Extension of Administrative Stay; Approval and Promulgation of Implementation Plans; New Mexico; Federal Implementation Plan for Interstate Transport of Pollution Affecting Visibility and Best Available Retrofit Technology Determination, 64908-64911 [2012-26089]
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64908
Federal Register / Vol. 77, No. 206 / Wednesday, October 24, 2012 / Rules and Regulations
11. Indian Tribal Governments
This rule does not have tribal
implications under Executive Order
13175, Consultation and Coordination
with Indian Tribal Governments,
because it does not have a substantial
direct effect on one or more Indian
tribes, 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.
12. Energy Effects
This action is not a ‘‘significant
energy action’’ under Executive Order
13211, Actions Concerning Regulations
That Significantly Affect Energy Supply,
Distribution, or Use.
13. Technical Standards
This rule does not use technical
standards. Therefore, we did not
consider the use of voluntary consensus
standards.
14. Environment
We have analyzed this rule under
Department of Homeland Security
Management Directive 023–01 and
Commandant Instruction M16475.lD,
which guide the Coast Guard in
complying with the National
Environmental Policy Act of 1969
(NEPA) (42 U.S.C. 4321–4370f), and
have determined that this action is one
of a category of actions that do not
individually or cumulatively have a
significant effect on the human
environment. This rule involves the
establishment of a temporary safety
zone. This rule is categorically excluded
from further review under paragraph
34(g) of Figure 2–1 of the Commandant
Instruction. An environmental analysis
checklist supporting this determination
and a Categorical Exclusion
Determination are available in the
docket where indicated under
ADDRESSES. We seek any comments or
information that may lead to the
discovery of a significant environmental
impact from this rule.
TKELLEY on DSK3SPTVN1PROD with RULES
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation
(water), Reporting and recordkeeping
requirements, Security measures,
Waterways.
For the reasons discussed in the
preamble, the Coast Guard amends 33
CFR part 165 as follows:
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PART 165—REGULATED NAVIGATION
AREAS AND LIMITED ACCESS AREAS
1. The authority citation for part 165
continues to read as follows:
■
Authority: 33 U.S.C. 1231; 46 U.S.C.
Chapter 701, 3306, 3703; 50 U.S.C. 191, 195;
33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5; Pub. L.
107–295, 116 Stat. 2064; Department of
Homeland Security Delegation No. 0170.1.
2. Add § 165.T05–0812 to read as
follows:
■
§ 165.T05–0812 Safety Zone, Atlantic
Intracoastal Waterway; Emerald Isle, NC.
(a) Regulated area. The following area
is a safety zone: This zone includes the
waters directly under and 100 yards
either side of the NC 58 Fixed Bridge
crossing the Atlantic Intracoastal
Waterway, mile 226, at Emerald Isle,
North Carolina (latitude 34°40′28″ N,
longitude 077°03′56″ W).
(b) Regulations. The general safety
zone regulations found in 33 CFR
165.23 apply to the safety zone created
by this temporary section, § 165.T05–
0812. In addition the following
regulations apply:
(1) All vessels requiring greater than
50 feet horizontal clearance to safely
transit through the NC 58 Fixed Bridge
crossing the Atlantic Intracoastal
Waterway, mile 226, at Emerald Isle,
North Carolina must contact the work
supervisor on VHF–FM marine band
radio channels 13 and 16 one hour in
advance of intended transit.
(2) All Coast Guard assets enforcing
this safety zone can be contacted on
VHF–FM marine band radio channels
13 and 16.
(3) The operator of any vessel within
or in the immediate vicinity of this
safety zone shall:
(i) Stop the vessel immediately upon
being directed to do so by any
commissioned, warrant or petty officer
on board a vessel displaying a Coast
Guard Ensign, and
(ii) Proceed as directed by any
commissioned, warrant or petty officer
on board a vessel displaying a Coast
Guard Ensign.
(c) Definitions. (1) Captain of the Port
North Carolina means the Commander,
Coast Guard Sector North Carolina or
any Coast Guard commissioned, warrant
or petty officer who has been authorized
by the Captain of the Port to act on his
behalf.
(2) Designated representative means
any Coast Guard commissioned,
warrant, or petty officer who has been
authorized by the Captain of the Port
North Carolina to assist in enforcing the
safety zone described in paragraph (a) of
this section.
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(3) Work Supervisor means the
contractors on site representative.
(d) Enforcement. The U.S. Coast
Guard may be assisted by Federal, State
and local agencies in the patrol and
enforcement of the zone.
(e) Enforcement period. This section
will be enforced from 8 p.m. December
12, 2012 through 8 p.m. February 14,
2013 unless cancelled earlier by the
Captain of the Port.
Dated: October 4, 2012.
A. Popiel,
Captain, U.S. Coast Guard, Captain of the
Port, U.S. Coast Guard Sector North Carolina.
[FR Doc. 2012–26154 Filed 10–23–12; 8:45 am]
BILLING CODE 9110–04–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R06–OAR–2010–0846; FRL–9743–8]
Extension of Administrative Stay;
Approval and Promulgation of
Implementation Plans; New Mexico;
Federal Implementation Plan for
Interstate Transport of Pollution
Affecting Visibility and Best Available
Retrofit Technology Determination
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The EPA is extending for an
additional 45 days the existing
administrative stay of the final rule
titled ‘‘Approval and Promulgation of
Implementation Plans; New Mexico;
Federal Implementation Plan for
Interstate Transport of Pollution
Affecting Visibility and Best Available
Retrofit Technology Determination’’
under the authority of the
Administrative Procedure Act (APA).
EPA previously stayed this rule for 90
days, from July 16, 2012 until October
15, 2012. This action extends the
existing administrative stay by an
additional 45 days to allow for
additional time for further discussions
of alternatives to EPA’s Federal
Implementation Plan (FIP). Today’s
action reflects this stay in the Code of
Federal Regulations.
DATES: 40 CFR 52.1628 is stayed from
October 15, 2012 until November 29,
2012.
ADDRESSES: EPA has established a
docket for this action under Docket ID
No. EPA–R06–OAR–2010–0846. All
documents in the docket are listed in
the Federal eRulemaking portal index at
https://www.regulations.gov and are
available either electronically at https://
SUMMARY:
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www.regulations.gov or in hard copy at
EPA Region 6, 1445 Ross Ave., Dallas,
TX, 75202–2733. To inspect the hard
copy materials, please schedule an
appointment during normal business
hours with the contact listed in the FOR
FURTHER INFORMATION CONTACT section.
A reasonable fee may be charged for
copies.
FOR FURTHER INFORMATION CONTACT:
Agustin Carbo-Lugo, EPA Region 6,
(214) 665–8037, CarboLugo.Agustin@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document wherever
‘‘we,’’ ‘‘us,’’ ‘‘our,’’ or ‘‘the Agency’’ is
used, we mean the EPA. Unless
otherwise specified, when we say the
‘‘San Juan Generating Station,’’ or
‘‘SJGS,’’ we mean units 1, 2, 3, and 4,
inclusive.
I. Background
On August 22, 2011, the EPA
published a final rule disapproving a
portion of the State Implementation
Plan (SIP) revision received from the
State of New Mexico on September 17,
2007, for the purpose of addressing the
‘‘good neighbor’’ requirements of
section 110(a)(2)(D)(i) of the CAA for the
1997 8-hour ozone National Ambient
Air Quality Standards (NAAQS or
standards) and the 1997 fine particulate
matter (PM2.5) NAAQS (the ‘‘NM FIP
Rule’’). 76 FR 52388. In that action, EPA
disapproved the New Mexico Interstate
Transport SIP provisions that address
the requirement of section
110(a)(2)(D)(i)(II) that emissions from
New Mexico sources do not interfere
with measures required in the SIP of
any other state under part C of the CAA
to protect visibility. We found that New
Mexico sources, except the San Juan
Generating Station (SJGS), were
sufficiently controlled to eliminate
interference from those sources with the
visibility programs of other states. EPA
promulgated a Federal Implementation
Plan (FIP) requiring the implementation
of nitrogen oxides (NOX) and sulfur
dioxide (SO2) emission limits necessary
at the San Juan Generating Station to
prevent such interference. This FIP also
addresses the Regional Haze (RH) Best
Available Retrofit Technology (BART)
requirement for NOX for SJGS. In
addition, EPA implemented sulfuric
acid (H2SO4) hourly emission limits at
the SJGS, to minimize the contribution
of this compound to visibility
impairment. Finally, we found that
compliance with the NOX, SO2, and
H2SO4 emission limits must be within 5
years of the effective date of our final
rule consistent with the requirements of
the regional haze regulations.
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Petitions for judicial review of the
final rule were subsequently filed in the
United States Court of Appeals for the
Tenth Circuit. The petitioners bringing
those challenges are WildEarth
Guardians, Public Service of New
Mexico (PNM), and New Mexico
Governor Susana Martinez with the
New Mexico Environment Department.
By a letter to the EPA Administrator,
dated April 26, 2012, the Governor of
New Mexico requested ‘‘a short term
(90-day) stay’’ of the federal
implementation plan to evaluate the
potential for alternatives to the rule
requirements. She presents a stay as
being necessary for ‘‘meaningful,
productive negotiations’’ that may lead
to an avoidance of litigation. By a letter
to the acting Regional Administrator of
EPA Region 6, dated May 8, 2012, PNM
also requested ‘‘an opportunity to
engage in productive discussions as
proposed by Governor Martinez.’’ In
response to these requests, EPA stayed
the effectiveness of its rule for 90 days.
77 FR 41697 (July 16, 2012). This
temporary stay is set to expire on
October 15, 2012.
We now believe that additional time
is warranted so that the State of New
Mexico can provide additional
information required for EPA to
consider the state’s alternative and for
further discussions among the
stakeholders. The extension of time will
allow EPA, the State of New Mexico and
stakeholders to discuss New Mexico’s
new plan proposal, or additional ideas
that could prove beneficial in creating a
state plan that would ultimately satisfy
the requirements of the CAA.
II. Today’s Final Rule
A. Issuance of a Stay and Delay of the
Effectiveness of the NM FIP Rule
Pursuant to section 705 of the APA,
the EPA hereby extends the existing
administrative stay of the effectiveness
of the NM FIP Rule for a period of an
additional 45 days beyond the current
expiration date of October 15, 2012. By
this action, we are extending the
administrative stay of the effectiveness
of the rule published in the Federal
Register on August 22, 2011 (76 FR
52388). This stay of effectiveness will
remain in place for an additional 45
days, which will expire on November
29, 2012. This action adds a note to 40
CFR 52.1628 that there is a 135 day stay
of the effectiveness of the NM FIP Rule,
but, in its substance, it does not alter
any future compliance requirements.
There are no compliance obligations
under the terms of the NM FIP that arise
during the 135 day period.
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64909
Under section 705 of the APA, ‘‘an
agency * * * may postpone the
effective date of [an] action taken by it
pending judicial review.’’ This source of
authority requires an Agency finding
that ‘‘justice requires’’ a temporary stay
of rule requirements. Accordingly, as
groundwork for the mentioned
discussions among the Agency, the State
of New Mexico, and other stakeholders,
EPA now finds that justice requires an
additional 45-day stay of the rule’s
effectiveness. Our extension of the
temporary stay of the effectiveness of
the NM FIP Rule applies only to any
requirements established in 40 CFR
52.1628 during the duration of the stay,
as described previously in the initial 90day stay.
B. Basis for Making This Action
Effective October 15, 2012
The EPA also believes that there is
good cause to make today’s action
effective immediately, rather than
effective within 30 days, within the
meaning of 5 U.S.C. 553(d)(3). One
purpose of the 30-day waiting period
prescribed in 5 U.S.C. 553(d) is to give
affected parties a reasonable time to
adjust their behavior and prepare before
the final action takes effect. Whereas
here, this action extends the stay that is
already in effect, and any delay in its
effectiveness will result in unnecessary
delays for productive negotiations.
Therefore, balancing 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 this
action, EPA has determined that it is
unnecessary, impracticable and contrary
to the public interest to delay this
action. Additionally, since this action
does not ‘‘implement, interpret, or
prescribe law or policy,’’ within the
meaning of 5 U.S.C. 551(4), nor makes
changes to substantive requirements,
EPA concludes that it does not
constitute a substantive rulemaking.
Therefore, it is not subject to notice and
comment requirements.
III. Statutory and Executive Order
Reviews
A. Executive Order 12866: Regulatory
Planning and Review and Executive
Order 13563: Improving Regulation and
Regulatory Review 13563
This action will extend the current
administrative stay of the NM FIP for an
additional 45 days and imposes no
additional requirements. This type of
action is exempt from review under
Executive Orders 12866 (58 FR 51735,
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October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011).
D. Unfunded Mandates Reform Act
(UMRA)
B. Paperwork Reduction Act
This action contains no Federal
mandates under the provisions of Title
II of the Unfunded Mandates Reform
Act of 1995 (UMRA), 2 U.S.C. 1531–
1538 for State, local, or tribal
governments or the private sector. EPA
has determined that this temporary stay
does not contain a Federal mandate that
may result in expenditures that exceed
the inflation-adjusted UMRA threshold
of $100 million by State, local, or Tribal
governments or the private sector in any
1-year. Therefore, this action is not
subject to the requirements of sections
202 or 205 of the UMRA.
This action is also not subject to the
requirements of section 203 of UMRA
because it contains no regulatory
requirements that might significantly or
uniquely affect small governments. This
action will extend the current
administrative stay of the NM FIP for an
additional 45 days and imposes no
additional requirements.
This action does not impose an
information collection burden under the
provisions of the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq. Under the
Paperwork Reduction Act, a ‘‘collection
of information’’ is defined as a
requirement for ‘‘answers to * * *
identical reporting or recordkeeping
requirements imposed on ten or more
persons * * *.’’ 44 U.S.C. 3502(3)(A).
Because the temporary stay is for the
effectiveness of a rule that applies to a
single facility, (SJGS), the Paperwork
Reduction Act does not apply. See 5
CFR part 1320(c).
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 our regulations in 40 CFR
are listed in 40 CFR Part 9.
TKELLEY on DSK3SPTVN1PROD with RULES
C. Regulatory Flexibility Act
This action is not subject to the
Regulatory Flexibility Act (RFA), which
generally requires an agency to prepare
a regulatory flexibility analysis for any
rule that will have a significant
economic impact on a substantial
number of small entities. The RFA
applies only to rules subject to notice
and comment rulemaking requirements
under the APA or any other statute. This
action is not subject to notice and
comment requirements under the APA
or any other statute because, although
subject to the APA, this action does not
‘‘implement, interpret, or prescribe law
or policy,’’ within the meaning of APA
§ 551(4).
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E. Executive Order 13132: Federalism
This temporary stay 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. This action
merely is an extension to stay the
effectiveness of a final rule. Thus,
Executive Order 13132 does not apply
to this action.
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
EPA will consult and coordinate with
Tribes regarding BART alternatives
during the stay, however, this temporary
stay does not have tribal implications as
specified by Executive Order 13175 (65
FR 67249, November 9, 2000), because
it neither imposes substantial direct
compliance costs on tribal governments,
nor preempts tribal law. Furthermore,
this action does not ‘‘implement,
interpret, or prescribe law or policy,’’
within the meaning of 5 U.S.C. 551(4),
and therefore, it does not constitute a
substantive rulemaking. As such, this
action only grants a 90-day stay of the
effectiveness of the NM FIP Rule
without altering any future established
compliance requirements. Therefore, the
requirements of section 5(b) and 5(c) of
the Executive Order do not apply to this
action.
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G. Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks
This extension of a temporary stay is
not subject to Executive Order 13045
because it is not a rule of general
applicability, it is not economically
significant as defined under Executive
Order 12866, and does not have a
disproportionate effect on children.
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.
H. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
This action is not subject to Executive
Order 13211 (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
This extension of a temporary stay is
not subject to the National Technology
Transfer and Advancement Act of 1995
(‘‘NTTAA’’). Section 12(d) of the
NTTAA, Public Law 104–113, 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. NTTAA directs EPA
to provide Congress, through OMB,
explanations when the Agency decides
not to use available and applicable
voluntary consensus standards.
This action does not involve technical
standards. Therefore, EPA did not
consider the use of any voluntary
consensus standards.
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Federal Register / Vol. 77, No. 206 / Wednesday, October 24, 2012 / Rules and Regulations
J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
ENVIRONMENTAL PROTECTION
AGENCY
This extension of a temporary stay is
not subject to Executive Order 12898.
Executive Order 12898 (59 FR 7629,
February 16, 1994), establishes federal
executive policy on environmental
justice. Its main provision directs
federal agencies, to the greatest extent
practicable and permitted by law, to
make environmental justice part of their
mission by identifying and addressing,
as appropriate, disproportionately high
and adverse human health or
environmental effects of their programs,
policies, and activities on minority
populations and low-income
populations in the United States.
EPA has determined that this action
will not have disproportionately high
and adverse human health or
environmental effects on minority or
low-income populations because it does
not change the substance of 40 CFR
52.1628.
[EPA–HQ–OPP–2009–0677; FRL–9365–7]
40 CFR Part 180
K. Congressional Review Act
This action is not subject to the
Congressional Review Act (‘‘CRA’’). The
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. The Section 804 (3) of the
CRA defines ‘‘rule’’ as having the same
meaning given to such term in section
551 of the APA. See 5 U.S.C. 551(4).
Since this action is not designed to
implement, interpret, or prescribe law
or policy, within the meaning of APA,
this action is exempted from the
reporting requirements of the CRA.
TKELLEY on DSK3SPTVN1PROD with RULES
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur dioxide, Visibility,
Interstate transport of pollution,
Regional haze, Best available control
technology.
Dated: October 12, 2012.
Lisa P. Jackson,
Administrator.
[FR Doc. 2012–26089 Filed 10–23–12; 8:45 am]
BILLING CODE 6560–50–P
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Fluoxastrobin; Pesticide Tolerances
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
This regulation establishes
tolerances for combined residues of
fluoxastrobin and its Z-isomer in or on
poultry, liver; hog, fat; hog, meat
byproducts; and rice, grain. Arysta
LifeScience, North America, LLC,
requested these tolerances under the
Federal Food, Drug, and Cosmetic Act
(FFDCA).
SUMMARY:
This regulation is effective
October 24, 2012. Objections and
requests for hearings must be received
on or before December 24, 2012, and
must be filed in accordance with the
instructions provided in 40 CFR part
178 (see also Unit I.C. of the
SUPPLEMENTARY INFORMATION).
ADDRESSES: The docket for this action,
identified by docket identification (ID)
number EPA–HQ–OPP–2009–0677, is
available at https://www.regulations.gov
or at the Office of Pesticide Programs
Regulatory Public Docket (OPP Docket)
in the Environmental Protection Agency
Docket Center (EPA/DC), EPA West
Bldg., Rm. 3334, 1301 Constitution Ave.
NW., Washington, DC 20460–0001. The
Public Reading Room is open from 8:30
a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The
telephone number for the Public
Reading Room is (202) 566–1744, and
the telephone number for the OPP
Docket is (703) 305–5805. Please review
the visitor instructions and additional
information about the docket available
at https://www.epa.gov/dockets.
FOR FURTHER INFORMATION CONTACT:
Heather Garvie, Registration Division
(7504P), Office of Pesticide Programs,
Environmental Protection Agency, 1200
Pennsylvania Ave. NW., Washington,
DC 20460–0001; telephone number:
(703) 308–0034; email address:
garvie.heather@epa.gov.
DATES:
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this action apply to me?
You may be potentially affected by
this action if you are an agricultural
producer, food manufacturer, or
pesticide manufacturer. The following
list of North American Industrial
Classification System (NAICS) codes is
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64911
not intended to be exhaustive, but rather
provides a guide to help readers
determine whether this document
applies to them. Potentially affected
entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code
112).
• Food manufacturing (NAICS code
311).
• Pesticide manufacturing (NAICS
code 32532).
B. How can I get electronic access to
other related information?
You may access a frequently updated
electronic version of EPA’s tolerance
regulations at 40 CFR part 180 through
the Government Printing Office’s e-CFR
site at https://ecfr.gpoaccess.gov/cgi/t/
text/text-idx?&c=ecfr&tpl=/ecfrbrowse/
Title40/40tab_02.tpl.
C. How can I file an objection or hearing
request?
Under FFDCA section 408(g), 21
U.S.C. 346a, any person may file an
objection to any aspect of this regulation
and may also request a hearing on those
objections. You must file your objection
or request a hearing on this regulation
in accordance with the instructions
provided in 40 CFR part 178. To ensure
proper receipt by EPA, you must
identify docket ID number EPA–HQ–
OPP–2009–0677 in the subject line on
the first page of your submission. All
objections and requests for a hearing
must be in writing, and must be
received by the Hearing Clerk on or
before December 24, 2012. Addresses for
mail and hand delivery of objections
and hearing requests are provided in 40
CFR 178.25(b).
In addition to filing an objection or
hearing request with the Hearing Clerk
as described in 40 CFR part 178, please
submit a copy of the filing (excluding
any Confidential Business Information
(CBI)) for inclusion in the public docket.
Information not marked confidential
pursuant to 40 CFR part 2 may be
disclosed publicly by EPA without prior
notice. Submit the non-CBI copy of your
objection or hearing request, identified
by docket ID number EPA–HQ–OPP–
2009–0677, by one of the following
methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the online
instructions for submitting comments.
Do not submit electronically any
information you consider to be CBI or
other information whose disclosure is
restricted by statute.
• Mail: OPP Docket, Environmental
Protection Agency Docket Center (EPA/
DC), (28221T), 1200 Pennsylvania Ave.
NW., Washington, DC 20460–0001.
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]]>Agencies
[Federal Register Volume 77, Number 206 (Wednesday, October 24, 2012)]
[Rules and Regulations]
[Pages 64908-64911]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-26089]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2010-0846; FRL-9743-8]
Extension of Administrative Stay; Approval and Promulgation of
Implementation Plans; New Mexico; Federal Implementation Plan for
Interstate Transport of Pollution Affecting Visibility and Best
Available Retrofit Technology Determination
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The EPA is extending for an additional 45 days the existing
administrative stay of the final rule titled ``Approval and
Promulgation of Implementation Plans; New Mexico; Federal
Implementation Plan for Interstate Transport of Pollution Affecting
Visibility and Best Available Retrofit Technology Determination'' under
the authority of the Administrative Procedure Act (APA). EPA previously
stayed this rule for 90 days, from July 16, 2012 until October 15,
2012. This action extends the existing administrative stay by an
additional 45 days to allow for additional time for further discussions
of alternatives to EPA's Federal Implementation Plan (FIP). Today's
action reflects this stay in the Code of Federal Regulations.
DATES: 40 CFR 52.1628 is stayed from October 15, 2012 until November
29, 2012.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R06-OAR-2010-0846. All documents in the docket are listed in
the Federal eRulemaking portal index at https://www.regulations.gov and
are available either electronically at https://
[[Page 64909]]
www.regulations.gov or in hard copy at EPA Region 6, 1445 Ross Ave.,
Dallas, TX, 75202-2733. To inspect the hard copy materials, please
schedule an appointment during normal business hours with the contact
listed in the FOR FURTHER INFORMATION CONTACT section. A reasonable fee
may be charged for copies.
FOR FURTHER INFORMATION CONTACT: Agustin Carbo-Lugo, EPA Region 6,
(214) 665-8037, Carbo-Lugo.Agustin@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,''
``us,'' ``our,'' or ``the Agency'' is used, we mean the EPA. Unless
otherwise specified, when we say the ``San Juan Generating Station,''
or ``SJGS,'' we mean units 1, 2, 3, and 4, inclusive.
I. Background
On August 22, 2011, the EPA published a final rule disapproving a
portion of the State Implementation Plan (SIP) revision received from
the State of New Mexico on September 17, 2007, for the purpose of
addressing the ``good neighbor'' requirements of section
110(a)(2)(D)(i) of the CAA for the 1997 8-hour ozone National Ambient
Air Quality Standards (NAAQS or standards) and the 1997 fine
particulate matter (PM2.5) NAAQS (the ``NM FIP Rule''). 76
FR 52388. In that action, EPA disapproved the New Mexico Interstate
Transport SIP provisions that address the requirement of section
110(a)(2)(D)(i)(II) that emissions from New Mexico sources do not
interfere with measures required in the SIP of any other state under
part C of the CAA to protect visibility. We found that New Mexico
sources, except the San Juan Generating Station (SJGS), were
sufficiently controlled to eliminate interference from those sources
with the visibility programs of other states. EPA promulgated a Federal
Implementation Plan (FIP) requiring the implementation of nitrogen
oxides (NOX) and sulfur dioxide (SO2) emission
limits necessary at the San Juan Generating Station to prevent such
interference. This FIP also addresses the Regional Haze (RH) Best
Available Retrofit Technology (BART) requirement for NOX for
SJGS. In addition, EPA implemented sulfuric acid
(H2SO4) hourly emission limits at the SJGS, to
minimize the contribution of this compound to visibility impairment.
Finally, we found that compliance with the NOX,
SO2, and H2SO4 emission limits must be
within 5 years of the effective date of our final rule consistent with
the requirements of the regional haze regulations.
Petitions for judicial review of the final rule were subsequently
filed in the United States Court of Appeals for the Tenth Circuit. The
petitioners bringing those challenges are WildEarth Guardians, Public
Service of New Mexico (PNM), and New Mexico Governor Susana Martinez
with the New Mexico Environment Department.
By a letter to the EPA Administrator, dated April 26, 2012, the
Governor of New Mexico requested ``a short term (90-day) stay'' of the
federal implementation plan to evaluate the potential for alternatives
to the rule requirements. She presents a stay as being necessary for
``meaningful, productive negotiations'' that may lead to an avoidance
of litigation. By a letter to the acting Regional Administrator of EPA
Region 6, dated May 8, 2012, PNM also requested ``an opportunity to
engage in productive discussions as proposed by Governor Martinez.'' In
response to these requests, EPA stayed the effectiveness of its rule
for 90 days. 77 FR 41697 (July 16, 2012). This temporary stay is set to
expire on October 15, 2012.
We now believe that additional time is warranted so that the State
of New Mexico can provide additional information required for EPA to
consider the state's alternative and for further discussions among the
stakeholders. The extension of time will allow EPA, the State of New
Mexico and stakeholders to discuss New Mexico's new plan proposal, or
additional ideas that could prove beneficial in creating a state plan
that would ultimately satisfy the requirements of the CAA.
II. Today's Final Rule
A. Issuance of a Stay and Delay of the Effectiveness of the NM FIP Rule
Pursuant to section 705 of the APA, the EPA hereby extends the
existing administrative stay of the effectiveness of the NM FIP Rule
for a period of an additional 45 days beyond the current expiration
date of October 15, 2012. By this action, we are extending the
administrative stay of the effectiveness of the rule published in the
Federal Register on August 22, 2011 (76 FR 52388). This stay of
effectiveness will remain in place for an additional 45 days, which
will expire on November 29, 2012. This action adds a note to 40 CFR
52.1628 that there is a 135 day stay of the effectiveness of the NM FIP
Rule, but, in its substance, it does not alter any future compliance
requirements. There are no compliance obligations under the terms of
the NM FIP that arise during the 135 day period.
Under section 705 of the APA, ``an agency * * * may postpone the
effective date of [an] action taken by it pending judicial review.''
This source of authority requires an Agency finding that ``justice
requires'' a temporary stay of rule requirements. Accordingly, as
groundwork for the mentioned discussions among the Agency, the State of
New Mexico, and other stakeholders, EPA now finds that justice requires
an additional 45-day stay of the rule's effectiveness. Our extension of
the temporary stay of the effectiveness of the NM FIP Rule applies only
to any requirements established in 40 CFR 52.1628 during the duration
of the stay, as described previously in the initial 90-day stay.
B. Basis for Making This Action Effective October 15, 2012
The EPA also believes that there is good cause to make today's
action effective immediately, rather than effective within 30 days,
within the meaning of 5 U.S.C. 553(d)(3). One purpose of the 30-day
waiting period prescribed in 5 U.S.C. 553(d) is to give affected
parties a reasonable time to adjust their behavior and prepare before
the final action takes effect. Whereas here, this action extends the
stay that is already in effect, and any delay in its effectiveness will
result in unnecessary delays for productive negotiations. Therefore,
balancing 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 this action, EPA has determined that it is unnecessary,
impracticable and contrary to the public interest to delay this action.
Additionally, since this action does not ``implement, interpret, or
prescribe law or policy,'' within the meaning of 5 U.S.C. 551(4), nor
makes changes to substantive requirements, EPA concludes that it does
not constitute a substantive rulemaking. Therefore, it is not subject
to notice and comment requirements.
III. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review 13563
This action will extend the current administrative stay of the NM
FIP for an additional 45 days and imposes no additional requirements.
This type of action is exempt from review under Executive Orders 12866
(58 FR 51735,
[[Page 64910]]
October 4, 1993) and 13563 (76 FR 3821, January 21, 2011).
B. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
Under the Paperwork Reduction Act, a ``collection of information'' is
defined as a requirement for ``answers to * * * identical reporting or
recordkeeping requirements imposed on ten or more persons * * *.'' 44
U.S.C. 3502(3)(A). Because the temporary stay is for the effectiveness
of a rule that applies to a single facility, (SJGS), the Paperwork
Reduction Act does not apply. See 5 CFR part 1320(c).
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 our
regulations in 40 CFR are listed in 40 CFR Part 9.
C. Regulatory Flexibility Act
This action is not subject to the Regulatory Flexibility Act (RFA),
which generally requires an agency to prepare a regulatory flexibility
analysis for any rule that will have a significant economic impact on a
substantial number of small entities. The RFA applies only to rules
subject to notice and comment rulemaking requirements under the APA or
any other statute. This action is not subject to notice and comment
requirements under the APA or any other statute because, although
subject to the APA, this action does not ``implement, interpret, or
prescribe law or policy,'' within the meaning of APA Sec. 551(4).
D. Unfunded Mandates Reform Act (UMRA)
This action contains no Federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538 for State, local, or tribal governments or the private
sector. EPA has determined that this temporary stay does not contain a
Federal mandate that may result in expenditures that exceed the
inflation-adjusted UMRA threshold of $100 million by State, local, or
Tribal governments or the private sector in any 1-year. Therefore, this
action is not subject to the requirements of sections 202 or 205 of the
UMRA.
This action is also not subject to the requirements of section 203
of UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments. This action will
extend the current administrative stay of the NM FIP for an additional
45 days and imposes no additional requirements.
E. Executive Order 13132: Federalism
This temporary stay 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. This action merely is an
extension to stay the effectiveness of a final rule. Thus, Executive
Order 13132 does not apply to this action.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
EPA will consult and coordinate with Tribes regarding BART
alternatives during the stay, however, this temporary stay does not
have tribal implications as specified by Executive Order 13175 (65 FR
67249, November 9, 2000), because it neither imposes substantial direct
compliance costs on tribal governments, nor preempts tribal law.
Furthermore, this action does not ``implement, interpret, or prescribe
law or policy,'' within the meaning of 5 U.S.C. 551(4), and therefore,
it does not constitute a substantive rulemaking. As such, this action
only grants a 90-day stay of the effectiveness of the NM FIP Rule
without altering any future established compliance requirements.
Therefore, the requirements of section 5(b) and 5(c) of the Executive
Order do not apply to this action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
This extension of a temporary stay is not subject to Executive
Order 13045 because it is not a rule of general applicability, it is
not economically significant as defined under Executive Order 12866,
and does not have a disproportionate effect on children.
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.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not subject to Executive Order 13211 (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
This extension of a temporary stay is not subject to the National
Technology Transfer and Advancement Act of 1995 (``NTTAA''). Section
12(d) of the NTTAA, Public Law 104-113, 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. NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
This action does not involve technical standards. Therefore, EPA
did not consider the use of any voluntary consensus standards.
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J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
This extension of a temporary stay is not subject to Executive
Order 12898. Executive Order 12898 (59 FR 7629, February 16, 1994),
establishes federal executive policy on environmental justice. Its main
provision directs federal agencies, to the greatest extent practicable
and permitted by law, to make environmental justice part of their
mission by identifying and addressing, as appropriate,
disproportionately high and adverse human health or environmental
effects of their programs, policies, and activities on minority
populations and low-income populations in the United States.
EPA has determined that this action will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
change the substance of 40 CFR 52.1628.
K. Congressional Review Act
This action is not subject to the Congressional Review Act
(``CRA''). The 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. The Section 804 (3) of the CRA defines ``rule'' as
having the same meaning given to such term in section 551 of the APA.
See 5 U.S.C. 551(4). Since this action is not designed to implement,
interpret, or prescribe law or policy, within the meaning of APA, this
action is exempted from the reporting requirements of the CRA.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Sulfur
dioxide, Visibility, Interstate transport of pollution, Regional haze,
Best available control technology.
Dated: October 12, 2012.
Lisa P. Jackson,
Administrator.
[FR Doc. 2012-26089 Filed 10-23-12; 8:45 am]
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