83 FR 21909 - Extension of Deadline for Action on the Section 126(b) Petition From New York
ENVIRONMENTAL PROTECTION AGENCY Federal Register Volume 83, Issue 92 (May 11, 2018)
Federal Register Volume 83, Issue 92 (May 11, 2018)
| Page Range | 21909-21912 | |
| FR Document | 2018-09892 |
[Federal Register Volume 83, Number 92 (Friday, May 11, 2018)] [Rules and Regulations] [Pages 21909-21912] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-09892] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-HQ-OAR-2018-0170; FRL-9977-90-OAR] RIN 2060-AU02 Extension of Deadline for Action on the Section 126(b) Petition From New York 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 dated March 12, 2018, submitted by the state of New York pursuant to section 126(b) of the Clean Air Act (CAA). The petition requests that the EPA make a finding that emissions from the collection of identified sources in nine states (Illinois, Indiana, Kentucky, Maryland, Michigan, Ohio, Pennsylvania, Virginia and West Virginia) significantly contribute to and interfere with maintenance of the 2008 and 2015 ozone national ambient air quality standards (NAAQS) in New York State. Under section 307(d)(10) of the 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 from May 13, 2018, to no later than November 9, 2018. DATES: This final rule is effective on May 11, 2018. ADDRESSES: The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2018-0170. All documents in the docket are listed on the http://www.regulations.gov website. 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: Mr. Lev Gabrilovich, U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards, Air Quality Policy Division, Mail Code C539-01, Research Triangle Park, NC 27711, telephone (919) 541-1496; email at [email protected]. SUPPLEMENTARY INFORMATION: I. Background and Legal Standard This is a procedural action to extend the deadline for the EPA to respond to a petition from the state of New York filed pursuant to CAA section 126(b). The EPA received the petition on March 14, 2018. The petition requests that the EPA make a finding under section 126(b) of the CAA that emissions from the collection of identified sources in nine states (Illinois, Indiana, Kentucky, Maryland, Michigan, Ohio, Pennsylvania, Virginia and West Virginia) significantly contribute to and interfere with maintenance of the 2008 and 2015 ozone NAAQS in New York in violation of the provisions of section 110(a)(2)(D)(i) of the CAA, also known as the ``good neighbor'' provisions. 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 interfering with 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. 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. --------------------------------------------------------------------------- \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 (DC Cir. 2001). --------------------------------------------------------------------------- The CAA section 126(b) petition from the state of New York requests that the EPA make a finding that, within each of the identified nine upwind states, certain sources within the electric generating unit (EGU) and non-EGU sectors collectively emit air pollutants in violation of CAA section 110(a)(2)(D)(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\ --------------------------------------------------------------------------- \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 and after holding a public hearing. In addition to the public hearing provisions in CAA section 126(b), the EPA's action under [[Page 21910]] CAA 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). Section 307(d)(3) of the CAA provides minimum requirements for the contents of a proposed action subject to 307(d), including summarizing the methodology used in analyzing data on which the proposed action is based and the major legal interpretations and policy considerations underlying the proposal. CAA section 307(d)(6) requires that the final action be equally detailed and include an explanation of any major changes from proposal and a response to each significant comment received. With respect to the public hearing, the EPA must provide sufficient notice to the public. The Federal Register Act identifies 15 days' notice as the timeframe presumed to be sufficient notice to the public in advance of a public hearing. See 44 U.S.C. Section 1508. CAA section 307(d)(5) also provides specific direction for the conduct of public hearings, requiring at (iv), that ``the Administrator shall keep the record of [the public hearing] open for thirty days after the completion of the proceeding to provide for an opportunity for submission of rebuttal and supplementary information.'' In sum, the statutory requirements governing the EPA's action on a CAA section 126(b) petition necessitate the following procedural steps: Conducting technical, legal, and policy review of a submitted petition; developing an adequate proposal; providing sufficient notice of a public hearing; holding the public hearing; allowing sufficient time for notice and comment on both the proposal and public hearing record and developing responses to comments received and a final action on the petition. Section 307(d)(10) of the CAA provides for a time extension, under certain circumstances, for a rulemaking subject to 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. The EPA believes that the plain language of this provision allows the EPA to extend statutory deadlines for rulemakings enumerated in CAA section 307(d)(1) that are subject to deadlines with less than 6 months between a proposed and final action. The phrase ``which requires promulgation less than six months after date of proposal'' clearly specifies the type of deadline that may be extended, while the phrase ``may be extended to not more than six months after date of proposal'' limits the duration of an extension invoked under this provision. Notably, neither of these phrases, nor the provision in its entirety, impose any predicate steps on the EPA for invoking an extension other than determining that such an extension is necessary to afford the public, and the agency, adequate opportunity to carry out the purposes of CAA section 307(d). To the extent the terms of this provision are ambiguous, the EPA believes its interpretation of these terms is reasonable. The stated purpose of this provision is to provide both the public and the EPA adequate opportunity to effectuate the objectives of CAA section 307(d) regarding rulemaking. Interpreting CAA section 307(d)(10) to require the EPA to take some substantive predicate rulemaking step in a shorter timeframe to invoke the 6-month extension would contradict the stated purpose of the extension, as taking a predicate action within such shorter timeframe risks undermining the same reasons for invoking the extension. For example, were the EPA required to issue a proposed action on a CAA section 126(b) petition within 60 days of receipt to invoke the 6-month extension, the EPA may risk inadequately meeting the requirements of CAA section 307(d)(3) governing the minimum contents of such proposal depending on the technical complexity of the petition and other factors involved in developing an adequate proposal. Given that the purpose of an extension under CAA section 307(d)(10) is, in part, to provide the EPA with adequate opportunity to meet the requirements of section 307(d), it follows that the extension should be available for both the EPA's proposed and final action on a section 126(b) petition. Additionally, the EPA notes that CAA section 307(d)(1) does not speak to when the EPA must determine that an extension is necessary. The EPA acknowledges that the timeframes set out under CAA sections 126(b) and 307(d)(10) indicate Congress's clear intent that the EPA act quickly on a section 126 petition. Considering this intent, the EPA reasonably interprets CAA section 307(d)(10) to require the EPA to make the necessary determination in invoking a 6-month extension no later than the end of the original response time provided by section 126(b) for acting on a petition, which is 60-days from receipt. Such interpretation ensures that that the overall legal deadline for the EPA's action on a CAA section 126(b) petition does not exceed the aggregate eight-month deadline provided under the CAA (i.e., 60 days provided under section 126(b) plus 6 months provided under section 307(d)(10)). Finally, under the EPA's reasonable reading of CAA section 307(d)(10), this extension may be invoked only once. The EPA believes its reading of the extension provision under CAA section 307(d)(10) is consistent with Congress's dual intent of ensuring that the EPA acts expeditiously on a CAA section 126(b) petition and ensuring that the public has adequate opportunity to participate in the EPA's rulemaking process on such a petition. As described previously, the extension will allow the EPA to undertake the appropriate and necessary public participation processes, such as holding a public hearing on a proposed action on New York's petition. Based on either a plain reading of the language, or, in the alternative, a reasonable reading of the provision in the event of ambiguity, CAA section 307(d)(10), therefore, may be applied to CAA section 126(b) 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 New York is not adequate time to allow the public, and the agency, the opportunity to carry out the purposes of CAA section 307(d). In making this determination, the EPA has met the necessary steps to invoke a 6-month extension for acting on New York's CAA section 126(b) petition. Specifically, the 60-day period is insufficient time for the EPA to complete the necessary technical review of the petition, develop an adequate proposal, and allow time for notice and comment, including an opportunity for public hearing, on a proposed finding regarding whether emissions from the collection of identified EGU and non-EGU sources in nine states (Illinois, Indiana, Kentucky, Maryland, Michigan, Ohio, Pennsylvania, Virginia and West Virginia) significantly contribute to and interfere with maintenance of the 2008 and 2015 ozone NAAQS in New York [[Page 21911]] State. Moreover, the 60-day period is insufficient for the EPA to review and develop responses 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. Particularly, the timeframes for notice of the public hearing and duration of comment period after the hearing itself would consume 45 days (presuming 15 days' notice of the hearing, and a 30-day comment period thereafter), leaving a total of 15 days of the 60-day period to complete the previously identified steps needed to review the petition, develop a proposal, review and develop responses 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. An appropriate schedule for action on the CAA section 126(b) petition 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. With this extension, the deadline for the EPA to act on the petition is revised from May 13, 2018, to November 9, 2018. The EPA does not intend to grant itself any further extension under this provision if upon expiration of this extension the EPA has not yet acted on New York's section 126(b) petition. 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 the EPA to make a finding, the deadline for action on the CAA section 126(b) 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(b) petition. C. Effective Date Under the APA This action is effective on May 11, 2018. 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. 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 Review This action is exempt from review by the Office of Management and Budget because it simply extends the date for the EPA to act on a petition. B. Executive Order 13771: Reducing Regulations and Controlling Regulatory Costs This action is not an Executive Order 13771 regulatory action because this action is not significant under Executive Order 12866. C. 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 act 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. D. 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). E. 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. F. 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. G. 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 act on a petition. Thus, Executive Order 13175 does not apply to this rule. H. 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. I. 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. J. National Technology Transfer and Advancement Act (NTTAA) This rulemaking does not involve technical standards. K. 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 act on a petition and does not have any impact on human health or the environment. [[Page 21912]] L. 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). List of Subjects in 40 CFR Part 52 Environmental protection, Administrative practices and procedures, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen oxides, Ozone. Dated: May 3, 2018. E. Scott Pruitt, Administrator. [FR Doc. 2018-09892 Filed 5-8-18; 8:45 am] BILLING CODE 6560-50-P
![Federal Register / Vol. 83, No. 92 / Friday, May 11, 2018 / Rules and Regulations 21909
District
EPA approval
Reg Title/subject Federal Register notice effective Explanation
date date
* * * * * * *
Reg 3—Ambient Air Quality Standards
3.01 ................ Ambient Air Quality Stand- 5/11/2018 [Insert citation of publication] 02/15/17
ards.
* * * * * * *
* * * * * DATES: This final rule is effective on 110(a)(2)(D)(i) 1 by contributing
[FR Doc. 2018–09991 Filed 5–10–18; 8:45 am] May 11, 2018. significantly to nonattainment or
BILLING CODE 6560–50–P
ADDRESSES: The EPA has established a interfering with maintenance problems
docket for this action under Docket ID in downwind states. Section
No. EPA–HQ–OAR–2018–0170. All 110(a)(2)(D)(i)(I) of the CAA prohibits
ENVIRONMENTAL PROTECTION emissions of any air pollutant in
documents in the docket are listed on
AGENCY amounts which will contribute
the http://www.regulations.gov website.
Although listed in the index, some significantly to nonattainment in, or
40 CFR Part 52 interfere with maintenance by, any
information is not publicly available,
[EPA–HQ–OAR–2018–0170; FRL–9977–90– e.g., Confidential Business Information other state with respect to any NAAQS.
OAR] or other information whose disclosure is Under CAA section 126(c), any existing
restricted by statute. Certain other sources for which the EPA makes the
RIN 2060–AU02 material, such as copyrighted material, requested finding must cease operations
is not placed on the internet and will be within 3 months of the finding, except
Extension of Deadline for Action on that the source may continue to operate
publicly available only in hard copy
the Section 126(b) Petition From New if it complies with emission limitations
form. Publicly available docket
York and compliance schedules (containing
materials are available electronically
increments of progress) that the EPA
AGENCY: Environmental Protection through http://www.regulations.gov.
may provide to bring about compliance
Agency (EPA). FOR FURTHER INFORMATION CONTACT: Mr. with the applicable requirements as
ACTION: Final rule. Lev Gabrilovich, U.S. Environmental expeditiously as practical but no later
Protection Agency, Office of Air Quality than 3 years from the date of the
SUMMARY: In this action, the Planning and Standards, Air Quality finding.
Environmental Protection Agency (EPA) Policy Division, Mail Code C539–01, The CAA section 126(b) petition from
is determining that 60 days is Research Triangle Park, NC 27711, the state of New York requests that the
insufficient time to complete the telephone (919) 541–1496; email at EPA make a finding that, within each of
technical and other analyses and public gabrilovich.lev@epa.gov. the identified nine upwind states,
notice-and-comment process required certain sources within the electric
for our review of a petition dated March SUPPLEMENTARY INFORMATION:
generating unit (EGU) and non-EGU
12, 2018, submitted by the state of New I. Background and Legal Standard sectors collectively emit air pollutants
York pursuant to section 126(b) of the in violation of CAA section
Clean Air Act (CAA). The petition This is a procedural action to extend
the deadline for the EPA to respond to 110(a)(2)(D)(i) with respect to the 2008
requests that the EPA make a finding 8-hour ozone NAAQS, set at 0.075 parts
that emissions from the collection of a petition from the state of New York
filed pursuant to CAA section 126(b). per million (ppm), and the revised 2015
identified sources in nine states 8-hour ozone NAAQS, set at 0.070
(Illinois, Indiana, Kentucky, Maryland, The EPA received the petition on March
14, 2018. The petition requests that the ppm.2
Michigan, Ohio, Pennsylvania, Virginia Pursuant to CAA section 126(b), the
and West Virginia) significantly EPA make a finding under section
126(b) of the CAA that emissions from EPA must make the finding requested in
contribute to and interfere with the petition or must deny the petition
maintenance of the 2008 and 2015 the collection of identified sources in
nine states (Illinois, Indiana, Kentucky, within 60 days of its receipt and after
ozone national ambient air quality holding a public hearing. In addition to
standards (NAAQS) in New York State. Maryland, Michigan, Ohio,
Pennsylvania, Virginia and West the public hearing provisions in CAA
Under section 307(d)(10) of the CAA, section 126(b), the EPA’s action under
the EPA is authorized to grant a time Virginia) significantly contribute to and
extension for responding to a petition if interfere with maintenance of the 2008 1 The text of CAA section 126 codified in the
the EPA determines that the extension and 2015 ozone NAAQS in New York in United States Code cross references CAA section
is necessary to afford the public, and the violation of the provisions of section 110(a)(2)(D)(ii) instead of CAA section
Agency, adequate opportunity to carry 110(a)(2)(D)(i) of the CAA, also known 110(a)(2)(D)(i). The courts have confirmed that this
sradovich on DSK3GMQ082PROD with RULES
as the ‘‘good neighbor’’ provisions. is a scrivener’s error and the correct cross reference
out the purposes of the section 307(d) is to CAA section 110(a)(2)(D)(i). See Appalachian
notice-and-comment rulemaking Section 126(b) of the CAA authorizes Power Co. v. EPA, 249 F.3d 1032, 1040–44 (DC Cir.
requirements. By this action, the EPA is states to petition the EPA to find that a 2001).
making that determination. The EPA is, major source or group of stationary 2 On October 1, 2015, the EPA strengthened the
sources in upwind states emits or would ground-level ozone NAAQS, based on extensive
therefore, extending the deadline for scientific evidence about ozone’s effects on public
acting on the petition from May 13, emit any air pollutant in violation of the health and welfare. See 80 FR 65291 (October 26,
2018, to no later than November 9, 2018. prohibition of CAA section 2015).
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CAA section 126 is also subject to the with less than 6 months between a which is 60-days from receipt. Such
procedural requirements of CAA section proposed and final action. The phrase interpretation ensures that that the
307(d). See CAA section 307(d)(1)(N). ‘‘which requires promulgation less than overall legal deadline for the EPA’s
One of these requirements is notice-and- six months after date of proposal’’ action on a CAA section 126(b) petition
comment rulemaking, under section clearly specifies the type of deadline does not exceed the aggregate eight-
307(d)(3)–(6). Section 307(d)(3) of the that may be extended, while the phrase month deadline provided under the
CAA provides minimum requirements ‘‘may be extended to not more than six CAA (i.e., 60 days provided under
for the contents of a proposed action months after date of proposal’’ limits the section 126(b) plus 6 months provided
subject to 307(d), including duration of an extension invoked under under section 307(d)(10)). Finally,
summarizing the methodology used in this provision. Notably, neither of these under the EPA’s reasonable reading of
analyzing data on which the proposed phrases, nor the provision in its CAA section 307(d)(10), this extension
action is based and the major legal entirety, impose any predicate steps on may be invoked only once.
interpretations and policy the EPA for invoking an extension other The EPA believes its reading of the
considerations underlying the proposal. than determining that such an extension extension provision under CAA section
CAA section 307(d)(6) requires that the is necessary to afford the public, and the 307(d)(10) is consistent with Congress’s
final action be equally detailed and agency, adequate opportunity to carry dual intent of ensuring that the EPA acts
include an explanation of any major out the purposes of CAA section 307(d). expeditiously on a CAA section 126(b)
changes from proposal and a response to To the extent the terms of this petition and ensuring that the public
each significant comment received. provision are ambiguous, the EPA has adequate opportunity to participate
With respect to the public hearing, the believes its interpretation of these terms in the EPA’s rulemaking process on
EPA must provide sufficient notice to is reasonable. The stated purpose of this such a petition. As described
the public. The Federal Register Act provision is to provide both the public previously, the extension will allow the
identifies 15 days’ notice as the and the EPA adequate opportunity to EPA to undertake the appropriate and
timeframe presumed to be sufficient effectuate the objectives of CAA section necessary public participation
notice to the public in advance of a 307(d) regarding rulemaking. processes, such as holding a public
public hearing. See 44 U.S.C. Section Interpreting CAA section 307(d)(10) to hearing on a proposed action on New
1508. CAA section 307(d)(5) also require the EPA to take some York’s petition.
provides specific direction for the substantive predicate rulemaking step in Based on either a plain reading of the
conduct of public hearings, requiring at a shorter timeframe to invoke the 6- language, or, in the alternative, a
(iv), that ‘‘the Administrator shall keep month extension would contradict the reasonable reading of the provision in
the record of [the public hearing] open stated purpose of the extension, as the event of ambiguity, CAA section
for thirty days after the completion of taking a predicate action within such 307(d)(10), therefore, may be applied to
the proceeding to provide for an shorter timeframe risks undermining the CAA section 126(b) rulemakings
opportunity for submission of rebuttal same reasons for invoking the extension. because the 60-day time limit under
and supplementary information.’’ For example, were the EPA required to CAA section 126(b) necessarily limits
In sum, the statutory requirements issue a proposed action on a CAA the period for promulgation of a final
governing the EPA’s action on a CAA section 126(b) petition within 60 days of rule after proposal to less than 6
section 126(b) petition necessitate the receipt to invoke the 6-month extension, months.
following procedural steps: Conducting the EPA may risk inadequately meeting
technical, legal, and policy review of a the requirements of CAA section II. Final Rule
submitted petition; developing an 307(d)(3) governing the minimum A. Rule
adequate proposal; providing sufficient contents of such proposal depending on
the technical complexity of the petition In accordance with CAA section
notice of a public hearing; holding the 307(d)(10), the EPA is determining that
public hearing; allowing sufficient time and other factors involved in developing
an adequate proposal. Given that the the 60-day period afforded by CAA
for notice and comment on both the section 126(b) for responding to the
proposal and public hearing record and purpose of an extension under CAA
section 307(d)(10) is, in part, to provide petition from the state of New York is
developing responses to comments not adequate time to allow the public,
received and a final action on the the EPA with adequate opportunity to
meet the requirements of section 307(d), and the agency, the opportunity to carry
petition. out the purposes of CAA section 307(d).
Section 307(d)(10) of the CAA it follows that the extension should be
available for both the EPA’s proposed In making this determination, the EPA
provides for a time extension, under
and final action on a section 126(b) has met the necessary steps to invoke a
certain circumstances, for a rulemaking
petition. 6-month extension for acting on New
subject to section 307(d). Specifically,
Additionally, the EPA notes that CAA York’s CAA section 126(b) petition.
CAA section 307(d)(10) provides:
section 307(d)(1) does not speak to Specifically, the 60-day period is
Each statutory deadline for promulgation when the EPA must determine that an insufficient time for the EPA to
of rules to which this subsection applies complete the necessary technical review
which requires promulgation less than six
extension is necessary. The EPA
months after date of proposal may be acknowledges that the timeframes set of the petition, develop an adequate
extended to not more than six months after out under CAA sections 126(b) and proposal, and allow time for notice and
date of proposal by the Administrator upon 307(d)(10) indicate Congress’s clear comment, including an opportunity for
a determination that such extension is intent that the EPA act quickly on a public hearing, on a proposed finding
necessary to afford the public, and the section 126 petition. Considering this regarding whether emissions from the
sradovich on DSK3GMQ082PROD with RULES
agency, adequate opportunity to carry out the intent, the EPA reasonably interprets collection of identified EGU and non-
purposes of the subsection. CAA section 307(d)(10) to require the EGU sources in nine states (Illinois,
The EPA believes that the plain EPA to make the necessary Indiana, Kentucky, Maryland, Michigan,
language of this provision allows the determination in invoking a 6-month Ohio, Pennsylvania, Virginia and West
EPA to extend statutory deadlines for extension no later than the end of the Virginia) significantly contribute to and
rulemakings enumerated in CAA section original response time provided by interfere with maintenance of the 2008
307(d)(1) that are subject to deadlines section 126(b) for acting on a petition, and 2015 ozone NAAQS in New York
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L. Congressional Review Act (CRA) schedule adjustments for certain SUPPLEMENTARY INFORMATION: Inspection
This action is subject to the CRA, and durable medical equipment (DME) and of Public Comments: All comments
the EPA will submit a rule report to enteral nutrition paid in areas not received before the close of the
each House of the Congress and to the subject to the Durable Medical comment period are available for
Comptroller General of the United Equipment, Prosthetics, Orthotics, and viewing by the public, including any
States. The CRA allows the issuing Supplies (DMEPOS) Competitive personally identifiable or confidential
agency to make a rule effective sooner Bidding Program (CBP). In addition, this business information that is included in
than otherwise provided by the CRA if interim final rule with comment period a comment. We post all comments
the agency makes a good cause finding amends the regulation to resume the received before the close of the
that notice-and-comment rulemaking transition period’s blended fee schedule comment period on the following
procedures are impracticable, rates for items furnished in rural areas website as soon as possible after they
unnecessary or contrary to the public and non-contiguous areas (Alaska, have been received: http://
interest (5 U.S.C. 808(2)). The EPA has Hawaii, and United States territories) regulations.gov. Follow the search
made a good cause finding for this rule not subject to the CBP from June 1, 2018 instructions on that website to view
as discussed in Section II.B of this through December 31, 2018. This public comments.
document, including the basis for that interim final rule with comment period
Table of Contents
finding. also makes technical amendments to
existing regulations for DMEPOS items I. Executive Summary
IV. Statutory Authority and services to reflect the exclusion of A. Purpose
infusion drugs used with DME from the B. Summary of the Major Provisions
The statutory authority for this action C. Summary of Costs and Benefits
is provided by sections 110, 126 and DMEPOS CBP. II. Durable Medical Equipment, Prosthetics,
307 of the CAA as amended (42 U.S.C. DATES: Orthotics Supplies (DMEPOS) Fee
7410, 7426 and 7607). Effective date: The provisions of this Schedule and Competitive Bidding
interim final rule with comment period Program (CBP)
List of Subjects in 40 CFR Part 52 A. Background for Payment Revisions for
are effective on June 1, 2018.
Environmental protection, Durable Medical Equipment, Prosthetics,
Comment date: To be assured Orthotics, and Supplies (DMEPOS)
Administrative practices and consideration, comments must be 1. Fee Schedule Payment Basis for Certain
procedures, Air pollution control, received at one of the addresses DMEPOS
Incorporation by reference, provided below, no later than 5 p.m. on 2. DMEPOS CBP
Intergovernmental relations, Nitrogen July 9, 2018. a. Payment Basis
oxides, Ozone. ADDRESSES: In commenting, please refer b. Geographic Areas Designated Under the
Dated: May 3, 2018. DMEPOS CBPs
to file code CMS–1687–IFC. Because of
B. Background on the Methodology for
E. Scott Pruitt, staff and resource limitations, we cannot Adjusting Payment Amounts for Certain
Administrator. accept comments by facsimile (FAX) DMEPOS Using Information From
[FR Doc. 2018–09892 Filed 5–8–18; 8:45 am] transmission. DMEPOS CBPs
BILLING CODE 6560–50–P Comments, including mass comment C. Transition Period for Phase-In of Fee
submissions, must be submitted in one Schedule Adjustments
of the following three ways (please 1. Statutory Mandate To Reconsider Fee
choose only one of the ways listed): Schedule Adjustments
DEPARTMENT OF HEALTH AND 2. Fee Schedule Adjustment Impact
HUMAN SERVICES 1. Electronically. You may submit Monitoring Data
electronic comments on this regulation 3. Restoring Transitional Blended Fee
Centers for Medicare & Medicaid to http://www.regulations.gov. Follow Schedule Rates in Rural Areas and Non-
Services the ‘‘Submit a comment’’ instructions. Contiguous Areas
2. By regular mail. You may mail D. Fee Schedule Amounts for Accessories
42 CFR Part 414 written comments to the following Used With Group 3 Complex
address ONLY: Centers for Medicare & Rehabilitative Power Wheelchairs
[CMS–1687–IFC] E. Technical Changes To Conform the
Medicaid Services, Department of
Regulation to Section 5004(b) of the 21st
RIN 0938–AT21 Health and Human Services, Attention:
Century Cures Act (the Cures Act):
CMS–1687–IFC, P.O. Box 8010, Exclusion of DME Infusion Drugs Under
Medicare Program; Durable Medical Baltimore, MD 21244–8010. CBPs
Equipment Fee Schedule Adjustments Please allow sufficient time for mailed III. Provisions of the Interim Final Rule With
To Resume the Transitional 50/50 comments to be received before the Comment Period
Blended Rates To Provide Relief in close of the comment period. A. Transition Period for Phase-In of Fee
Rural Areas and Non-Contiguous 3. By express or overnight mail. You Schedule Adjustments
Areas may send written comments to the B. Technical Changes To Conform the
Regulation to Section 5004(b) of the
AGENCY: Centers for Medicare & following address ONLY: Centers for
Cures Act: Exclusion of DME Infusion
Medicaid Services (CMS), HHS. Medicare & Medicaid Services, Drugs Under CBPs
Department of Health and Human IV. Waiver of Proposed Rulemaking
ACTION: Interim final rule with comment
Services, Attention: CMS–1687–IFC, V. Collection of Information Requirements
period. Mail Stop C4–26–05, 7500 Security VI. Response to Comments
sradovich on DSK3GMQ082PROD with RULES
SUMMARY: This interim final rule with Boulevard, Baltimore, MD 21244–1850. VII. Economic Analyses
For information on viewing public A. Regulatory Impact Analysis
comment period makes technical
comments, see the beginning of the 1. Introduction
amendments to the regulation to reflect 2. Statement of Need
the extension of the transition period SUPPLEMENTARY INFORMATION section.
3. Overall Impact
from June 30, 2016 to December 31, FOR FURTHER INFORMATION CONTACT: B. Detailed Economic Analysis
2016 that was mandated by the 21st Laurence Wilson, 410–786–4602 and a. Effects on the Medicare Program and
Century Cures Act for phasing in fee DMEPOS@cms.hhs.gov. Beneficiaries
VerDate Sep<11>2014 22:27 May 10, 2018 Jkt 244001 PO 00000 Frm 00072 Fmt 4700 Sfmt 4700 E:\FR\FM\11MYR1.SGM 11MYR1](https://thefederalregister.org/doc/83_FR_22001/page/4.svg)
Document Created: 2018-11-02 09:49:22
Document Modified: 2018-11-02 09:49:22
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule. | |
| Dates | This final rule is effective on May 11, 2018. | |
| Contact | Mr. Lev Gabrilovich, U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards, Air Quality Policy Division, Mail Code C539-01, Research Triangle Park, NC 27711, telephone (919) 541-1496; email at [email protected] | |
| FR Citation | 83 FR 21909 | |
| RIN Number | 2060-AU02 | |
| CFR Associated | Environmental Protection; Administrative Practices and Procedures; Air Pollution Control; Incorporation by Reference; Intergovernmental Relations; Nitrogen Oxides and Ozone |
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