81_FR_66376 81 FR 66189 - Extension of Deadline for Action on the August 2016 Section 126 Petition From Delaware

81 FR 66189 - Extension of Deadline for Action on the August 2016 Section 126 Petition From Delaware

ENVIRONMENTAL PROTECTION AGENCY

Federal Register Volume 81, Issue 187 (September 27, 2016)

Page Range66189-66191
FR Document2016-23155

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 Harrison Power Station, located near Haywood, Harrison County, West Virginia, 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 April 7, 2017.

Federal Register, Volume 81 Issue 187 (Tuesday, September 27, 2016)
[Federal Register Volume 81, Number 187 (Tuesday, September 27, 2016)]
[Rules and Regulations]
[Pages 66189-66191]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-23155]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-HQ-OAR-2016-0509; FRL-9952-97-OAR]


Extension of Deadline for Action on the August 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 Harrison Power Station, located near Haywood, 
Harrison County, West Virginia, 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 
April 7, 2017.

DATES: This final rule is effective on September 27, 2016.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-HQ-OAR-2016-0509. All documents in the docket are 
listed on the http://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 http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Ms. Gobeail McKinley, Office of Air 
Quality Planning and Standards (C504-04), U.S. EPA, Research Triangle 
Park, North Carolina 27709, telephone number (919) 541-5246, email: 
mckinley.gobeail@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 August 8, 2016. The 
petition requests that the EPA make a finding under section 126(b) of 
the CAA that the Harrison Power Station, located near Haywood, Harrison 
County, West Virginia, 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 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 
Harrison Power 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

[[Page 66190]]

(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 Harrison Power Plant 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 April 7, 
2017.

B. Notice and Comment Under the Administrative Procedures 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 September 27, 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.

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.

[[Page 66191]]

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 November 28, 2016. 
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: September 19, 2016.
Gina McCarthy,
Administrator.
[FR Doc. 2016-23155 Filed 9-26-16; 8:45 am]
 BILLING CODE 6560-50-P



                                                                   Federal Register / Vol. 81, No. 187 / Tuesday, September 27, 2016 / Rules and Regulations                                                66189

                                                    The revisions and additions read as                     (12) Establish guidance for when an                 e.g., Confidential Business Information
                                                  follows:                                                Expedited Transfer has been requested                 or other information whose disclosure is
                                                                                                          in accordance with DoD Instruction                    restricted by statute. Certain other
                                                  § 103.5   Responsibilities.                             6495.02.                                              material, such as copyrighted material,
                                                     (a) * * *                                            *     *    *     *    *                               is not placed on the Internet and will be
                                                     (6) Oversee the DoD Sexual Assault                                                                         publicly available only in hard copy
                                                  Prevention and Response Office                            Dated: September 7, 2016.
                                                                                                          Patricia L. Toppings,                                 form. Publicly available docket
                                                  (SAPRO). Serving as the DoD single                                                                            materials are available electronically
                                                  point of authority, accountability, and                 OSD Federal Register Liaison Officer,
                                                                                                          Department of Defense.                                through http://www.regulations.gov.
                                                  oversight for the SAPR program, SAPRO
                                                  provides recommendations to the                         [FR Doc. 2016–21875 Filed 9–26–16; 8:45 am]           FOR FURTHER INFORMATION CONTACT:   Ms.
                                                  USD(P&R) on the issue of DoD sexual                     BILLING CODE 5001–06–P                                Gobeail McKinley, Office of Air Quality
                                                  assault policy matters on prevention,                                                                         Planning and Standards (C504–04), U.S.
                                                  response, and oversight. The SAPRO                                                                            EPA, Research Triangle Park, North
                                                  Director will be appointed from among                   ENVIRONMENTAL PROTECTION                              Carolina 27709, telephone number (919)
                                                  general or flag officers of the Military                AGENCY                                                541–5246, email: mckinley.gobeail@
                                                  Services or DoD employees in a                                                                                epa.gov.
                                                  comparable Senior Executive Service                     40 CFR Part 52
                                                  position in accordance with Public Law                  [EPA–HQ–OAR–2016–0509; FRL–9952–97–                   SUPPLEMENTARY INFORMATION
                                                  112–81 . The SAPRO Director is                          OAR]
                                                                                                                                                                I. Background and Legal Requirements
                                                  responsible for:
                                                                                                          Extension of Deadline for Action on                   for Interstate Air Pollution
                                                  *      *     *    *     *
                                                     (vi) Overseeing development of                       the August 2016 Section 126 Petition                     This is a procedural action to extend
                                                  strategic program guidance and joint                    From Delaware
                                                                                                                                                                the deadline for the EPA to respond to
                                                  planning objectives for resources in                    AGENCY:  Environmental Protection                     a petition from the state of Delaware
                                                  support of the SAPR Program, and                        Agency (EPA).                                         filed pursuant to CAA section 126(b).
                                                  making recommendations on                               ACTION: Final rule.                                   The EPA received the petition on
                                                  modifications to policy, law, and                                                                             August 8, 2016. The petition requests
                                                  regulations needed to ensure the                        SUMMARY:    In this action, the                       that the EPA make a finding under
                                                  continuing availability of such resources               Environmental Protection Agency (EPA)                 section 126(b) of the CAA that the
                                                  (Pub. L. 113–66).                                       is determining that 60 days is                        Harrison Power Station, located near
                                                  *      *     *    *     *                               insufficient time to complete the                     Haywood, Harrison County, West
                                                     (f) * * *                                            technical and other analyses and public
                                                                                                                                                                Virginia, is operating in a manner that
                                                     (5) Align Service prevention strategies              notice-and-comment process required
                                                                                                                                                                emits air pollutants in violation of the
                                                  with the DoD Sexual Assault Prevention                  for our review of a petition submitted by
                                                                                                                                                                provisions of section 110(a)(2)(D)(i)(I) of
                                                  Strategy.                                               the state of Delaware pursuant to section
                                                                                                          126 of the Clean Air Act (CAA). The                   the CAA with respect to the 2008 and
                                                  *      *     *    *     *                               petition requests that the EPA make a                 2015 ozone NAAQS.
                                                     (12) Submit required data to DSAID.                  finding that Harrison Power Station,                     Section 126(b) of the CAA authorizes
                                                  Require confirmation that a multi-                      located near Haywood, Harrison                        states to petition the EPA to find that a
                                                  disciplinary case management group                      County, West Virginia, emits air                      major source or group of stationary
                                                  (CMG) tracks each open Unrestricted                     pollution that significantly contributes              sources in upwind states emits or would
                                                  Report, is chaired by the installation                  to nonattainment and interferes with                  emit any air pollutant in violation of the
                                                  commander (or the deputy installation                   maintenance of the 2008 and 2015                      prohibition of CAA section
                                                  commander), and that CMG meetings                       ozone national ambient air quality                    110(a)(2)(D)(i) 1 by contributing
                                                  are held monthly for reviewing all                      standards (NAAQS) in the state of                     significantly to nonattainment or
                                                  Unrestricted Reports of sexual assaults                 Delaware. Under section 307(d)(10) of
                                                  in accordance with DoD Instruction                                                                            maintenance problems in downwind
                                                                                                          CAA, the EPA is authorized to grant a                 states. Section 110(a)(2)(D)(i)(I) of the
                                                  6495.02.                                                time extension for responding to a                    CAA prohibits emissions of any air
                                                  *      *     *    *     *                               petition if the EPA determines that the               pollutant in amounts which will
                                                     (17) Require the installation SARC                   extension is necessary to afford the                  contribute significantly to
                                                  and the installation FAP staff to                       public, and the agency, adequate                      nonattainment in, or interfere with
                                                  coordinate together when a sexual                       opportunity to carry out the purposes of              maintenance by, any other state with
                                                  assault occurs as a result of domestic                  the section 307(d) notice-and-comment
                                                  abuse or domestic violence or involves                                                                        respect to any NAAQS. The petition
                                                                                                          rulemaking requirements. By this                      asserts that emissions from Harrison
                                                  child abuse to ensure the victim is                     action, the EPA is making that
                                                  directed to FAP.                                                                                              Power Station’s three electric generating
                                                                                                          determination. The EPA is therefore                   units emit air pollutants in violation of
                                                  *      *     *    *     *                               extending the deadline for acting on the
                                                                                                                                                                CAA section 110(a)(2)(D)(i)(I) with
                                                     (g) On behalf and with the approval                  petition to no later than April 7, 2017.
                                                                                                                                                                respect to the 2008 8-hour ozone
                                                  of the Secretaries of the Army and Air                  DATES: This final rule is effective on
                                                                                                                                                                NAAQS, set at 0.075 parts per million
asabaliauskas on DSK3SPTVN1PROD with RULES




                                                  Force, and in coordination with DoD                     September 27, 2016.
                                                  SAPRO and the State Adjutants General,                  ADDRESSES: The EPA has established a                     1 The text of CAA section 126 codified in the
                                                  the Chief, NGB establishes and                          docket for this action under Docket ID                United States Code cross references CAA section
                                                  implements SAPR policy and                              No. EPA–HQ–OAR–2016–0509. All                         110(a)(2)(D)(ii) instead of CAA section
                                                  procedures for National Guard members                   documents in the docket are listed on                 110(a)(2)(D)(i). The courts have confirmed that this
                                                  on duty pursuant to Title 32, U.S.C.                                                                          is a scrivener’s error and the correct cross reference
                                                                                                          the http://www.regulations.gov Web                    is to CAA section 110(a)(2)(D)(i). See Appalachian
                                                  *      *     *    *     *                               site. Although listed in the index, some              Power Co. v. EPA, 249 F.3d 1032, 1040–44 (D.C. Cir.
                                                     (i) * * *                                            information is not publicly available,                2001).



                                             VerDate Sep<11>2014   16:16 Sep 26, 2016   Jkt 238001   PO 00000   Frm 00011   Fmt 4700   Sfmt 4700   E:\FR\FM\27SER1.SGM   27SER1


                                                  66190            Federal Register / Vol. 81, No. 187 / Tuesday, September 27, 2016 / Rules and Regulations

                                                  (ppm), and the revised 2015 8-hour                      insufficient for the EPA to complete the              extend by 6 months the deadline for
                                                  ozone NAAQS, set at 0.070 ppm.2                         necessary technical review, develop an                action on the petition. As discussed
                                                     Pursuant to CAA section 126(b), the                  adequate proposal, and allow time for                 earlier, the EPA intends to use the 6-
                                                  EPA must make the finding requested in                  notice and comment, including an                      month extension period to develop a
                                                  the petition, or must deny the petition                 opportunity for public hearing, on a                  proposal on the petition and provide
                                                  within 60 days of its receipt. Under                    proposed finding regarding whether the                time for public comment before issuing
                                                  CAA section 126(c), any existing                        Harrison Power Plant identified in the                the final rule. It would not be possible
                                                  sources for which the EPA makes the                     CAA section 126 petition contributes                  for the EPA to complete the required
                                                  requested finding must cease operations                 significantly to nonattainment or                     notice and comment and public hearing
                                                  within 3 months of the finding, except                  interferes with maintenance of the 2008               process within the original 60-day
                                                  that the source may continue to operate                 ozone NAAQS or the 2015 ozone                         period noted in the statute. These
                                                  if it complies with emission limitations                NAAQS in Delaware. Moreover, the 60-                  reasons support an immediate effective
                                                  and compliance schedules (containing                    day period is insufficient for the EPA to             date.
                                                  increments of progress) that the EPA                    review and develop response to any
                                                                                                          public comments on a proposed finding,                III. Statutory and Executive Order
                                                  may provide to bring about compliance
                                                                                                          or testimony supplied at a public                     Reviews
                                                  with the applicable requirements as
                                                  expeditiously as practical but no later                 hearing, and to develop and promulgate                A. Executive Orders 12866: Regulatory
                                                  than 3 years from the date of the                       a final finding in response to the                    Planning and Review and Executive
                                                  finding.                                                petition. The EPA is in the process of                Order 13563: Improving Regulation and
                                                     CAA section 126(b) further provides                  determining an appropriate schedule for               Regulatory
                                                  that the EPA must hold a public hearing                 action on the CAA section 126 petition.
                                                                                                          This schedule must afford the EPA                       This action is exempt from review by
                                                  on the petition. The EPA’s action under
                                                                                                          adequate time to prepare a proposal that              the Office of Management and Budget
                                                  section 126 is also subject to the
                                                                                                          clearly elucidates the issues to facilitate           because it simply extends the date for
                                                  procedural requirements of CAA section
                                                                                                          public comment, and must provide                      the EPA to take action on a petition.
                                                  307(d). See CAA section 307(d)(1)(N).
                                                  One of these requirements is notice-and-                adequate time for the public to comment               B. Paperwork Reduction Act (PRA)
                                                  comment rulemaking, under section                       and for the EPA to review and develop
                                                                                                          responses to those comments prior to                     This action does not impose an
                                                  307(d)(3)–(6).                                                                                                information collection burden under the
                                                     In addition, CAA section 307(d)(10)                  issuing the final rule. As a result of this
                                                                                                          extension, the deadline for the EPA to                PRA. This good cause final action
                                                  provides for a time extension, under
                                                                                                          act on the petition is April 7, 2017.                 simply extends the date for the EPA to
                                                  certain circumstances, for a rulemaking
                                                                                                                                                                take action on a petition and does not
                                                  subject to CAA section 307(d).                          B. Notice and Comment Under the                       impose any new obligations or
                                                  Specifically, CAA section 307(d)(10)                    Administrative Procedures Act (APA)                   enforceable duties on any state, local or
                                                  provides:
                                                                                                             This document is a final agency                    tribal governments or the private sector.
                                                    Each statutory deadline for promulgation              action, but may not be subject to the                 It does not contain any recordkeeping or
                                                  of rules to which this subsection applies               notice-and-comment requirements of                    reporting requirements.
                                                  which requires promulgation less than six
                                                                                                          the APA, 5 U.S.C. 553(b). The EPA                     C. Regulatory Flexibility Act (RFA)
                                                  months after date of proposal may be
                                                  extended to not more than six months after              believes that, because of the limited
                                                  date of proposal by the Administrator upon              time provided to make a determination,                  This action is not subject to the RFA.
                                                  a determination that such extension is                  the deadline for action on the CAA                    The RFA applies only to rules subject to
                                                  necessary to afford the public, and the                 section 126 petition should be extended.              notice-and-comment rulemaking
                                                  agency, adequate opportunity to carry out the           Congress may not have intended such a                 requirements under the APA, 5 U.S.C.
                                                  purposes of the subsection.                             determination to be subject to notice-                553, or any other statute. This rule is not
                                                    CAA section 307(d)(10) may be                         and-comment rulemaking. However, to                   subject to notice-and-comment
                                                  applied to section 126 rulemakings                      the extent that this determination                    requirements because the agency has
                                                  because the 60-day time limit under                     otherwise would require notice and                    invoked the APA ‘‘good cause’’
                                                  CAA section 126(b) necessarily limits                   opportunity for public comment, there                 exemption under 5 U.S.C. 553(b).
                                                  the period for promulgation of a final                  is good cause within the meaning of 5                 D. Unfunded Mandates Reform Act
                                                  rule after proposal to less than 6                      U.S.C. 553(b)(3)(B) not to apply those                (UMRA)
                                                  months.                                                 requirements here. Providing for notice
                                                                                                          and comment would be impracticable                      This action does not contain any
                                                  II. Final Rule                                          because of the limited time provided for              unfunded mandate of $100 million or
                                                  A. Rule                                                 making this determination, and would                  more as described in UMRA, 2 U.S.C.
                                                                                                          be contrary to the public interest                    1531–1538, and does not significantly or
                                                    In accordance with CAA section                        because it would divert agency                        uniquely affect small governments. The
                                                  307(d)(10), the EPA is determining that                 resources from the substantive review of              action imposes no enforceable duty on
                                                  the 60-day period afforded by CAA                       the CAA section 126 petition.                         any state, local or tribal governments or
                                                  section 126(b) for responding to the                                                                          the private sector.
                                                  petition from the state of Delaware is                  C. Effective Date Under the APA
                                                  not adequate to allow the public and the                   This action is effective on September              E. Executive Order 13132: Federalism
asabaliauskas on DSK3SPTVN1PROD with RULES




                                                  agency the opportunity to carry out the                 27, 2016. Under the APA, 5 U.S.C.                       This action does not have federalism
                                                  purposes of CAA section 307(d).                         553(d)(3), agency rulemaking may take                 implications. It will not have substantial
                                                  Specifically, the 60-day period is                      effect before 30 days after the date of               direct effects on the states, on the
                                                                                                          publication in the Federal Register if                relationship between the national
                                                    2 On October 1, 2015, the EPA strengthened the
                                                                                                          the agency has good cause to mandate                  government and the states, or on the
                                                  ground-level ozone NAAQS, based on extensive
                                                  scientific evidence about ozone’s effects on public
                                                                                                          an earlier effective date. This action—a              distribution of power and
                                                  health and welfare. See 80 FR 65291 (October 26,        deadline extension—must take effect                   responsibilities among the various
                                                  2015).                                                  immediately because its purpose is to                 levels of government.


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                                                                   Federal Register / Vol. 81, No. 187 / Tuesday, September 27, 2016 / Rules and Regulations                                             66191

                                                  F. Executive Order 13175: Consultation                  document, including the basis for that                ‘‘Medication Assisted Treatment for
                                                  and Coordination With Indian Tribal                     finding.                                              Opioid Use Disorders,’’ published in the
                                                  Governments                                                                                                   Federal Register on July 8, 2016.
                                                                                                          IV. Statutory Authority
                                                    This action does not have tribal                                                                            DATES: Effective Date: This final rule is
                                                  implications, as specified in Executive                    The statutory authority for this action            effective on October 27, 2016.
                                                  Order 13175. This good cause final                      is provided by sections 110, 126 and                  FOR FURTHER INFORMATION CONTACT:
                                                  action simply extends the date for the                  307 of the CAA as amended (42 U.S.C.                  Jinhee Lee, Pharm.D., Public Health
                                                  EPA to take action on a petition. Thus,                 7410, 7426 and 7607).                                 Advisor, Center for Substance Abuse
                                                  Executive Order 13175 does not apply                    V. Judicial Review                                    Treatment, 240–276–2700
                                                  to this rule.                                                                                                 SUPPLEMENTARY INFORMATION:
                                                                                                            Under section 307(b)(1) of the CAA,
                                                  G. Executive Order 13045: Protection of                 judicial review of this final rule is                 Electronic Access
                                                  Children From Environmental Health                      available only by the filing of a petition              This Federal Register document is
                                                  and Safety Risks                                        for review in the U.S. Court of Appeals               also available from the Federal Register
                                                    The EPA interprets Executive Order                    for the appropriate circuit by November               online database through Federal Digital
                                                  13045 as applying only to those                         28, 2016. Under section 307(b)(2) of the              System (FDsys), a service of the U.S.
                                                  regulatory actions that concern                         CAA, the requirements that are the                    Government Printing Office. This
                                                  environmental health or safety risks that               subject of this final rule may not be                 database can be accessed via the
                                                  the EPA has reason to believe may                       challenged later in civil or criminal                 Internet at http://www.gpo.gov/fdsys.
                                                  disproportionately affect children, per                 proceedings brought by us to enforce
                                                                                                          these requirements.                                   I. Background
                                                  the definition of ‘‘covered regulatory
                                                  action’’ in section 2–202 of the                        List of Subjects in 40 CFR Part 52                       On July 8, 2016, HHS issued a final
                                                  Executive Order. This action is not                                                                           rule entitled ‘‘Medication Assisted
                                                  subject to Executive Order 13045                          Environmental protection,                           Treatment for Opioid Use Disorders’’ in
                                                  because it does not concern an                          Administrative practices and                          the Federal Register (81 FR 44712). That
                                                  environmental health risk or safety risk.               procedures, Air pollution control,                    final rule increases access to
                                                                                                          Electric utilities, Incorporation by                  medication-assisted treatment (MAT)
                                                  H. Executive Order 13211: Actions That                  reference, Intergovernmental relations,               with covered medications,1 in an office-
                                                  Significantly Affect Energy Supply,                     Nitrogen oxides, Ozone.                               based setting, by allowing eligible
                                                  Distribution or Use                                                                                           physicians to request approval to treat
                                                                                                            Dated: September 19, 2016.
                                                    This action is not subject to Executive               Gina McCarthy,                                        up to 275 patients if certain conditions
                                                  Order 13211 because it is not a                         Administrator.                                        are met. The final rule also includes
                                                  significant regulatory action under                                                                           requirements to help ensure that
                                                                                                          [FR Doc. 2016–23155 Filed 9–26–16; 8:45 am]
                                                  Executive Order 12866.                                                                                        patients receive the full array of services
                                                                                                          BILLING CODE 6560–50–P
                                                  I. National Technology Transfer and                                                                           that comprise evidence-based MAT and
                                                  Advancement Act (NTTAA)                                                                                       minimize the risk that the medications
                                                                                                                                                                provided for treatment are misused or
                                                     This rulemaking does not involve                     DEPARTMENT OF HEALTH AND                              diverted. HHS issued a supplemental
                                                  technical standards.                                    HUMAN SERVICES                                        Notice of Proposed Rulemaking
                                                  J. Executive Order 12898: Federal                                                                             (SNPRM) along with the final rule,
                                                                                                          42 CFR Part 8
                                                  Actions To Address Environmental                                                                              which included reporting requirements
                                                  Justice in Minority Populations and                     RIN 0930–AA22                                         for practitioners who increase their
                                                  Low-Income Populations                                                                                        patient limit to 275.
                                                                                                          Medication Assisted Treatment for
                                                     The EPA believes that this action is                 Opioid Use Disorders Reporting                        A. Regulatory History
                                                  not subject to Executive Order 12898 (59                Requirements                                             On March 30, 2016, HHS issued a
                                                  FR 7629, February 16, 1994) because it                                                                        Notice of Proposed Rulemaking,
                                                  does not establish an environmental                     AGENCY:  Substance Abuse and Mental                   ‘‘Medication Assisted Treatment for
                                                  health or safety standard. This good                    Health Services Administration                        Opioid Use Disorders.’’ On July 8, 2016,
                                                  cause final action simply extends the                   (SAMHSA), HHS.                                        HHS issued a final rule which finalized
                                                  date for the EPA to take action on a                    ACTION: Final rule.                                   the regulation with the exception of
                                                  petition and does not have any impact                                                                         sections relating to the requirement to
                                                  on human health or the environment.                     SUMMARY:   This final rule outlines                   provide reports to SAMHSA (§ 8.630(b))
                                                                                                          annual reporting requirements for                     and the reporting requirements
                                                  K. Congressional Review Act (CRA)                       practitioners who are authorized to treat             (§ 8.635). Also on July 8, 2016, HHS
                                                    This action is subject to the CRA, and                up to 275 patients with covered                       published a Supplemental Notice of
                                                  the EPA will submit a rule report to                    medications in an office-based setting.               Proposed Rulemaking (SNPRM) in the
                                                  each House of the Congress and to the                   This final rule will require practitioners            Federal Register which proposed
                                                  Comptroller General of the United                       to provide information on their annual                reporting requirements for practitioners
                                                  States. The CRA allows the issuing                      caseload of patients by month, the                    whose Request for Patient Limit
                                                  agency to make a rule effective sooner                  number of patients provided behavioral                Increase is approved under Section
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                                                  than otherwise provided by the CRA if                   health services and referred to                       8.625. The purpose of the reporting
                                                  the agency makes a good cause finding                   behavioral health services, and the                   requirements is to help HHS assess
                                                  that notice-and-comment rulemaking                      features of the practitioner’s diversion              practitioner compliance with the
                                                  procedures are impracticable,                           control plan. These reporting                         additional responsibilities of
                                                  unnecessary or contrary to the public                   requirements will help the Department
                                                  interest (5 U.S.C. 808(2)). The EPA has                 of Health and Human Services (HHS)                      1 Covered medications means the drugs or
                                                  made a good cause finding for this rule                 ensure compliance with the                            combination of drugs that are covered under 21
                                                  as discussed in Section II.B of this                    requirements of the final rule,                       U.S.C. 823(g)(2)(C).



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Document Created: 2016-09-27 01:19:27
Document Modified: 2016-09-27 01:19:27
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionFinal rule.
DatesThis final rule is effective on September 27, 2016.
ContactMs. Gobeail McKinley, Office of Air Quality Planning and Standards (C504-04), U.S. EPA, Research Triangle Park, North Carolina 27709, telephone number (919) 541-5246, email: [email protected]
FR Citation81 FR 66189 
CFR AssociatedEnvironmental Protection; Administrative Practices and Procedures; Air Pollution Control; Electric Utilities; Incorporation by Reference; Intergovernmental Relations; Nitrogen Oxides and Ozone

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