Extension of Deadline for Action on the November 2016 Section 126 Petition From Delaware, 95884-95886 [2016-31256]
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95884
Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations
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An investment manager of a pooled
investment vehicle that holds assets of
more than one employee benefit plan
may be subject to a proxy voting policy
of one plan that conflicts with the proxy
voting policy of another plan.
Compliance with ERISA section
404(a)(1)(D) would require the
investment manager to reconcile, insofar
as possible, the conflicting policies
(assuming compliance with each policy
would be consistent with ERISA section
404(a)(1)(D)) and, if necessary and to the
extent permitted by applicable law, vote
the relevant proxies to reflect such
policies in proportion to each plan’s
interest in the pooled investment
vehicle. If, however, the investment
manager determines that compliance
with conflicting voting policies would
violate ERISA section 404(a)(1)(D) in a
particular instance, for example, by
being imprudent or not solely in the
interest of plan participants, the
investment manager would be required
to ignore the voting policy that would
violate ERISA section 404(a)(1)(D) in
that instance. Such an investment
manager may, however, require
participating investors to accept the
investment manager’s own investment
policy statement, including any
statement of proxy voting policy, before
they are allowed to invest. As with
investment policies originating from
named fiduciaries, a policy initiated by
an investment manager and adopted by
the participating plans would be
regarded as an instrument governing the
participating plans, and the investment
manager’s compliance with such a
policy would be governed by ERISA
section 404(a)(1)(D).
(3) Shareholder Engagement
An investment policy that
contemplates activities intended to
monitor or influence the management of
corporations in which the plan owns
stock is consistent with a fiduciary’s
obligations under ERISA where the
responsible fiduciary concludes that
there is a reasonable expectation that
such monitoring or communication with
management, by the plan alone or
together with other shareholders, is
likely to enhance the value of the plan’s
investment in the corporation, after
taking into account the costs involved.
Such a reasonable expectation may exist
in various circumstances, for example,
where plan investments in corporate
stock are held as long-term investments,
where a plan may not be able to easily
dispose of such an investment, or where
the same shareholder engagement issue
is likely to exist in the case of available
alternative investments. Active
monitoring and communication
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activities would generally concern such
issues as the independence and
expertise of candidates for the
corporation’s board of directors and
assuring that the board has sufficient
information to carry out its
responsibility to monitor management.
Other issues may include such matters
as governance structures and practices,
particularly those involving board
composition, executive compensation,
transparency and accountability in
corporate decision-making,
responsiveness to shareholders, the
corporation’s policy regarding mergers
and acquisitions, the extent of debt
financing and capitalization, the nature
of long-term business plans including
plans on climate change preparedness
and sustainability, governance and
compliance policies and practices for
avoiding criminal liability and ensuring
employees comply with applicable laws
and regulations, the corporation’s
workforce practices (e.g., investment in
training to develop its work force,
diversity, equal employment
opportunity), policies and practices to
address environmental or social factors
that have an impact on shareholder
value, and other financial and nonfinancial measures of corporate
performance. Active monitoring and
communication may be carried out
through a variety of methods including
by means of correspondence and
meetings with corporate management as
well as by exercising the legal rights of
a shareholder.
Phyllis C. Borzi,
Assistant Secretary, Employee Benefits
Security Administration, Department of
Labor.
[FR Doc. 2016–31515 Filed 12–28–16; 8:45 am]
BILLING CODE 4510–29–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–HQ–OAR–2016–0691; FRL–9957–28–
OAR]
Extension of Deadline for Action on
the November 2016 Section 126
Petition From Delaware
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
In this action, the
Environmental Protection Agency (EPA)
is determining that 60 days is
insufficient time to complete the
technical and other analyses and public
notice-and-comment process required
SUMMARY:
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for our review of a petition submitted by
the state of Delaware pursuant to section
126 of the Clean Air Act (CAA). The
petition requests that the EPA make a
finding that Homer City Generating
Station, located in Indiana County,
Pennsylvania, emits air pollution that
significantly contributes to
nonattainment and interferes with
maintenance of the 2008 and 2015
ozone national ambient air quality
standards (NAAQS) in the state of
Delaware. Under section 307(d)(10) of
CAA, the EPA is authorized to grant a
time extension for responding to a
petition if the EPA determines that the
extension is necessary to afford the
public, and the agency, adequate
opportunity to carry out the purposes of
the section 307(d) notice-and-comment
rulemaking requirements. By this
action, the EPA is making that
determination. The EPA is therefore
extending the deadline for acting on the
petition to no later than July 9, 2017.
DATES: This final rule is effective on
December 29, 2016.
ADDRESSES: The EPA has established a
docket for this action under Docket ID
No. EPA–HQ–OAR–2016–0691. All
documents in the docket are listed on
the https://www.regulations.gov Web
site. Although listed in the index, some
information is not publicly available,
e.g., Confidential Business Information
or other information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
is not placed on the Internet and will be
publicly available only in hard copy
form. Publicly available docket
materials are available electronically
through https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Mr.
Benjamin Gibson, Office of Air Quality
Planning and Standards (C545–E), U.S.
EPA, Research Triangle Park, North
Carolina 27709, telephone number (919)
541–3277, email: gibson.benjamin@
epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background and Legal Requirements
for Interstate Air Pollution
This is a procedural action to extend
the deadline for the EPA to respond to
a petition from the state of Delaware
filed pursuant to CAA section 126(b).
The EPA received the petition on
November 10, 2016. The petition
requests that the EPA make a finding
under section 126(b) of the CAA that the
Homer City Generating Station, located
in Indiana County, Pennsylvania, is
operating in a manner that emits air
pollutants in violation of the provisions
of section 110(a)(2)(D)(i)(I) of the CAA
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Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations
with respect to the 2008 and 2015 ozone
NAAQS.
Section 126(b) of the CAA authorizes
states to petition the EPA to find that a
major source or group of stationary
sources in upwind states emits or would
emit any air pollutant in violation of the
prohibition of CAA section
110(a)(2)(D)(i) 1 by contributing
significantly to nonattainment or
maintenance problems in downwind
states. Section 110(a)(2)(D)(i)(I) of the
CAA prohibits emissions of any air
pollutant in amounts which will
contribute significantly to
nonattainment in, or interfere with
maintenance by, any other state with
respect to any NAAQS. The petition
asserts that emissions from Homer City
Generating Station’s three electric
generating units emit air pollutants in
violation of CAA section
110(a)(2)(D)(i)(I) with respect to the
2008 8-hour ozone NAAQS, set at 0.075
parts per million (ppm), and the revised
2015 8-hour ozone NAAQS, set at 0.070
ppm.2
Pursuant to CAA section 126(b), the
EPA must make the finding requested in
the petition, or must deny the petition
within 60 days of its receipt. Under
CAA section 126(c), any existing
sources for which the EPA makes the
requested finding must cease operations
within 3 months of the finding, except
that the source may continue to operate
if it complies with emission limitations
and compliance schedules (containing
increments of progress) that the EPA
may provide to bring about compliance
with the applicable requirements as
expeditiously as practical but no later
than 3 years from the date of the
finding.
CAA section 126(b) further provides
that the EPA must hold a public hearing
on the petition. The EPA’s action under
section 126 is also subject to the
procedural requirements of CAA section
307(d). See CAA section 307(d)(1)(N).
One of these requirements is notice-andcomment rulemaking, under section
307(d)(3)–(6).
In addition, CAA section 307(d)(10)
provides for a time extension, under
certain circumstances, for a rulemaking
subject to CAA section 307(d).
rmajette on DSK2TPTVN1PROD with RULES
1 The
text of CAA section 126 codified in the
United States Code cross references CAA section
110(a)(2)(D)(ii) instead of CAA section
110(a)(2)(D)(i). The courts have confirmed that this
is a scrivener’s error and the correct cross reference
is to CAA section 110(a)(2)(D)(i). See Appalachian
Power Co. v. EPA, 249 F.3d 1032, 1040–44 (D.C. Cir.
2001).
2 On October 1, 2015, the EPA strengthened the
ground-level ozone NAAQS, based on extensive
scientific evidence about ozone’s effects on public
health and welfare. See 80 FR 65291 (October 26,
2015).
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Specifically, CAA section 307(d)(10)
provides:
Each statutory deadline for promulgation
of rules to which this subsection applies
which requires promulgation less than six
months after date of proposal may be
extended to not more than six months after
date of proposal by the Administrator upon
a determination that such extension is
necessary to afford the public, and the
agency, adequate opportunity to carry out the
purposes of the subsection.
CAA section 307(d)(10) may be
applied to section 126 rulemakings
because the 60-day time limit under
CAA section 126(b) necessarily limits
the period for promulgation of a final
rule after proposal to less than 6
months.
II. Final Rule
A. Rule
In accordance with CAA section
307(d)(10), the EPA is determining that
the 60-day period afforded by CAA
section 126(b) for responding to the
petition from the state of Delaware is
not adequate to allow the public and the
agency the opportunity to carry out the
purposes of CAA section 307(d).
Specifically, the 60-day period is
insufficient for the EPA to complete the
necessary technical review, develop an
adequate proposal, and allow time for
notice and comment, including an
opportunity for public hearing, on a
proposed finding regarding whether the
Homer City Generating Station
identified in the CAA section 126
petition contributes significantly to
nonattainment or interferes with
maintenance of the 2008 ozone NAAQS
or the 2015 ozone NAAQS in Delaware.
Moreover, the 60-day period is
insufficient for the EPA to review and
develop response to any public
comments on a proposed finding, or
testimony supplied at a public hearing,
and to develop and promulgate a final
finding in response to the petition. The
EPA is in the process of determining an
appropriate schedule for action on the
CAA section 126 petition. This schedule
must afford the EPA adequate time to
prepare a proposal that clearly
elucidates the issues to facilitate public
comment, and must provide adequate
time for the public to comment and for
the EPA to review and develop
responses to those comments prior to
issuing the final rule. As a result of this
extension, the deadline for the EPA to
act on the petition is July 9, 2017.
B. Notice and Comment Under the
Administrative Procedure Act (APA)
This document is a final agency
action, but may not be subject to the
notice-and-comment requirements of
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95885
the APA, 5 U.S.C. 553(b). The EPA
believes that, because of the limited
time provided to make a determination,
the deadline for action on the CAA
section 126 petition should be extended.
Congress may not have intended such a
determination to be subject to noticeand-comment rulemaking. However, to
the extent that this determination
otherwise would require notice and
opportunity for public comment, there
is good cause within the meaning of 5
U.S.C. 553(b)(3)(B) not to apply those
requirements here. Providing for notice
and comment would be impracticable
because of the limited time provided for
making this determination, and would
be contrary to the public interest
because it would divert agency
resources from the substantive review of
the CAA section 126 petition.
C. Effective Date Under the APA
This action is effective on December
29, 2016. Under the APA, 5 U.S.C.
553(d)(3), agency rulemaking may take
effect before 30 days after the date of
publication in the Federal Register if
the agency has good cause to mandate
an earlier effective date. This action—a
deadline extension—must take effect
immediately because its purpose is to
extend by 6 months the deadline for
action on the petition. As discussed
earlier, the EPA intends to use the 6month extension period to develop a
proposal on the petition and provide
time for public comment before issuing
the final rule. It would not be possible
for the EPA to complete the required
notice and comment and public hearing
process within the original 60-day
period noted in the statute. These
reasons support an immediate effective
date.
III. Statutory and Executive Order
Reviews
A. Executive Orders 12866: Regulatory
Planning and Review and Executive
Order 13563: Improving Regulation and
Regulatory
This action is exempt from review by
the Office of Management and Budget
because it simply extends the date for
the EPA to take action on a petition.
B. Paperwork Reduction Act (PRA)
This action does not impose an
information collection burden under the
PRA. This good cause final action
simply extends the date for the EPA to
take action on a petition and does not
impose any new obligations or
enforceable duties on any state, local or
tribal governments or the private sector.
It does not contain any recordkeeping or
reporting requirements.
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95886
Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations
C. Regulatory Flexibility Act (RFA)
This action is not subject to the RFA.
The RFA applies only to rules subject to
notice-and-comment rulemaking
requirements under the APA, 5 U.S.C.
553, or any other statute. This rule is not
subject to notice-and-comment
requirements because the agency has
invoked the APA ‘‘good cause’’
exemption under 5 U.S.C. 553(b).
D. Unfunded Mandates Reform Act
(UMRA)
This action does not contain any
unfunded mandate of $100 million or
more as described in UMRA, 2 U.S.C.
1531–1538, and does not significantly or
uniquely affect small governments. The
action imposes no enforceable duty on
any state, local or tribal governments or
the private sector.
E. Executive Order 13132: Federalism
This action 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.
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
This action does not have tribal
implications, as specified in Executive
Order 13175. This good cause final
action simply extends the date for the
EPA to take action on a petition. Thus,
Executive Order 13175 does not apply
to this rule.
G. Executive Order 13045: Protection of
Children From Environmental Health
and Safety Risks
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The EPA interprets Executive Order
13045 as applying only to those
regulatory actions that concern
environmental health or safety risks that
the EPA has reason to believe may
disproportionately affect children, per
the definition of ‘‘covered regulatory
action’’ in section 2–202 of the
Executive Order. This action is not
subject to Executive Order 13045
because it does not concern an
environmental health risk or safety risk.
H. Executive Order 13211: Actions That
Significantly Affect Energy Supply,
Distribution or Use
This action is not subject to Executive
Order 13211, because it is not a
significant regulatory action under
Executive Order 12866.
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14:51 Dec 28, 2016
Jkt 241001
I. National Technology Transfer and
Advancement Act (NTTAA)
This rulemaking does not involve
technical standards.
ENVIRONMENTAL PROTECTION
AGENCY
J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
The EPA believes that this action is
not subject to Executive Order 12898 (59
FR 7629, February 16, 1994) because it
does not establish an environmental
health or safety standard. This good
cause final action simply extends the
date for the EPA to take action on a
petition and does not have any impact
on human health or the environment.
[EPA–HQ–OPP–2016–0007 and EPA–HQ–
OPP–2016–0008; FRL–9950–40]
K. Congressional Review Act (CRA)
This action is subject to the CRA, and
the EPA will submit a rule report to
each House of the Congress and to the
Comptroller General of the United
States. The CRA allows the issuing
agency to make a rule effective sooner
than otherwise provided by the CRA if
the agency makes a good cause finding
that notice-and-comment rulemaking
procedures are impracticable,
unnecessary or contrary to the public
interest (5 U.S.C. 808(2)). The EPA has
made a good cause finding for this rule
as discussed in Section II.B of this
document, including the basis for that
finding.
IV. Statutory Authority
The statutory authority for this action
is provided by sections 110, 126 and
307 of the CAA as amended (42 U.S.C.
7410, 7426 and 7607).
V. Judicial Review
Under section 307(b)(1) of the CAA,
judicial review of this final rule is
available only by the filing of a petition
for review in the U.S. Court of Appeals
for the appropriate circuit by February
27, 2017. Under section 307(b)(2) of the
CAA, the requirements that are the
subject of this final rule may not be
challenged later in civil or criminal
proceedings brought by us to enforce
these requirements.
List of Subjects in 40 CFR Part 52
Environmental protection,
Administrative practices and
procedures, Air pollution control,
Electric utilities, Incorporation by
reference, Intergovernmental relations,
Nitrogen oxides, Ozone.
Dated: December 15, 2016.
Gina McCarthy,
Administrator.
[FR Doc. 2016–31256 Filed 12–28–16; 8:45 am]
BILLING CODE 6560–50–P
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40 CFR Part 180
Isobutyl Acetate and Isobutyric Acid;
Exemption From the Requirement of a
Tolerance
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
This regulation establishes
exemptions from the requirement of a
tolerance for residues of isobutyl acetate
(CAS Reg. No. 110–19–0) and isobutyric
acid (CAS Reg. No. 79–31–2) when used
as inert ingredients (solvent) in
pesticide formulations applied to
growing crops and raw agricultural
commodities after harvest. Technology
Sciences Group Inc. on behalf of Jeneil
Biosurfactant Company submitted a
petition to EPA under the Federal Food,
Drug, and Cosmetic Act (FFDCA),
requesting establishment of these
exemptions from the requirement of a
tolerance. This regulation eliminates the
need to establish maximum permissible
levels for residues of isobutyl acetate
and isobutyric acid.
DATES: This regulation is effective
December 29, 2016. Objections and
requests for hearings must be received
on or before February 27, 2017, 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 dockets for this action,
identified by docket identification (ID)
numbers EPA–HQ–OPP–2016–0007 and
EPA–HQ–OPP–2016–0008, are 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), West William
Jefferson Clinton 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:
Michael Goodis, Registration Division
(7505P), Office of Pesticide Programs,
Environmental Protection Agency, 1200
Pennsylvania Ave. NW., Washington,
SUMMARY:
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Agencies
[Federal Register Volume 81, Number 250 (Thursday, December 29, 2016)]
[Rules and Regulations]
[Pages 95884-95886]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-31256]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-HQ-OAR-2016-0691; FRL-9957-28-OAR]
Extension of Deadline for Action on the November 2016 Section 126
Petition From Delaware
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: In this action, the Environmental Protection Agency (EPA) is
determining that 60 days is insufficient time to complete the technical
and other analyses and public notice-and-comment process required for
our review of a petition submitted by the state of Delaware pursuant to
section 126 of the Clean Air Act (CAA). The petition requests that the
EPA make a finding that Homer City Generating Station, located in
Indiana County, Pennsylvania, emits air pollution that significantly
contributes to nonattainment and interferes with maintenance of the
2008 and 2015 ozone national ambient air quality standards (NAAQS) in
the state of Delaware. Under section 307(d)(10) of CAA, the EPA is
authorized to grant a time extension for responding to a petition if
the EPA determines that the extension is necessary to afford the
public, and the agency, adequate opportunity to carry out the purposes
of the section 307(d) notice-and-comment rulemaking requirements. By
this action, the EPA is making that determination. The EPA is therefore
extending the deadline for acting on the petition to no later than July
9, 2017.
DATES: This final rule is effective on December 29, 2016.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OAR-2016-0691. All documents in the docket are
listed on the https://www.regulations.gov Web site. Although listed in
the index, some information is not publicly available, e.g.,
Confidential Business Information or other information whose disclosure
is restricted by statute. Certain other material, such as copyrighted
material, is not placed on the Internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available electronically through https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Mr. Benjamin Gibson, Office of Air
Quality Planning and Standards (C545-E), U.S. EPA, Research Triangle
Park, North Carolina 27709, telephone number (919) 541-3277, email:
gibson.benjamin@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background and Legal Requirements for Interstate Air Pollution
This is a procedural action to extend the deadline for the EPA to
respond to a petition from the state of Delaware filed pursuant to CAA
section 126(b). The EPA received the petition on November 10, 2016. The
petition requests that the EPA make a finding under section 126(b) of
the CAA that the Homer City Generating Station, located in Indiana
County, Pennsylvania, is operating in a manner that emits air
pollutants in violation of the provisions of section 110(a)(2)(D)(i)(I)
of the CAA
[[Page 95885]]
with respect to the 2008 and 2015 ozone NAAQS.
Section 126(b) of the CAA authorizes states to petition the EPA to
find that a major source or group of stationary sources in upwind
states emits or would emit any air pollutant in violation of the
prohibition of CAA section 110(a)(2)(D)(i) \1\ by contributing
significantly to nonattainment or maintenance problems in downwind
states. Section 110(a)(2)(D)(i)(I) of the CAA prohibits emissions of
any air pollutant in amounts which will contribute significantly to
nonattainment in, or interfere with maintenance by, any other state
with respect to any NAAQS. The petition asserts that emissions from
Homer City Generating Station's three electric generating units emit
air pollutants in violation of CAA section 110(a)(2)(D)(i)(I) with
respect to the 2008 8-hour ozone NAAQS, set at 0.075 parts per million
(ppm), and the revised 2015 8-hour ozone NAAQS, set at 0.070 ppm.\2\
---------------------------------------------------------------------------
\1\ The text of CAA section 126 codified in the United States
Code cross references CAA section 110(a)(2)(D)(ii) instead of CAA
section 110(a)(2)(D)(i). The courts have confirmed that this is a
scrivener's error and the correct cross reference is to CAA section
110(a)(2)(D)(i). See Appalachian Power Co. v. EPA, 249 F.3d 1032,
1040-44 (D.C. Cir. 2001).
\2\ On October 1, 2015, the EPA strengthened the ground-level
ozone NAAQS, based on extensive scientific evidence about ozone's
effects on public health and welfare. See 80 FR 65291 (October 26,
2015).
---------------------------------------------------------------------------
Pursuant to CAA section 126(b), the EPA must make the finding
requested in the petition, or must deny the petition within 60 days of
its receipt. Under CAA section 126(c), any existing sources for which
the EPA makes the requested finding must cease operations within 3
months of the finding, except that the source may continue to operate
if it complies with emission limitations and compliance schedules
(containing increments of progress) that the EPA may provide to bring
about compliance with the applicable requirements as expeditiously as
practical but no later than 3 years from the date of the finding.
CAA section 126(b) further provides that the EPA must hold a public
hearing on the petition. The EPA's action under section 126 is also
subject to the procedural requirements of CAA section 307(d). See CAA
section 307(d)(1)(N). One of these requirements is notice-and-comment
rulemaking, under section 307(d)(3)-(6).
In addition, CAA section 307(d)(10) provides for a time extension,
under certain circumstances, for a rulemaking subject to CAA section
307(d). Specifically, CAA section 307(d)(10) provides:
Each statutory deadline for promulgation of rules to which this
subsection applies which requires promulgation less than six months
after date of proposal may be extended to not more than six months
after date of proposal by the Administrator upon a determination
that such extension is necessary to afford the public, and the
agency, adequate opportunity to carry out the purposes of the
subsection.
CAA section 307(d)(10) may be applied to section 126 rulemakings
because the 60-day time limit under CAA section 126(b) necessarily
limits the period for promulgation of a final rule after proposal to
less than 6 months.
II. Final Rule
A. Rule
In accordance with CAA section 307(d)(10), the EPA is determining
that the 60-day period afforded by CAA section 126(b) for responding to
the petition from the state of Delaware is not adequate to allow the
public and the agency the opportunity to carry out the purposes of CAA
section 307(d). Specifically, the 60-day period is insufficient for the
EPA to complete the necessary technical review, develop an adequate
proposal, and allow time for notice and comment, including an
opportunity for public hearing, on a proposed finding regarding whether
the Homer City Generating Station identified in the CAA section 126
petition contributes significantly to nonattainment or interferes with
maintenance of the 2008 ozone NAAQS or the 2015 ozone NAAQS in
Delaware. Moreover, the 60-day period is insufficient for the EPA to
review and develop response to any public comments on a proposed
finding, or testimony supplied at a public hearing, and to develop and
promulgate a final finding in response to the petition. The EPA is in
the process of determining an appropriate schedule for action on the
CAA section 126 petition. This schedule must afford the EPA adequate
time to prepare a proposal that clearly elucidates the issues to
facilitate public comment, and must provide adequate time for the
public to comment and for the EPA to review and develop responses to
those comments prior to issuing the final rule. As a result of this
extension, the deadline for the EPA to act on the petition is July 9,
2017.
B. Notice and Comment Under the Administrative Procedure Act (APA)
This document is a final agency action, but may not be subject to
the notice-and-comment requirements of the APA, 5 U.S.C. 553(b). The
EPA believes that, because of the limited time provided to make a
determination, the deadline for action on the CAA section 126 petition
should be extended. Congress may not have intended such a determination
to be subject to notice-and-comment rulemaking. However, to the extent
that this determination otherwise would require notice and opportunity
for public comment, there is good cause within the meaning of 5 U.S.C.
553(b)(3)(B) not to apply those requirements here. Providing for notice
and comment would be impracticable because of the limited time provided
for making this determination, and would be contrary to the public
interest because it would divert agency resources from the substantive
review of the CAA section 126 petition.
C. Effective Date Under the APA
This action is effective on December 29, 2016. Under the APA, 5
U.S.C. 553(d)(3), agency rulemaking may take effect before 30 days
after the date of publication in the Federal Register if the agency has
good cause to mandate an earlier effective date. This action--a
deadline extension--must take effect immediately because its purpose is
to extend by 6 months the deadline for action on the petition. As
discussed earlier, the EPA intends to use the 6-month extension period
to develop a proposal on the petition and provide time for public
comment before issuing the final rule. It would not be possible for the
EPA to complete the required notice and comment and public hearing
process within the original 60-day period noted in the statute. These
reasons support an immediate effective date.
III. Statutory and Executive Order Reviews
A. Executive Orders 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory
This action is exempt from review by the Office of Management and
Budget because it simply extends the date for the EPA to take action on
a petition.
B. Paperwork Reduction Act (PRA)
This action does not impose an information collection burden under
the PRA. This good cause final action simply extends the date for the
EPA to take action on a petition and does not impose any new
obligations or enforceable duties on any state, local or tribal
governments or the private sector. It does not contain any
recordkeeping or reporting requirements.
[[Page 95886]]
C. Regulatory Flexibility Act (RFA)
This action is not subject to the RFA. The RFA applies only to
rules subject to notice-and-comment rulemaking requirements under the
APA, 5 U.S.C. 553, or any other statute. This rule is not subject to
notice-and-comment requirements because the agency has invoked the APA
``good cause'' exemption under 5 U.S.C. 553(b).
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate of $100 million
or more as described in UMRA, 2 U.S.C. 1531-1538, and does not
significantly or uniquely affect small governments. The action imposes
no enforceable duty on any state, local or tribal governments or the
private sector.
E. Executive Order 13132: Federalism
This action 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.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175. This good cause final action simply extends the
date for the EPA to take action on a petition. Thus, Executive Order
13175 does not apply to this rule.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order. This action is not subject to
Executive Order 13045 because it does not concern an environmental
health risk or safety risk.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution or Use
This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act (NTTAA)
This rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
The EPA believes that this action is not subject to Executive Order
12898 (59 FR 7629, February 16, 1994) because it does not establish an
environmental health or safety standard. This good cause final action
simply extends the date for the EPA to take action on a petition and
does not have any impact on human health or the environment.
K. Congressional Review Act (CRA)
This action is subject to the CRA, and the EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. The CRA allows the issuing agency to make a rule
effective sooner than otherwise provided by the CRA if the agency makes
a good cause finding that notice-and-comment rulemaking procedures are
impracticable, unnecessary or contrary to the public interest (5 U.S.C.
808(2)). The EPA has made a good cause finding for this rule as
discussed in Section II.B of this document, including the basis for
that finding.
IV. Statutory Authority
The statutory authority for this action is provided by sections
110, 126 and 307 of the CAA as amended (42 U.S.C. 7410, 7426 and 7607).
V. Judicial Review
Under section 307(b)(1) of the CAA, judicial review of this final
rule is available only by the filing of a petition for review in the
U.S. Court of Appeals for the appropriate circuit by February 27, 2017.
Under section 307(b)(2) of the CAA, the requirements that are the
subject of this final rule may not be challenged later in civil or
criminal proceedings brought by us to enforce these requirements.
List of Subjects in 40 CFR Part 52
Environmental protection, Administrative practices and procedures,
Air pollution control, Electric utilities, Incorporation by reference,
Intergovernmental relations, Nitrogen oxides, Ozone.
Dated: December 15, 2016.
Gina McCarthy,
Administrator.
[FR Doc. 2016-31256 Filed 12-28-16; 8:45 am]
BILLING CODE 6560-50-P