Disapproval of State Implementation Plan; Infrastructure Requirements for the 1997 8-Hour Ozone National Ambient Air Quality Standard; Montana, 32613-32617 [2013-12970]
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Federal Register / Vol. 78, No. 105 / Friday, May 31, 2013 / Proposed Rules
back to the Postmaster, which may take
more than 10 days to complete, Package
Intercept service provides mailers with
an immediate avenue to request a COD
article be redirected to a new address.
Since items subject to Package Intercept
requests are also held for a 10-day
period, this option aligns with the
proposed new holding period for COD
articles.
However, the ability for a mailer, after
mailing, to adjust the COD amount to be
collected will be eliminated when the
Form 3849–D is retired.
The USPS will continue to return
COD articles to the mailer at the end of
the holding period if no other applicable
request is received; and to return COD
mail addressed to an addressee who
moved and left no forwarding address.
Additionally, payment options for COD
articles will be expanded to allow
money orders made payable to the
mailer as an additional acceptable
payment method for the addressee at the
time of delivery. Payment remittance
mailpieces will now include unique
tracking barcodes affixed by USPS
allowing further visibility into the COD
payment process through mail
processing scans captured on the
remittance en route to the recipient.
Although we are exempt from the
notice and comment requirements of the
Administrative Procedure Act (5 U.S.C.
553(b), (c)) regarding proposed
rulemaking by 39 U.S.C. 410(a), we
invite public comments on the
following proposed revisions to Mailing
Standards of the United States Postal
Service, Domestic Mail Manual (DMM),
incorporated by reference in the Code of
Federal Regulations. See 39 CFR 111.1.
500
Additional Mailing Services
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503
Extra Services
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13.0
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Collect on Delivery (COD)
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13.2
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Basic Information
13.2.1
Description
* * * [Revise the first, second and
fourth sentences of 13.2.1 as follows:]
Any mailer may use collect on
delivery (COD) service to mail an article
for which the mailer has not been paid
and have its price and the cost of the
postage collected from the addressee (or
addressee’s agent). The recipient has the
option to pay the COD charges using
either cash, or a personal check or
money order made payable to the
mailer. * * * If the recipient pays the
amount due by check or money order
payable to the mailer, the USPS
forwards the check or money order to
the mailer. * * *
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[Revise the title and text of 13.2.7 as
follows:]
13.2.7 Redirecting COD
The mailer of a COD article may use
USPS Package Intercept service to
redirect the COD mailpiece to a new
addressee, to a designated Post Office
using Hold For Pickup service, or to the
sender by paying the applicable fee and
as provided in 507.5.
[Delete 13.2.8, Notice to Mailer, in its
entirety.]
*
List of Subjects in 39 CFR Part 111
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addressed to a person who moved and
left no forwarding address, the article is
returned to the mailer. The postage
charge (but not registration or COD fees)
for returning the mail, if any, is
collected from the mailer.
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[Revise item 4.3.2g as follows:]
g. The USPS holds undeliverable
collect on delivery (COD) mail for no
fewer than 3 days and no more than 10
days.
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508
Recipient Services
1.0
Recipient Options
1.1
Basic Recipient Concerns
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1.1.7 Express Mail and Accountable
Mail
The following conditions also apply
to the delivery of Express Mail and
accountable mail (Registered Mail,
Certified Mail, insured for more than
$200.00, or COD, as well as mail for
which a return receipt or a return
receipt for merchandise is requested or
for which the sender has specified
restricted delivery):
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*
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[Revise item 508.1.1.7f as follows:]
f. A notice is provided to the
addressee for a mailpiece that cannot be
delivered. If the piece is not called for
or redelivery is not requested, the piece
is returned to the sender after 15 days
(5 days for Express Mail, 10 days for
COD), unless the sender specifies fewer
days on the piece.
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We will publish an appropriate
amendment to 39 CFR part 111 to reflect
these changes if our proposal is
adopted.
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507
Mailer Services
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4.0
Address Correction Services
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PART 111—[AMENDED]
4.3
Sender Instruction
Stanley F. Mires,
Attorney, Legal Policy & Legislative Advice.
1. The authority citation for 39 CFR
part 111 continues to read as follows:
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*
[FR Doc. 2013–12885 Filed 5–30–13; 8:45 am]
Administrative practice and
procedure, Postal Service.
Accordingly, 39 CFR part 111 is
proposed to be amended as follows:
■
Authority: 5 U.S.C. 552(a); 13 U.S.C. 301–
307; 18 U.S.C. 1692–1737; 39 U.S.C. 101,
401, 403, 404, 414, 416, 3001–3011, 3201–
3219, 3403–3406, 3621, 3622, 3626, 3632,
3633, and 5001.
2. Revise the following sections of
Mailing Standards of the United States
Postal Service, Domestic Mail Manual
(DMM), as follows:
tkelley on DSK3SPTVN1PROD with PROPOSALS
■
Mailing Standards of the United States
Postal Service, Domestic Mail Manual
(DMM)
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4.3.2 Extra Services
* * * This mail is treated as follows:
* * *
[Revise item 4.3.2c as follows:]
c. The mailer of a COD article also
may use USPS Package Intercept service
to redirect the COD mailpiece to a new
addressee, to a designated Post Office
using Hold For Pickup service, or to the
sender by paying the applicable fee and
as provided in 507.5. The USPS returns
the article to the mailer at the end of the
COD holding period if no other request
is received. When COD mail is
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BILLING CODE 7710–12–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R08–OAR–2010–0298, FRL–9818–7]
Disapproval of State Implementation
Plan; Infrastructure Requirements for
the 1997 8-Hour Ozone National
Ambient Air Quality Standard; Montana
Environmental Protection
Agency (EPA).
AGENCY:
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ACTION:
Federal Register / Vol. 78, No. 105 / Friday, May 31, 2013 / Proposed Rules
Proposed rule.
SUMMARY: EPA is proposing to
disapprove a specific portion of the
State Implementation Plan (SIP)
certifications submitted by the State of
Montana to demonstrate that the SIP
meets the infrastructure requirements of
the Clean Air Act (CAA) for the National
Ambient Air Quality Standards
(NAAQS) promulgated for ozone on July
18, 1997. The CAA requires that each
state, after a new or revised NAAQS is
promulgated, review its SIP to ensure
that it meets certain infrastructure
requirements detailed in the CAA. The
State of Montana submitted two
certifications, dated November 28, 2007
and December 22, 2009, that its SIP met
these requirements for the 1997 ozone
NAAQS. EPA is proposing to
disapprove a portion of the submitted
revisions because the SIP does not meet
the requirements in the CAA for state
boards that approve permits or
enforcement orders.
DATES: Written comments must be
received on or before July 1, 2013.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R08–
OAR–2010–0298, by one of the
following methods:
• https://www.regulations.gov. Follow
the on-line instructions for submitting
comments.
• Email: ayala.kathy@epa.gov
• Fax: (303) 312–6064 (please alert
the individual listed in the FOR FURTHER
INFORMATION CONTACT if you are faxing
comments).
• Mail: Director, Air Program,
Environmental Protection Agency
(EPA), Region 8, Mail Code 8P–AR,
1595 Wynkoop Street, Denver, Colorado
80202–1129.
• Hand Delivery: Director, Air
Program, Environmental Protection
Agency (EPA), Region 8, Mail Code 8P–
AR, 1595 Wynkoop Street, Denver,
Colorado 80202–1129. Such deliveries
are only accepted Monday through
Friday, 8:00 a.m. to 4:30 p.m., excluding
federal holidays. Special arrangements
should be made for deliveries of boxed
information.
Instructions: Direct your comments to
Docket ID No. EPA–R08–OAR–2010–
0298. EPA’s policy is that all comments
received will be included in the public
docket without change and may be
made available online at
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Do not submit information that you
consider to be CBI or otherwise
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protected through www.regulations.gov
or email. The www.regulations.gov Web
site is an ‘‘anonymous access’’ system,
which means EPA will not know your
identity or contact information unless
you provide it in the body of your
comment. If you send an email
comment directly to EPA, without going
through www.regulations.gov your email
address will be automatically captured
and included as part of the comment
that is placed in the public docket and
made available on the Internet. If you
submit an electronic comment, EPA
recommends that you include your
name and other contact information in
the body of your comment and with any
disk or CD–ROM you submit. If EPA
cannot read your comment due to
technical difficulties and cannot contact
you for clarification, EPA may not be
able to consider your comment.
Electronic files should avoid the use of
special characters, any form of
encryption, and be free of any defects or
viruses. For additional information
about EPA’s public docket visit the EPA
Docket Center homepage at https://
www.epa.gov/epahome/dockets.htm.
For additional instructions on
submitting comments, go to section I,
General Information, of the
SUPPLEMENTARY INFORMATION section of
this document.
Docket: All documents in the docket
are listed in the www.regulations.gov
index. Although listed in the index,
some information is not publicly
available, e.g., CBI or other information
whose disclosure is restricted by statute.
Certain other material, such as
copyrighted material, will be publicly
available only in hard copy. Publicly
available docket materials are available
either electronically in
www.regulations.gov or in hard copy at
the Air Program, Environmental
Protection Agency (EPA), Region 8,
1595 Wynkoop Street, Denver, Colorado
80202–1129. EPA requests that if at all
possible, you contact the individual
listed in the FOR FURTHER INFORMATION
CONTACT section to view the hard copy
of the docket. You may view the hard
copy of the docket Monday through
Friday, 8:00 a.m. to 4:00 p.m., excluding
federal holidays.
FOR FURTHER INFORMATION CONTACT:
Kathy Ayala, Air Program, U.S.
Environmental Protection Agency
(EPA), Region 8, Mail Code 8P–AR,
1595 Wynkoop Street, Denver, Colorado
80202–1129, (303) 312–6142,
ayala.kathy@epa.gov.
SUPPLEMENTARY INFORMATION:
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Definitions
For the purpose of this document, we
are giving meaning to certain words or
initials as follows:
(i) The words or initials Act or CAA
mean or refer to the Clean Air Act,
unless the context indicates otherwise.
(ii) The words EPA, we, us or our
mean or refer to the United States
Environmental Protection Agency.
(iii) The initials NAAQS mean or refer
to National Ambient Air Quality
Standards.
(iv) The initials SIP mean or refer to
State Implementation Plan.
(v) The words State or Montana mean
the State of Montana, unless the context
indicates otherwise.
Table of Contents
I. Background
II. Montana’s Submittal and EPA Analysis
III. Proposed Action
IV. Statutory and Executive Order Reviews
I. Background
On July 18, 1997, EPA promulgated a
new NAAQS for ozone based on 8-hour
average concentrations. The 8-hour
averaging period replaced the previous
1-hour averaging period, and the level of
the NAAQS was changed from 0.12
parts per million (ppm) to 0.08 ppm (62
FR 38856).
By statute, SIPs meeting the
requirements of sections 110(a)(1) and
(2) are to be submitted by states within
three years after promulgation of a new
or revised standard. Section 110(a)(2)
provides basic requirements for SIPs,
including emissions inventories,
monitoring, and modeling, to assure
attainment and maintenance of the
standards. These requirements are set
out in several ‘‘infrastructure elements,’’
listed in section 110(a)(2).
The State of Montana submitted two
certifications of their infrastructure SIP
for the 1997 ozone NAAQS, one dated
November 28, 2007, which was
determined to be complete on March 27,
2008 (73 FR 16205), and another dated
December 22, 2009. On May 19, 2011
(76 FR 28934), EPA published a notice
of proposed rulemaking (NPR) for the
certifications. Among other things, the
NPR proposed approval of the state’s
submission for purposes of meeting the
CAA infrastructure requirements under
section 110(a)(2)(E), Adequate resources
and authority, for the 1997 ozone
NAAQS. During the comment period
provided for the proposed rule, EPA
received an adverse comment on EPA’s
proposed approval with respect to
section 110(a)(2)(E)(ii). The commenter
stated that the Montana SIP did not
contain adequate provisions to satisfy
the requirements of CAA section 128
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and was therefore inconsistent with
section 110(a)(2)(E)(ii).
On July 22, 2011 (76 FR 43918), EPA
published a final rule completing our
action on all infrastructure elements
except 110(a)(2)(E)(ii). EPA took no
action on section 110(a)(2)(E)(ii) and
committed to do so at a later date. In
this notice, we are proposing a new
action on Montana’s certifications for
the 1997 ozone NAAQS with respect to
section 110(a)(2)(E)(ii).
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II. Montana’s Submittal and EPA
Analysis
Section 110(a)(2)(E)(ii) of the CAA
requires that ‘‘the State comply with the
requirements respecting State boards
under section 128.’’
Montana’s response to this
requirement: The Montana Board of
Environmental Review (BER) oversees
the Montana DEQ, including actions
taken by the State air program. The
composition and requirements of the
BER are detailed in 2–15–3502,
Montana Code Annotated (MCA); 2–15–
121, MCA; and 2–15–124, MCA. Laws
related to conflict of interest in Montana
state government are found in 2–2–201,
MCA; and 2–2–202, MCA.
EPA analysis: Section 110(a)(2)(E)(ii)
of the CAA requires that the State
comply with section 128 of the CAA.
Section 128 was added in the 1977
amendments to the CAA as the result of
a conference agreement. Titled ‘‘State
boards,’’ it provides in relevant part:
(a) Not later than the date one year
after August 7, 1977, each applicable
implementation plan shall contain
requirements that—
(1) Any board or body which
approves permits or enforcement orders
under [this Act] shall have at least a
majority of members who represent the
public interest and do not derive any
significant portion of their income from
persons subject to permits or
enforcement orders under [this Act],
and,
(2) Any potential conflicts of interest
by members of such board or body or
the head of an executive agency with
similar powers be adequately disclosed.
In 1978, EPA issued a guidance
memorandum recommending ways
states could meet the requirements of
section 128, including suggested
interpretations of certain key terms in
section 128.1 In this notice, we
additionally discuss various relevant
aspects of section 128. We first note
that, in the conference report on the
1 Memorandum from David O. Bickart, Deputy
General Counsel, to Regional Air Directors,
Guidance to States for Meeting Conflict of Interest
Requirements of Section 128 (Mar. 2, 1978).
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1977 amendments to the CAA, the
conference committee stated, ‘‘It is the
responsibility of each state to determine
the specific requirements to meet the
general requirements of [section 128].’’ 2
We find that this legislative history
indicates that Congress intended states
to have some latitude in the specifics of
implementing section 128, so long as
the implementation is consistent with
the plain text of the section. We also
note that Congress explicitly provided
in section 128 that states could elect to
adopt more stringent requirements, as
long as the minimum requirements of
section 128 are met. As a result, we note
three considerations for implementing
section 128.
First, section 128 must be
implemented through provisions that
EPA approves into the SIP and are made
federally enforceable. Section 128
explicitly mandates that each SIP ‘‘shall
contain requirements’’ that satisfy
subsections 128(a)(1) and 128(a)(2). A
mere narrative description of state
statutes or rules, or of a state’s current
or past practice in constituting a board
or body and in disclosing potential
conflicts of interest, is not a requirement
contained in the SIP and does not
satisfy the plain text of section 128.
Second, subsection 128(a)(1) applies
only to states that have a board or body
that is composed of multiple
individuals and that, among its duties,
approves permits or enforcement orders
under the CAA. It does not apply in
states that have no such multi-member
board or body that performs these
functions, and where instead a single
head of an agency or other similar
official approves permits or enforcement
orders under the CAA. This flows from
the text of section 128, for two reasons.
First, as subsection 128(a)(1) refers to a
majority of members in the plural, we
think it reasonable to read subsection
128(a)(1) as not creating any
requirements for an individual with sole
authority for approving permits or
enforcement orders under the CAA.
Second, subsection 128(a)(2) explicitly
applies to the head of an executive
agency with ‘‘similar powers’’ to a board
or body that approves permits or
enforcement orders under the CAA,
while subsection 128(a)(1) omits any
reference to heads of executive agencies.
We infer that subsection 128(a)(1)
should not apply to heads of executive
agencies who approve permits or
enforcement orders.
Third, subsection 128(a)(2) applies to
all states, regardless of whether the state
2 H.R. Rep. 95–564 (1977), reprinted in 3
Legislative History of the Clean Air Act
Amendments of 1977, 526–27 (1978).
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has a multi-member board or body that
approves permits or enforcement orders
under the CAA. Although the title of
section 128 is ‘‘State boards,’’ the
language of subsection 128(a)(2)
explicitly applies where the head of an
executive agency, rather than a board or
body, approves permits or enforcement
orders. In instances where the head of
an executive agency delegates his or her
power to approve permits or
enforcement orders, or where statutory
authority to approve permits or
enforcement orders is nominally vested
in another state official, the requirement
to adequately disclose potential
conflicts of interest still applies. In other
words, EPA thinks that SIPs for all
states, regardless of whether a state
board or body approves permits or
enforcement orders under the CAA,
must contain adequate provisions for
disclosure of potential conflicts of
interest in order to meet the
requirements of subsection 128(a)(2).
The Montana SIP does not contain
provisions that meet the requirements of
CAA section 128. As discussed above,
section 128 must be implemented
through SIP-approved, federally
enforceable provisions. In particular,
subsection 128(a)(2) applies in all states;
in other words, all SIPs must contain
provisions for the adequate disclosure of
potential conflicts of interest. The
Montana SIP does not currently contain
any such provisions and is deficient
with respect to the requirements of
subsection 128(a)(2).
Furthermore, as cited by Montana in
its certification, section 2–15–3502 of
the MCA creates a Board of
Environmental Review (‘‘Board’’). The
Board consists of seven members
appointed by the Governor and meeting
certain statutory criteria. Under section
75–2–211(10) of the MCA, a person who
is directly and adversely affected by the
Montana Department of Environmental
Quality’s (MDEQ’s) approval or denial
of a permit to construct an air pollution
source may (with certain exceptions)
request a hearing before the Board.
Similarly, under section 75–2–218(5) of
the MCA, a person who participated in
the comment period on MDEQ’s
issuance, renewal, amendment or
modification of a title V operating
permit may request a hearing before the
Board. Finally, under section 75–2–
401(1), a person who receives an
enforcement order from MDEQ under
Chapter 2 of Title 75, Air Quality, may
request a hearing before the Board.
Based on these State statutory
provisions and our discussion above of
the text of section 128(a)(1), we propose
to conclude that the Board falls within
the terms of subsection 128(a)(1); in
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other words, the Board is a multimember body that has authority to
approve permits and enforcement orders
under the Act. The term ‘‘permits under
the Act’’ includes Prevention of
Significant Deterioration, nonattainment
New Source Review, and minor New
Source Review permits. These are all
permits required to construct a new or
modified stationary source, and, under
MCA section 75–2–211(1), are
potentially subject to a hearing before
the Board. Permits under the Act also
include title V operating permits,
which, under MCA section 75–2–218(5),
are potentially subject to a hearing
before the Board. Similarly, enforcement
orders under the Act are, under MCA
section 75–2–401(1), potentially subject
to a hearing before the Board. In short,
the Board has authority to hear appeals
of permits and enforcement orders
under the Act.
The Board’s authority to hear appeals
is ‘‘authority to approve’’ within the
meaning of section 128, for two reasons.
First, the Board’s authority falls within
the plain meaning of the word
‘‘approve.’’ To approve means, among
other things, ‘‘to give formal sanction
to.’’ This is precisely what, for example,
an order from the Board upholding a
permit does: it formally sanctions the
permit. Second, the contrary
interpretation, that ‘‘authority to
approve’’ does not include the Board’s
authority to hear appeals, would be
inconsistent with the structure and
purpose of section 128. It would limit
the applicability of subsection 128(a)(1)
to multi-member boards that issue
permits in the first instance. As the
purpose of section 128 is to promote
disinterested decision-making on
permits and enforcement orders, it is
paramount that section 128 should
apply to the entity with authority to
make the final decision, and not merely
to the initial decision maker. In
addition, due to the language ‘‘with
similar powers’’ in subsection 128(a)(2),
the contrary interpretation would lead
to the illogical result that a state director
who issues permits and enforcement
orders that are subject to administrative
appeal would fall under the disclosure
requirement, but a director that was the
final decision maker on permits and
enforcement orders would not.
As the Board has authority to approve
permits and enforcement orders under
the Act, it is subject to subsection
128(a)(1). However, the Montana SIP
does not currently contain any
provisions to meet the requirements of
subsection 128(a)(1) and therefore does
not meet these requirements. As
discussed above, the SIP also does not
contain any provisions to meet the
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requirements of subsection 128(a)(2). As
a result, we propose to disapprove the
Montana infrastructure SIP for the 1997
ozone NAAQS with respect to the
requirements of section 110(a)(2)(E)(ii).
We do not consider it necessary to
identify any particular instances in
which the Board’s actual composition in
practice has failed to meet the
compositional requirements of
subsection 128(a)(1) or in which Board
members in practice have failed to meet
the disclosure requirements of
subsection 128(a)(2). The proposed
disapproval is based upon the Montana
SIP itself, which simply fails to contain
any provisions meeting the explicit legal
requirements of these subsections.
III. Proposed Action
We propose to disapprove the
Montana infrastructure SIP for the 1997
ozone NAAQS for element
110(a)(2)(E)(ii). The Montana SIP does
not contain provisions to meet the
requirements of CAA section 128.
IV. Statutory and Executive Order
Reviews
Under the Clean Air Act, the
Administrator is required to approve a
SIP submission that complies with the
provisions of the Act and applicable
Federal regulations 42 U.S.C. 7410(k);
40 CFR 52.02(a). Thus, in reviewing SIP
submissions, EPA’s role is to approve or
disapprove state choices, depending on
whether they meet the criteria of the
Clean Air Act. With this proposed
action EPA is merely disapproving a
state law as not meeting Federal
requirements, and is not imposing
additional requirements beyond those
imposed by state law.
A. Executive Order 12866: Regulatory
Planning and Review
Because the proposed disapproval
does not raise novel legal or policy
issues arising out of legal mandates, the
President’s priorities, or the principles
set forth in the EO, this proposed 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 Executive Orders 12866 and
13563 (76 FR 3821, January 21, 2011).
B. Paperwork Reduction Act
This proposed action does not impose
an information collection burden under
the provisions of the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq.
Burden is defined at 5 CFR 1320.3(b).
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA)
generally requires an agency to prepare
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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
organizations, and small governmental
jurisdictions.
For purposes of assessing the impacts
of today’s proposed rule on small
entities, small entity is defined as: (1) A
small business as defined by the Small
Business Administration’s (SBA)
regulations at 13 CFR 121.201; (2) a
small 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-forprofit enterprise which is independently
owned and operated and is not
dominant in its field.
After considering the economic
impacts of today’s proposed rule on
small entities, I certify that this action
will not have a significant economic
impact on a substantial number of small
entities. In determining whether a rule
has a significant economic impact on a
substantial number of small entities, the
impact of concern is any significant
adverse economic impact on small
entities, since the primary purpose of
the regulatory flexibility analyses is to
identify and address regulatory
alternatives ‘‘which minimize any
significant economic impact of the rule
on small entities.’’ 5 U.S.C. 603 and 604.
Thus, an agency may certify that a rule
will not have a significant economic
impact on a substantial number of small
entities if the rule relieves regulatory
burden, or otherwise has a positive
economic effect on all of the small
entities subject to the rule.
EPA’s proposal consists of a proposed
disapproval of a specific portion of the
Montana infrastructure certification.
The proposed disapproval of the SIP, if
finalized, merely disapproves the state
law as not meeting federal requirements
and does not impose any additional
requirements.
D. Unfunded Mandates Reform Act
(UMRA)
This action does not contain any
unfunded mandate or significantly or
uniquely affect small governments, as
described in the Unfunded Mandates
Reform Act of 1995 (Pub. L. 104–4);
Under Title II of UMRA, EPA has
determined that this proposed rule does
not contain a federal mandate that may
result in expenditures that exceed the
inflation-adjusted UMRA threshold of
E:\FR\FM\31MYP1.SGM
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Federal Register / Vol. 78, No. 105 / Friday, May 31, 2013 / Proposed Rules
$100 million by State, local, or Tribal
governments or the private sector in any
one year. In addition, this proposed rule
does not contain a significant federal
intergovernmental mandate as described
by section 203 of UMRA nor does it
contain any regulatory requirements
that might significantly or uniquely
affect small governments.
tkelley on DSK3SPTVN1PROD with PROPOSALS
E. Executive Order 13132: Federalism
Federalism (64 FR 43255, August 10,
1999) revokes and replaces Executive
Orders 12612 (Federalism) and 12875
(Enhancing the Intergovernmental
Partnership). Executive Order 13132
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.’’ Under
Executive Order 13132, EPA may not
issue a regulation that has federalism
implications, that imposes substantial
direct compliance costs, and that is not
required by statute, unless the federal
government provides the funds
necessary to pay the direct compliance
costs incurred by State and local
governments, or EPA consults with
State and local officials early in the
process of developing the proposed
regulation. EPA also may not issue a
regulation that has federalism
implications and that preempts State
law unless the Agency consults with
State and local officials early in the
process of developing the proposed
regulation.
This rule will not have substantial
direct effects on the State, on the
relationship between the national
government and the State, or on the
distribution of power and
responsibilities among the various
levels of government, as specified in
Executive Order 13132, because it
merely addresses the State not fully
meeting its obligation under section 128
of the CAA. Thus, Executive Order
13132 does not apply to this action. In
the spirit of Executive Order 13132, and
consistent with EPA policy to promote
communications between EPA and State
and local governments, EPA specifically
solicits comment on this proposed rule
from State and local officials.
VerDate Mar<15>2010
16:53 May 30, 2013
Jkt 229001
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
Executive Order 13175, entitled
Consultation and Coordination with
Indian Tribal Governments (65 FR
67249, November 9, 2000), requires EPA
to develop an accountable process to
ensure ‘‘meaningful and timely input by
tribal officials in the development of
regulatory policies that have tribal
implications.’’ This proposed rule does
not have tribal implications, as specified
in Executive Order 13175. It will not
have substantial direct effects on tribal
governments. Thus, Executive Order
13175 does not apply to this rule.
G. Executive Order 13045: Protection of
Children From Environmental Health
Risks 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
we have reason to believe may have a
disproportionate effect on children. EPA
interprets EO 13045 as applying only to
those regulatory actions that concern
health or safety risks, such that the
analysis required under section 5–501 of
the EO has the potential to influence the
regulation. This action is not subject to
EO 13045 because it implements
specific standards established by
Congress in statutes.
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
Section 12 of the National Technology
Transfer and Advancement Act
(NTTAA) of 1995 requires federal
agencies to evaluate existing technical
standards when developing a new
regulation. To comply with NTTAA,
EPA must consider and use ‘‘voluntary
consensus standards’’ (VCS) if available
and applicable when developing
programs and policies unless doing so
would be inconsistent with applicable
law or otherwise impractical.
The EPA believes that VCS are
inapplicable to this action. Today’s
action does not require the public to
PO 00000
Frm 00042
Fmt 4702
Sfmt 4702
32617
perform activities conducive to the use
of VCS.
J. Executive Order 12898: Federal
Actions to Address Environmental
Justice in Minority Populations and
Low-Income Populations
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.
We have determined that this
proposed rule, if finalized, will not have
disproportionately high and adverse
human health or environmental effects
on minority or low-income populations
because it disapproves a specific portion
of the Montana SIP which does not meet
requirements of the CAA.
In addition, this proposed action does
not have tribal implications as specified
by Executive Order 13175 (65 FR 67249,
November 9, 2000), because the SIP
being disapproved would not apply in
Indian country located in the state, and
it would not impose substantial direct
costs on tribal governments or preempt
tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Carbon monoxide,
Incorporation by reference,
Intergovernmental relations, Lead,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile
organic compounds.
Dated: May 16, 2013.
Howard M. Cantor,
Acting Regional Administrator, Region 8.
[FR Doc. 2013–12970 Filed 5–30–13; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 721
[EPA–HQ–OPPT–2008–0918; FRL–9387–7]
RIN 2070–AB27
Proposed Modification of Significant
New Uses of 1-Propene, 2,3,3,3tetrafluoroEnvironmental Protection
Agency (EPA).
AGENCY:
E:\FR\FM\31MYP1.SGM
31MYP1
Agencies
[Federal Register Volume 78, Number 105 (Friday, May 31, 2013)]
[Proposed Rules]
[Pages 32613-32617]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-12970]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2010-0298, FRL-9818-7]
Disapproval of State Implementation Plan; Infrastructure
Requirements for the 1997 8-Hour Ozone National Ambient Air Quality
Standard; Montana
AGENCY: Environmental Protection Agency (EPA).
[[Page 32614]]
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing to disapprove a specific portion of the State
Implementation Plan (SIP) certifications submitted by the State of
Montana to demonstrate that the SIP meets the infrastructure
requirements of the Clean Air Act (CAA) for the National Ambient Air
Quality Standards (NAAQS) promulgated for ozone on July 18, 1997. The
CAA requires that each state, after a new or revised NAAQS is
promulgated, review its SIP to ensure that it meets certain
infrastructure requirements detailed in the CAA. The State of Montana
submitted two certifications, dated November 28, 2007 and December 22,
2009, that its SIP met these requirements for the 1997 ozone NAAQS. EPA
is proposing to disapprove a portion of the submitted revisions because
the SIP does not meet the requirements in the CAA for state boards that
approve permits or enforcement orders.
DATES: Written comments must be received on or before July 1, 2013.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2010-0298, by one of the following methods:
https://www.regulations.gov. Follow the on-line
instructions for submitting comments.
Email: ayala.kathy@epa.gov
Fax: (303) 312-6064 (please alert the individual listed in
the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
Mail: Director, Air Program, Environmental Protection
Agency (EPA), Region 8, Mail Code 8P-AR, 1595 Wynkoop Street, Denver,
Colorado 80202-1129.
Hand Delivery: Director, Air Program, Environmental
Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595 Wynkoop
Street, Denver, Colorado 80202-1129. Such deliveries are only accepted
Monday through Friday, 8:00 a.m. to 4:30 p.m., excluding federal
holidays. Special arrangements should be made for deliveries of boxed
information.
Instructions: Direct your comments to Docket ID No. EPA-R08-OAR-
2010-0298. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or email. The
www.regulations.gov Web site is an ``anonymous access'' system, which
means EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an email comment
directly to EPA, without going through www.regulations.gov your email
address will be automatically captured and included as part of the
comment that is placed in the public docket and made available on the
Internet. If you submit an electronic comment, EPA recommends that you
include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses. For additional
information about EPA's public docket visit the EPA Docket Center
homepage at https://www.epa.gov/epahome/dockets.htm. For additional
instructions on submitting comments, go to section I, General
Information, of the SUPPLEMENTARY INFORMATION section of this document.
Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in www.regulations.gov or in hard copy at the Air Program,
Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop Street,
Denver, Colorado 80202-1129. EPA requests that if at all possible, you
contact the individual listed in the FOR FURTHER INFORMATION CONTACT
section to view the hard copy of the docket. You may view the hard copy
of the docket Monday through Friday, 8:00 a.m. to 4:00 p.m., excluding
federal holidays.
FOR FURTHER INFORMATION CONTACT: Kathy Ayala, Air Program, U.S.
Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595
Wynkoop Street, Denver, Colorado 80202-1129, (303) 312-6142,
ayala.kathy@epa.gov.
SUPPLEMENTARY INFORMATION:
Definitions
For the purpose of this document, we are giving meaning to certain
words or initials as follows:
(i) The words or initials Act or CAA mean or refer to the Clean Air
Act, unless the context indicates otherwise.
(ii) The words EPA, we, us or our mean or refer to the United
States Environmental Protection Agency.
(iii) The initials NAAQS mean or refer to National Ambient Air
Quality Standards.
(iv) The initials SIP mean or refer to State Implementation Plan.
(v) The words State or Montana mean the State of Montana, unless
the context indicates otherwise.
Table of Contents
I. Background
II. Montana's Submittal and EPA Analysis
III. Proposed Action
IV. Statutory and Executive Order Reviews
I. Background
On July 18, 1997, EPA promulgated a new NAAQS for ozone based on 8-
hour average concentrations. The 8-hour averaging period replaced the
previous 1-hour averaging period, and the level of the NAAQS was
changed from 0.12 parts per million (ppm) to 0.08 ppm (62 FR 38856).
By statute, SIPs meeting the requirements of sections 110(a)(1) and
(2) are to be submitted by states within three years after promulgation
of a new or revised standard. Section 110(a)(2) provides basic
requirements for SIPs, including emissions inventories, monitoring, and
modeling, to assure attainment and maintenance of the standards. These
requirements are set out in several ``infrastructure elements,'' listed
in section 110(a)(2).
The State of Montana submitted two certifications of their
infrastructure SIP for the 1997 ozone NAAQS, one dated November 28,
2007, which was determined to be complete on March 27, 2008 (73 FR
16205), and another dated December 22, 2009. On May 19, 2011 (76 FR
28934), EPA published a notice of proposed rulemaking (NPR) for the
certifications. Among other things, the NPR proposed approval of the
state's submission for purposes of meeting the CAA infrastructure
requirements under section 110(a)(2)(E), Adequate resources and
authority, for the 1997 ozone NAAQS. During the comment period provided
for the proposed rule, EPA received an adverse comment on EPA's
proposed approval with respect to section 110(a)(2)(E)(ii). The
commenter stated that the Montana SIP did not contain adequate
provisions to satisfy the requirements of CAA section 128
[[Page 32615]]
and was therefore inconsistent with section 110(a)(2)(E)(ii).
On July 22, 2011 (76 FR 43918), EPA published a final rule
completing our action on all infrastructure elements except
110(a)(2)(E)(ii). EPA took no action on section 110(a)(2)(E)(ii) and
committed to do so at a later date. In this notice, we are proposing a
new action on Montana's certifications for the 1997 ozone NAAQS with
respect to section 110(a)(2)(E)(ii).
II. Montana's Submittal and EPA Analysis
Section 110(a)(2)(E)(ii) of the CAA requires that ``the State
comply with the requirements respecting State boards under section
128.''
Montana's response to this requirement: The Montana Board of
Environmental Review (BER) oversees the Montana DEQ, including actions
taken by the State air program. The composition and requirements of the
BER are detailed in 2-15-3502, Montana Code Annotated (MCA); 2-15-121,
MCA; and 2-15-124, MCA. Laws related to conflict of interest in Montana
state government are found in 2-2-201, MCA; and 2-2-202, MCA.
EPA analysis: Section 110(a)(2)(E)(ii) of the CAA requires that the
State comply with section 128 of the CAA. Section 128 was added in the
1977 amendments to the CAA as the result of a conference agreement.
Titled ``State boards,'' it provides in relevant part:
(a) Not later than the date one year after August 7, 1977, each
applicable implementation plan shall contain requirements that--
(1) Any board or body which approves permits or enforcement orders
under [this Act] shall have at least a majority of members who
represent the public interest and do not derive any significant portion
of their income from persons subject to permits or enforcement orders
under [this Act], and,
(2) Any potential conflicts of interest by members of such board or
body or the head of an executive agency with similar powers be
adequately disclosed.
In 1978, EPA issued a guidance memorandum recommending ways states
could meet the requirements of section 128, including suggested
interpretations of certain key terms in section 128.\1\ In this notice,
we additionally discuss various relevant aspects of section 128. We
first note that, in the conference report on the 1977 amendments to the
CAA, the conference committee stated, ``It is the responsibility of
each state to determine the specific requirements to meet the general
requirements of [section 128].'' \2\ We find that this legislative
history indicates that Congress intended states to have some latitude
in the specifics of implementing section 128, so long as the
implementation is consistent with the plain text of the section. We
also note that Congress explicitly provided in section 128 that states
could elect to adopt more stringent requirements, as long as the
minimum requirements of section 128 are met. As a result, we note three
considerations for implementing section 128.
---------------------------------------------------------------------------
\1\ Memorandum from David O. Bickart, Deputy General Counsel, to
Regional Air Directors, Guidance to States for Meeting Conflict of
Interest Requirements of Section 128 (Mar. 2, 1978).
\2\ H.R. Rep. 95-564 (1977), reprinted in 3 Legislative History
of the Clean Air Act Amendments of 1977, 526-27 (1978).
---------------------------------------------------------------------------
First, section 128 must be implemented through provisions that EPA
approves into the SIP and are made federally enforceable. Section 128
explicitly mandates that each SIP ``shall contain requirements'' that
satisfy subsections 128(a)(1) and 128(a)(2). A mere narrative
description of state statutes or rules, or of a state's current or past
practice in constituting a board or body and in disclosing potential
conflicts of interest, is not a requirement contained in the SIP and
does not satisfy the plain text of section 128.
Second, subsection 128(a)(1) applies only to states that have a
board or body that is composed of multiple individuals and that, among
its duties, approves permits or enforcement orders under the CAA. It
does not apply in states that have no such multi-member board or body
that performs these functions, and where instead a single head of an
agency or other similar official approves permits or enforcement orders
under the CAA. This flows from the text of section 128, for two
reasons. First, as subsection 128(a)(1) refers to a majority of members
in the plural, we think it reasonable to read subsection 128(a)(1) as
not creating any requirements for an individual with sole authority for
approving permits or enforcement orders under the CAA. Second,
subsection 128(a)(2) explicitly applies to the head of an executive
agency with ``similar powers'' to a board or body that approves permits
or enforcement orders under the CAA, while subsection 128(a)(1) omits
any reference to heads of executive agencies. We infer that subsection
128(a)(1) should not apply to heads of executive agencies who approve
permits or enforcement orders.
Third, subsection 128(a)(2) applies to all states, regardless of
whether the state has a multi-member board or body that approves
permits or enforcement orders under the CAA. Although the title of
section 128 is ``State boards,'' the language of subsection 128(a)(2)
explicitly applies where the head of an executive agency, rather than a
board or body, approves permits or enforcement orders. In instances
where the head of an executive agency delegates his or her power to
approve permits or enforcement orders, or where statutory authority to
approve permits or enforcement orders is nominally vested in another
state official, the requirement to adequately disclose potential
conflicts of interest still applies. In other words, EPA thinks that
SIPs for all states, regardless of whether a state board or body
approves permits or enforcement orders under the CAA, must contain
adequate provisions for disclosure of potential conflicts of interest
in order to meet the requirements of subsection 128(a)(2).
The Montana SIP does not contain provisions that meet the
requirements of CAA section 128. As discussed above, section 128 must
be implemented through SIP-approved, federally enforceable provisions.
In particular, subsection 128(a)(2) applies in all states; in other
words, all SIPs must contain provisions for the adequate disclosure of
potential conflicts of interest. The Montana SIP does not currently
contain any such provisions and is deficient with respect to the
requirements of subsection 128(a)(2).
Furthermore, as cited by Montana in its certification, section 2-
15-3502 of the MCA creates a Board of Environmental Review (``Board'').
The Board consists of seven members appointed by the Governor and
meeting certain statutory criteria. Under section 75-2-211(10) of the
MCA, a person who is directly and adversely affected by the Montana
Department of Environmental Quality's (MDEQ's) approval or denial of a
permit to construct an air pollution source may (with certain
exceptions) request a hearing before the Board. Similarly, under
section 75-2-218(5) of the MCA, a person who participated in the
comment period on MDEQ's issuance, renewal, amendment or modification
of a title V operating permit may request a hearing before the Board.
Finally, under section 75-2-401(1), a person who receives an
enforcement order from MDEQ under Chapter 2 of Title 75, Air Quality,
may request a hearing before the Board.
Based on these State statutory provisions and our discussion above
of the text of section 128(a)(1), we propose to conclude that the Board
falls within the terms of subsection 128(a)(1); in
[[Page 32616]]
other words, the Board is a multi-member body that has authority to
approve permits and enforcement orders under the Act. The term
``permits under the Act'' includes Prevention of Significant
Deterioration, nonattainment New Source Review, and minor New Source
Review permits. These are all permits required to construct a new or
modified stationary source, and, under MCA section 75-2-211(1), are
potentially subject to a hearing before the Board. Permits under the
Act also include title V operating permits, which, under MCA section
75-2-218(5), are potentially subject to a hearing before the Board.
Similarly, enforcement orders under the Act are, under MCA section 75-
2-401(1), potentially subject to a hearing before the Board. In short,
the Board has authority to hear appeals of permits and enforcement
orders under the Act.
The Board's authority to hear appeals is ``authority to approve''
within the meaning of section 128, for two reasons. First, the Board's
authority falls within the plain meaning of the word ``approve.'' To
approve means, among other things, ``to give formal sanction to.'' This
is precisely what, for example, an order from the Board upholding a
permit does: it formally sanctions the permit. Second, the contrary
interpretation, that ``authority to approve'' does not include the
Board's authority to hear appeals, would be inconsistent with the
structure and purpose of section 128. It would limit the applicability
of subsection 128(a)(1) to multi-member boards that issue permits in
the first instance. As the purpose of section 128 is to promote
disinterested decision-making on permits and enforcement orders, it is
paramount that section 128 should apply to the entity with authority to
make the final decision, and not merely to the initial decision maker.
In addition, due to the language ``with similar powers'' in subsection
128(a)(2), the contrary interpretation would lead to the illogical
result that a state director who issues permits and enforcement orders
that are subject to administrative appeal would fall under the
disclosure requirement, but a director that was the final decision
maker on permits and enforcement orders would not.
As the Board has authority to approve permits and enforcement
orders under the Act, it is subject to subsection 128(a)(1). However,
the Montana SIP does not currently contain any provisions to meet the
requirements of subsection 128(a)(1) and therefore does not meet these
requirements. As discussed above, the SIP also does not contain any
provisions to meet the requirements of subsection 128(a)(2). As a
result, we propose to disapprove the Montana infrastructure SIP for the
1997 ozone NAAQS with respect to the requirements of section
110(a)(2)(E)(ii). We do not consider it necessary to identify any
particular instances in which the Board's actual composition in
practice has failed to meet the compositional requirements of
subsection 128(a)(1) or in which Board members in practice have failed
to meet the disclosure requirements of subsection 128(a)(2). The
proposed disapproval is based upon the Montana SIP itself, which simply
fails to contain any provisions meeting the explicit legal requirements
of these subsections.
III. Proposed Action
We propose to disapprove the Montana infrastructure SIP for the
1997 ozone NAAQS for element 110(a)(2)(E)(ii). The Montana SIP does not
contain provisions to meet the requirements of CAA section 128.
IV. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve or
disapprove state choices, depending on whether they meet the criteria
of the Clean Air Act. With this proposed action EPA is merely
disapproving a state law as not meeting Federal requirements, and is
not imposing additional requirements beyond those imposed by state law.
A. Executive Order 12866: Regulatory Planning and Review
Because the proposed disapproval does not raise novel legal or
policy issues arising out of legal mandates, the President's
priorities, or the principles set forth in the EO, this proposed 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 Executive Orders 12866 and 13563 (76 FR 3821, January
21, 2011).
B. Paperwork Reduction Act
This proposed action does not impose an information collection
burden under the provisions of the Paperwork Reduction Act, 44 U.S.C.
3501 et seq. Burden is defined at 5 CFR 1320.3(b).
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) 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 organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of today's proposed rule on
small entities, small entity is defined as: (1) A small business as
defined by the Small Business Administration's (SBA) regulations at 13
CFR 121.201; (2) a small governmental jurisdiction that is a government
of a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
After considering the economic impacts of today's proposed rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. In
determining whether a rule has a significant economic impact on a
substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the
primary purpose of the regulatory flexibility analyses is to identify
and address regulatory alternatives ``which minimize any significant
economic impact of the rule on small entities.'' 5 U.S.C. 603 and 604.
Thus, an agency may certify that a rule will not have a significant
economic impact on a substantial number of small entities if the rule
relieves regulatory burden, or otherwise has a positive economic effect
on all of the small entities subject to the rule.
EPA's proposal consists of a proposed disapproval of a specific
portion of the Montana infrastructure certification. The proposed
disapproval of the SIP, if finalized, merely disapproves the state law
as not meeting federal requirements and does not impose any additional
requirements.
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate or significantly
or uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Under Title II of UMRA, EPA has determined that this proposed rule
does not contain a federal mandate that may result in expenditures that
exceed the inflation-adjusted UMRA threshold of
[[Page 32617]]
$100 million by State, local, or Tribal governments or the private
sector in any one year. In addition, this proposed rule does not
contain a significant federal intergovernmental mandate as described by
section 203 of UMRA nor does it contain any regulatory requirements
that might significantly or uniquely affect small governments.
E. Executive Order 13132: Federalism
Federalism (64 FR 43255, August 10, 1999) revokes and replaces
Executive Orders 12612 (Federalism) and 12875 (Enhancing the
Intergovernmental Partnership). Executive Order 13132 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.'' Under Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the proposed regulation. EPA also may not issue a regulation
that has federalism implications and that preempts State law unless the
Agency consults with State and local officials early in the process of
developing the proposed regulation.
This rule will not have substantial direct effects on the State, on
the relationship between the national government and the State, or on
the distribution of power and responsibilities among the various levels
of government, as specified in Executive Order 13132, because it merely
addresses the State not fully meeting its obligation under section 128
of the CAA. Thus, Executive Order 13132 does not apply to this action.
In the spirit of Executive Order 13132, and consistent with EPA policy
to promote communications between EPA and State and local governments,
EPA specifically solicits comment on this proposed rule from State and
local officials.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled Consultation and Coordination with
Indian Tribal Governments (65 FR 67249, November 9, 2000), requires EPA
to develop an accountable process to ensure ``meaningful and timely
input by tribal officials in the development of regulatory policies
that have tribal implications.'' This proposed rule does not have
tribal implications, as specified in Executive Order 13175. It will not
have substantial direct effects on tribal governments. Thus, Executive
Order 13175 does not apply to this rule.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks 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 we have reason to believe may have a
disproportionate effect on children. EPA interprets EO 13045 as
applying only to those regulatory actions that concern health or safety
risks, such that the analysis required under section 5-501 of the EO
has the potential to influence the regulation. This action is not
subject to EO 13045 because it implements specific standards
established by Congress in statutes.
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
Section 12 of the National Technology Transfer and Advancement Act
(NTTAA) of 1995 requires federal agencies to evaluate existing
technical standards when developing a new regulation. To comply with
NTTAA, EPA must consider and use ``voluntary consensus standards''
(VCS) if available and applicable when developing programs and policies
unless doing so would be inconsistent with applicable law or otherwise
impractical.
The EPA believes that VCS are inapplicable to this action. Today's
action does not require the public to perform activities conducive to
the use of VCS.
J. Executive Order 12898: Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations
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.
We have determined that this proposed rule, if finalized, will not
have disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it disapproves a
specific portion of the Montana SIP which does not meet requirements of
the CAA.
In addition, this proposed action does not have tribal implications
as specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP being disapproved would not apply in Indian country
located in the state, and it would not impose substantial direct costs
on tribal governments or preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Dated: May 16, 2013.
Howard M. Cantor,
Acting Regional Administrator, Region 8.
[FR Doc. 2013-12970 Filed 5-30-13; 8:45 am]
BILLING CODE 6560-50-P