Federal Register / Vol. 77, No. 136 / Monday, July 16, 2012 / Rules and Regulations 41697 

(a), (b), (c), (d), and (e) are applicable to 

manufacturers, importers, and 

processors of this substance. 

(2) Limitations or revocation of 

certain notification requirements. The 

provisions of § 721.185 apply to this 

section. 

[FR Doc. 2012–17276 Filed 7–13–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2010–0846; FRL–9698–3] 

Stay of the Effectiveness of 

Requirements; Approval and 

Promulgation of Implementation Plans; 

New Mexico; Federal Implementation 

Plan for Interstate Transport of 

Pollution Affecting Visibility and Best 

Available Retrofit Technology 

Determination 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The EPA is granting an 

administrative stay of the final rule 

titled ‘‘Approval and Promulgation of 

Implementation Plans; New Mexico; 

Federal Implementation Plan for 

Interstate Transport of Pollution 

Affecting Visibility and Best Available 

Retrofit Technology Determination’’ 

under the authority of the 

Administrative Procedure Act (APA) for 

90 days. Today’s action reflects this stay 

in the Code of Federal Regulations. 

DATES: Effective July 16, 2012. 40 CFR 

52.1628 is stayed until October 15, 

2012. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R06–OAR–2010–0846. All 

documents in the docket are listed in 

the Federal eRulemaking portal index at 

http://www.regulations.gov and are 

available either electronically at http:// 

www.regulations.gov or in hard copy at 

EPA Region 6, 1445 Ross Ave., Dallas, 

TX, 75202–2733. To inspect the hard 

copy materials, please schedule an 

appointment during normal business 

hours with the contact listed in the FOR

FURTHER INFORMATION CONTACT section. 

A reasonable fee may be charged for 

copies. 

FOR FURTHER INFORMATION CONTACT: 

Agustin Carbo-Lugo, EPA Region 6, 

(214) 665–8037, CarboLugo.Agustin@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document wherever 

‘‘we,’’ ‘‘us,’’ ‘‘our,’’ or ‘‘the Agency’’ is 

used, we mean the EPA. Unless 

otherwise specified, when we say the 

‘‘San Juan Generating Station,’’ or 

‘‘SJGS,’’ we mean units 1, 2, 3, and 4, 

inclusive. 

I. Background 

On August 22, 2011, the EPA 

published a final rule disapproving a 

portion of the State Implementation 

Plan (SIP) revision received from the 

State of New Mexico on September 17, 

2007, for the purpose of addressing the 

‘‘good neighbor’’ requirements of 

section 110(a)(2)(D)(i) of the Clean Air 

Act (CAA or Act) for the 1997 8-hour 

ozone National Ambient Air Quality 

Standards (NAAQS or standards) and 

the 1997 fine particulate matter (PM2.5) 

NAAQS (the ‘‘NM FIP Rule’’, 76 FR 

52388). In that action, EPA disapproved 

the New Mexico Interstate Transport SIP 

provisions that address the requirement 

of section 110(a)(2)(D)(i)(II) that 

emissions from New Mexico sources do 

not interfere with measures required in 

the SIP of any other state under part C 

of the CAA to protect visibility. We 

found that New Mexico sources, except 

the San Juan Generating Station (SJGS), 

were sufficiently controlled to eliminate 

interference from those sources with the 

visibility programs of other states. EPA 

promulgated a Federal Implementation 

Plan (FIP) requiring the implementation 

of nitrogen oxides (NOX) and sulfur 

dioxide (SO2) emission limits necessary 

at the San Juan Generating Station to 

prevent such interference. This FIP also 

addresses the Regional Haze (RH) Best 

Available Retrofit Technology (BART) 

requirement for NOX for SJGS. In 

addition, EPA implemented sulfuric 

acid (H2SO4) hourly emission limits at 

the SJGS, to minimize the contribution 

of this compound to visibility 

impairment. Finally, we found that 

compliance with the NOX, SO2, and 

H2SO4 emission limits must be within 5 

years of the effective date of our final 

rule consistent with the requirements of 

the regional haze regulations. 

Petitions for judicial review of the 

final rule were subsequently filed in the 

United States Court of Appeals for the 

Tenth Circuit. The petitioners bringing 

those challenges are WildEarth 

Guardians, Public Service of New 

Mexico (PNM), and New Mexico 

Governor Susana Martinez with the 

New Mexico Environment Department. 

By a letter to the EPA Administrator, 

dated April 26, 2012, the Governor of 

New Mexico requested ‘‘a short term 

(90-day) stay’’ of the federal 

implementation plan to evaluate the 

potential for alternatives to the rule 

requirements. She presents a stay as 

being necessary for ‘‘meaningful, 

productive negotiations’’ that may lead 

to an avoidance of litigation. By a letter 

to the acting Regional Administrator of 

EPA Region 6, dated May 8, 2012, PNM 

also requested ‘‘an opportunity to 

engage in productive discussions as 

proposed by Governor Martinez.’’ 

We support discussions of any 

alternatives to the federal 

implementation plan that would be 

consistent with regional haze rule 

requirements and the requirements of 

section 110(a)(2)(D)(i)(II) of the CAA. If 

such an alternative arises through 

discussions with the State of New 

Mexico, as well as other stakeholders, it 

may provide a basis for submittal by the 

state of a revised SIP, withdrawal of the 

FIP, and the resolution of pending 

litigation. 

II. Today’s Final Rule 

A. Issuance of a Stay and Delay of the 

Effectiveness of the NM FIP Rule 

Pursuant to section 705 of the APA, 

the EPA hereby stays the effectiveness 

of the NM FIP Rule for a period of 90 

days from the date of publication of this 

Federal Register notice. By this action, 

we are staying the effectiveness of the 

rule published in the Federal Register 

on August 22, 2011 (76 FR 52388). This 

stay of effectiveness will remain in 

place for 90 days from today. This 

action adds a note to 40 CFR 52.1628 

that there is a 90 day stay of the 

effectiveness of the NM FIP Rule, but, in 

its substance, it does not alter any future 

compliance requirements. There are no 

compliance obligations under the terms 

of the NM FIP that arise during the 90 

day period. 

Under section 705 of the APA, ‘‘an 

agency * * * may postpone the 

effective date of [an] action taken by it 

pending judicial review.’’ This source of 

authority requires an Agency finding 

that ‘‘justice requires’’ a temporary stay 

of rule requirements. Accordingly, as 

groundwork for the mentioned 

discussions among the Agency, the State 

of New Mexico, and other stakeholders, 

EPA now finds that justice requires a 

90-day stay of the rule’s effectiveness. 

Our temporary stay of the effectiveness 

of the NM FIP Rule applies only to any 

requirements established in 40 CFR 

52.1628 during the 90-day stay and does 

not extend the ultimate compliance 

timeframe set out in the rule, which is 

a statutory requirement under CAA 

section 169A(b)(2)(A). Nevertheless, 

EPA intends to undertake a future 

rulemaking to either: (1) Extend the 

compliance time for the NM FIP to 

accommodate the stay; or (2) account for 

an alternative proposal. If the 


wreier-aviles on DSK5TPTVN1PROD with RULES
41698 Federal Register / Vol. 77, No. 136 / Monday, July 16, 2012 / Rules and Regulations 

discussions of new alternatives lead to 

an additional regulatory proposal, the 

public would have the opportunity to 

evaluate and comment on such new 

proposal through EPA’s rulemaking 

process. 

B. Basis for Making This Action 

Effective on the Date of Publication 

The EPA also believes that there is 

good cause to make today’s action 

effective immediately, rather than 

effective within 30 days, within the 

meaning of 5 U.S.C. 553(d)(3). One 

purpose of the 30-day waiting period 

prescribed in 5 U.S.C. 553(d) is to give 

affected parties a reasonable time to 

adjust their behavior and prepare before 

the final action takes effect. Whereas 

here, the affected parties are 

anticipating this action and requesting 

the flexibility it provides, and any delay 

in its effectiveness will result in 

unnecessary delays for productive 

negotiations. Therefore, balancing the 

necessity for immediate implementation 

against principles of fundamental 

fairness, which require that all affected 

persons be afforded a reasonable 

amount of time to prepare for the 

effective date of this action, EPA has 

determined that it is unnecessary, 

impracticable and contrary to the public 

interest to delay this action. 

Additionally, since this action does not 

‘‘implement, interpret, or prescribe law 

or policy,’’ within the meaning of 5 

U.S.C. 551(4), nor makes changes to 

substantive requirements, EPA 

concludes that it does not constitute a 

substantive rulemaking. Therefore, it is 

not subject to notice and comment 

requirements. 

III. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 13563 

This action will stay the effectiveness 

of the NM FIP for 90 days and imposes 

no additional requirements. This type of 

action is exempt from review under 

Executive Orders 12866 (58 FR 51735, 

October 4, 1993) and 13563 (76 FR 3821, 

January 21, 2011). 

B. Paperwork Reduction Act 

This action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq. Under the 

Paperwork Reduction Act, a ‘‘collection 

of information’’ is defined as a 

requirement for ‘‘answers to * * * 

identical reporting or recordkeeping 

requirements imposed on ten or more 

persons * * *’’ 44 U.S.C. 3502(3)(A). 

Because the temporary stay is for the 

effectiveness of a rule that applies to a 

single facility, (SJGS), the Paperwork 

Reduction Act does not apply. See 5 

CFR part 1320(c). 

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 our regulations in 40 CFR 

are listed in 40 CFR part 9. 

C. Regulatory Flexibility Act 

This action is not subject to the 

Regulatory Flexibility Act (RFA), which 

generally requires an agency to prepare 

a regulatory flexibility analysis for any 

rule that will have a significant 

economic impact on a substantial 

number of small entities. The RFA 

applies only to rules subject to notice 

and comment rulemaking requirements 

under the APA or any other statute. This 

action is not subject to notice and 

comment requirements under the APA 

or any other statute because, although 

subject to the APA, this action does not 

‘‘implement, interpret, or prescribe law 

or policy,’’ within the meaning of APA 

§ 551(4). 

D. Unfunded Mandates Reform Act 

(UMRA) 

This action contains no Federal 

mandates under the provisions of Title 

II of the Unfunded Mandates Reform 

Act of 1995 (UMRA), 2 U.S.C. 1531– 

1538 for State, local, or tribal 

governments or the private sector. EPA 

has determined that this temporary stay 

does not contain a Federal mandate that 

may result in expenditures that exceed 

the inflation-adjusted UMRA threshold 

of $100 million by State, local, or Tribal 

governments or the private sector in any 

1-year. Therefore, this action is not 

subject to the requirements of sections 

202 or 205 of the UMRA. 

This action is also not subject to the 

requirements of section 203 of UMRA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. This 

action stays the effectiveness of the NM 

FIP for 90 days and imposes no 

additional regulatory requirements. 

E. Executive Order 13132: Federalism 

This temporary stay 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. This action 

merely temporarily stays the 

effectiveness of a final rule. Thus, 

Executive Order 13132 does not apply 

to this action. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

EPA will consult and coordinate with 

Tribes regarding BART alternatives 

during the stay, however, this temporary 

stay does not have tribal implications as 

specified by Executive Order 13175 (65 

FR 67249, November 9, 2000), because 

it neither imposes substantial direct 

compliance costs on tribal governments, 

nor preempts tribal law. Furthermore, 

this action does not ‘‘implement, 

interpret, or prescribe law or policy,’’ 

within the meaning of 5 U.S.C. 551(4), 

and therefore, it does not constitute a 

substantive rulemaking. As such, this 

action only grants a 90-day stay of the 

effectiveness of the NM FIP Rule 

without altering any future established 

compliance requirements. Therefore, the 

requirements of section 5(b) and 5(c) of 

the Executive Order do not apply to this 

action. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

This temporary stay is not subject to 

Executive Order 13045 because it is not 

a rule of general applicability, it is not 

economically significant as defined 

under Executive Order 12866, and does 

not have a disproportionate effect on 

children. 

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 


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Federal Register / Vol. 77, No. 136 / Monday, July 16, 2012 / Rules and Regulations 41699 

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. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not subject to Executive 

Order 13211 (66 FR 28355 (May 22, 

2001)), because it is not a significant 

regulatory action under Executive Order 

12866. 

I. National Technology Transfer and 

Advancement Act 

This temporary stay is not subject to 

the National Technology Transfer and 

Advancement Act of 1995 (‘‘NTTAA’’). 

Section 12(d) of the NTTAA, Public Law 

104–113, 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. NTTAA directs EPA to provide 

Congress, through OMB, explanations 

when the Agency decides not to use 

available and applicable voluntary 

consensus standards. 

This action does not involve technical 

standards. Therefore, EPA did not 

consider the use of any voluntary 

consensus standards. 

J. Executive Order 12898: Federal 

Actions to Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

This temporary stay is not subject to 

Executive Order 12898. Executive Order 

12898 (59 FR 7629, February 16, 1994), 

establishes federal executive policy on 

environmental justice. Its main 

provision directs federal agencies, to the 

greatest extent practicable and 

permitted by law, to make 

environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA has determined that this action 

will not have disproportionately high 

and adverse human health or 

environmental effects on minority or 

low-income populations because it does 

not change the substance of 40 CFR 

52.1628. 

K. Congressional Review Act 

This action is not subject to the 

Congressional Review Act (‘‘CRA’’). The 

CRA, 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. The Section 804(3) of the 

CRA defines ‘‘rule’’ as having the same 

meaning given to such term in section 

551 of the APA. See 5 U.S.C. 551(4). 

Since this action is not designed to 

implement, interpret, or prescribe law 

or policy, within the meaning of APA, 

this action is exempted from the 

reporting requirements of the CRA. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Best available control 

technology, Incorporation by reference, 

Intergovernmental relations, Interstate 

transport of pollution, Nitrogen dioxide, 

Ozone, Particulate matter, Regional 

haze, Reporting and recordkeeping 

requirements, Sulfur dioxide, Visibility. 

Dated: July 2, 2012. 

Lisa P. Jackson, 

Administrator. 

Title 40, chapter I, of the Code of 

Federal Regulations is amended as 

follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

■ 2. Effective July 16, 2012, 40 CFR 

52.1628 is stayed until October 15, 

2012. 

[FR Doc. 2012–16952 Filed 7–13–12; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF TRANSPORTATION 

Federal Motor Carrier Safety 

Administration 

49 CFR Part 375 

[Docket No. FMCSA–2011–0313] 

RIN 2126–AB41 

Transportation of Household Goods in 

Interstate Commerce; Consumer 

Protection Regulations: Household 

Goods Motor Carrier Record Retention 

Requirements 

AGENCY: Federal Motor Carrier Safety 

Administration (FMCSA), DOT. 

ACTION: Direct final rule; request for 

comments. 

SUMMARY: FMCSA amends the 

regulations governing the period during 

which household goods (HHG) motor 

carriers must retain documentation of 

an individual shipper’s waiver of 

receipt of printed copies of consumer 

protection materials. This change 

harmonizes the retention period with 

other document retention requirements 

applicable to HHG motor carriers. 

FMCSA also amends the regulations to 

clarify that a HHG motor carrier is not 

required to retain waiver documentation 

from any individual shippers for whom 

the carrier does not actually provide 

services. This rule responds to a petition 

filed by the American Moving and 

Storage Association (AMSA). 

DATES: This final rule is effective 

November 13, 2012, unless an adverse 

comment, or notice of intent to submit 

an adverse comment, is either submitted 

to the above docket via http:// 

www.regulations.gov on or before 

August 15, 2012 or reaches the Docket 

Management Facility by that date. If an 

adverse comment, or notice of intent to 

submit an adverse comment, is received 

by August 15, 2012, we will withdraw 

this direct final rule and publish a 

timely notice of withdrawal in the 

Federal Register. 

ADDRESSES: You may submit comments 

identified by docket number FMCSA– 

2011–0313 using any one of the 

following methods: 

(1) Federal eRulemaking Portal: 

http://www.regulations.gov. 

(2) Fax: 202–493–2251. 

(3) Mail: Docket Management Facility 

(M–30) West Building Ground Floor 

Room W12–140, U.S. Department of 

Transportation, 1200 New Jersey 

Avenue SE., Washington, DC 20590– 

0001. 

(4) Hand Delivery: Same as mail 

address above, between 9 a.m. and 

5 p.m., E.T., Monday through Friday, 


wreier-aviles on DSK5TPTVN1PROD with RULES