Federal Register / Vol. 72, No. 94 / Wednesday, May 16, 2007 / Rules and Regulations 27437 

[FR Doc. E7–9289 Filed 5–15–07; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 60, 61, and 63 

[EPA–HQ–OAR–2006–0085; FRL–8315–2] 

RIN 2060–AN84 

Revisions to Standards of 

Performance for New Stationary 

Sources, National Emission Standards 

for Hazardous Air Pollutants, and 

National Emission Standards for 

Hazardous Air Pollutants for Source 

Categories 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: This action promulgates 

revisions to the General Provisions for 

Standards of Performance for New 

Stationary Sources, for National 

Emission Standards for Hazardous Air 

Pollutants, and for National Emission 

Standards for Hazardous Air Pollutants 

for Source Categories to allow for 

extensions to the deadline imposed for 

source owners and operators to conduct 

an initial or subsequent performance 

test required by applicable regulations. 

The General Provisions do not currently 

provide for extensions of the deadlines 

for conducting performance tests. 

DATES: This final rule is effective on 

May 16, 2007. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–OAR–2006–0085. All 

documents in the docket are listed on 

the www.regulations.gov Web site. 

Although listed in the index, some 

information is not publicly available, 

e.g., CBI or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

www.regulations.gov or in hard copy at 

the Revisions to Standards of 

Performance for New Stationary 

Sources, National Emission Standards 

for Hazardous Air Pollutants, and 

National Emission Standards for 

Hazardous Air Pollutants for Source 

Categories Docket, EPA/DC, EPA West, 

Room 3334, 1301 Constitution Ave., 

NW., Washington, DC. This Docket 

Facility is open from 8:30 a.m. to 4:30 

p.m., Monday through Friday, excluding 

legal holidays. The Docket telephone 

number is 202–566–1742. The Public 

Reading Room is open from 8:30 a.m. to 

4:30 p.m., Monday through Friday, 

excluding legal holidays. The telephone 

number for the Public Reading Room is 

(202) 566–1744. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Lula Melton, Air Quality Assessment 

Division, Office of Air Quality Planning 

and Standards, (C304–02), 

Environmental Protection Agency, 

Research Triangle Park, North Carolina 

27711; telephone number: (919) 541–

2910; fax number: (919) 541–4511; email address: melton.lula@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this action apply to me? 

This action applies to any source 

whose owner or operator is required to 

conduct performance testing to 

demonstrate compliance with 

applicable standards under the General 

Provisions for Standards of Performance 

for New Stationary Sources, for National 

Emission Standards for Hazardous Air 

Pollutants, and for National Emission 

Standards for Hazardous Air Pollutants 

for Source Categories. 

B. Where can I get a copy of this 

document and other related 

information? 

In addition to being available in the 

docket, an electronic copy of this final 

action will also be available on the 

Worldwide Web (WWW) through the 

Technology Transfer Network (TTN). 

Following the Administrator’s signature, 

a copy of the final amendments will be 

placed on the TTN’s policy and 

guidance page for newly proposed or 

promulgated rules at http:// 

www.epa.gov/ttn/oarpg. The TTN 

provides information and technology 

exchange in various areas of air 

pollution control. 

C. Public Comments on Proposed Rule 

The EPA received 15 sets of public 

comments on the proposed amendments 

to the General Provisions for Standards 

of Performance for New Stationary 

Sources, for National Emission 

Standards for Hazardous Air Pollutants, 

and for National Emission Standards for 

Hazardous Air Pollutants for Source 

Categories during the 90-day comment 

period. These comments were submitted 

to the rulemaking docket. The EPA has 

carefully considered these comments in 

developing the final amendments. 

Summaries of the comments and EPA’s 

responses are contained in this 

preamble. 

D. Judicial Review 

Under section 307(b)(1) of the Clean 

Air Act (CAA), judicial review of this 

final rule is available by filing a petition 

for review in the United States Court of 

Appeals for the District of Columbia 

Circuit by July 16, 2007. Only those 

objections to this final rule that were 

raised with reasonable specificity 

during the period for public comment 

may be raised during judicial review. 

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 

EPA to enforce these requirements. 

Section 307(d)(7)(B) of the CAA 

further provides a mechanism for us to 

convene a proceeding for 

reconsideration, ‘‘[i]f the person raising 

an objection can demonstrate to the EPA 

that it was impracticable to raise such 

objection within [the period for public 

comment] or if the grounds for such 

objection arose after the period for 

public comment (but within the time 

specified for judicial review) and if such 

objection is of central relevance to the 

outcome of the rule.’’ Any person 

seeking to make such a demonstration to 

us should submit a Petition for 

Reconsideration to the Office of the 

Administrator, U.S. EPA, Room 3000, 

Ariel Rios Building, 1200 Pennsylvania 

Ave., NW., Washington, DC 20460, with 

a copy to both the person(s) listed in the 

preceding FOR FURTHER INFORMATION

CONTACT section, and the Associate 

General Counsel for the Air and 

Radiation Law Office, Office of General 

Counsel (Mail Code 2344A), U.S. EPA, 

1200 Pennsylvania Ave., NW., 

Washington, DC 20460. 

E. How is this document organized? 

The information presented in this 

preamble is organized as follows: 

I. General Information 

A. Does this action apply to me? 

B. Where can I get a copy of this document 

and other related information? 

C. Public Comments on Proposed Rule 

D. Judicial Review 

E. How is this document organized? 

II. Summary of Final Action and Rationale 

A. What are the requirements? 

B. Why did we amend the requirements for 

performance tests in the General 

Provisions? 

III. Responses to Comments 

A. Clarification of Approving Authority 

B. Force Majeure Concept 

C. Notifications 

D. Approvals 

E. Title V Deviations 

F. Other Comments 

IV. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

B. Paperwork Reduction Act 


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27438 Federal Register / Vol. 72, No. 94 / Wednesday, May 16, 2007 / Rules and Regulations 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

H. Executive Order 13211: Action That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

J. Congressional Review Act 

II. Summary of Final Action and 

Rationale 

A. What are the requirements? 

The final rule allows source owners or 

operators, in the event of a force 

majeure, to petition the Administrator 

for an extension of the deadline(s) by 

which they are required to conduct an 

initial or subsequent performance test 

required by applicable regulations. 

Performance tests required as a result of 

enforcement orders or enforcement 

actions are not covered by this rule 

because enforcement agreements 

contain their own force majeure 

provisions. A ‘‘force majeure’’ is defined 

as an event that will be or has been 

caused by circumstances beyond the 

control of the affected facility, its 

contractors, or any entity controlled by 

the affected facility that prevents the 

owner or operator from complying with 

the regulatory requirement to conduct 

performance tests within the specified 

timeframe despite the affected facility’s 

best efforts to fulfill the obligation. 

Examples of such events are acts of 

nature, acts of war or terrorism, or 

equipment failure or safety hazard 

beyond the control of the affected 

facility. 

If an affected owner or operator 

intends to assert a claim that a force 

majeure is about to occur, occurs, or has 

occurred, the owner or operator must 

notify the Administrator, in writing, as 

soon as practicable following the date 

the owner or operator first knew, or 

through due diligence should have 

known, that the event may cause or 

caused a delay in testing beyond the 

regulatory deadline. The owner or 

operator must provide a written 

description of the event and a rationale 

for attributing the delay in testing 

beyond the regulatory deadline to the 

force majeure; describe the measures 

taken or to be taken to minimize the 

delay; and identify a date by which the 

owner or operator proposes to conduct 

the performance test. The test must be 

conducted as soon as practicable after 

the force majeure occurs. 

The decision as to whether or not to 

grant an extension to the performance 

test deadline is solely within the 

discretion of the Administrator. The 

Administrator will notify the owner or 

operator in writing of approval or 

disapproval of the request for an 

extension as soon as practicable. If an 

owner or operator misses its 

performance test deadline due to a force 

majeure event, and the request for an 

extension is subsequently approved, the 

owner or operator will not be held in 

violation for failure to conduct the 

performance test within the prescribed 

regulatory timeframe. 

B. Why did we amend the requirements 

for performance tests in the General 

Provisions? 

We recognize that there may be 

circumstances beyond a source owner’s 

or operator’s control constituting a force 

majeure event that could cause an 

owner or operator to be unable to 

conduct performance tests before the 

regulatory deadline. We developed this 

rule to provide a mechanism for 

consideration of these force majeure 

events and granting of extensions where 

warranted. Under current rules, a source 

owner or operator who is unable to 

comply with performance testing 

requirements within the allotted 

timeframe due to a force majeure is 

regarded as being in violation and 

subject to enforcement action. As a 

matter of policy, EPA often exercises 

enforcement discretion regarding such 

violations. However, where 

circumstances beyond the control of the 

source owner or operator constituting a 

force majeure prevent the performance 

of timely performance tests, we believe 

that it is appropriate to provide an 

opportunity to such owners and 

operators to make good faith 

demonstrations and obtain extensions of 

the performance testing deadline where 

approved by the Administrator in 

appropriate circumstances. 

III. Responses to Comments 

A. Clarification of Approving Authority 

Comment: Five commenters requested 

that we clarify or define the approving 

authority. 

Response: We inadvertently used two 

terms (Administrator and delegated 

agency) in the proposed rule. In 40 CFR 

Part 60 of the proposed rule, we stated 

that the owner or operator shall notify 

the Administrator of force majeure 

events, and in 40 CFR Parts 61 and 63 

of the proposed rule, we stated that the 

owner or operator shall notify the 

delegated agency. We have replaced the 

term delegated agency with the term 

Administrator in 40 CFR Parts 61 and 63 

of the final rule to be consistent with (1) 

the term (Administrator) used in 40 CFR 

Part 60 and (2) the term (Administrator) 

used in Parts 61 and 63 of the General 

Provisions that this final rule amends. 

Nonetheless, we believe that it may be 

appropriate for the Administrator to 

assign the responsibility of evaluating 

and approving or denying requests for 

extensions to performance test 

deadlines due to force majeure events to 

a duly delegated agency according to 

applicable procedures. 

B. Force Majeure Concept 

Comment: Six commenters stated that 

they thought the scope of the rule was 

too narrow and that circumstances 

beyond what they believed were 

covered by the definition of ‘‘force 

majeure’’ warranted similar extensions 

(e.g., pandemics, facility shutdowns, 

and process constraints that result in 

non-representative testing conditions). 

Response: The proposed rule is not as 

narrow as indicated by commenters. 

Force majeure is defined as ‘‘an event 

that will be or has been caused by 

circumstances beyond the control of the 

affected facility, its contractors, or any 

entity controlled by the affected facility 

that prevents the owner or operator from 

complying with the regulatory 

requirement to conduct performance 

tests within the specified timeframe 

despite the affected facility’s best efforts 

to fulfill the obligation.’’ Although we 

provide examples of events that could 

meet this definition (i.e., acts of nature, 

acts of war or terrorism, and equipment 

failure or safety hazards beyond the 

control of the affected facility), this list 

is not exhaustive. The focus of the rule 

and this definition is an event beyond 

the control of the affected facility. 

Similarly, two definitions of ‘‘force 

majeure’’ in dictionaries are ‘‘an 

unexpected or uncontrollable event’’

(The American Heritage Dictionary) and 

‘‘an event or effect that cannot be 

reasonably anticipated or controlled’’

(Merriam-Webster’s Online Dictionary). 

Thus, any event beyond the control of 

the affected facility may qualify for the 

extension. We can neither provide an 

exhaustive list of all of the possible 

events that may qualify as ‘‘force 

majeure’’ under this rule, nor determine 

whether the generic additional 

examples provided in the public 

comments would or would not qualify 

under all circumstances. The 

Administrator will exercise his or her 

discretion when considering requests 

for extensions to performance test 

deadlines due to ‘‘force majeure’’

events. 


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Comment: Six commenters requested 

that we expand the scope of the rule to 

allow the force majeure concept to 

justify extensions for additional 

regulatory requirements, such as 

monitoring, recordkeeping, reporting, 

maintenance, and inspections. 

Response: The purpose of this 

rulemaking is to address requests for 

extensions to performance test 

deadlines. Expanding the force majeure 

concept to include additional regulatory 

requirements is beyond the scope of the 

proposed rule. Therefore, the final rule 

covers petitions for extensions to 

performance test deadlines only. 

C. Notifications 

Comment: Four commenters 

requested that we allow simplified 

notifications. One of these commenters 

requested that we allow a simplified 

notification initially followed by the 

timeline for completing the performance 

test later. In addition, one of these 

commenters requested that we allow 

initial notification to the Administrator 

in non-written formats followed by 

written communication later since 

during force majeure events means of 

communication may be disrupted. Two 

of these commenters stated that the 

Administrator should not require listing 

of every applicable test and rule for an 

entire facility. 

Response: We agree that phased 

notification may be appropriate in 

certain circumstances. For example, if a 

source owner or operator is unable to 

determine a date by which the 

performance test will be conducted at 

the time of the force majeure event, 

verbal notification to the Administrator 

that the original performance test 

deadline will be missed followed by 

written communication describing the 

details required by the rule may be 

appropriate. Also, if a force majeure 

event results in widespread power 

outages and no U.S. Postal mail service, 

an initial oral notification followed by 

written notification may be necessary. 

The written notification required by this 

rule does not include a listing of every 

applicable test and rule for an entire 

facility. The rule requires the source 

owner or operator to provide to the 

permitting authority a written 

description of the force majeure event, 

a rationale for attributing the delay in 

testing beyond the regulatory deadline 

to the force majeure event, a written 

description of the measures taken or to 

be taken to minimize the delay, and a 

date (as soon as practicable following 

the force majeure event) by which the 

owner or operator proposes to conduct 

the performance test. 

Comment: Two commenters requested 

that we clarify that written notification 

includes letters, faxes, e-mails, webbased submittals, etc. 

Response: We agree that written 

notification regarding force majeure 

events can be provided to the 

Administrator in such written formats 

as those listed above. 

Comment: Three commenters 

expressed the concern that a legitimate 

request for an extension may be denied 

based on the timing of the request. For 

example, source owners and operators 

may not be aware of an anticipated 

hurricane until one day prior to the 

event. Another commenter suggested 

that we require source owners and 

operators to notify the Administrator 

verbally within five days of the force 

majeure event and in writing within 

twenty-one days of the event. 

Response: We proposed that the 

owner or operator would notify the 

Administrator, in writing, as soon as 

practicable following the date the owner 

or operator first knew, or should have 

known that the event may cause or 

caused a delay in testing beyond the 

regulatory deadline. We do not believe 

that it is appropriate to establish 

specific timelines in the rule. The 

existence of a force majeure event 

typically necessitates flexibility. Thus, 

the final rule states that the owner or 

operator shall notify the Administrator, 

in writing as soon as practicable 

following the date the owner or operator 

first knew, or through due diligence 

should have known that the event may 

cause or caused a delay in testing 

beyond the regulatory deadline, but the 

notification must occur before the 

performance test deadline unless the 

initial force majeure or a subsequent 

force majeure event delays the notice, 

and in such cases, the notification shall 

occur as soon as practicable. 

D. Approvals 

Comment: Four commenters 

suggested that we add a provision that 

allows requests for extensions to be 

automatically granted if the 

Administrator does not respond within 

a specific timeframe. Three of the four 

commenters suggested that the 

Administrator be given thirty days to 

respond. Two commenters are 

concerned that owners and operators 

will be subject to enforcement actions 

until their requests for extensions are 

approved. 

Response: We disagree with allowing 

automatic approvals and with requiring 

the Administrator to respond within 30 

days. We do not believe that it is 

appropriate to place this burden on the 

Administrator since the Administrator 

may also have been affected by the force 

majeure event. We believe that it is 

appropriate to require the Administrator 

to notify the owner or operator of 

approval or disapproval of the request 

for an extension as soon as practicable. 

Furthermore, if an owner or operator 

misses its performance test deadline due 

to a force majeure event, and the request 

for an extension is subsequently 

approved, the owner or operator will 

not be held in violation for failure to 

conduct the performance test within the 

prescribed regulatory timeframe. 

Comment: Two commenters stated 

that circumstances, such as during acts 

of war, mandatory evacuations, or 

energy and supply restrictions, applying 

for an extension to a performance test 

deadline should be self-implementing. 

Response: We believe that the 

Administrator should have the 

discretion to determine if a request for 

an extension warrants approval and that 

self-implementation is not appropriate. 

During any situation that a source 

owner or operator believes qualifies as 

a force majeure event, the owner or 

operator must submit a request to the 

Administrator that includes the required 

information, such as a written 

description of the force majeure event, 

a rationale for attributing the delay in 

testing beyond the regulatory deadline 

to the force majeure event, a description 

of the measures taken to minimize the 

delay, and a date (as soon as practicable) 

by which the performance test is 

expected to occur. The Administrator 

will notify the owner or operator of 

approval or disapproval of the request 

for an extension as soon as practicable. 

Furthermore, if an owner or operator 

misses its performance test deadline due 

to a force majeure event, and the request 

for an extension is subsequently 

approved, the owner or operator will 

not be held in violation for failure to 

conduct the performance test within the 

prescribed regulatory timeframe. 

Comment: One commenter requested 

that we add the following statement to 

the rule (i.e., ‘‘the Administrator shall 

approve a reasonable request for 

extension of the performance test 

deadline.’’) 

Response: We do not believe that it is 

necessary to add this statement to the 

rule. The decision as to whether or not 

to grant an extension to the performance 

test deadline is solely within the 

discretion of the Administrator. The 

Administrator will notify the owner or 

operator in writing of approval or 

disapproval of the request as soon as 

practicable. 

Comment: Two commenters requested 

that EPA affirm that we already have the 


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27440 Federal Register / Vol. 72, No. 94 / Wednesday, May 16, 2007 / Rules and Regulations 

authority to approve requests for 

extensions to performance tests. 

Response: We do not have this 

authority except through enforcement 

discretion. Therefore, we developed this 

rule to grant this authority. 

Comment: Three commenters believe 

that the Administrator should have the 

authority to issue blanket approvals for 

a designated area in advance of a force 

majeuere event. 

Response: We do not believe that 

blanket approvals are necessary since 

approvals for requests to extend 

performance test deadlines can be 

granted after the force majeure event 

occurs. Furthermore, we believe that 

requests to extend performance test 

deadlines should be reviewed and 

considered on a case-by-case basis 

because situations and circumstances 

may vary among facilities affected by 

the same force majeure event. 

E. Title V Deviations 

Comment: Four commenters 

requested that we specify that 

extensions granted under this rule are 

not Title V deviations. 

Response: We agree that extensions 

granted under this rule are not Title V 

deviations since the original 

performance test deadline will not be 

applicable once a request for an 

extension has been approved. However, 

where the Administrator has not yet 

issued a decision on a request for an 

extension under today’s rule, the failure 

to conduct the performance test within 

the originally prescribed timeframe is a 

deviation and should be reported as 

such. 

F. Other Comments 

Comment: One commenter requested 

that we expand the concept of force 

majeure to cover regulations for other 

environmental media, such as water 

regulations. 

Response: We proposed that this rule 

address air regulations only and are 

maintaining that approach in the final 

rule. 

Comment: One commenter requested 

that denials for extensions be 

administratively appealable. 

Response: The commenter did not 

explain why this recommendation is 

appropriate or how it could be 

implemented. Therefore, we are not 

adopting this recommendation. 

Comment: One commenter requested 

that we delete the word ‘‘strictly’’ from 

the statement ‘‘Until an extension of the 

performance test deadline has been 

approved under * * *, the owner or 

operator of the affected facility remains 

strictly subject to the requirements of 

this part.’’

Response: We disagree with the 

request to remove the word ‘‘strictly’’

because it is intended to emphasize that 

this rule is one of strict liability. 

IV. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

This action is not a ‘‘significant 

regulatory action’’ under the terms of 

Executive Order 12866 (58 FR 51735 

October 4, 1993) and is therefore not 

subject to review under the EO. 

B. Paperwork Reduction Act 

The information collection 

requirements in this rule have been 

submitted for approval to the Office of 

Management and Budget (OMB) under 

the Paperwork Reduction Act, 44 U.S.C. 

3501 et seq. The information collection 

requirements are not enforceable until 

OMB approves them. 

The final rule requires a written 

notification only if a plant owner or 

operator needs an extension of a 

performance test deadline due to certain 

rare events, such as acts of nature, acts 

of war or terrorism, or equipment failure 

or safety hazard beyond the control of 

the affected facility. Since EPA believes 

such events will be rare, the projected 

cost and hour burden will be minimal. 

The increased annual average 

reporting burden for this collection 

(averaged over the first 3 years of the 

ICR) is estimated to total 6 labor hours 

per year at a cost of $377.52. This 

includes one response per year from six 

respondents for an average of 1 hour per 

response. No capital/startup costs or 

operation and maintenance costs are 

associated with the final reporting 

requirements. Burden means the total 

time, effort, or financial resources 

expended by persons to generate, 

maintain, retain, or disclose or provide 

information to or for a Federal agency. 

This includes the time needed to review 

instructions; develop, acquire, install, 

and utilize technology and systems for 

the purposes of collecting, validating, 

and verifying information, processing 

and maintaining information, and 

disclosing and providing information; 

adjust the existing ways to comply with 

any previously applicable instructions 

and requirements; train personnel to be 

able to respond to a collection of 

information; search data sources; 

complete and review the collection of 

information; and transmit or otherwise 

disclose the information. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for EPA’s regulations in 40 

CFR are listed in 40 CFR part 9. When 

this ICR is approved by OMB, the 

Agency will publish a technical 

amendment to 40 CFR part 9 in the 

Federal Register to display the OMB 

control number for the approved 

information collection requirements 

contained in this final rule. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small not-forprofit enterprises, and small 

governmental jurisdictions. 

For purposes of assessing the impacts 

of today’s final rule on small entities, 

small entity is defined as: (1) A small 

business as defined by the Small 

Business Administration’s (SBA) 

regulations at 13 CFR 121.201; (2) a 

governmental jurisdiction that is a 

government of a city, county, town, 

school district or special district with a 

population of less than 50,000; and (3) 

a small organization that is any not-forprofit enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of today’s final rule on small 

entities, I certify that this action will not 

have a significant economic impact on 

a substantial number of small entities. 

Extensions to deadlines for conducting 

performance tests will provide 

flexibility to small entities and reduce 

the burden on them by providing them 

an opportunity for additional time to 

comply with performance test deadlines 

during force majeure events. We expect 

force majeure events to be rare since 

these events include circumstances such 

as, acts of nature, acts of war or 

terrorism, and equipment failure or 

safety hazard beyond the control of the 

affected facility. 

D. Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), Pub. L. 

104–4, establishes requirements for 

Federal agencies to assess the effects of 

their regulatory actions on State, local, 

and Tribal governments and the private 

sector. Under section 202 of the UMRA, 

EPA generally must prepare a written 

statement, including a cost-benefit 

analysis, for proposed and final rules 


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with ‘‘Federal mandates’’ that may 

result in expenditures to State, local, 

and Tribal governments, in the 

aggregate, or to the private sector, of 

$100 million or more in any one year. 

Before promulgating an EPA rule for 

which a written statement is needed, 

section 205 of the UMRA generally 

requires EPA to identify and consider a 

reasonable number of regulatory 

alternatives and adopt the least costly, 

most cost-effective or least burdensome 

alternative that achieves the objectives 

of the rule. The provisions of section 

205 do not apply when they are 

inconsistent with applicable law. 

Moreover, section 205 allows EPA to 

adopt an alternative other than the least 

costly, most cost-effective or least 

burdensome alternative if the 

Administrator publishes with the final 

rule an explanation why that alternative 

was not adopted. Before EPA establishes 

any regulatory requirements that may 

significantly or uniquely affect small 

governments, including Tribal 

governments, it must have developed 

under section 203 of the UMRA a small 

government agency plan. The plan must 

provide for notifying potentially 

affected small governments, enabling 

officials of affected small governments 

to have meaningful and timely input in 

the development of EPA regulatory 

proposals with significant Federal 

intergovernmental mandates, and 

informing, educating, and advising 

small governments on compliance with 

the regulatory requirements. 

EPA has determined that the final rule 

does not contain a Federal mandate that 

may result in expenditures of $100 

million or more for State, local, and 

Tribal governments, in the aggregate, or 

the private sector in any one year. The 

maximum total annual cost of this final 

rule for any year has been estimated to 

be less than $435.00. Thus, today’s final 

rule is not subject to the requirements 

of Sections 202 and 205 of the UMRA. 

EPA has determined that the final rule 

contains no regulatory requirements that 

might significantly or uniquely affect 

small governments. The final rule 

requires source owners and operators to 

provide a written notification to the 

Agency only if an extension to a 

performance test deadline is necessary 

due to rare force majeure events. 

Therefore, the final rule is not subject to 

the requirements of section 203 of the 

UMRA. 

E. Executive Order 13132: Federalism 

Executive Order 13132, entitled 

‘‘Federalism’’ (64 FR 43255, August 10, 

1999), requires EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have federalism 

implications.’’ ‘‘Policies that have 

federalism implications’’ is defined in 

the Executive Order to include 

regulations that have ‘‘substantial direct 

effects on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government.’’

This final rule does not have 

federalism implications. It will not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. The final rule 

requirements will not supercede State 

regulations that are more stringent. In 

addition, the final rule requires a 

written notification only if a plant 

owner or operator needs an extension of 

a performance test deadline due to 

certain rare events, such as acts of 

nature, acts of war or terrorism, or 

equipment failure or safety hazard 

beyond the control of the affected 

facility. Since EPA believes such events 

will be rare, the projected cost and hour 

burden will be minimal. Thus, 

Executive Order 13132 does not apply 

to this rule. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, November 9, 2000), requires EPA 

to develop an accountable process to 

ensure ‘‘meaningful and timely input by 

tribal officials in the development of 

regulatory policies that have tribal 

implications.’’ This final rule does not 

have tribal implications as specified in 

Executive Order 13175. This final rule 

will not have substantial direct effects 

on tribal governments, on the 

relationship between the Federal 

government and Indian tribes, or on the 

distribution of power and 

responsibilities between the Federal 

government and Indian tribes, as 

specified in Executive Order 13175. 

Thus, Executive Order 13175 does not 

apply to this rule. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

Executive Order 13045 ‘‘Protection of 

Children from Environmental Health 

Risks and Safety Risks’’ (62 FR 19885, 

April 23, 1997) applies to any rule that: 

(1) Is determined to be ‘‘economically 

significant’’ as defined under Executive 

Order 12866, and (2) concerns an 

environmental health or safety risk that 

EPA has reason to believe may have a 

disproportionate effect on children. If 

the regulatory action meets both criteria, 

the Agency must evaluate the 

environmental health or safety effects of 

the planned rule on children, and 

explain why the planned regulation is 

preferable to other potentially effective 

and reasonably feasible alternatives 

considered by the Agency. 

This final rule is not subject to the 

Executive Order because it is not 

economically significant as defined in 

Executive Order 12866 and because the 

Agency does not have reason to believe 

the environmental health or safety risks 

addressed by this action present a 

disproportionate risk to children. This 

rule does not affect the underlying 

control requirements established by the 

applicable standards but only the 

timeframe associated with performance 

testing in limited circumstances. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This rule is not subject to Executive 

Order 13211, ‘‘Actions Concerning 

Regulations that Significantly Affect 

Energy Supply, Distribution, or Use’’ (66 

FR 28355, May 22, 2001) because it is 

not a significant regulatory action under 

Executive Order 12866. 

I. National Technology Transfer and 

Advancement Act 

As noted in the proposed rule, 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (NTTAA), Public Law 104–

113, section 12(d) (15 U.S.C. 272 note), 

directs EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. The NTTAA directs EPA to 

provide Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. New 

test methods are not being proposed in 

this rulemaking, but EPA is allowing for 

extensions of the regulatory deadlines 

by which owners or operators are 

required to conduct performance tests 

when a force majeure is about to occur, 

occurs, or has occurred which prevents 

owners or operators from testing within 


jlentini on PROD1PC65 with RULES
27442 Federal Register / Vol. 72, No. 94 / Wednesday, May 16, 2007 / Rules and Regulations 

the regulatory deadline. Therefore, 

NTTAA does not apply. 

J. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). This rule 

will be effective May 16, 2007. 

List of Subjects in 40 CFR Parts 60, 61, 

and 63 

Environmental protection, Air 

pollution control, Intergovernmental 

relations, Reporting and recordkeeping 

requirements. 

Dated: May 10, 2007. 

Stephen L. Johnson, 

Administrator. 

■ For the reasons stated in the preamble, 

title 40, chapter I, parts 60, 61, and 63 

of the Code of Federal Regulations are 

amended as follows: 

PART 60—[AMENDED] 

■ 1. The authority citation for part 60 

continues to read as follows: 

Authority: 42 U.S.C. 7401 et seq. 

Subpart A—[Amended] 

■ 2. Section 60.2 is amended by adding, 

in alphabetical order, a definition for 

‘‘Force majeure’’ to read as follows: 

§ 60.2 Definitions. 

* * * * * 

Force majeure means, for purposes of 

§ 60.8, an event that will be or has been 

caused by circumstances beyond the 

control of the affected facility, its 

contractors, or any entity controlled by 

the affected facility that prevents the 

owner or operator from complying with 

the regulatory requirement to conduct 

performance tests within the specified 

timeframe despite the affected facility’s 

best efforts to fulfill the obligation. 

Examples of such events are acts of 

nature, acts of war or terrorism, or 

equipment failure or safety hazard 

beyond the control of the affected 

facility. 

* * * * * 

■ 3. Section 60.8 is amended by revising 

paragraph (a) to read as follows: 

§ 60.8 Performance tests. 

(a) Except as specified in paragraphs 

(a)(1),(a)(2), (a)(3), and (a)(4) of this 

section, within 60 days after achieving 

the maximum production rate at which 

the affected facility will be operated, but 

not later than 180 days after initial 

startup of such facility, or at such other 

times specified by this part, and at such 

other times as may be required by the 

Administrator under section 114 of the 

Act, the owner or operator of such 

facility shall conduct performance 

test(s) and furnish the Administrator a 

written report of the results of such 

performance test(s). 

(1) If a force majeure is about to occur, 

occurs, or has occurred for which the 

affected owner or operator intends to 

assert a claim of force majeure, the 

owner or operator shall notify the 

Administrator, in writing as soon as 

practicable following the date the owner 

or operator first knew, or through due 

diligence should have known that the 

event may cause or caused a delay in 

testing beyond the regulatory deadline, 

but the notification must occur before 

the performance test deadline unless the 

initial force majeure or a subsequent 

force majeure event delays the notice, 

and in such cases, the notification shall 

occur as soon as practicable. 

(2) The owner or operator shall 

provide to the Administrator a written 

description of the force majeure event 

and a rationale for attributing the delay 

in testing beyond the regulatory 

deadline to the force majeure; describe 

the measures taken or to be taken to 

minimize the delay; and identify a date 

by which the owner or operator 

proposes to conduct the performance 

test. The performance test shall be 

conducted as soon as practicable after 

the force majeure occurs. 

(3) The decision as to whether or not 

to grant an extension to the performance 

test deadline is solely within the 

discretion of the Administrator. The 

Administrator will notify the owner or 

operator in writing of approval or 

disapproval of the request for an 

extension as soon as practicable. 

(4) Until an extension of the 

performance test deadline has been 

approved by the Administrator under 

paragraphs (a)(1), (2), and (3) of this 

section, the owner or operator of the 

affected facility remains strictly subject 

to the requirements of this part. 

* * * * * 

PART 61—[AMENDED] 

■ 4. The authority citation for part 61 

continues to read as follows: 

Authority: 42 U.S.C. 7401 et seq. 

Subpart A—[Amended] 

■ 5. Section 61.02 is amended by 

adding, in alphabetical order, a 

definition for ‘‘Force majeure’’ to read as 

follows: 

§ 61.02 Definitions. 

* * * * * 

Force majeure means, for purposes of 

§ 61.13, an event that will be or has been 

caused by circumstances beyond the 

control of the affected facility, its 

contractors, or any entity controlled by 

the affected facility that prevents the 

owner or operator from complying with 

the regulatory requirement to conduct 

performance tests within the specified 

timeframe despite the affected facility’s 

best efforts to fulfill the obligation. 

Examples of such events are acts of 

nature, acts of war or terrorism, or 

equipment failure or safety hazard 

beyond the control of the affected 

facility. 

* * * * * 

■ 6. Section 61.13 is amended as 

follows: 

■ a. By removing ‘‘; or’’ at the end of 

paragraph (a)(1) and adding in its place 

a period. 

■ b. By revising paragraph (a) 

introductory text. 

■ c. By adding paragraphs (a)(3) through 

(a)(6). 

§ 61.13 Emission tests and waiver of 

emission tests. 

(a) Except as provided in paragraphs 

(a)(3), (a)(4), (a)(5), and (a)(6) of this 

section, if required to do emission 

testing by an applicable subpart and 

unless a waiver of emission testing is 

obtained under this section, the owner 

or operator shall test emissions from the 

source: 

* * * * * 

(3) If a force majeure is about to occur, 

occurs, or has occurred for which the 

affected owner or operator intends to 

assert a claim of force majeure, the 

owner or operator shall notify the 

Administrator, in writing as soon as 

practicable following the date the owner 

or operator first knew, or through due 

diligence should have known that the 

event may cause or caused a delay in 

testing beyond the regulatory deadline 

specified in paragraphs (a)(1) or (a)(2) of 

this section or beyond a deadline 

established pursuant to the 

requirements under paragraph (b) of this 

section, but the notification must occur 


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Federal Register / Vol. 72, No. 94 / Wednesday, May 16, 2007 / Rules and Regulations 27443 

before the performance test deadline 

unless the initial force majeure or a 

subsequent force majeure event delays 

the notice, and in such cases, the 

notification shall occur as soon as 

practicable. 

(4) The owner or operator shall 

provide to the Administrator a written 

description of the force majeure event 

and a rationale for attributing the delay 

in testing beyond the regulatory 

deadline to the force majeure; describe 

the measures taken or to be taken to 

minimize the delay; and identify a date 

by which the owner or operator 

proposes to conduct the performance 

test. The performance test shall be 

conducted as soon as practicable after 

the force majeure occurs. 

(5) The decision as to whether or not 

to grant an extension to the performance 

test deadline is solely within the 

discretion of the Administrator. The 

Administrator will notify the owner or 

operator in writing of approval or 

disapproval of the request for an 

extension as soon as practicable. 

(6) Until an extension of the 

performance test deadline has been 

approved by the Administrator under 

paragraphs (a)(3), (a)(4), and (a)(5) of 

this section, the owner or operator of the 

affected facility remains strictly subject 

to the requirements of this part. 

* * * * * 

PART 63—[AMENDED] 

■ 7. The authority citation for part 63 

continues to read as follows: 

Authority: 42 U.S.C. 7401 et seq. 

Subpart A—[Amended] 

■ 8. Section 63.2 is amended by adding, 

in alphabetical order, a definition for 

‘‘Force majeure’’ to read as follows: 

§ 63.2 Definitions. 

* * * * * 

Force majeure means, for purposes of 

§ 63.7, an event that will be or has been 

caused by circumstances beyond the 

control of the affected facility, its 

contractors, or any entity controlled by 

the affected facility that prevents the 

owner or operator from complying with 

the regulatory requirement to conduct 

performance tests within the specified 

timeframe despite the affected facility’s 

best efforts to fulfill the obligation. 

Examples of such events are acts of 

nature, acts of war or terrorism, or 

equipment failure or safety hazard 

beyond the control of the affected 

facility. 

* * * * * 

■ 9. Section 63.7 is amended by revising 

paragraphs (a)(2) introductory text and 

(a)(2)(ix) and by adding paragraph (a)(4) 

to read as follows: 

§ 63.7 Performance testing requirements. 

(a) * * * 

(2) Except as provided in paragraph 

(a)(4) of this section, if required to do 

performance testing by a relevant 

standard, and unless a waiver of 

performance testing is obtained under 

this section or the conditions of 

paragraph (c)(3)(ii)(B) of this section 

apply, the owner or operator of the 

affected source must perform such tests 

within 180 days of the compliance date 

for such source. 

* * * * * 

(ix) Except as provided in paragraph 

(a)(4) of this section, when an emission 

standard promulgated under this part is 

more stringent than the standard 

proposed (see § 63.6(b)(3)), the owner or 

operator of a new or reconstructed 

source subject to that standard for 

which construction or reconstruction is 

commenced between the proposal and 

promulgation dates of the standard shall 

comply with performance testing 

requirements within 180 days after the 

standard’s effective date, or within 180 

days after startup of the source, 

whichever is later. If the promulgated 

standard is more stringent than the 

proposed standard, the owner or 

operator may choose to demonstrate 

compliance with either the proposed or 

the promulgated standard. If the owner 

or operator chooses to comply with the 

proposed standard initially, the owner 

or operator shall conduct a second 

performance test within 3 years and 180 

days after the effective date of the 

standard, or after startup of the source, 

whichever is later, to demonstrate 

compliance with the promulgated 

standard. 

* * * * * 

(4) If a force majeure is about to occur, 

occurs, or has occurred for which the 

affected owner or operator intends to 

assert a claim of force majeure: 

(i) The owner or operator shall notify 

the Administrator, in writing as soon as 

practicable following the date the owner 

or operator first knew, or through due 

diligence should have known that the 

event may cause or caused a delay in 

testing beyond the regulatory deadline 

specified in paragraph (a)(2) or (a)(3) of 

this section, or elsewhere in this part, 

but the notification must occur before 

the performance test deadline unless the 

initial force majeure or a subsequent 

force majeure event delays the notice, 

and in such cases, the notification shall 

occur as soon as practicable. 

(ii) The owner or operator shall 

provide to the Administrator a written 

description of the force majeure event 

and a rationale for attributing the delay 

in testing beyond the regulatory 

deadline to the force majeure; describe 

the measures taken or to be taken to 

minimize the delay; and identify a date 

by which the owner or operator 

proposes to conduct the performance 

test. The performance test shall be 

conducted as soon as practicable after 

the force majeure occurs. 

(iii) The decision as to whether or not 

to grant an extension to the performance 

test deadline is solely within the 

discretion of the Administrator. The 

Administrator will notify the owner or 

operator in writing of approval or 

disapproval of the request for an 

extension as soon as practicable. 

(iv) Until an extension of the 

performance test deadline has been 

approved by the Administrator under 

paragraphs (a)(4)(i), (a)(4)(ii), and 

(a)(4)(iii) of this section, the owner or 

operator of the affected facility remains 

strictly subject to the requirements of 

this part. 

* * * * * 

■ 10. Section 63.91 is amended by 

adding paragraph (g)(1)(i)(O) to read as 

follows: 

§ 63.91 Criteria for straight delegation and 

criteria common to all approval options. 

* * * * * 

(g) * * * 

(1) * * * 

(i) * * * 

(O) Section 63.7(a)(4), Extension of 

Performance Test Deadline 

* * * * * 

[FR Doc. E7–9407 Filed 5–15–07; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 112 

[EPA–HQ–OPA–2006–00949; [FRL–8315–1] 

RIN 2050–AG36 

Oil Pollution Prevention; NonTransportation Related Onshore and 

Offshore Facilities 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency is today extending the dates by 

which facilities must prepare or amend 

Spill Prevention, Control, and 

Countermeasure (SPCC) Plans, and 

implement those Plans. This action 

allows the Agency time to promulgate 

further revisions to the SPCC rule before 


jlentini on PROD1PC65 with RULES