the

effectiveness of the April 30 NFR for a short period while EPA conducts

a notice-and-comment rulemaking to address further issues arising from

the court rulings.

EFFECTIVE DATE: This interim final rule is effective on July 26, 1999,

until November 30, 1999.

ADDRESSES: Documents relevant to this action are available for

inspection at the Air and Radiation Docket and Information Center

(6102), Attention: Docket No. A-97-43, U.S. Environmental Protection

Agency, 401 M Street SW, room M-1500, Washington, DC 20460, telephone

(202) 260-7548 between 8:00 a.m. and 5:30 p.m., Monday though Friday,

excluding legal holidays. A reasonable fee may be charged for copying.

FOR FURTHER INFORMATION CONTACT: Questions concerning today's action

should be addressed to Carla Oldham, Office of Air Quality Planning and

Standards, Air Quality Strategies and Standards Division, MD-15,

Research Triangle Park, NC, 27711, telephone (919) 541-3347, e-mail at

[email protected].

SUPPLEMENTARY INFORMATION:

Availability of Related Information

The official record for the section 126 rulemaking completed April

30, 1999, as well as the public version of the record, has been

established under docket number A-97-43 (including comments and data

submitted electronically as described below). EPA is adding a new

section to that docket for purposes of today's interim final rule. The

public version of this record, including printed, paper versions of

electronic comments, which does not include any information claimed as

confidential business information, is available for inspection from

8:00 a.m. to 5:30 p.m., Monday through Friday, excluding legal

holidays. The official rulemaking record is located at the address in

ADDRESSES at the beginning of this document. In addition, the Federal

Register rulemakings and associated documents are located at http://

www.epa.gov/ttn/rto/126.

Outline

I. Background

A. Findings Under Section 126 Petitions To Reduce Interstate

Ozone Transport

B. Effect of Court Decisions

1. 8-Hour Ozone NAAQS

2. Stay of Compliance Schedule for NOX SIP Call

II. Interim Final Stay

III. Rulemaking Procedures

IV. Status of Upcoming Related Actions

A. Section 126 Control Remedy NFR

B. New Petitions

V. Administrative Requirements

A. Executive Order 12866: Regulatory Impact Analysis

B. Impact on Small Entities

C. Unfunded Mandates Reform Act

D. Paperwork Reduction Act

E. Executive Order 13045: Protection of Children From

Environmental Health Risks and Safety Risks

F. Executive Order 12898: Environmental Justice

G. Executive Order 12875: Enhancing the Intergovernmental

Partnership

H. Executive Order 13084: Consultation and Coordination with

Indian Tribal Governments

I. National Technology Transfer and Advancement Act

J. Judicial Review

K. Congressional Review Act

I. Background

A. Findings Under Section 126 Petitions To Reduce Interstate Ozone

Transport

On April 30, 1999, EPA took final action on petitions filed by

eight Northeastern States seeking to mitigate what they describe as

significant transport of one of the main precursors of ground-level

ozone, NOX, across State boundaries (64 FR 28250, May 25,

1999). The eight States (Connecticut, Maine, Massachusetts, New

Hampshire, New York, Rhode Island, Pennsylvania, and Vermont) filed the

petitions under section 126 of the CAA. Section 126 provides that if

EPA finds that identified stationary sources emit in violation of the

section 110(a)(2)(D) prohibition on emissions that significantly

contribute to ozone nonattainment or maintenance problems in a

petitioning State, EPA is authorized to establish Federal emissions

limits for the sources.

In the April 30 NFR, EPA made final determinations that portions of

six of these petitions are technically meritorious. Specifically, with

respect to the 1-hour and 8-hour NAAQS for ozone, EPA made affirmative

technical determinations that certain new and existing emissions

sources in certain States emit or would emit NOX in amounts

that contribute significantly to nonattainment in, or interfere with

maintenance by, one or more States that submitted petitions in 1997-

1998 under section 126. The sources that emit NOX in amounts

that significantly contribute to downwind nonattainment problems are

large electric generating units (EGUs) and large non-EGUs for which

highly cost-effective controls are available.

All of the eight petitioning States requested findings under

section 126 under the 1-hour standard, and five of the petitioning

States also requested findings under the 8-hour standard. The EPA took

action under the 1-hour and 8-hour standards as specifically requested

in each State's petition. The EPA made independent technical

determinations for each standard with respect to the individual

petitions. (See the part 52 regulatory text in the April 30, 1999 NFR.)

Under the 1-hour standard, in aggregate for the 8 petitions, EPA made

affirmative technical determinations of significant contribution for

sources located in the following States: Delaware, Indiana, Kentucky,

Maryland, Michigan, North Carolina, New Jersey, New York, Ohio,

Pennsylvania, Virginia, West Virginia, and the District of Columbia.

Under the 8-hour standard, in aggregate for the five petitions, EPA

made affirmative

[[Page 33957]]

technical determinations of significant contribution for sources

located in the same States as under the 1-hour standard plus seven

additional States: Alabama, Connecticut, Illinois, Massachusetts,

Missouri, Rhode Island, and Tennessee.

The EPA also provided that the portions of the petitions for which

EPA made affirmative technical determinations would be automatically

deemed granted or denied at certain later dates pending certain actions

by the States and EPA regarding State submittals in response to the

final NOX SIP call. Interpreting the interplay between

sections 110 and 126, EPA believes that a State's compliance with the

NOX SIP call would eliminate the basis for a finding under

section 126 for sources located in that State, under these petitions.

See 64 FR 28271-28274. As a consequence, EPA concluded that it was

appropriate to structure its action on the section 126 petitions to

account for the existence of the NOX SIP call, given that it

had an explicit and expeditious schedule for compliance. See 64 FR

28274-28277.

Under EPA's interpretation of section 126 of the CAA, a source or

group of sources is emitting in violation of the prohibition of section

110(a)(2)(D)(i) where the applicable SIP fails to prohibit (and EPA has

not remedied this failure through a FIP) a quantity of emissions from

that source or group of sources that EPA has determined contributes

significantly to nonattainment or interferes with maintenance in a

downwind State. See 64 FR 28271-28274. Under both the section 126

petitions and the NOX SIP call, EPA was operating on

basically the same set of facts regarding the same pollutants and

largely the same amounts of upwind reductions affecting the same

downwind States. Thus, where a State has complied with the

NOX SIP call and EPA has approved its SIP revision, EPA

would not find that sources in that State were emitting in violation of

the prohibition of section 110 and therefore would not subject those

sources to a Federal remedy under section 126. See 64 FR 28271-28274.

In the absence of the NOX SIP call, EPA would simply

have made a finding under section 126 in the final rule as to whether

sources named in the petitions were emitting in violation of the

prohibition of section 110. However, under the NOX SIP call

there was both a requirement for States to reduce their contribution to

downwind nonattainment problems and an explicit and expeditious

schedule for States to do so. In light of this existing requirement and

a reasonable expectation that States would comply with it within a

short and known time frame, EPA believed it was reasonable to make

final only technical determinations as to which sources would be in

violation of the prohibition of section 110 if the States or EPA failed

to meet a schedule based on the schedule established in the

NOX SIP call. See 64 FR 28274-28277. Deferring the actual

findings under section 126 allowed States subject to the NOX

SIP call an opportunity to comply with the NOX SIP call

before triggering the findings.

The EPA coordinated its section 126 findings with the

NOX SIP call compliance schedule in the following manner.

EPA provided that for each source for which EPA had made an affirmative

technical determination of significant contribution, EPA would be

deemed to find that the source emits or would emit NOX in

violation of the prohibition of section 110(a)(2)(D)(i) under the

following circumstances. First, the finding was deemed to be made for

such sources in a State if by November 30, 1999, EPA had not either (a)

proposed to approve a State's SIP revision to comply with the

NOX SIP call or (b) promulgated a FIP for the State. Second,

the finding was deemed to be made for such sources in a State if by May

1, 2000, EPA had not either (a) approved a State's SIP revision to

comply with the NOX SIP call or (b) promulgated

implementation plan provisions meeting the section 110(a)(2)(D)(i)

requirements. Upon EPA's approval of a State's SIP revision to comply

with the NOX SIP call or promulgation of a FIP, the final

rule provided that corresponding portions of the petitions would

automatically be deemed denied. Also, if a finding is deemed to be

made, it would be deemed to be withdrawn, and the corresponding

portions of the petitions would also be deemed to be denied, upon EPA's

approval of a State's SIP revision to comply with the NOX

SIP call or promulgation of a FIP. See 40 CFR 52.34(i).

B. Effect of Court Decisions

1. 8-Hour Ozone NAAQS

On May, 14, 1999, the D.C. Circuit issued an opinion questioning

the constitutionality of the CAA authority to review and revise the

NAAQS, as applied in EPA's revision to the ozone and particulate matter

NAAQS. The Court stopped short of finding the statutory grant of

authority unconstitutional, instead providing EPA with another

opportunity to develop a determinate principle for promulgating NAAQS

under the statute. The court continued by addressing other issues,

including EPA's authority to classify and set attainment dates for a

revised ozone standard. Based on the statutory provisions regarding

classifications and attainment dates under sections 172(a) and 181(a),

the court's ruling curtailed EPA's ability to require States to comply

with a more stringent ozone NAAQS. The EPA has recommended to the

Department of Justice that the government seek rehearing on this and

other portions of the court's opinion. However, EPA also believes that

unless and until the court's decision is revised or vacated, EPA should

not continue implementation efforts with respect to the 8-hour standard

that could be construed as inconsistent with the court's ruling. This

reservation would not apply to any EPA actions based on the 1-hour

standard.

2. Stay of Compliance Schedule for NOX SIP Call

On May 25, 1999, the D.C. Circuit issued a partial stay of the

submission of the SIP revisions required under the NOX SIP

call. The NOX SIP call had required submission of the SIP

revisions by September 30, 1999. State Petitioners challenging the

NOX SIP Call moved to stay the submission schedule until

April 27, 2000. The D.C. Circuit issued a stay of the SIP submission

deadline pending further order of the court. Michigan v. EPA, No. 98-

1497 (D.C. Cir. May 25, 1999) (order granting stay in part).

II. Interim Final Stay

In light of the change in circumstances created by the court

rulings, EPA believes it is appropriate to stay temporarily the section

126 April 30 NFR, while proceeding with a notice-and-comment rulemaking

to address the issues raised by the rulings. In particular, with

respect to the ruling on the 8-hour NAAQS, although EPA continues to

believe that the 8-hour NAAQS has a compelling basis in public health

protection, EPA believes that the court decision creates substantial

uncertainty concerning the statutory authority both for revising the

NAAQS and for implementing any such revised NAAQS. Accordingly, EPA

believes that the portion of the section 126 April 30 NFR that requires

sources in upwind States to implement controls for the purpose of

reducing their impact on downwind 8-hour nonattainment areas should be

stayed on an interim basis while EPA takes public comment on, and

further considers, the matter.

With respect to the court's decision staying the SIP submission

schedule for the NOX SIP call, EPA believes it is no

[[Page 33958]]

longer appropriate to link its findings under section 126 to the

compliance schedule for the NOX SIP call by deferring making

final findings as long as States and EPA are meeting that schedule. EPA

believed that, while not explicitly contemplated by the statutory

language, its initial approach was a reasonable way to address the

requirement to act on the section 126 petitions in the same general

time frame as that in which States were required to comply with the

NOX SIP call. Under this approach, EPA gave upwind States an

opportunity to address the ozone transport problem themselves, but did

not delay implementation of the remedy beyond May 1, 2003. The EPA had

determined that requiring controls to be in place for the 2003 summer

ozone season, i.e., by May 1, 2003, would bring about downwind

compliance ``as expeditiously as practicable,'' as required by Title I,

and would require sources emitting in violation of the prohibition of

section 110 to reduce emissions ``as expeditiously as practicable,'' as

required by section 126. Now, in the absence of any requirement that

States submit SIP revisions under the NOX SIP call by

September 30, 1999, as previously required, it is unlikely that States

will submit such revisions in time for EPA to propose approval by

November 30, 1999, and finalize approval by May 1, 2000. It is not

possible or appropriate to coordinate the section 126 action with the

requirements of the NOX SIP call without a schedule for

compliance with the NOX SIP call. Absent such action,

deferring final action on the petitions and providing an automatic

trigger mechanism tied to specific dates for action on the SIP

revisions no longer makes sense.

In its upcoming proposal, EPA plans to address the concerns raised

by the court rulings in the following manner. First, EPA plans to

propose to stay indefinitely the affirmative technical determinations

with respect to sources implicated on the basis of the 8-hour standard,

pending further developments in the NAAQS litigation.1

Second, EPA plans to propose to delete the automatic trigger mechanism

and simply take final action granting or denying the petitions with

respect to the sources for which EPA has made affirmative technical

determinations. EPA intends to take final action on proposed changes by

November 30, 1999. If necessary, however, as EPA plans to discuss in

the proposal, EPA intends to extend this stay to the extent needed to

ensure that the stay does not expire before EPA completes final action

on the proposed changes.

---------------------------------------------------------------------------

\1\ At this time, in light of the court's order staying the SIP

submission deadline under the NOX SIP call, EPA does not

see a need to take similar action for the 8-hour NAAQS portions of

the NOX SIP call rule.

---------------------------------------------------------------------------

III. Rulemaking Procedures

The EPA is taking this action as an interim final rule without

benefit of prior proposal and public comment because EPA finds that the

Administrative Procedure Act (APA) good cause exception to the

requirement for notice-and-comment rulemaking applies here. See 5

U.S.C. 553(b)(B). EPA believes that providing for notice-and-comment

rulemaking before taking this action is impracticable and contrary to

the public interest. In light of the impact that the court rulings have

on key elements of the April 30 NFR, it would be contrary to the public

interest for the rule to remain in effect while EPA conducts rulemaking

to address the consequences of the court rulings on the April 30 NFR.

In particular, the April 30 NFR imposes a potential compliance

burden on a number of sources based on the 8-hour ozone standard. While

EPA disagrees with the holding and expects to take further action to

address it, the form of the court's ruling on that standard and the

status of the litigation have created substantial uncertainty as to

whether and when these sources may become subject to control

requirements under section 126 based on the 8-hour standard. Thus, EPA

believes it is important to immediately inform these sources of the

Agency's intent regarding their potential control obligations. In

addition, States may view the automatic trigger mechanism now in place

as pressuring them to comply with the NOX SIP call schedule,

even though that schedule has been stayed by the court. The EPA

believes that preserving the linkage with the NOX SIP call

deadlines is inappropriate in light of the court's decision staying the

submission deadlines, and might be viewed by the court as placing

improper pressure on States. Today's action is necessary to immediately

eliminate any such concerns. It would be impracticable to achieve these

purposes of immediate clarification, and hence, would also be contrary

to the public interest, if this action were delayed by providing for

prior public notice-and-comment.

In addition, this interim final stay will expire in approximately

five months and this action will not have any effect on the ultimate

deadlines for control of emissions. EPA will soon follow this action

with a proposal requesting comment on changes to the April 30 NFR

consistent with the approach taken here to address the court decisions.

In light of the short time period that this interim stay is in effect

and the imminent rulemaking to take comment on a long-term resolution

of the issues this interim stay is intended to address, EPA believes

that providing for prior public comment is unnecessary.

This interim final stay is effective as of July 26, 1999. Given the

need to provide immediate clarification regarding the effects of the

court decisions and the fact that this action relieves a potential

burden on certain affected parties, EPA finds good cause to make this

rule effective July 26, 1999, which is the effective date of the rule

stayed by this action. The EPA believes this is consistent with 5

U.S.C. 553(d)(1) and (3), as well as with 5 U.S.C. 801 and 808. While

this interim final stay is effective for a limited period, EPA will

also conduct full notice-and-comment rulemaking on similar changes to

the April 30 NFR to address the court decisions.

IV. Status of Upcoming Related Actions

A. Section 126 Control Remedy NFR

The EPA proposed to implement a new Federal NOX Budget

Trading Program as the section 126 control remedy (63 FR 56292, October

21, 1998). The program will apply to all sources for which EPA makes a

final section 126 finding. The EPA intended to finalize all aspects of

the section 126 remedy by April 30, 1999. However, as discussed in the

April 30 NFR, EPA needed additional time to evaluate the numerous

comments it received on the trading program proposal and the source-

specific emission inventory data. In the April 30 NFR, EPA finalized

the general parameters of the section 126 remedy, including the

decision to implement a capped, market-based trading program,

identification of the sources subject to the program, specification of

the basis for the total tonnage cap, and specification of the

compliance date. The EPA committed to finalizing the details of the

trading program, including the unit-by-unit allocations, by July 15,

1999.

As discussed in Section I.E. of the April 30 NFR, EPA entered into

a consent decree with the petitioning States that, among other things,

committed the EPA to issuing a final section 126 remedy by April 30,

1999. In order to satisfy that consent decree, EPA promulgated, on an

interim basis, emission limitations that would be imposed on individual

sources only in the event a finding under section 126 was automatically

deemed made and

[[Page 33959]]

EPA had not yet finalized the Federal NOX Budget Trading

Program regulations. The EPA emphasized it did not expect this default

remedy, set forth in Sec. 52.34(k), ever to be applied because the

trading program would be finalized in July 1999, while the earliest a

section 126 finding would be made was November 30 of the same year.

Because of the need to conduct a further rulemaking to address the

impact of the recent court decisions on the section 126 rulemaking, EPA

will be delaying the promulgation of the Federal NOX Budget

Trading Program for a short period of time. The EPA now intends to

finalize the trading program and make the section 126 findings in the

same rulemaking action. At that time, EPA would delete the default

remedy from the rule. Therefore, under these new circumstances, the

default remedy would also never be applied.

B. New Petitions

The EPA has recently received two additional section 126 petitions

from the States of New Jersey (dated April 14, 1999) and Maryland

(dated April 29, 1999). (See Docket A-99-21.) These petitions seek

findings under both the 1-hour and 8-hour standards for large EGUs and

large non-EGUs located in specified upwind States. The EPA is currently

developing a schedule to take action on at least the 1-hour portions of

these new section 126 petitions. Under section 126, EPA is required to

take action to grant or deny the petitions within 60 days of receipt.

However, section 307(d) of the CAA authorizes EPA to extend the

timeframe for action up to 6 months if EPA determines that the

extension is necessary to meet the CAA's rulemaking requirements. The

EPA is issuing a final rule determining that a 6-month extension is

necessary for both of the new petitions to allow EPA adequate time to

develop the proposals and to provide the public sufficient time to

comment. The EPA is also evaluating these petitions in light of the

recent court decisions.

V. Administrative Requirements

A. Executive Order 12866: Regulatory Impact Analysis

Under Executive Order 12866 (58 FR 51735, October 4, 1993), the

Agency must determine whether a 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.

The EPA believes that this interim final stay of pre-existing

regulatory requirements is not a ``significant regulatory action''

because it relieves, rather than imposes, regulatory requirements, and

raises no novel legal or policy issues.

B. Impact on Small Entities

The Regulatory Flexibility Act (RFA), as amended by the Small

Business Regulatory Enforcement Fairness Act (SBREFA), provides that

whenever an agency is required to publish a general notice of final

rulemaking, it must prepare and make available a final Regulatory

Flexibility Analysis, unless it certifies that the proposed rule, if

promulgated, will not have ``a significant economic impact on a

substantial number of small entities.''

This rule will not have a significant impact on a substantial

number of small entities because it does not create any new

requirements. Therefore, because this rule does not create any new

requirements, I certify that this action will not have a significant

economic impact on a substantial number of small entities.

C. 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, 2

U.S.C. 1532, EPA generally must prepare a written statement, including

a cost-benefit analysis, for any proposed or final rule that ``includes

any Federal mandate that may result in the expenditure by State, local,

and tribal governments, in the aggregate, or by the private sector, of

$100,000,000 or more * * * in any one year.'' A ``Federal mandate'' is

defined to include a ``Federal intergovernmental mandate'' and a

``Federal private sector mandate'' (2 U.S.C. 658(6)). A ``Federal

intergovernmental mandate,'' in turn, is defined to include a

regulation that ``would impose an enforceable duty upon State, local,

or tribal governments (2 U.S.C. 658(5)(A)(i)), except for, among other

things, a duty that is ``a condition of Federal assistance (2 U.S.C.

658(5)(A)(i)(I)). A ``Federal private sector mandate'' includes a

regulation that ``would impose an enforceable duty upon the private

sector,'' with certain exceptions (2 U.S.C. 658(7)(A)).

The EPA has determined that this action does not include a Federal

mandate that may result in estimated costs of $100 million or more to

either State, local, or tribal governments in the aggregate, or to the

private sector. This Federal action imposes no new requirements.

Accordingly, no additional costs to State, local, or tribal

governments, or to the private sector, result from this action.

D. Paperwork Reduction Act

This interim final rule does not impose any new information

collection requirements. Therefore, an Information Collection Request

document is not required.

E. Executive Order 13045--Protection of Children From Environmental

Health Risks and Safety Risks

The Executive Order 13045 applies to any rule that EPA determines

is (1) ``economically significant'' as defined under Executive Order

12866, and (2) addressed an environmental health or safety risk that

has 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 interim

final rule is not subject to Executive Order 13045, entitled

``Protection of Children From Environmental Health Risks and Safety

Risks'' (62 FR 19885, April 23, 1997), because it is not economically

significant under E.O. 12866 and does not involve decisions on

environmental health risks or safety risks that may disproportionately

affect children.

F. Executive Order 12898: Environmental Justice

Executive Order 12898 requires that each Federal agency make

achieving environmental justice part of its mission by identifying and

addressing, as appropriate, disproportionately high and adverse human

health or

[[Page 33960]]

environmental effects of its programs, policies, and activities on

minorities and low-income populations. This Federal action imposes no

new requirements and will not delay achievement of emissions reductions

under existing requirements. Accordingly, no disproportionately high or

adverse effects on minorities or low-income populations result from

this action.

G. Executive Order 12875: Enhancing the Intergovernmental Partnership

Under Executive Order 12875, EPA may not issue a regulation that is

not required by statute and that creates a mandate upon a State, local

or tribal government, unless the Federal Government provides the funds

necessary to pay the direct compliance costs incurred by those

Governments or EPA consults with those governments. If EPA complies by

consulting, Executive Order 12875 requires EPA to provide to the Office

of Management and Budget a description of the extent of EPA's prior

consultation with representatives of affected State, local and tribal

governments, the nature of their concerns, any written communications

from the governments, and a statement supporting the need to issue the

regulation. In addition, Executive Order 12875 requires EPA to develop

an effective process permitting elected officials and other

representatives of State, local and tribal governments ``to provide

meaningful and timely input in the development of regulatory proposals

containing significant unfunded mandates.''

Today's rule does not create a mandate on State, local or tribal

governments. The rule does not impose any enforceable duties on these

entities. Accordingly, the requirements of section 1(a) of E.O. 12875

do not apply to this rule.

H. Executive Order 13084: Consultation and Coordination with Indian

Tribal Governments

Under Executive Order 13084, EPA may not issue a regulation that is

not required by statute, that significantly or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

Government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments, or EPA consults with those

governments. If EPA complies by consulting, Executive Order 13084

requires EPA to provide to the Office of Management and Budget, in a

separately identified section of the preamble to the rule, a

description of the extent of EPA's prior consultation with

representatives of affected tribal governments, a summary of the nature

of their concerns, and a statement supporting the need to issue the

regulation. In addition, Executive Order 13084 requires EPA to develop

an effective process permitting elected officials and other

representatives of Indian tribal governments ``to provide meaningful

and timely input in the development of regulatory policies on matters

that significantly or uniquely affect their communities.''

Today's rule does not significantly or uniquely affect the

communities of Indian tribal governments. This action does not impose

any requirements that affect Indian Tribes. Accordingly, the

requirements of section 3(b) of E.O. 13084 do not apply to this rule.

I. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement

Act of 1995 (NTTAA), Pub. L. No. 104-113, 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.

This interim final rule does not involve the promulgation of any

new technical standards. Therefore, NTTAA requirements are not

applicable to today's rule.

J. Judicial Review

Section 307(b)(1) of the CAA indicates which Federal Courts of

Appeal have venue for petitions of review of final actions by EPA. This

Section provides, in part, that petitions for review must be filed in

the Court of Appeals for the District of Columbia Circuit (i) when the

agency action consists of ``nationally applicable regulations

promulgated, or final actions taken, by the Administrator,'' or (ii)

when such action is locally or regionally applicable, if ``such action

is based on a determination of nationwide scope or effect and if in

taking such action the Administrator finds and publishes that such

action is based on such a determination.''

For the reasons discussed in the April 30 NFR, the Administrator

determined that final action regarding the section 126 petitions is of

nationwide scope and effect for purposes of section 307(b)(1). Thus,

any petitions for review of final actions regarding the section 126

rulemaking must be filed in the Court of Appeals for the District of

Columbia Circuit within 60 days from the date final action is published

in the Federal Register.

K. Congressional Review Act

The Congressional Review Act (CRA), 5 U.S.C. 801 et seq., as added

by the Small Business Regulatory Enforcement Fairness Act of 1996,

generally provides that before a rule may take effect, the agency

promulgating the rule must submit a rule report, which includes a copy

of the rule, to each House of the Congress and to the Comptroller

General of the United States. Section 808 of the CRA provides an

exception to this requirement. For any rule for which an agency for

good cause finds that notice and comment are impracticable,

unnecessary, or contrary to the public interest, the rule may take

effect on the date set by the Agency. The EPA will submit a report

containing this rule and other required information to the U.S. Senate,

the U.S. House of Representatives, and the Comptroller General of the

United States prior to publication of the rule in the Federal Register.

This action is not a ``major rule'' as defined by 5 U.S.C. Sec. 804(2).

As EPA is finding good cause to promulgate this rule without prior

notice and comment, this rule will be effective July 26, 1999.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Emissions trading,

Nitrogen oxides, Ozone transport, Reporting and recordkeeping

requirements.

Dated: June 11, 1999.

Carol M. Browner,

Administrator.

For the reasons set forth in the preamble, part 52 of chapter 1 of

title 40 of the Code of Federal Regulations is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

1. The authority citation for part 52 continues to read as follows:

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

[[Page 33961]]

Subpart A--General Provisions

2. Section 52.34 is amended by adding paragraph (l) to read as

follows:

Sec. 52.34 Action on petitions submitted under section 126 relating to

emissions of nitrogen oxides.

* * * * *

(l) Temporary stay of rules. Notwithstanding any other provisions

of this subpart, the effectiveness of 40 CFR 52.34 is stayed from July

26, 1999 until November 30, 1999.

[FR Doc. 99-15712 Filed 6-23-99; 8:45 am]

BILLING CODE 6560-50-P