Federal Register / Vol. 70, No. 168 / Wednesday, August 31, 2005 / Rules and Regulations 51591 

published at 69 FR 42879 on July 19, 

2004, is adopted as a final rule without 

change. 

[FR Doc. 05–17358 Filed 8–30–05; 8:45 am] 

BILLING CODE 8320–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 51 

[Docket No. OAR–2004–0440; FRL–7960–2] 

RIN 2060–AN06 

Stay of the Findings of Significant 

Contribution and Rulemaking for 

Georgia for Purposes of Reducing 

Ozone Interstate Transport 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: In this action, EPA is 

amending a final rule it issued under 

section 110 of the Clean Air Act (CAA) 

related to the interstate transport of 

nitrogen oxides (NOX). On April 21, 

2004, EPA issued a final rule that 

required the State of Georgia to submit 

State implementation plan (SIP) 

revisions that prohibit specified 

amounts of NOX emissions—one of the 

precursors to ozone (smog) pollution—

for the purposes of reducing NOX and 

ozone transport across State boundaries 

in the eastern half of the United States. 

This rule became effective on June 21, 

2004. 

Subsequently, the Georgia Coalition 

for Sound Environmental Policy (GCSEP 

or Petitioners) filed a petition for 

reconsideration requesting that EPA 

reconsider the inclusion of the State of 

Georgia in the NOX SIP Call Rule and 

also requested a stay of the effectiveness 

of the rule as it relates to the State of 

Georgia only. 

In response to this petition, EPA 

proposed to stay the effectiveness of the 

April 21, 2004 rule as it relates to the 

State of Georgia only, while EPA 

conducts notice-and-comment 

rulemaking to further address the issues 

raised by the Petitioners (70 FR 9897; 

March 1, 2005). Four parties commented 

on the proposed rule. No requests were 

made to hold a public hearing. After 

considering these comments, EPA has 

determined to finalize, as proposed, the 

stay of the effectiveness of this rule as 

it relates to the State of Georgia, only 

during notice—and comment 

proceedings for the petition for 

reconsideration. 

DATES: This final rule is effective on 

September 30, 2005. 

ADDRESSES: The EPA has established a 

docket for this action under Docket ID 

No. OAR–2004–0440. All documents in 

the docket are listed in the EDOCKET 

index at http://www.epa.gov/edocket. 

Although listed in the index, some 

information is not publicly available, 

i.e., confidential business information 

(CBI) or other information whose 

disclosure is restricted by statute. 

Certain other materials, 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 in 

EDOCKET or in hard copy at the EPA 

Docket Center, EPA West (Air Docket), 

Attention E-Docket No. OAR–2004–

0440, Environmental Protection Agency, 

1301 Constitution Avenue, NW., Room 

B102, Washington, DC. The Public 

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

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

excluding legal holidays. The telephone 

number for the Public Reading Room is 

(202) 566–1744 and the fax number is 

(202) 566–1749. 

FOR FURTHER INFORMATION CONTACT: 

General questions concerning today’s 

action should be addressed to Jan King, 

Office of Air Quality Planning and 

Standards, Air Quality Strategies and 

Standards Division, C539–02, Research 

Triangle Park, NC, 27711, telephone 

(919) 541–5665, e-mail 

king.jan@epa.gov. Legal questions 

should be directed to Winifred Okoye, 

Office of General Counsel, (2344A), 

1200 Pennsylvania Ave., NW., 

Washington, DC 20460, telephone (202) 

564–5446, e-mail 

okoye.winifred@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

This action responds only to 

comments related to the stay of 

effectiveness of Phase II of the NOX SIP 

Call in the State of Georgia. Comments 

that we consider out of the scope of the 

proposed rulemaking or not directly 

related to the reconsideration 

proceedings are not addressed in this 

action, but will be addressed later in the 

final action on the petition for 

reconsideration. 

Outline 

I. Background 

I. Final Rule 

III. Response to Comments 

A. Comments on the Stay of the NOX SIP 

Call in Georgia 

B. Delay in Finalizing Phase II of the NOX

SIP Call 

C. Stay of the 8-Hour Basis for the NOX SIP 

Call 

D. Effect of Stay on the NOX SIP Call 

Trading Program 

E. Comments on Modeling Assumptions 

F. General Comments 

IV. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act (RFA) 

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 and 

Safety Risks 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer 

Advancement Act 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Congressional Review Act 

L. Judicial Review 

I. Background 

On October 27, 1998, EPA found that 

emissions of NOX from 22 States and the 

District of Columbia (23 States) were 

significantly contributing to downwind 

areas’ nonattainment of the 1-hour 

ozone national ambient air quality 

standard (NAAQS). [Finding of 

Significant Contribution and 

Rulemaking for Certain States in the 

Ozone Transport Assessment Group 

Region for Purposes of Reducing 

Regional Transport of Ozone, 63 FR 

57354; October 27, 1998 (NOX SIP Call 

Rule)]. More specifically, EPA found 

that the State of Georgia was 

significantly contributing to 1-hour 

ozone nonattainment in Birmingham, 

Alabama and Memphis, Tennessee. (63 

FR 57394). The EPA set forth 

requirements for each of the affected 

upwind States, including Georgia, to 

submit SIP revisions prohibiting those 

amounts of NOX emissions which 

significantly contribute to downwind 

nonattainment. The EPA further 

required that each State SIP provide for 

NOX reductions in amounts that any 

remaining emissions would not exceed 

the level specified in EPA’s NOX SIP 

Call regulations for that State in 2007. 

A number of parties, including certain 

States as well as industry and labor 

groups, challenged the NOX SIP Call 

Rule. More specifically, Georgia and 

Missouri industry petitioners citing to 

the Ozone Transport Assessment Group 

(OTAG), modeling and 

recommendations, maintained that EPA 

had record support only for the 

inclusion of eastern Missouri and 

northern Georgia, as significantly 

contributing to downwind 

nonattainment. In Michigan v. EPA, 213 

51592 Federal Register / Vol. 70, No. 168 / Wednesday, August 31, 2005 / Rules and Regulations 

F. 3d 663 (D.C. Cir., 2000), cert. denied, 

121 S. Ct. 1225 (2001) (Michigan), the 

D.C. Circuit Court vacated and 

remanded EPA’s inclusion of the entire 

States of Georgia and Missouri, on 

grounds that OTAG had recommended 

NOX controls to reduce transport for 

areas within the fine grid parts of its 

modeling but recommended no 

additional controls for areas within the 

coarse grid of its modeling. Eastern 

Missouri and northern Georgia lie 

within the fine grid. The Court, 

however, did not question EPA’s 

proposition that eastern Missouri and 

northern Georgia should be considered 

as significantly contributing to 

downwind nonattainment. 

On February 22, 2002, EPA proposed 

the inclusion of only the fine grid parts 

of Georgia and Missouri in the NOX SIP 

Call. (Response to Court Decisions on 

the NOX SIP Call, NOX SIP Call 

Technical Amendments, and Section 

126 Rules, 67 FR 8396; February 22, 

2002) (Phase II). The EPA also proposed 

revised NOX budgets for Georgia and 

Missouri that included only these 

portions of each State. 

On April 21, 2004, EPA finalized, as 

proposed, the inclusion of eastern 

Missouri and northern Georgia in the 

NOX SIP Call Rule, allocated revised 

NOX budgets that reflected the inclusion 

of sources located in only these areas 

and set revised SIP submittal and full 

compliance dates of April 1, 2005 and 

May 1, 2007, respectively. (69 FR 

21604). 

On June 16, 2004, the GCSEP filed a 

petition for reconsideration of the 

inclusion of the State of Georgia in the 

NOX SIP Call, under section 307(d) of 

the CAA (or the Act). Petitioners 

maintained that grounds that were of 

central relevance had occurred after the 

close of the notice-and-comment period 

for the February 22, 2002 proposal. 

More specifically, Petitioners cited our 

March 12, 2004, 1-hour ozone 

attainment redesignation of 

Birmingham, Alabama (69 FR 11798; 

March 12, 2004). Additionally, GCSEP 

cited our earlier January 17, 1995 

Memphis, Tennessee, 1-hour ozone 

attainment redesignation (60 FR 3352), 

and maintained that the State of Georgia 

should not be subject to the NOX SIP 

Call Rule because it was no longer 

significantly contributing to 1-hour 

ozone nonattainment in any downwind 

areas. Petitioners also raised other 

issues such as the effect of EPA’s 

approval and the State of Georgia’s 

implementation, beginning since May 1, 

2003, of the Atlanta, Georgia attainment 

demonstration SIP. Petitioners further 

requested a stay of the effectiveness of 

the April 21, 2004, rule as it relates to 

the State of Georgia, under section 

307(d)(7)(B). Finally, GCSEP filed a 

challenge in the Court of Appeals for the 

11th Circuit, which has since been 

transferred to the D.C. Circuit. 

Additionally, EPA and GCSEP have 

requested and the Court has granted the 

joint request to hold the challenge in 

abeyance pending completion of the 

reconsideration proceedings. 

II. Final Rule 

In today’s action we are amending the 

Phase II rule by staying the effectiveness 

of the rule as it relates to the State of 

Georgia, only, during notice-andcomment rulemaking proceedings for 

the reconsideration petition. As 

explained in the proposed rule, EPA 

expects to provide notice-and-comment 

opportunity to the general public on the 

issues raised by GCSEP and several 

other issues as they relate to the 

continued applicability of the NOX SIP 

Call Rule to the State of Georgia. 

Additionally, we currently anticipate 

that we will most likely be proposing to 

withdraw or rescind our findings that 

sources in the State of Georgia emit NOX

in amounts that significantly contribute 

to nonattainment of the 1-hour ozone 

NAAQS in both the former Birmingham, 

Alabama and Memphis, Tennessee 

nonattainment areas. This is a 

consequence of our redesignation of 

these downwind receptor areas to 

attainment. Thus, we expect that after 

EPA completes notice-and-comment 

rulemaking, the State of Georgia will 

likely no longer be subject to the NOX

SIP Call requirements. Given this, we 

believe that the State of Georgia should 

not continue implementation efforts for 

the NOX SIP Call Rule while EPA 

initiates notice-and-comment 

rulemaking that will address the issues 

raised by GCSEP. Accordingly, in this 

action, EPA is staying the effectiveness 

of the April 21, 2004 rule with respect 

to the State of Georgia only, during the 

pendency of the notice-and-comment 

rulemaking proceedings that will 

address the petition for reconsideration. 

The effect of this stay would be that the 

State of Georgia, would have no 

obligation during the pendency of the 

stay to regulate NOX emissions under 

the NOX SIP Call Rule for purposes of 

addressing downwind nonattainment of 

the 1-hour ozone NAAQS. 

III. Response to Comments 

Four commenters submitted 

comments on our March 1, 2005 

proposal. The comments are 

summarized herein below along with 

EPA’s responses. We believe that the 

comments set forth in section III, D-F, 

below, are beyond the scope of the 

proposed rulemaking, which was to stay 

the effectiveness of Phase II in the State 

of Georgia, only, in order to address a 

Petition for reconsideration. We believe 

that these comments raise more 

substantive issues that are directly 

related to the reconsideration 

proceedings, which we anticipate will 

be proposed very shortly. Therefore, in 

today’s action, we are not addressing or 

responding to any of them. Rather, we 

intend to address them in full in the 

context of that rulemaking action. 

A. Comments on the Stay of the NOX SIP 

Call in Georgia 

Comment: One commenter raised the 

issue of our authority or lack thereof, 

under the CAA, to stay the effectiveness 

of our April 21, 2004 rule. The 

commenter argued that a proposal to 

stay the effectiveness of a rule during 

reconsideration proceedings is not 

authorized under the Act and 

maintained that our failure to indicate 

the section of the Act that allows for the 

proposed stay resulted in ‘‘obscuring the 

legal justification,’’ for the stay. The 

commenter claimed we had provided 

‘‘absolutely no justification for the 

stay,’’ and argued that our action, to stay 

the rule, must neither be arbitrary nor 

capricious but based on reasoned 

explanation of the basis for the stay. The 

commenter further asserted that we had 

provided no discussion of the likelihood 

of success of the petition for 

reconsideration or the benefits and 

burdens of granting a stay. The 

commenter, citing to various decisions 

by the U.S. Court of Appeals for the 

District of Columbia, then argued that 

we should not grant the stay unless the 

proponent could demonstrate a 

likelihood of success on the merits. 

Another commenter argued in contrast 

that our authority to subject the State of 

Georgia to the NOX SIP Call was now 

questionable, in light of our 

redesignation of the downwind 

nonattainment areas, and a failure to 

stay the effectiveness of our April 21, 

2004, rule during the reconsideration 

proceeding would be unreasonable, an 

abuse of discretion, and unlawful. The 

commenter further maintained that 

staying the rule pending the 

reconsideration proceedings would not 

only be proper but also prevent the State 

of Georgia from expending scarce 

resources and time on implementing the 

requirements especially because ‘‘the 

validity’’ of the rule was ‘‘in such 

significant doubt.’’

Response: We are taking this action 

under Section 553 of the Administrative 

Proceedings Act (APA), and not under 

section 307(d)(7)(B) of the CAA, which 

is clearly inapplicable. We had duly 

Federal Register / Vol. 70, No. 168 / Wednesday, August 31, 2005 / Rules and Regulations 51593 

1On March 12, 2004, we redesignated 

Birmingham, Alabama, to attainment of the 1-hour 

ozone NAAQS. In addition, since 2001, the 

Memphis, Tennessee nonattainment area, which 

was redesignated in 1995 has had monitored 

attainment air quality data. 

informed petitioners of our authority in 

our letter of October 22, 2004, from 

Jeffrey Holmstead, Assistant 

Administrator for Office of Air and 

Radiation to Margaret C. Campbell, 

Troutman Sanders LLP, Counsel for 

Georgia Coalition for Sound 

Environmental Policy, granting the 

request for reconsideration. (A copy of 

this letter is in the Docket for this 

rulemaking). Further, as a general 

matter, the public is charged with 

knowledge of applicable laws. We also 

believe that we have the authority to 

stay the effectiveness of Phase II in the 

State of Georgia during the pendency of 

the reconsideration proceedings and 

that our failure to clearly cite our 

authority to do so in the proposal has 

no effect on the outcome of the 

proposed action. 

It is also incorrect to state that 

Petitioners have failed to show a 

likelihood of success on the merits. To 

the contrary, as stated in the proposed 

rule, Petitioners have alleged that our 

prior basis for including the State of 

Georgia in the NOX SIP Call Rule 

evanesced with the attainment 

redesignation of the downwind receptor 

areas, Memphis, Tennessee and 

Birmingham, Alabama.1 Thus, in 

response to the Petition for 

reconsideration, we now expect to 

propose a rescission or withdrawal of 

our findings that sources and emitting 

activities in the State of Georgia emit 

NOX in amounts that significantly 

contribute to nonattainment of the 1- 

hour ozone standard in both 

Birmingham, Alabama and Memphis, 

Tennessee, both of which are now in 

attainment of the 1-hour standard. If we 

ultimately finalize, the rescission or 

withdrawal of the NOX SIP Call 

findings, we anticipate that the State of 

Georgia would no longer have an 

obligation to reduce NOX emissions 

under the NOX SIP Call Rule, for 

purposes of addressing downwind 

nonattainment of the 1-hour ozone 

NAAQS. Therefore, it is now most likely 

that after notice-and-comment 

rulemaking the State of Georgia will not 

be subject to the NOX SIP Call 

requirements. Given this position, it 

would appear counterproductive and 

inappropriate to require the State of 

Georgia to continue implementation 

efforts for the NOX SIP Call 

requirements, during the pendency of 

the reconsideration petition. In fact, we 

agree with the comment that such an 

action on our part would be 

unreasonable. It could also be construed 

as both arbitrary and capricious. 

Comment: A commenter argued that 

our proposal was of ‘‘indeterminate 

length [because] [i]f EPA fails to 

complete the reconsideration process, 

the stay will last indefinitely.’’

Response: Although we are only 

obligated to give ‘‘[p]rompt notice’’ of 

the denial of a petition for 

reconsideration, under Section 555(e) of 

the APA, our failure over time to 

respond to this petition may be subject 

to judicial review under Section 706(1) 

of the APA. See for example, In re: 

American Rivers and Idaho Rivers 

United, 372 F.3d 413 (D.C. Cir., 2004); 

In re: Int’l Chemical Workers Union, 958 

F.2d 1144 (D.C. Cir., 1992). Therefore, 

EPA does not agree that the stay could 

be of infinite length. 

Comment: A commenter viewed our 

redesignation of the downwind 

receptors as an inadequate justification 

for staying this rule. The commenter 

also stated that our redesignation of 

Birmingham, Alabama nonattainment 

area ‘‘did not take effect until after the 

Phase II Rule was finalized.’’ (Emphasis 

in original). The commenter further 

argued that the stay was arbitrary and 

capricious and therefore unlawful 

‘‘because it does not treat similarly 

situated sources similarly.’’ According 

to the commenter, the stay will result in 

sources in the State of Georgia not being 

subject to the NOX SIP Call 

requirements, even though we found 

that these sources contribute 

significantly to ozone nonattainment, 

while similar sources have been subject 

to the NOX SIP Call requirements since 

May 31, 2004. 

Response: In the NOX SIP Call, we 

determined that a downwind area 

should be considered 

‘‘nonattainment,’’ for purposes of section 

110(a)(2)(D)(i)(I), under the 1-hour ozone 

NAAQS if the area (as of 1994–96 time 

period) had nonattainment air quality and if 

the area was modeled to have nonattainment 

air quality in the year 2007, after 

implementation of all measures specifically 

required of the area under the CAA as well 

as implementation of Federal measures 

required or expected to be implemented by 

that date. 

(63 FR 57386; see also, 63 FR 57373). 

We explained that ‘‘nonattainment 

[areas] includes areas that have 

monitored violations of the standard 

and areas that ‘contribute to ambient air 

quality in a nearby area’ that is violating 

the standard.’’ (63 FR 57386; see, 63 FR 

57385–87 for our discussion on the 

determination of downwind 

nonattainment receptors). 

We also determined at that time that 

sources in the State of Georgia were 

significantly contributing to the 1-hour 

standard nonattainment in Birmingham, 

Alabama and Memphis, Tennessee (63 

FR 57394). Thus, as earlier explained, 

given that we have redesignated both 

Memphis, Tennessee and the 

Birmingham, Alabama nonattainment 

areas, we anticipate proposing to 

rescind or withdraw our finding that 

sources and emitting activities in the 

State of Georgia emit NOX in amounts 

that significantly contribute to 

nonattainment of the 1-hour ozone 

standard in both Birmingham, Alabama 

and Memphis, Tennessee. Therefore, we 

believe that our redesignation of the 

downwind receptors is sufficient 

justification for staying the effectiveness 

of our April 21, 2004, rule with regard 

to the State of Georgia. For the same 

reason, we also do not believe that this 

stay results in not treating ‘‘similarly 

situated sources similarly.’’ All other 

areas subject to the NOX SIP Call are 

currently contributing significantly to 

downwind nonattainment. 

As to the comment that our 

Birmingham, Alabama redesignation 

became effective after our finalization of 

the Phase II rule, this is also incorrect. 

The effective dates of regulations appear 

in the ‘‘effective date’’ section of the 

Federal Register document. 1 CFR 18.17 

(2004). See also, Safety-Kleen Corp. v. 

EPA, No. 92–1629 (D.C. Cir., Jan. 1996). 

The effective dates for the redesignation 

of Birmingham, Alabama and Phase II of 

the NOX SIP Call were April 12, 2004, 

and June 21, 2004, respectively. 

B. Delay in Finalizing Phase II of the 

NOX SIP Call 

Comment: Two commenters claimed 

that our delay in finalizing the April 21, 

2004, rule resulted in the redesignation 

of the Birmingham, Alabama 

nonattainment area. These commenters 

maintained that other partial States, 

similar to Georgia, and for example, the 

State of Alabama, have fully complied 

with the NOX SIP Call requirements. 

And one commenter argued that despite 

the fact that the same argument, made 

by Petitioners, could be made for other 

southeastern States with already 

adopted and approved NOX SIP Call 

SIPs, we would be requiring these States 

to continue with full implementation. 

Other commenters also contended that 

our delay in finalizing Phase II resulted 

in detrimental air quality for several 

downwind areas and therefore, urged us 

not to further delay implementation by 

the proposed stay. 

Response: None of the States, 

southeastern or otherwise, subject to the 

NOX SIP Call are similarly situated with 

51594 Federal Register / Vol. 70, No. 168 / Wednesday, August 31, 2005 / Rules and Regulations 

2 63 FR 57395; October 27, 1998. 

the State of Georgia. All other States 

subject to the NOX SIP Call do 

contribute to nonattainment in 

downwind States. Further, although we 

first proposed the Phase II rule on 

February 21, 2002, and ultimately 

finalized it on April 21, 2004, during the 

intervening period, we had to juggle 

competing rulemaking demands on our 

limited scientific and legal staff. Any 

delay in finalizing Phase II did not 

contribute to adverse air quality in 

Birmingham or Memphis since these 

areas were able to attain the 1-hour 

ozone standard and be redesignated 

during that time. 

C. Stay of the 8-Hour Basis for the NOX

SIP Call 

Comment: One commenter argued 

that any decision to stay Phase II in the 

State of Georgia should factor in our 

finding that sources in the State of 

Georgia were significantly contributing 

to the 8-hour ozone standard 

nonattainment areas in the States of 

Alabama, Illinois, Indiana, Kentucky, 

Michigan, Missouri, North Carolina, 

South Carolina, Tennessee and 

Virginia.2 The commenter further 

argued that a stay would be prejudicial 

to other downwind States, and 

primarily the State of North Carolina, 

because we have required this State to 

adopt a SIP to achieve attainment of the 

8-hour ozone standard by 2009. 

According to the commenter, under our 

proposed schedule, sources in the State 

of Georgia would have been subject to 

controls on May 31, 2004, which would 

have assisted the downwind 

nonattainment areas in meeting their 

various statutory deadlines. The 

commenter also argued that our 

exclusion of the State of Georgia from 

the NOX SIP Call requirements would 

‘‘punish downwind areas,’’ and further 

result in their not attaining the 8-hour 

standard ‘‘as expeditiously as 

practicable,’’ under section 7502(a)(2) of 

the Act. Another commenter urged us to 

finalize the stay as proposed because we 

had determined that emissions from the 

State of Georgia were not impacting any 

downwind 8-hour ozone nonattainment 

areas in the recently promulgated Clean 

Air Interstate Rule, [70 FR 25162; May 

12, 2005 (CAIR)]. 

Response: In the NOX SIP Call Rule, 

we had also found that sources in the 

State of Georgia were significantly 

contributing to the 8-hour ozone 

standard nonattainment areas in the 

States of Alabama, Illinois, Indiana, 

Kentucky, Michigan, Missouri, North 

Carolina, South Carolina, Tennessee and 

Virginia. (63 FR 57395). But because of 

the various legal challenges to our 

promulgation of the 8-hour ozone 

NAAQS (62 FR 38856; July 18, 1997), 

American Trucking Ass’ns, Inc. v. EPA, 

175 F. 3d 1027 (D.C. Cir., 1999), reh’g 

granted in part, denied in part, 195 F.3d 

4 (D.C. Cir., 1999), aff’d in part, rev’d in 

part and remanded sub nom., Whitman 

v. EPA, 531 U.S. 457 (2001), we 

requested and the Court, in Michigan v. 

EPA, 213 F. 3d 663, 670–671 (D.C. Cir., 

2000), cert. denied, 121 S. Ct. 1225 

(2001) (Michigan), granted our motion to 

stay consideration of issues regarding 

the 8-hour basis for the NOX SIP Call. 

Additionally, in a separate rulemaking 

action, we stayed the 8-hour basis for 

the NOX SIP Call indefinitely. (65 FR 

56245; September 18, 2000). See, also 40 

CFR 51.121(q). Thus, at this time all of 

the affected States, which include the 

States of Georgia and North Carolina, 

remain under no obligation to comply 

with the 8-hour basis for the NOX SIP 

Call. Also, we would need to lift the 

stay through notice-and-comment 

rulemaking. Further, we note that, in the 

recently promulgated CAIR, we found 

that sources and emitting activities in 

the entire State of Georgia do not 

significantly contribute to 8-hour 

nonattainment in any downwind State 

(70 FR 25249). 

Therefore, today’s action only stays 

the requirements of Phase II of the NOX

SIP Call, which relate to the 1-hour 

basis for the NOX SIP Call, in the State 

of Georgia. Additionally, in the soon-tobe proposed Petition for 

Reconsideration rule, we expect to 

solicit comments on the impact of the 

continued stay of the 8-hour NOX SIP 

Call basis on the Petitioners request that 

we not subject the State of Georgia to 

the NOX SIP Call Rule. 

D. Effect of Stay on the NOX SIP Call 

Trading Program 

Comment: Three commenters also 

opposed the stay on grounds that the 

exclusion of the State of Georgia would 

compromise the integrity of the NOX SIP 

Call trading program. They claimed that 

the sources in the State of Georgia, 

although now regulated by the State, are 

not subject to a cap on NOX emissions, 

unlike similar sources that are covered 

by the NOX SIP Call requirements. 

According to the commenters, one 

consequence of the absence of a cap is 

that these sources are under no 

requirement to purchase allowances for 

exceedances of NOX SIP Call emissions 

levels and they argued that this, lack of 

a cap, could result in future 

exceedances of the 1-hour standard and 

hinder maintenance of the standard in 

downwind areas. One commenter noted 

that it was unclear whether NOX

emissions from these sources were 

restricted either through the State SIP or 

permit conditions. 

Response: As stated earlier, we 

believe that this comment and the 

comments set forth in section III, E–F 

below, are beyond the scope of the 

proposed rulemaking. We believe that 

these comments raise more substantive 

issues that are directly related to the 

reconsideration proceedings, which we 

anticipate will be proposed very shortly. 

Therefore, we are not addressing these 

comments at this time, rather we intend 

to address them in full in the context of 

that rulemaking action. 

E. Comments on Modeling Assumptions 

Comment: One commenter noted that 

the modeling studies conducted in the 

southeastern States and nationwide, 

such as CAIR and the Gulf Coast Ozone 

Study, assumed the full implementation 

of the NOX SIP Call in all affected 

States, including northern Georgia. The 

commenter then pointed out that the 

various assumptions would be rendered 

incorrect by excluding the State of 

Georgia from NOX SIP Call 

requirements. 

Response: As stated earlier above, we 

believe that this comment and the 

comments set forth in section III. D and 

F are beyond the scope of the proposed 

rulemaking. We believe that these 

comments raise more substantive issues 

that are directly related to the 

reconsideration proceedings, which we 

anticipate will be proposed very shortly. 

Therefore, we are not addressing these 

comments at this time, rather we intend 

to address them in full in the context of 

that rulemaking action. 

F. General Comments 

Comment: Another commenter argued 

that there were several compelling 

reasons to stay the effectiveness of our 

April 21, 2004 rule, such as our June 15, 

2005, revocation date for the 1-hour 

ozone standard, and the revisions and 

implementation of the Atlanta, Georgia 

SIP, which requires NOX and volatile 

organic compounds emissions from both 

stationary and mobile sources. 

Response: As stated earlier above, we 

believe that this comment and the 

comments set forth in section III, D–E 

above, are beyond the scope of the 

proposed rulemaking. We believe that 

these comments raise more substantive 

issues that are directly related to the 

reconsideration proceedings, which we 

anticipate will be proposed very shortly. 

Therefore, we are not addressing these 

comments at this time, rather we intend 

to address them in full in the context of 

that rulemaking action. 

Federal Register / Vol. 70, No. 168 / Wednesday, August 31, 2005 / Rules and Regulations 51595 

IV. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993) the Agency 

must determine whether the regulatory 

action is ‘‘significant’’ and, therefore, 

subject to Office of Management and 

Budget (OMB) review and the 

requirements of the Executive Order. 

The Order defines ‘‘significant 

regulatory action’’ as one that is likely 

to result in a rule that may: 

1. Have an annual effect on the 

economy of $100 million or more or 

adversely affect in a material way the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, or Tribal governments or 

communities; 

2. Create a serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency; 

3. Materially alter the budgetary 

impact of entitlements, grants, user fees, 

or loan programs or the rights and 

obligations of recipients thereof; or 

4. Raise novel legal or policy issues 

arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in the Executive Order. 

The OMB has exempted this 

regulatory action from Executive Order 

12866 review. This action stays EPA’s 

finding in Phase II of the NOX SIP Call 

related to Georgia and does not impose 

any additional control requirements or 

costs. 

B. Paperwork Reduction Act 

Today’s action does not add any 

information collection requirements or 

increase burden under the provisions of 

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

3501 et seq.), and therefore is not 

subject to these requirements. 

C. Regulatory Flexibility Act (RFA) 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedures 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 

organizations, and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of today’s rule on small entities, small 

entity is defined as: (1) A small business 

as defined in the Small Business 

Administration’s (SBA) regulations at 13 

CFR 12.201; (2) a small 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-for-profit 

enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of today’s rule on small entities, 

I certify that this action will not have a 

significant economic impact on a 

substantial number of small entities. In 

determining whether a rule has a 

significant economic impact on a 

substantial number of small entities, the 

impact of concern is any significant 

adverse economic impact on small 

entities, since the primary purpose of 

the regulatory flexibility analyses is to 

identify and address regulatory 

alternatives ‘‘which minimize any 

significant economic impact of the rule 

on small entities.’’ 5 U.S.C. 603 and 604. 

Thus, an agency may certify that a rule 

will not have a significant economic 

impact on a substantial number of small 

entities if the rule relieves regulatory 

burden, or otherwise has a positive 

economic effect on all of the small 

entities subject to the rule. 

This final action neither imposes 

requirements on small entities nor will 

there be impacts on small entities 

beyond those, if any, required by or 

resulting from the NOX SIP Call and the 

Section 126 Rules. We have therefore 

concluded that today’s rule will relieve 

regulatory burden for all small entities 

affected by this rule. We continue to be 

interested in the potential impacts of the 

proposed rule on small entities and 

welcome comments on issues related to 

such impacts. 

D. Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), Public 

Law 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 any proposed or final rules 

with ‘‘Federal mandates’’ that may 

result in the expenditure to State, local, 

and Tribal governments, in the 

aggregate, or by the private sector, of 

$100 million or more in any 1 year. 

Before promulgating a 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 costeffective 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. 

Today’s rule contains no Federal 

mandates (under the regulatory 

provisions of Title II of the UMRA) for 

State, local, or Tribal governments or 

the private sector. The EPA prepared a 

statement for the final NOX SIP Call that 

would be required by UMRA if its 

statutory provisions applied. Today’s 

action does not create any additional 

requirements beyond those of the final 

NOX SIP Call, therefore, no further 

UMRA analysis is needed. This rule 

stays the portion of the NOX SIP Call 

that would require the State of Georgia 

to implement NOX emissions controls 

requirements. 

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 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. Today’s action 

51596 Federal Register / Vol. 70, No. 168 / Wednesday, August 31, 2005 / Rules and Regulations 

does not impose an enforceable duty on 

these entities. This action to stay the 

NOX SIP Call requirements as they 

relate to Georgia, imposes no additional 

burdens beyond those imposed by the 

final NOX SIP Call. 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 rule does not have 

Tribal implications, as specified in 

Executive Order 13175. It 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. 

Today’s action does not significantly or 

uniquely affect the communities of 

Indian Tribal governments. The EPA 

stated in the final NOX SIP Call Rule 

that Executive Order 13084 did not 

apply because that final rule does not 

significantly or uniquely affect the 

communities of Indian Tribal 

governments or call on States to regulate 

NOX sources located on Tribal lands. 

The same is true of today’s action. 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 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 

action does not impose requirements 

beyond those, if any, required by or 

resulting from the NOX SIP Call and 

Section 126 Rules. 

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 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (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. The NTTAA directs EPA to 

provide Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. This 

rulemaking does not involve technical 

standards, therefore, EPA is not 

considering 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 action does not involve special 

consideration of environmental justice 

related issues as required by Executive 

Order 12898 (59 FR 7629, February 16, 

1994). For the final NOX SIP Call, the 

Agency conducted a general analysis of 

the potential changes in ozone and 

particulate matter levels that may be 

experienced by minority and lowincome populations as a result of the 

requirements of that rule. These 

findings were presented in the 

regulatory impact analysis for the NOX

SIP Call. Today’s action does not affect 

this analysis. 

K. 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. The 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 

September 30, 2005. 

L. Judicial Review 

Section 307(b)(1) of the Act specifies 

which Federal Courts of Appeal have 

venue for petitions of review of final 

actions by EPA. This section provides, 

in pertinent part, that petitions must be 

filed in the Court of Appeals for the 

District of Columbia Circuit if the 

agency action consists of ‘‘nationally 

applicable regulations promulgated, or 

final action taken, by the 

Administrator,’’ or (ii) such action is 

locally or regionally applicable if ‘‘such 

action is based on a determination of 

nationwide scope or effect and if in 

taking such action the Administrator 

finds and publishes that such action is 

based on such a determination.’’

Any final action related to the NOX

SIP Call is ‘‘nationally applicable within 

the meaning of section 307(b)(1).’’ The 

Administrator has also determined that 

any final action regarding the NOX SIP 

Call is of nationwide scope and effect 

for purposes of section 307(b)(1). See, 63 

FR 57480. Thus, any petition for review 

of today’s final action must be filed in 

the Court of Appeals for the District of 

Columbia Circuit within 60 days from 

the date this final action is published in 

the Federal Register. 

List of Subjects in 40 CFR Part 51 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Intergovernmental 

relations, Ozone, Reporting and 

recordkeeping requirements. 

Dated: August 18, 2005. 

Jeffrey R. Holmstead, 

Assistant Administrator for Air and 

Radiation. 

■ For the reasons set forth in the 

preamble, part 51 of chapter I of title 40 

of the Code of Federal Regulations is 

amended as follows: 

Federal Register / Vol. 70, No. 168 / Wednesday, August 31, 2005 / Rules and Regulations 51597 

PART 51—REQUIREMENTS FOR 

PREPARATION, ADOPTION AND 

SUBMITTAL OF IMPLEMENTATION 

PLANS 

■ 1. The authority citation for Part 51 

continues to read as follows: 

Authority: 23 U.S.C. 101; 42 U.S.C. 7401–

7671q. 

Subpart G—Control Strategy 

■ 2. Section 51.121 is amended by 

adding paragraph (s) to read as follows: 

§ 51.121 Findings and requirements for 

submission of State implementation plan 

revisions relating to emissions of oxides of 

nitrogen. 

* * * * * 

(s) Stay of Finding of Significant 

Contribution with respect to the 1-hour 

standard. Notwithstanding any other 

provisions of this subpart, the 

effectiveness of paragraph (a)(1) of this 

section is stayed as it relates to the State 

of Georgia, only as of September 30, 

2005. 

[FR Doc. 05–17031 Filed 8–30–05; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 180 

[OPP–2005–0224; FRL–7732–3] 

Methoxyfenozide; Pesticide Tolerances 

for Emergency Exemptions 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: This regulation establishes 

time-limited tolerances for residues of 

methoxyfenozide in or on sorghum 

grain, sorghum grain forage, and 

sorghum grain stover. This action is in 

response to EPA’s granting of an 

emergency exemption under section 18 

of the Federal Insecticide, Fungicide, 

and Rodenticide Act (FIFRA) 

authorizing use of the pesticide on 

sorghum grain. This regulation 

establishes a maximum permissible 

level for residues of methoxyfenozide in 

these food commodities. These 

tolerances will expire and are revoked 

on December 31, 2007. 

DATES: This regulation is effective 

August 31, 2005. Objections and 

requests for hearings must be received 

on or before October 31, 2005. 

ADDRESSES: To submit a written 

objection or hearing request follow the 

detailed instructions as provided in 

Unit VII. of the SUPPLEMENTARY

INFORMATION. EPA has established a 

docket for this action under docket 

identification (ID) number OPP–2005–

0224. All documents in the docket are 

listed in the EDOCKET index at http:// 

www.epa.gov/edocket. Although listed 

in the index, some information is not 

publicly available, i.e., 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 in EDOCKET or in hard 

copy at the Public Information and 

Records Integrity Branch (PIRIB), Rm. 

119, Crystal Mall#2, 1801 S. Bell St., 

Arlington, VA. This docket facility is 

open from 8:30 a.m. to 4 p.m., Monday 

through Friday, excluding legal 

holidays. The docket telephone number 

is (703) 305–5805. 

FOR FURTHER INFORMATION CONTACT: 

Stacey Milan Groce, Registration 

Division (7505C), Office of Pesticide 

Programs, Environmental Protection 

Agency, 1200 Pennsylvania Ave., NW., 

Washington, DC 20460–0001; telephone 

number: (703) 305–2505; e-mail address: 

milan.stacey@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this Action Apply to Me? 

You may be potentially affected by 

this action if you are an agricultural 

producer, food manufacturer, or 

pesticide manufacturer. Potentially 

affected entities may include, but are 

not limited to: 

• Crop production (NAICS code 111) 

• Animal production (NAICS code 

112) 

• Food manufacturing (NAICS code 

311) 

• Pesticide manufacturing (NAICS 

code 32532) 

This listing is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

affected by this action. Other types of 

entities not listed in this unit could also 

be affected. The North American 

Industrial Classification System 

(NAICS) codes have been provided to 

assist you and others in determining 

whether this action might apply to 

certain entities. If you have any 

questions regarding the applicability of 

this action to a particular entity, consult 

the person listed under FOR FURTHER

INFORMATION CONTACT. 

B. How Can I Access Electronic Copies 

of this Document and Other Related 

Information? 

In addition to using EDOCKET (http:// 

www.epa.gov/edocket/), you may access 

this Federal Register document 

electronically through the EPA Internet 

under the ‘‘Federal Register’’ listings at 

http://www.epa.gov/fedrgstr/. A 

frequently updated electronic version of 

40 CFR part 180 is available on E-CFR 

Beta Site Two at http:// 

www.gpoaccess.gov/ecfr/. 

II. Background and Statutory Findings 

EPA, on its own initiative, in 

accordance with sections 408(e) and 408 

(l)(6) of the Federal Food, Drug, and 

Cosmetic Act (FFDCA), 21 U.S.C. 346a, 

is establishing tolerances for residues of 

the insecticide methoxyfenozide, 

benzoic acid, 3-methoxy-2-methyl-2- 

(3,5-dimethylbenzoyl)-2-(1,1- 

dimethylethyl)hydrazide, in or on 

sorghum grain at 0.05 parts per million 

(ppm), sorghum grain forage at 15 ppm, 

and sorghum grain stover at 125 ppm. 

These tolerances will expire and are 

revoked on December 31, 2007. EPA 

will publish a document in the Federal 

Register to remove the revoked 

tolerances from the Code of Federal 

Regulations. 

Section 408(l)(6) of the FFDCA 

requires EPA to establish time-limited 

tolerances or exemptions from the 

requirement of a tolerance for pesticide 

chemical residues in food that will 

result from the use of a pesticide under 

an emergency exemption granted by 

EPA under section 18 of FIFRA. Such 

tolerances can be established without 

providing notice or period for public 

comment. EPA does not intend for its 

actions on section 18 related tolerances 

to set binding precedents for the 

application of section 408 of the FFDCA 

and the new safety standard to other 

tolerances and exemptions. Section 

408(e) of the FFDCA allows EPA to 

establish a tolerance or an exemption 

from the requirement of a tolerance on 

its own initiative, i.e., without having 

received any petition from an outside 

party. 

Section 408(b)(2)(A)(i) of the FFDCA 

allows EPA to establish a tolerance (the 

legal limit for a pesticide chemical 

residue in or on a food) only if EPA 

determines that the tolerance is ‘‘safe.’’

Section 408(b)(2)(A)(ii) of the FFDCA 

defines ‘‘safe’’ to mean that ‘‘there is a 

reasonable certainty that no harm will 

result from aggregate exposure to the 

pesticide chemical residue, including 

all anticipated dietary exposures and all 

other exposures for which there is 

reliable information.’’ This includes