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PART 52—APPROVAL AND Subpart GG—New Mexico Mexico Progress Report for the State PROMULGATION OF Implementation Plan for Regional Haze’’ IMPLEMENTATION PLANS ■ 2. In § 52.1620(e), the second table at the end of the table to read as follows: titled ‘‘EPA Approved Nonregulatory § 52.1620 Identification of plan. ■ 1. The authority citation for part 52 Provisions and Quasi-Regulatory continues to read as follows: Measures in the New Mexico SIP’’ is * * * * * Authority: 42 U.S.C. 7401 et seq. amended by adding the entry ‘‘New (e) * * *

EPA APPROVED NONREGULATORY PROVISIONS AND QUASI-REGULATORY MEASURES IN THE NEW MEXICO SIP

State Name of SIP provision Applicable geographic or submittal/ EPA approval date Explanation nonattainment area effective date

******* New Mexico Progress Report for the Statewide ...... 3/14/2014 6/14/2017 [Insert Federal State Implementation Plan for Re- Register citation]. gional Haze.

[FR Doc. 2017–12208 Filed 6–13–17; 8:45 am] hearing on April 19, 2017. This action States Environmental Protection BILLING CODE 6560–50–P allows the Agency time to consider Agency, Office of Land and Emergency petitions for reconsideration of the Risk Management, 1200 Pennsylvania Ave. Management Program Amendments and NW., (Mail Code 5104A), Washington, ENVIRONMENTAL PROTECTION take further regulatory action, as DC 20460; telephone number: (202) AGENCY appropriate, which could include 564–7987; email address: proposing and finalizing a rule to revise [email protected]. 40 CFR Part 68 or rescind these amendments. Electronic copies of this document [EPA–HQ–OEM–2015–0725; FRL–9963–55– DATES: The effective date of the rule and related news releases are available OLEM] amending 40 CFR part 68 published at on EPA’s Web site at https:// RIN 2050–AG91 82 FR 4594 (January 13, 2017), as www.epa.gov/rmp. Copies of this final delayed at 82 FR 4594 (January 26, rule are also available at https:// Accidental Release Prevention 2017) and 82 FR 13968 (March 16, www.regulations.gov. Requirements: Risk Management 2017), is further delayed until February Programs Under the Clean Air Act; 19, 2019. SUPPLEMENTARY INFORMATION: Further Delay of Effective Date ADDRESSES: The EPA has established a I. General Information docket for the rule amending 40 CFR AGENCY: Environmental Protection A. Does this action apply to me? Agency (EPA). part 68 under Docket ID No. EPA–HQ– OEM–2015–0725. All documents in the ACTION: This final rule applies to those Final rule; delay of effective docket are listed on the https:// date. facilities, referred to as ‘‘stationary www.regulations.gov Web site. Although sources’’ under the Clean Air Act SUMMARY: The Environmental Protection listed in the index, some information is (CAA), that are subject to the chemical Agency (EPA) is delaying the effective not publicly available, e.g., Confidential accident prevention requirements at 40 date of the Risk Management Program Business Information (CBI) or other CFR part 68. This includes stationary Amendments for an additional 20 information whose disclosure is sources holding more than a threshold months, to allow EPA to conduct a restricted by statute. Certain other quantity (TQ) of a regulated substance reconsideration proceeding and to material, such as copyrighted material, in a process. Table 5 provides industrial consider other issues that may benefit is not placed on the Internet and will be sectors and the associated NAICS codes from additional comment. The new publicly available only in hard copy for entities potentially affected by this effective date of the rule is February 19, form. Publicly available docket action. The Agency’s goal is to provide 2019. The Risk Management Program materials are available electronically a guide for readers to consider regarding Amendments were published in the through https://www.regulations.gov. entities that potentially could be Federal Register on January 13, 2017. FOR FURTHER INFORMATION CONTACT: affected by this action. However, this On January 26, 2017 and on March 16, James Belke, United States action may affect other entities not 2017, EPA published two documents in Environmental Protection Agency, listed in this table. If you have questions the Federal Register that delayed the Office of Land and Emergency regarding the applicability of this action effective date of the amendments until Management, 1200 Pennsylvania Ave. to a particular entity, consult the June 19, 2017. The EPA proposed in an NW., (Mail Code 5104A), Washington, person(s) listed in the introductory April 3, 2017 Federal Register action to DC 20460; telephone number: (202) section of this action under the heading further delay the effective date until 564–8023; email address: belke.jim@ entitled FOR FURTHER INFORMATION February 19, 2019 and held a public epa.gov, or: Kathy Franklin, United CONTACT.

TABLE 5—INDUSTRIAL SECTORS AND ASSOCIATED NAICS CODES FOR ENTITIES POTENTIALLY AFFECTED BY THIS ACTION

Sector NAICS code

Administration of Environmental Quality Programs ...... 924. Agricultural Chemical Distributors:

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TABLE 5—INDUSTRIAL SECTORS AND ASSOCIATED NAICS CODES FOR ENTITIES POTENTIALLY AFFECTED BY THIS ACTION—Continued

Sector NAICS code

Crop Production ...... 111. Animal Production and Aquaculture ...... 112. Support Activities for Agriculture and Forestry Farm ...... 115. Supplies Merchant Wholesalers ...... 42,491. Chemical Manufacturing ...... 325. Chemical and Allied Products Merchant Wholesalers ...... 4,246. Food Manufacturing ...... 311. Beverage Manufacturing ...... 3121. Oil and Gas Extraction ...... 211. Other ...... 44, 45, 48, 54, 56, 61, 72. Other manufacturing ...... 313, 326, 327, 33. Other Wholesale: Merchant Wholesalers, Durable Goods ...... 423. Merchant Wholesalers, Nondurable Goods ...... 424. Paper Manufacturing ...... 322. Petroleum and Coal Products Manufacturing ...... 324. Petroleum and Petroleum Products Merchant Wholesalers ...... 4,247. Utilities ...... 221. Warehousing and Storage ...... 493.

B. How do I obtain a copy of this Amendments, see 82 FR 4594 (January 2017, the EPA received a third petition document and other related 13, 2017). for reconsideration and stay from the information? On January 26, 2017, the EPA State of Louisiana, joined by Arizona, This final action and pertinent published a final rule delaying the Arkansas, Florida, Kansas, Kentucky, documents are located in the docket (see effective date of the Risk Management Oklahoma, South Carolina, Texas, ADDRESSES section). In addition to being Program Amendments from March 14, Wisconsin, and West Virginia. The available in the docket, an electronic 2017, to March 21, 2017, see 82 FR petitions from CSAG and the eleven copy of this document and the response 8499. This revision to the effective date states also requested that EPA delay the to comments document will also be of the Risk Management Program various compliance dates of the Risk available at https://www.epa.gov/rmp/ Amendments was part of an EPA final Management Program Amendments. rule implementing a memorandum final-amendments-risk-management- Under CAA section 307(d)(7)(B), the dated January 20, 2017, from the program-rmp-rule. Administrator may commence a Assistant to the President and Chief of reconsideration proceeding if, in the C. Judicial Review Staff, entitled ‘‘Regulatory Freeze Administrator’s judgement, the Under CAA section 307(b)(1), judicial Pending Review.’’ This memorandum petitioner raises an objection to a rule review of this final rule is available only directed the heads of agencies to that was impracticable to raise during by filing a petition for review in the U.S. postpone until 60 days after the date of the comment period or if the grounds Court of Appeals for the District of its issuance the effective date of rules for the objection arose after the Columbia Circuit (the Court) by August that were published prior to January 20, comment period but within the period 14, 2017. Under CAA section 2017 but which had not yet become for judicial review. In either case, the 307(d)(7)(B), only an objection to this effective. Administrator must also conclude that In a letter dated February 28, 2017, a the objection is of central relevance to final rule that was raised with 1 reasonable specificity during the period group known as the ‘‘RMP Coalition,’’ the outcome of the rule. The for public comment can be raised during submitted a petition for reconsideration Administrator may stay the effective of the Risk Management Program judicial review. date of the rule for up to three months Amendments (‘‘RMP Coalition during such reconsideration. II. Background Petition’’) as provided for in CAA In a letter dated March 13, 2017, the On January 13, 2017, the EPA issued section 307(d)(7)(B) (42 U.S.C. Administrator announced the convening 2 a final rule amending 40 CFR part 68, 7607(d)(7)(B)). On March 13, 2017, the of a proceeding for reconsideration of the chemical accident prevention Chemical Safety Advocacy Group the Risk Management Program provisions under section 112(r)(7) of the (‘‘CSAG’’) also submitted a petition for Amendments (a copy of ‘‘the 3 CAA (42 U.S.C. 7412(r)). The reconsideration and stay. On March 14, Administrator’s Letter’’ is included in amendments addressed various aspects the docket for this rule, Docket ID No. 1 The RMP Coalition is comprised of the EPA–HQ–OEM–2015–0725).4 As of risk management programs, including American Chemistry Council, the American Forest prevention programs at stationary & Paper Association, the American Fuel & sources, emergency response Petrochemical Manufacturers, the American the refining, oil and gas, chemicals, and general preparedness requirements, information Petroleum Institute, the Chamber of Commerce of manufacturing sectors with operations throughout the United States of America, the National the United States that are subject to 40 CFR part 68. availability, and various other changes Association of Manufacturers, and the Utility Air 4 Pruitt, E. Scott. March 13, 2017. Letter to Justin to streamline, clarify, and otherwise Regulatory Group. Savage of Hogan Lovells Regarding Convening a technically correct the underlying rules. 2 A copy of the RMP Coalition petition is Proceeding for Reconsideration of the Final Rule Collectively, this rulemaking is known included in the docket for this rule, Docket ID No. Entitled ‘‘Accidental Release Prevention as the ‘‘Risk Management Program EPA–HQ–OEM–2015–0725. Requirements: Risk Management Programs Under 3 A copy of the CSAG petition is included in the the Clean Air Act,’’ published on January 13, 2017, Amendments.’’ For further information docket for this rule, Docket ID No. EPA–HQ–OEM– 82 FR 4594. Office of the Administrator, U.S. on the Risk Management Program 2015–0725. CSAG members include companies in Environmental Protection Agency, Washington, DC.

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explained in the Administrator’s Letter, comments include 108 submissions resources required to prepare for having considered the objections raised with unique content (including compliance mentioned in the final Risk in the RMP Coalition Petition, the representative copies of form letter Management Program Amendments (82 Administrator determined that the campaigns and joint submissions), and FR 4676, January 13, 2017), these criteria for reconsideration have been nine duplicate submissions. EPA also commenters agreed that the 20-month met for at least one of the objections. held a public hearing on April 19, 2017 delay in the effective date would be as EPA issued a three-month (90-day) where EPA received five written expeditiously as practicable. Several of administrative stay of the Risk comments and 28 members of the public these commenters also identified 5 Management Program Amendments, provided verbal comments (three of the U.S.C. 705 in the Administrative which delayed the effective date of the speakers later submitted their testimony Procedure Act as a potential vehicle for Risk Management Program as written comments). Comments postponing the effective date Amendments rule for 90 days, from received during the public hearing are indefinitely in connection with the March 21, 2017 until June 19, 2017 (see included in the 107 submissions with pending litigation. 82 FR 13968, March 16, 2017). EPA will unique content. A transcript of the Other commenters contested EPA’s prepare a notice of proposed rulemaking hearing testimony is available as a authority to delay the effective date as in the near future that will provide the support document in the docket EPA– proposed. A group of advocacy RMP Coalition, CSAG, the states, and HQ–OEM–2015–0725 for this organizations, as well as a legal institute the public an opportunity to comment rulemaking. A summary of public affiliated with a law school, argued that on the issues raised in the petitions that comments and EPA’s response to the the 90-day stay provision in CAA meet the standard of CAA section comments can be found in the Response section 307(d)(7)(B) is the maximum 307(d)(7)(B), as well as any other matter to Comments document, also available period that a rule can be stayed or have we believe will benefit from additional in the docket. 6 its effectiveness delayed in connection comment. with a reconsideration. Noting that, A. Comments Regarding EPA’s Legal except for the 90-day stay provision, the III. Proposal To Delay the Effective Date Authority To Delay the Effective Date subparagraph provides that The Administrator’s authority to In the proposed rulemaking, EPA ‘‘reconsideration shall not postpone the administratively stay the effectiveness noted that under CAA section 307(d), effectiveness of the rule,’’ one of a CAA rule pending reconsideration the Agency may set effective dates as commenter contends no additional (without a notice and comment appropriate through notice and exceptions can be implied. The rulemaking) is limited to three months comment rulemaking unless another commenter supports its position by (see CAA section 307(d)(7)(B)) EPA provision of the CAA controls. In the citing Natural Resources Defense believed that three months was past, EPA has used this authority in Council v. Reilly, 976 F.2d 36, 40–41 insufficient to complete the necessary conjunction with the reconsideration (D.C. Cir. 1992). Another commenter steps in the reconsideration process for process when the administrative stay argues that EPA had ‘‘no excuse’’ for not the Risk Management Program period of three months, which the seeking comment on its first two delays Amendments and to consider other Administrator may invoke without of effectiveness, making further delay issues that may benefit from additional notice and comment, would be impermissible. comment.5 Since we expect to take insufficient to complete the necessary More generally, commenters opposed comment on a broad range of legal and process for reconsideration. to the proposed delay of effectiveness policy issues as part of the Risk Several industry trade associations sought to rely on previous findings in Management Program Amendments agreed that EPA had authority under the rulemaking record for the Risk reconsideration, on April 3, 2017 (82 FR CAA section 307(d) to conduct a notice Management Program Amendments. 16146), we proposed to further delay the and comment rulemaking delaying the Noting that CAA section 112(r)(7)(B) effective date of the Risk Management effective date for this rulemaking. Some provides that the regulations under that Program Amendments to February 19, noted that, unlike other CAA paragraph should provide for the 2019. provisions, there are no provisions in prevention and detection of, and the The statutory authority for this action CAA section 112(r)(7) requiring a response to, accidental releases ‘‘to the is provided by section 307(d) of the specific, earlier effective date. Some greatest extent practicable,’’ one CAA, as amended (42 U.S.C. 7607(d)), pointed out that, in contrast to several commenter argues that a 20-month which generally allows the EPA to set other CAA provisions (see, e.g., CAA delay in effectiveness would run effective dates as appropriate unless section 112(e)(1), CAA section counter to the statute when EPA in the other provisions of the CAA control, 112(i)(3)(A), and CAA section 112(j)(5)), Risk Management Program and section 112(r)(7) of the CAA (see CAA section 112(r)(7)(A) gives the Amendments already determined it was section IV.A below). Administrator the flexibility to make a practicable to implement these rule effective with no specific outside regulations sooner. The commenter IV. Summary of Public Comments date beyond that which ‘‘assur[es] notes that paragraph (B) of CAA section Received compliance as expeditiously as 112(r)(7) requires rules to be applicable EPA received a total of 54,117 public practicable.’’ In light of EPA’s to a stationary source no later than three comments on the proposed rulemaking. commitment to take further regulatory years after promulgation, so extending Several public comments were the action in the near future, with the the effective date 20 months would result of various mass mail campaigns potential for a broad range of rule ‘‘inevitably result in pushing some or all and contained numerous copies of revisions (82 FR 16148 through 16149, of the compliance deadlines far beyond letters or petition signatures. April 3, 2017), and the substantial three years.’’ The commenter viewed Approximately 54,000 letters and EPA as needing a more complete signatures were contained in these 6 June 2017. EPA. Response to Comments on the justification than if it were setting ‘‘a 2017 Proposed Rule Further Delaying the Effective new policy created on a blank slate.’’ several comments. The remaining Date of EPA’s Risk Management Program Amendments (April 3, 2017; 82 FR 16146). This According to the commenter, EPA failed 5 See the proposed rule notice published April 3, document is available in the docket for this to justify its changed position. In the 2017, 82 FR at 16148–16149. rulemaking. view of the commenter, EPA’s

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discussion of compliance dates for new We continue to believe that evaluating both the proposed rule and in the provisions in the Risk Management these issues will be difficult and time Administrator’s Letter of March 13, Program Amendments final rule (82 FR consuming. A delay of effectiveness will 2017,8 that part of its purpose in 4675–80, January 13, 2017) allow EPA time for a comprehensive proposing to delay the effective date 20 demonstrates that the 20-month delay in review of objections to the Risk months is to not only to conduct a effectiveness does not comply with ‘‘as Management Program Amendments rule reconsideration on the issues identified expeditiously as practicable’’ under without imposing the rule’s substantial in that letter but also to solicit comment CAA section 112(r)(7)(A). compliance and implementation on any other matter that will benefit Commenters also dispute the basis for resource burden when the outcome of from additional comment. The convening a reconsideration proceeding the review is pending. interpretation of CAA section by criticizing the BATF West finding A delay of 20 months is a reasonable 307(d)(7)(B) urged by the commenters itself and whether its publication two length of time to engage in the process would say that EPA’s ability to use a days before the close of comments made of revisiting issues in the underlying notice and comment procedure to delay it impracticable to comment on the Risk Management Program the effective date for these matters that report. One commenter noted several of Amendments. Contrary to some EPA seeks to solicit additional comment the parties requesting reconsideration in commenters assertions (and contrary to on is negated when there is a fact mentioned the BATF West finding the urging of those commenters who reconsideration ongoing as well. in their comments. Another commenter asked that we invoke the Administrative We also disagree with the objected to EPA not specifying what Procedure Act (APA) section 705), we commenters’ view that the phrase other issues met the reconsideration did not propose and are not finalizing ‘‘reconsideration shall not postpone the standard. More generally, commenters an indefinite delay of effectiveness. effective date of the rule’’ is meant to opposed to the delay of effectiveness During this period, the pre- prohibit using a notice and comment found EPA lacked sufficient detail in its Amendments 40 CFR part 68 rules will procedure or any means other than the explanation of the basis for proposing to remain in effect. As we noted when we three month stay in CAA section delay effectiveness of the Risk proposed and finalized the Risk 307(d)(7)(B) to delay a rule that is not Management Program Amendments for Management Program Amendments, in effect. In quoting the statute, the them to be able to comment. ‘‘[t]he [Risk Management Program] comment omits the word ‘‘[s]uch.’’ In Commenters further asserted that a regulations have been effective in context, ‘‘such reconsideration’’ follows further delay makes it more likely that preventing and mitigating chemical a discussion of the process for another incident like the West Fertilizer accidents in the United States’’ (see 82 convening reconsideration and precedes explosion and other events discussed in FR 4595, January 13, 2017). We discuss the three month stay provision. A the record, will occur. Commenters also additional bases for the delay of natural reading of the language is that expressed a concern that EPA could effectiveness for 20 months in section V the act of convening reconsideration repeatedly delay the effective date based of the preamble. For all of these reasons, does not, by itself, stay a rule but that on the logic in the proposed rule. we conclude that the delay of the Administrator, at his discretion, may Response: EPA notes that CAA effectiveness for 20 months is as issue a stay if he has convened a section 112(r)(7)(A) does not contain expeditious as practicable for allowing proceeding. The three-month limitation any language limiting ‘‘as expeditiously the rule to go into effect. on stays issued without rulemaking as practicable’’ to an outside date (e.g., We disagree with the view that the under CAA section 307(d)(7)(B) does ‘‘in no case later than date X’’). The three month stay provision in CAA not limit the availability or length of volume of comments received on the section 307(d)(7)(B) prohibits the use of stays issued through other mechanisms. proposed rule validates our expectation rulemaking to further delay the Furthermore, CAA section 307(d) that there will be a high level of interest effectiveness of rules that are not in expressly contemplates the ‘‘revision’’ in the broad range of issues we expect effect. As an initial matter, were no of rules to which it applies. See CAA to take comment on. For example, in reconsideration involved, a rule with a section 307(d)(1); see also CAA section this rulemaking, several commenters future effective date could have its 112(r)(7)(E) (regulations under CAA have criticized the methodology of the effective date delayed simply by a section 112(r) ‘‘shall for purposes of BATF West finding and raised timely rulemaking amending its sections 113 . . . and 307 . . . be substantive concerns about various rule effective date before the original date. treated as a standard in effect under provisions. We have consistently stated Cf. NRDC v. EPA, 683 F.2d 752, 764 (3d subsection (d) of [section 112]’’). EPA is that, beyond those issues that meet the Cir. 1982) (discussing application of issuing this rule as a revision of the Risk CAA section 307(d)(7)(B) standard for rulemaking procedures to action to Management Program Amendments. reconsideration, we intend to raise other postpone effective date of rule); NRDC The case of Natural Resources matters that we believe would benefit v. Abraham, 355 F.3d 179, 203 (2d Cir. Defense Council v. Reilly, 976 F.2d 36 from additional comment (see, the 2004) (discussing amendment of (D.C. Cir. 1992) (NRDC) does not Administrator’s Letter).7 Many of the effective date of rule through notice- prohibit EPA from using rulemaking decisions underlying the Risk and-comment process). While one procedures under CAA section 307(d) to Management Program Amendments are commenter criticizes the initial delay of modify and delay the effective date of policy preferences based on weighing effectiveness for relying on the good the Risk Management Program factors in the record that could be cause exception (arguing that, in lieu of Amendments. In that case, EPA had rationally assessed in different ways. the initial good cause delay, we should made the finding that radionuclides have used a notice and comment 7 Pruitt, E. Scott. March 13, 2017. Letter to Justin procedure to delay the effective date), 8 Pruitt, E. Scott. March 13, 2017. Letter to Justin Savage of Hogan Lovells Regarding Convening a and the subsequent 90-day stay for Savage of Hogan Lovells Regarding Convening a Proceeding for Reconsideration of the Final Rule continuing that delay, neither of those Proceeding for Reconsideration of the Final Rule Entitled ‘‘Accidental Release Prevention actions were challenged. There is no Entitled ‘‘Accidental Release Prevention Requirements: Risk Management Programs Under Requirements: Risk Management Programs Under the Clean Air Act,’’ published on January 13, 2017, reasonable dispute that the Risk the Clean Air Act,’’ published on January 13, 2017, 82 FR 4594. Office of the Administrator, US Management Program Amendments are 82 FR 4594. Office of the Administrator, US Environmental Protection Agency, Washington, DC. not yet in effect. EPA has explained in Environmental Protection Agency, Washington, DC.

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were hazardous air pollutants under the pollutant regulation and the detailed The phrase ‘‘to the greatest extent pre-1990 CAA. That finding, in turn, structure in CAA section 112(d)(9) and practicable’’ does not prohibit weighing triggered a series of mandatory duties CAA section 112(q) for addressing the difficulties of compliance planning under the CAA that required radionuclides under the amended CAA, and other implementation issues. promulgation of emission standards. CAA section 112(r)(7)(A) provides the This action itself is not the convening EPA did so after several court orders Administrator substantial discretion of reconsideration, therefore, the but, under a series of rules under CAA regarding the setting of an effective date. questions of whether the arson finding section 301 and the pre-1990 CAA The statutory framework for a by the BATF was proper are outside the section 112, continuously stayed the discretionary rule under CAA section scope of this rule. Even if the comment effectiveness of those rules. The 1990 112(r)(7) differs greatly from the ‘‘highly were within the scope of this Amendments added special provisions circumscribed schedule’’ analyzed by rulemaking, the mention of the BATF for radionuclides, saving the former the NRDC court. Absent an otherwise finding in a few scattered comments rules, delaying the effectiveness of a controlling provision of the CAA, CAA does not mean that it was practicable for category of rules impacting medical section 307(d) allows EPA to set a the public generally and the hundreds facilities regulated by the Nuclear reasonable effective date. of commenters to meaningfully address Regulatory Commission (NRC), and We view the provision in CAA section the significance of the finding for a rule establishing specific procedures for 112(r)(7)(B) regarding when regulations with multiple issues and hundreds of exempting NRC-licensed sources. See shall be ‘‘applicable’’ to a stationary supporting documents. EPA is not CAA section 112(d)(9), CAA section source to not prohibit the delay of taking action under APA section 705 at 112(q). EPA conducted a rulemaking effectiveness we promulgate in this rule. this time. under CAA section 112(d)(9) but lacked First, we note that February 2019 is sufficient data to promulgate an before January 2020 (three years after B. Comments Supporting a Delay of the exemption for most NRC-licensed the January 2017 promulgation), so even Effective Date facilities. Nevertheless, EPA assuming the provision in question Many commenters supported EPA’s promulgated a stay of effectiveness of requires compliance by three years after proposal to delay the effective date of the radionuclide rules, using CAA promulgation of the Risk Management the final rule to February 19, 2019. section 301, while it gathered the Program Amendments,9 it is speculative These commenters included industry necessary information to establish to say that it is ‘‘inevitable’’ that some associations, regulated facilities, state exemptions. (See NRDC at 38–39.) EPA compliance dates will be ‘‘pushed off far government agencies, and others. These characterized its rule as a transitional beyond three years’’ from promulgation. commenters gave various reasons for rule necessary to implement the intent Even if the commenter’s intuition is delaying the final rule’s effective date. of the 1990 Amendments. Id. at 40. correct, the argument is premature. A 1. Comments Arguing That EPA The NRDC court observed that the challenge to compliance dates after pre-1990 CAA had a highly Finalized Provisions That Were Not January 2020 should be brought in Discussed in the Proposed Rule circumscribed schedule for litigation over a rule that establishes promulgating hazardous air pollutant such a date. Second, the appropriate Several commenters indicated the rules. NRDC at 41. Recognizing that its rule to challenge compliance dates set final rule included changes on which past precedents did not allow the grant in the Risk Management Program the public was never offered an of general rulemaking authority to Amendments would be the underlying opportunity to comment as required by override specific provisions of the CAA, rule (i.e., the Risk Management Program the CAA. These commenters highlighted the court held that ‘‘[i]n the face of such Amendments rule promulgated on a new provision in the final rule a clear statutory command, we cannot January 13, 2017) that established requiring regulated facilities to disclose conclude that section 301 provided the compliance dates. This rule does not any information relevant to emergency EPA with the authority to stay impact compliance dates except for planning to local emergency planners, regulations that were subject to the those dates that would be triggered prior and a new final rule trigger for third- deadlines established by [former] to February 2019. If EPA proposes party audits allowing an implementing section 112(b).’’ Id. amending compliance dates beyond agency to require such an audit due to In contrast to the ‘‘clear statutory January 13, 2020, then this issue will ‘‘conditions at the stationary source that command’’ to promulgate rules for need to be addressed. could lead to the release of a regulated radionuclides once they were found to While CAA section 112(r)(7)(B) substance’’ as issues that warrant be hazardous air pollutants, CAA contains a requirement that EPA’s reconsideration and delaying the section 112(r) contains no similar regulations ‘‘provide, to the greatest effective date of the final rule. These mandate to promulgate the Risk extent practicable,’’ for prevention, commenters argued that the public was Management Program Amendments. detection, and response to accidental deprived of effective notice and There is no dispute that EPA discharged releases, that subparagraph places this opportunity to comment on the new its mandatory duty under CAA section requirement in the context of a mandate provisions. 112(r)(7)(B) to promulgate ‘‘reasonable for the regulations to be ‘‘reasonable.’’ Response: EPA agrees that the final regulations’’ when it promulgated the rule included some rule provisions that Risk Management Program rule in 1996. 9 EPA does not concede that the provision may have lacked notice and would These rules have been in effect and requires all compliance deadlines to be set three benefit from additional comment and stationary sources that have present a years from the date of any rule under CAA section response. threshold quantity of a regulated 112(r)(7)(B)(i). This provision more naturally is read substance must comply with 40 CFR to refer to the earliest possible compliance date for 2. Comments Regarding the Arson a newly-regulated stationary source. This reading is Finding for the West Fertilizer part 68 as in effect. The Risk confirmed by the rest of the sentence, which refers Management Program Amendments to when a stationary source with a newly-listed Explosion were not promulgated to comply with a substance must comply with CAA section Many commenters indicated that the 112(r)(7)(B) regulations. The Risk Management court order enforcing a mandatory duty. Program Amendments itself describes the rationale finding by the Bureau of Alcohol, In contrast to the specific deadlines in for when already-regulated sources must comply Tobacco, and Firearms (BATF) that the the pre-1990 CAA for hazardous air with the Risk Management Program Amendments. West Fertilizer explosion was caused by

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arson undermined the basis for the rule considered for repeal under Executive recommended, or that the Agency made and that this necessitates delaying the Orders 13771, ‘‘Reducing Regulation errors in its regulatory impact analysis final rule’s effective date, in order to and Controlling Regulatory Costs’’ 10 or rulemaking procedures, EPA concurs reconsider its provisions, in light of the and 13777, ‘‘Enforcing the Regulatory with commenters to the extent that they BATF finding. Some complained the Reform Agenda.’’ 11 argue for finalizing the proposed delay timing of BATF’s announcement a few A commenter representing a group of in the effective date of the Risk days before the end of the rule comment State agencies argued that the effective Management Program Amendments rule period precluded the development and date should be delayed because the final in order to conduct a reconsideration submission of meaningful comments rule created unjustified burdens on state proceeding. That proceeding will allow addressing this change in circumstances and local emergency responders. EPA to address commenters’ issues as and its implications. Several commenters indicated that EPA appropriate. Response: EPA agrees that the timing did not adequately coordinate with C. Comments Opposing a Delay of the of the BATF finding on the West OSHA during the rulemaking process, Effective Date Fertilizer incident made it impracticable and that EPA should delay the effective for many commenters to meaningfully date of and reconsider the rule in order Many commenters opposed EPA’s address the significance of this finding to coordinate any amendments to the proposal to further delay the effective in their comments on the rule. Risk Management Program with changes date of the final rule to February 19, Additionally, delaying the effective date made by OSHA to its Process Safety 2019. These commenters included of the final rule to February 19, 2019, Management standard. environmental advocacy groups, other will give the Agency an opportunity to Some commenters also argued that non-governmental organizations, private consider comments on the BATF the effective date should be delayed citizens, an association representing fire finding and take further action to because EPA did not adequately address fighters, an academic institution, and reconsider the rule, propose any small business concerns, or made other others. These commenters gave various necessary changes, and provide procedural errors during the rulemaking reasons for opposing EPA’s proposal to opportunity for public comment on any process. delay the final rule’s effective date, changes made. Response: While it is not necessary which are discussed individually below. for EPA to address the substance of 3. Other Comments Raised 1. Comments Arguing That a Further these claims in this rulemaking, we note Delay of the Rule’s Effective Date Will Many commenters indicated that the they represent a wide-ranging and Cause Harm effective date of the rule should be complex set of policy and procedural delayed because its information issues. Some of these issues would not Many commenters indicated that EPA disclosure provisions create security meet the standard for reconsideration should not delay the effective date risks, and these risks have not been under CAA section 307(d)(7)(B), but because delaying the rule’s adequately addressed by EPA in the present substantial policy concerns that implementation will fail to prevent or final rule. Other commenters objected to EPA may wish to address while it mitigate chemical accidents that will other specific provisions of the final conducts the reconsideration process for cause harm to workers at regulated rule (e.g., third-party audits, safer issues that meet that reconsideration facilities and members of the public in technology and alternatives analysis standard. Whether or not EPA agrees surrounding communities. (STAA), incident investigation with commenters on the merits of these Response: EPA disagrees that further requirements, etc.), indicating that EPA claims, the Agency believes the delaying the final rule’s effective date had provided no evidence that these existence of such a large set of will cause such harm. EPA notes that provisions would produce the benefits unresolved issues demonstrates the delaying the effective date of the Risk claimed by EPA, and that EPA should need for careful reconsideration and Management Program Amendments rule delay the effective date of the final rule reexamination of the Risk Management simply maintains the status quo, which either to provide such evidence or Program Amendments. Therefore, while means that the existing RMP rule remedy these deficiencies by making EPA does not now concede that it remains in effect. EPA also notes that substantive changes to the rule. should make the particular regulatory compliance dates for most major Numerous commenters argued that EPA changes that these commenters have provisions of the Risk Management failed to show that the benefits of the Program Amendments rule were set for final rule outweigh its costs and made 10 See Executive Order 13771: Reducing four years after the final rule’s effective other flaws in the regulatory impact Regulation and Controlling Regulatory Costs which date, so EPA’s delay of that effective analysis, which the commenters was signed on January 30, 2017 and published in date has no immediate effect on the contended were grounds for delaying the Federal Register on February 3, 2017 (82 FR implementation of these requirements. the effective date of the final rule and 9339). Executive Order 13771 requires that any new incremental costs associated with new regulations As EPA has previously indicated, the reconsidering its provisions. One trade shall, to the extent permitted by law, be offset by existing RMP rule has been effective in association stated that the Risk the elimination of existing costs associated with at preventing and mitigating chemical Management Program Amendments are least two prior regulations https:// accidents, and these protections will not needed and that the current Risk www.federalregister.gov/documents/2017/02/03/ 2017-02451/reducing-regulation-and-controlling- remain in place during EPA’s Management Program has been effective regulatory-costs. reconsideration of the Risk Management in identifying and reducing risks and 11 See Executive Order 13777: Enforcing the Program Amendments.12 preventing offsite impacts based on EPA Regulatory Reform Agenda which was signed on data showing that between 2004 and February 24, 2017 and published in the Federal 2. Comments Arguing That the EPA’s 2013 there has been a decrease of over Register on March 1, 2017 (82 FR 12285). Executive Proposal To Further Delay the Rule’s Order 13777 tasks each Federal agency with Effective Date Is Arbitrary and 60% of all RMP-reportable events. identifying regulations that are unnecessary, Another trade association believes that ineffective, impose costs that exceed benefits, or Capricious the amendments raise substantial interfere with regulatory reform initiatives and Three commenters claimed that EPA’s policies for repeal, replacement, or modification questions of policy and significantly https://www.federalregister.gov/documents/2017/ rulemaking to extend the effective date increase the regulatory burden without 03/01/2017-04107/enforcing-the-regulatory-reform- corresponding benefits and should be agenda. 12 See 82 FR 4595, January 13, 2017.

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of the Risk Management Program reconsideration. The letter does not In deciding whether to implement a Amendments rule to February 19, 2019 reach conclusions on other issues in the regulation, EPA may reasonably is arbitrary and capricious. Commenters RMP Coalition petition that meet this consider not only its benefits, but also stated several reasons that the proposed standard, but notes that at least some its costs. Petitioners have claimed that delay is arbitrary and capricious, issues may have lacked notice and the final Risk Management Program including: The issues presented for would benefit from additional comment Amendments’ new provisions that were reconsideration do not meet the and response. All three petitioners not included in the proposed rule may statutory requirement for argued that the final rule included new actually increase the risks and burdens reconsideration under CAA section requirements that were not included in to states, local communities, emergency 307(d)(7)(B), and, even if any met the the proposed rule, requirements that responders, and regulated entities rather CAA section 307(d)(7)(B) standard, EPA petitioners would have strongly than fixing the problems identified in lacks authority to extend a rule’s objected to if they had been afforded an the proposed rule. It is completely effective date beyond 90 days pending opportunity to comment. In particular, reasonable for EPA to delay reconsideration; EPA failed to explain the petitioners cited a provision in the implementation of and reexamine the why it is appropriate to forgo the final rule requiring regulated facilities to Risk Management Program benefits of the rule during the period of disclose any information relevant to Amendments when the Agency becomes the stay; EPA failed to adequately justify emergency planning to local emergency aware of information, such as that its change in position; and EPA has not planners and a requirement to perform provided by petitioners, that suggests shown that a delay of 20 months assures a third-party audit when an one or more of these provisions may compliance ‘‘as expeditiously as implementing agency requires such an potentially result in harm to regulated practicable’’, as required under CAA audit due to ‘‘conditions at the entities and the public. section 112(r)(7)(A) or provides to ‘‘the stationary source that could lead to the Petitioners’ claims that the new final greatest extent practicable’’ for release of a regulated substance.’’ rule provisions may cause harm to prevention, detection, and response, as Without conceding that these provisions regulated facilities and local required under CAA section lacked adequate notice, EPA recognizes communities, and the speculative but 112(r)(7)(B). One commenter also stated that these provisions include core likely minimal nature of the forgone that EPA appeared ‘‘to pick the duration requirements for major rule provisions, benefits, form another rational basis for it proposes—20 months—out of a hat,’’ and so are of central relevance to the EPA to delay the effectiveness of the and provided no explanation or outcome of the rule. Thus, BATF’s West Risk Management Program justification for this timeframe. finding meets the criteria for Amendments and determine whether Response: EPA disagrees that this reconsideration under CAA section they remain consistent with the policy rulemaking is arbitrary and capricious. 307(d)(7)(B), and it make practical sense goals of the Agency. EPA also disagrees with a In order to conduct a rulemaking that is for EPA to provide an opportunity for commenter’s assertion that delaying the reasonable, and therefore not arbitrary comment on these other issues in the 15 final rule’s effective date by 20 months and capricious, the courts have held reconsideration proceeding. violates the requirement under CAA that an agency must ‘‘set forth its EPA also disagrees with one section 112(r)(7)(A) to assure reasons’’ for its decision and ‘‘establish commenter’s assertion that the lack of compliance as expeditiously as a rational connection between the facts discussion in the proposed rule of the forgone benefits of the rule during the practicable, or the requirement under found and the choice made.’’ 13 EPA has period of the delay of effectiveness CAA section 112(r)(7)(B) to promulgate done so here. First, the reconsideration makes the delay arbitrary and reasonable regulations to the greatest process that EPA has initiated does meet capricious. As an initial matter, the extent practicable. EPA believes that the the statutory test for such a process. As regulatory impact analysis for the Risk language of these sections of the CAA EPA stated in the proposed rule, under Management Program Amendments was gives the Administrator broad authority CAA section 307(d)(7)(B), the unable to conclusively show that the to determine what factors are relevant to Administrator must commence a benefits of the final rule exceeded its establishing effective dates that are reconsideration proceeding if, in the costs. The lack of a quantification of practicable (unlike other sections of the Administrator’s judgement, the benefits in the final rule regulatory CAA, where Congress constrained ‘‘as petitioner raises an objection to a rule impact analysis would make a practicable’’ to include certain defined that was impracticable to raise during quantification of forgone benefits during time limits). In exercising this authority, the comment period or if the grounds the period of a delay speculative at best. EPA believes effective dates must for the objection arose after the However, as noted above, most account for all relevant factors. In this comment period but within the period provisions have a compliance date of case, delaying the effective date of the for judicial review, and the objection is 2021, therefore any benefits from rule during the reconsideration of central relevance to the outcome of compliance would not be impacted. proceeding is reasonable and practicable the rule. because the Agency does not wish to The Administrator’s Letter of March 15 Even if no issue met the statutory standard for cause confusion among the regulated 13, 2017,14 specified at least one issue— when the Administrator must convene a proceeding community and local responders by BATF’s West finding—met the CAA for reconsideration under CAA section 307(d)(7)(B), requiring these parties to prepare to section 307(d)(7)(B) standard for the Administrator retains the discretion to convene a reconsideration process. See Trujillo v. Gen. Elec. comply with, or in some cases, Co., 621 F.2d 1084, 1086 (10th Cir. 1980) immediately comply with, rule 13 See Tourus Records, Inc. v. D.E.A., 259 F.3d (‘‘Administrative agencies have an inherent provisions that might be changed during 731, 736 (D.C. Cir. 2001). authority to reconsider their own decisions, since the subsequent reconsideration. This is 14 Pruitt, E. Scott. March 13, 2017. Letter to Justin the power to decide in the first instance carries with Savage of Hogan Lovells Regarding Convening a it the power to reconsider.’’); Dun & Bradstreet particularly true for provisions that Proceeding for Reconsideration of the Final Rule Corp. Found. V. U.S. Postal Serv., 946 F.2d 189, 193 might result in unanticipated harm to Entitled ‘‘Accidental Release Prevention (2d Cir. 1991) (‘‘It is widely accepted that an agency facilities and local communities, as Requirements: Risk Management Programs Under may, on its own initiative, reconsider its interim or petitioners have alleged may occur. The the Clean Air Act,’’ published on January 13, 2017, even its final decisions, regardless of whether the 82 FR 4594. Office of the Administrator, U.S. applicable statute and agency regulations expressly Agency notes that compliance with Environmental Protection Agency, Washington, DC. provide for such review.’’) most major provisions in the final rule

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would not be required until 2021, so 2017 16 as well as the proposed delay of therefore the BATF finding does not delaying the effective date of the final effectiveness rule, EPA indicated it may provide grounds for the petitioner’s rule would have minimal effect on the raise other matters we believe will objection to the final rule. benefits derived from compliance with benefit from additional comment (82 FR Response: As an initial matter, the these provisions. 16148 through 16149, April 3, 2017). Agency’s decision to convene a Lastly, EPA disagrees that it picked Resolution of issues may require EPA to proceeding for reconsideration was made in a separate action—the the 20-month duration for the proposed revise the amendments through a Administrator’s Letter of March 13, delay in effective date ‘‘out of a hat,’’ or rulemaking process, which would 2017. The merits of that decision are not provided no explanation or justification involve a developing a proposal to focus properly subject to collateral attack in for this timeframe. As EPA explained in comment of specific issues as well as this rule. The substantive impact of the the proposed rule (82 FR 16148 through other issues for which additional BATF finding on the policy issues 16149, April 3, 2017): ‘‘As with some of comment may be appropriate, allowing opened in the reconsideration-related our past reconsiderations, we expect to sufficient opportunity for public proposed rule may be addressed in the take comment on a broad range of legal comment, review and respond to comments, and develop any final notice and comment period for that rule. and policy issues as part of the Risk revisions. The rulemaking process also The focus of this delay of effectiveness Management Program Amendments must allow time for Agency, inter- rule is to provide sufficient time to reconsideration . . .,’’ and, agency and OMB review of the proposed conduct a proceeding on the complex This timeframe would allow the EPA time and final rule. Based on EPA set of issues identified by the petitions to evaluate the objections raised by the rulemaking experience, EPA decided as well as other issues that merit various petitions for reconsideration of the that a 20-month delay was warranted. additional comment. Risk Management Program Amendments, EPA disagrees that the BATF finding consider other issues that may benefit from Some industry commenters have pointed out that without such a delay, of arson as the cause of the West additional comment, and take further Fertilizer explosion does not provide regulatory action. This schedule allows time regulated parties would need to expend for developing and publishing any notices resources to prepare for compliance grounds for reconsideration of the Risk that focus comment on specific issues to be with the Risk Management Program Management Program Amendments reconsidered as well as other issues for Amendments final rule provisions while final rule. While EPA agrees that the which additional comment may be further changes to the program are being incident was not the sole justification appropriate. A delay of the effective date to contemplated. for Executive Order 13650, and the February 19, 2019, provides a sufficient Agency did not solely rely on it as opportunity for public comment on the 4. Comments Indicating That the BATF justification for the Risk Management reconsideration in accordance with the Arson Finding Should Not Affect the Program Amendments, there is no requirements of CAA section 307(d), gives us Basis of the Rule question that the event was the an opportunity to evaluate and respond to Many commenters indicated that the proximate trigger for Executive Order such comments, and take any possible 13650 17 and prominently featured in regulatory actions, which could include BATF finding of arson should not cause proposing and finalizing a rule to revise the EPA to reconsider the final rule. These the Agency’s Risk Management Program 18 Risk Management Program amendments, as commenters indicated that Executive Amendments proposed rule. EPA appropriate. Order 13650 was not specifically based believes the prominence of the incident on the West Fertilizer event, and that in the policy decisions underlying This rationale for the proposed EPA did not justify the Risk Executive Order 13650 and the Risk duration of the effective date is neither Management Program Amendments rule Management Program Amendments rule arbitrary nor capricious. on that single incident, but rather that makes the BATF finding regarding the cause of the incident of central 3. Comments Arguing Inadequate EPA indicated an average of relevance to the rule amendments. If the Rationale Was Provided for Further approximately 150 chemical accidents cause of the West Fertilizer explosion Delay of Effective Date have occurred each year, and the rule’s provisions were intended to address all had been known sooner, the Agency Several commenters argued that EPA such accidents. Other commenters may have possibly given greater did not provide a valid basis or noted that conditions at West Fertilizer consideration to potential security risks reasoned explanation for its proposal to enabled the fire to escalate into a posed by the proposed rule delay, for why the petitions should take massive detonation, and lack of effective amendments. All three of the petitions more than three months to consider, or communication contributed to the how the 20-month delay period was needless deaths of emergency 17 See Executive Order 13650, Actions to Improve Chemical Safety and Security—A Shared determined. responders—issues that some rule Commitment; Report for the President, May, 2014, Response: The three petitions for amendments addressed by improving pp 1: ‘‘The West, Texas, disaster in which a fire involving ammonium nitrate at a fertilizer facility reconsideration cover numerous policy emergency preparedness. Some commenters also stated that the BATF resulted in an explosion that killed 15 people, and legal issues with the Risk injured many others, and caused widespread Management Program Amendments. As finding was not actually based on damage, revealed a variety of issues related to stated in the April 3, 2017 proposal (82 evidence of arson, but rather relied on chemical hazard awareness, regulatory coverage, and emergency response. The Working Group has FR 16148 through 16149) these issues a process of elimination called ‘‘negative corpus’’ to project a outlined a suite of actions to address these may be difficult and time consuming to issues . . .’’ evaluate, and given the expected high conclusion without evidence, and 18 In the proposed rule, EPA referred to the West level of interest from stakeholders in Fertilizer event more than 15 times. For example, 16 Pruitt, E. Scott. March 13, 2017. Letter to Justin see 81 FR 13640, column 1: ‘‘In response to commenting on these issues, we Savage of Hogan Lovells Regarding Convening a catastrophic chemical facility incidents in the proposed a longer delay of the effective Proceeding for Reconsideration of the Final Rule United States, including the explosion that date to allow additional time to open Entitled ‘‘Accidental Release Prevention occurred at the West Fertilizer facility in West, these issues for review and comment. Requirements: Risk Management Programs Under Texas, on April 17, 2013 that killed 15 people, the Clean Air Act,’’ published on January 13, 2017, President Obama issued Executive Order 13650, Additionally, in both the 82 FR 4594. Office of the Administrator, U.S. ‘‘Improving Chemical Facility Safety and Security,’’ Administrator’s Letter of March 13, Environmental Protection Agency, Washington, DC. on August 1, 2013.’’

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for reconsideration and many of the 5. Comments Arguing That the process for the Risk Management commenters discuss potential security Petitioners’ Other Claims Are Without Program Amendments rule.20 concerns with the rule’s information Merit While EPA acknowledges that several disclosure requirements to LEPCs and Some commenters stated that EPA commenters included the BATF arson the public. The RMP Coalition petition and the petitioners for reconsideration finding in their comments on the Risk and some commenters argue that failed to identify objections that either Management Program Amendments knowing that the West Fertilizer arose after the period for public proposed rule, the Agency does not incident was an intentional, rather than comment or were impracticable to raise view two days (i.e., the amount of time an accidental act, would likely have during this period, as required under between BATF’s announcement of its resulted in more focus on enhanced CAA section 307(d)(7)(B). One of these arson finding and the close of the public facility security measures and commenters stated that most of the comment period for the Risk justifications for the need for third- objections that were raised by Management Program Amendments parties to obtain facility information, petitioners were ‘‘simply recycled from proposed rule) as a sufficient time with protections on data use and further the comment period’’ and that the period to evaluate the full implications disclosure. ‘‘remainder address issues that cannot of such important new information. possibly be considered ‘‘of central Several commenters also noted that the Clearly, EPA does not desire to BATF’s arson finding was announced establish regulations that increase relevance’’ to the ‘‘Chemical Disaster Rule.’’ This commenter also indicated too late for them to adequately consider security risks. While EPA has not this information within their comments concluded that the final rule would that several parties commented on the BATF finding during the public to EPA. increase such risks, the petitioner’s Also, when EPA stated, in responding comment period for the Risk concerns, which are echoed by many to comments on the proposed Risk Management Program Amendments other commenters, require careful Management Program Amendments, rulemaking, and that this demonstrated consideration, and cannot be dismissed that it would be inappropriate to that it was not impracticable to raise the out of hand. suspend the rulemaking based on issue during the comment period. This outcomes of the incident investigation Regarding these commenters claims commenter noted that EPA had of the West Fertilizer explosion, the that the BATF relied on an invalid form responded to these comments and found Agency had not yet received the of reasoning (i.e., ‘‘negative corpus’’) to that ‘‘it would be inappropriate to petitions that prompted its reach its conclusion regarding the cause suspend the rulemaking based on reconsideration proceeding, as well as of the West Fertilizer explosion, EPA outcomes of the incident investigation comments on the proposal to delay the cannot evaluate these commenters of the West Fertilizer explosion.’’ claims without obtaining detailed Response: EPA disagrees that rule’s effective date, both of which information on the BATF investigation. petitioners have failed to identify one or assert that the information disclosure The decision to reconsider simply more objections that either arose after provisions contained in the final Risk acknowledges the fact that BATF made the period for public comment or were Management Program Amendments may this finding, that the finding went to impracticable to raise during that actually increase or introduce new issues of central relevance to the Risk period. The decision to convene a security risks to RMP facilities, Management Program Amendments and proceeding for reconsideration was emergency responders, and that the finding was late enough in the made in the Administrator’s Letter of communities. EPA believes it would be comment period to make it March 13, 2017.19 The substance of that remiss for the Agency to allow the final impracticable for many commenters to decision is a separate action from this rule to become effective without fully meaningfully comment on the finding’s rule on the length of a delay of evaluating this new information. As significance for the rule. The effectiveness. Petitioners, as well as previously indicated, EPA does not substantive merits of the BATF numerous commenters, including desire to establish regulations that increase security risks. methodology and its conclusion would industry trade associations, regulated Finally, several commenters also be more appropriate to consider in a facilities, state government agencies, stated that EPA added more than 100 and others asserted the final rule reconsideration rulemaking process new documents to the rulemaking imposed extensive new requirements on addressing the Risk Management docket after the close of the comment covered facilities that were not Program Amendments issues impacted period, and indicated that several of contained in the proposed rule. These by the finding. To the extent questions these documents were used by EPA to commenters maintained that two major remain concerning the cause of the West support the Agency’s position on core provisions of the final rule were not Fertilizer explosion, EPA believes these provisions of the final rule, including contained in the proposal, including a argue for finalizing the delay of effective the STAA and third-party audit new provision in the final rule requiring date of the Risk Management Program provisions. These commenters stated regulated facilities to disclose any Amendments in order to give the that because the comment period had information relevant to emergency Agency time to better understand the already closed when this information basis for BATF’s conclusions. planning to local emergency planners, and a new trigger for third-party audits. was added to the docket, the public was Accordingly, EPA has decided to EPA agrees that these concerns warrant denied an opportunity to review and finalize the proposed delay of the additional public comment and can be comment on the additional information. effective date to February 19, 2019. This incorporated into the reconsideration Without taking a position on whether delay will give the Agency an these documents required additional opportunity to reconsider the Risk 19 Pruitt, E. Scott. March 13, 2017. Letter to Justin comment under the rulemaking Management Program Amendments Savage of Hogan Lovells Regarding Convening a procedures of CAA section 307(d), a rule, propose changes to the rule as Proceeding for Reconsideration of the Final Rule benefit of reopening comment on the necessary, and provide additional Entitled ‘‘Accidental Release Prevention topics that meet the reconsideration Requirements: Risk Management Programs Under opportunity for members of the public the Clean Air Act,’’ published on January 13, 2017, standard of CAA section 307(d)(7)(B) to submit comments on the proposal to 82 FR 4594. Office of the Administrator, U.S. EPA. Environmental Protection Agency, Washington, DC. 20 See footnote 15, above.

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will be to allow for comment on some (c), to immediately go into effect, EPA Section 553(d) of the APA, 5 U.S.C. or all of these documents. notes that § 68.95(a)(4) also contains a Chapter 5, generally provides that rules reference to the new exercise may not take effect earlier than 30 days 6. Other Comments on the Proposed requirements of § 68.96, and therefore after they are published in the Federal Delay of the Effective Date this provision cannot go into effect Register. EPA is issuing this final rule While noting their opposition to many without § 68.96. However, § 68.95(c) is under § 307(d)(1) of the CAA, which provisions of the final regulation, an already contained in the existing rule. In states: ‘‘The provisions of section 553 association of state and local emergency the Risk Management Program through 557 * * * of Title 5 shall not, planning officials recommended that Amendments final rule, EPA simply except as expressly provided in this EPA allow the emergency response replaced the phrase ‘‘local emergency section, apply to actions to which this coordination activities provisions of planning committee’’ with the acronym subsection applies.’’ Thus, section § 68.93 and the emergency response ‘‘LEPC.’’ therefore, this requirement will 553(d) of the APA does not apply to this program provisions of § 68.95 (and remain in effect with or without the rule. EPA is nevertheless acting 21 particularly paragraph (c)) to go into Risk Management Program consistently with the policies effect immediately. This association Amendments final rule becoming underlying APA section 553(d) in argued that these two requirements are effective. making this rule effective on June 14, simple, direct, not burdensome, and in 2017. APA section 553(d) provides an the case of § 68.95(c), essentially V. Additional Twenty Month Delay of Effectiveness exception when the agency finds good identical to requirements contained in cause exists for a period less than 30 the Emergency Planning and EPA is delaying the effective date of days before effectiveness. We find good Community Right-to-Know Act the Risk Management Program cause exists to make this rule effective (EPCRA). Amendments final rule until February upon publication because a delay of Response: EPA disagrees that the 19, 2019. Given the degree of effectiveness can only be put in place emergency response coordination complexity with the issues under prior to a rule becoming effective. activities provisions of § 68.93 should review, and the likelihood of significant Waiting for 30 days for this rule to immediately go into effect. These public interest in this reconsideration, establish the new effective date of provisions contain language (i.e., we believe the delay we are adopting in February 19, 2019 at this time would ‘‘Coordination shall include providing this action is adequate and necessary for cause the Risk Management to the local emergency planning and the reconsideration. While it is possible Amendments to become temporarily response organizations . . . any other that we may require less time to effective on June 19, 2017 (existing information that local emergency complete the reconsideration, we effective date). Avoiding this situation planning and response organizations believe delaying the effective date by a alleviates any potential confusion and identify as relevant to local emergency full 20 months is reasonable and implementation difficulties that could response planning’’) for which two prudent. This additional delay of the arise were the Risk Management petitioners (the RMP Coalition and effective date enables EPA time to Program Amendments to go into effect Chemical Safety Advocacy Group) evaluate the objections raised by the for a 30-day period and then be stayed specifically objected, based on their various petitions for reconsideration of during reconsideration or modified as a concerns that the rule included no the Risk Management Program result of the reconsideration process. limitations on the information requested Amendments, provides a sufficient to be disclosed or how sensitive opportunity for public comment on the The effective date of the Risk information can be protected. In reconsideration in accordance with the Management Program Amendments, agreeing to convene a proceeding for requirements of CAA section 307(d), published in the Federal Register on reconsideration of the final rule, EPA gives us an opportunity to evaluate and January 13, 2017 (82 FR 4594), is hereby agreed to provide the public with an respond to such comments, and take delayed to February 19, 2019. opportunity to comment on other issues any possible regulatory actions, which VI. Statutory and Executive Orders that may benefit from additional could include proposing and finalizing comment and response. By finalizing a rule to revise or rescind the Risk Additional information about these these provisions immediately, EPA Management Program Amendments, as statutes and Executive Orders can be would not be allowing the public an appropriate. During the reconsideration, found at https://www.epa.gov/laws- additional opportunity to comment on EPA may also consider other issues, regulations/laws-and-executive-orders. them. Additionally, § 68.93(b) requires beyond those raised by petitioners, that A. Executive Order 12866: Regulatory coordination to include consulting with may benefit from additional comment, Planning and Review and Executive local emergency response officials to and take further regulatory action. Order 13563: Improving Regulation and establish appropriate schedules and The EPA recognizes that compliance Regulatory Review plans for field and tabletop exercises dates for some provisions in the Risk required under § 68.96(b). As § 68.96(b) Management Program Amendments This action is a significant regulatory is a new section created in the final rule, coincided with the rule’s effective date, action that was submitted to the Office EPA cannot finalize § 68.93(b) as while compliance dates for other of Management and Budget (OMB) for currently written without also finalizing provisions would occur in later years, review. Any changes made in response § 68.96(b). i.e., 2018, 2021, or 2022, depending on to OMB recommendations have been Regarding this commenter’s the provision. Compliance with all of documented in the docket. recommendation that EPA allow the the rule provisions is not required as B. Paperwork Reduction Act (PRA) emergency response program provisions long as the rule does not become of § 68.95, and particularly paragraph effective. The EPA did not propose and This action does not impose an is not taking any action on any information collection burden under the 21 Section 68.95(c) pertains to coordination of a compliance dates at this time, as EPA PRA. This final rule would only delay facility’s emergency response plan with the community emergency response plan and providing plans to propose amendments to the the effective date of the Risk necessary information to local officials to develop compliance dates as necessary when Management Program Amendments and implement the community response plan. considering future regulatory action. finalized on January 13, 2017 (see 82 FR

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4594) and does not contain any the EPA has reason to believe may • March 14, 2018—Require information collection activities. disproportionately affect children, per compliance with emergency response the definition of ‘‘covered regulatory coordination activities within one year C. Regulatory Flexibility Act (RFA) action’’ in section 2–202 of the of an effective date of a final rule; I certify that this action will not have Executive Order. This action is not • Provide three years for the owner or a significant economic impact on a subject to Executive Order 13045 operator of a non-responding stationary substantial number of small entities because it does not concern an source to develop an emergency under the RFA. In making this environmental health risk or safety risk. response program in accordance with determination, the impact of concern is § 68.95. No specific date was established any significant adverse economic H. Executive Order 13211: Actions in the final rule. Instead, the three-year impact on small entities. An agency may Concerning Regulations That timeframe begins when the owner or certify that a rule will not have a Significantly Affect Energy Supply, operator determines that the facility is significant economic impact on a Distribution or Use subject to the emergency response substantial number of small entities if This action is not a ‘‘significant program requirements of § 68.95; • the rule relieves regulatory burden, has energy action’’ because it is not likely to March 15, 2021—Comply with new no net burden or otherwise has a have a significant adverse effect on the provisions (i.e., third-party compliance positive economic effect on the small supply, distribution or use of energy. audits, root cause analyses as part of entities subject to the rule. This final This final rule only delays the effective incident investigations, STAA, rule would not impose a regulatory date of the Risk Management Program emergency response exercises, and burden for small entities because it only Amendments finalized on January 13, information availability provisions), delays the effective date of the Risk 2017 (see 82 FR 4594) and does not unless otherwise stated, four years after Management Program Amendments impose any regulatory requirements. the original effective date of the final finalized on January 13, 2017 (see 82 FR rule; and 4594). We have therefore concluded that I. National Technology Transfer and • March 14, 2022—Provide regulated this action will have no net regulatory Advancement Act (NTTAA) sources one additional year (i.e., five burden for all directly regulated small This action does not involve technical years after the original effective date of entities. standards. the final rule) to correct or resubmit RMPs to reflect new and revised data D. Unfunded Mandates Reform Act J. Executive Order 12898: Federal elements. (UMRA) Actions To Address Environmental The compliance dates of March 15, This action does not contain any Justice in Minority Populations and 2021 and March 14, 2022 are not unfunded mandate as described in Low-Income Populations affected by this rule. Therefore, the costs UMRA, 2 U.S.C. 1531–1538, and does The EPA believes that this action is for the majority of the rule provisions not significantly or uniquely affect small not subject to Executive Order 12898 (59 are not affected by this rule (i.e., third- governments. The action imposes no FR 7629, February 16, 1994) because it party compliance audits, root cause enforceable duty on any state, local or does not establish an environmental analyses as part of incident tribal governments or the private sector. health or safety standard. This final rule investigations, STAA, emergency response exercises, and information E. Executive Order 13132: Federalism only delays the effective date of the Risk Management Program Amendments availability provisions). We are also This action does not have federalism finalized on January 13, 2017 (see 82 FR delaying costs associated with minor implications. It will not have substantial 4594) and does not impose any rule provisions that would have become direct effects on the states, on the regulatory requirements. immediately effective on June 19, 2017. relationship between the national However, we did not estimate any costs government and the states, or on the K. Congressional Review Act (CRA) for these provisions. These provisions distribution of power and This action is subject to the CRA, and include: responsibilities among the various • § 68.48 Safety information—revised the EPA will submit a rule report to levels of government. to change ‘‘Material Safety Data Sheets’’ each House of the Congress and to the to ‘‘Safety Data Sheets (SDS);’’ F. Executive Order 13175: Consultation Comptroller General of the United • § 68.50 Hazard review—revised to and Coordination With Indian Tribal States. This action is not a ‘‘major rule’’ clarify that that the hazard review must Governments as defined by 5 U.S.C. 804(2). include findings from incident This action does not have tribal Only one major rule provision of the investigations; implications as specified in Executive Risk Management Program • § 68.54 & 68.71 Training—revised to Order 13175. This final rule would only Amendments has a compliance date that clarify that employee training delay the effective date of the Risk will be extended by delaying the requirements apply to supervisors Management Program Amendments effective date to February 19, 2019. As responsible for directing process finalized on January 13, 2017 (see 82 FR a result, the costs for that provision are operations (under 68.54) and 4594) and does not impose new delayed and will not be incurred by the supervisors with process operational regulatory requirements. Thus, regulated community while the rule is responsibilities (under 68.71); Executive Order 13175 does not apply not yet in effect. As discussed below, • § 68.60 & 68.81 Incident to this action. the costs for this delayed compliance investigation—revised to require date is small relative to the total costs incident investigation reports to be G. Executive Order 13045: Protection of of the Risk Management Program completed within 12 months of the Children From Environmental Health Amendments and thus, the rule further incident, unless the implementing Risks and Safety Risks delaying the effective date is not a major agency approves, in writing, an The EPA interprets Executive Order rule. extension of time; 13045 as applying only to those In the Risk Management Program • § 68.65 Process safety information— regulatory actions that concern Amendments, EPA finalized the revised to require that process safety environmental health or safety risks that following compliance dates: information be kept up-to-date;

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Æ Also, changed the note to paragraph under the Federal Food, Drug, and site at http://www.ecfr.gov/cgi-bin/text- (b): To replace ‘‘Material Safety Data Cosmetic Act (FFDCA). idx?&c=ecfr&tpl=/ecfrbrowse/Title40/ _ Sheets’’ with ‘‘Safety Data Sheets DATES: This regulation is effective June 40tab 02.tpl. (SDS);’’ and 14, 2017. Objections and requests for • § 68.67 Process hazard analysis— C. How can I file an objection or hearing hearings must be received on or before request? revised to require that the PHA must August 14, 2017, and must be filed in now address the findings from all accordance with the instructions Under FFDCA section 408(g), 21 incident investigations required under provided in 40 CFR part 178 (see also U.S.C. 346a, any person may file an § 68.81, as well as any other potential Unit I.C. of the SUPPLEMENTARY objection to any aspect of this regulation failure scenarios. INFORMATION). and may also request a hearing on those The only major rule provision that objections. You must file your objection would be affected by this rule (because ADDRESSES: The docket for this action, or request a hearing on this regulation its March 14, 2018 compliance date is identified by docket identification (ID) in accordance with the instructions before the delayed effective date of this number EPA–HQ–OPP–2016–0255, is provided in 40 CFR part 178. To ensure rule) is the emergency response available at http://www.regulations.gov proper receipt by EPA, you must coordination provision, which has an or at the Office of Pesticide Programs identify docket ID number EPA–HQ– estimated annualized cost of $16 M.22 23 Regulatory Public Docket (OPP Docket) OPP–2016–0255 in the subject line on Therefore, based on the costs of the in the Environmental Protection Agency the first page of your submission. All provisions that would be affected by Docket Center (EPA/DC), West William objections and requests for a hearing this action, EPA has concluded that this Jefferson Clinton Bldg., Rm. 3334, 1301 must be in writing, and must be action is not a ‘‘major rule’’ as defined Constitution Ave. NW., Washington, DC received by the Hearing Clerk on or by 5 U.S.C. 804(2). 20460–0001. The Public Reading Room before August 14, 2017. Addresses for is open from 8:30 a.m. to 4:30 p.m., List of Subjects in 40 CFR Part 68 mail and hand delivery of objections Monday through Friday, excluding legal and hearing requests are provided in 40 Environmental protection, holidays. The telephone number for the CFR 178.25(b). Administrative practice and procedure, Public Reading Room is (202) 566–1744, In addition to filing an objection or Air pollution control, Chemicals, and the telephone number for the OPP hearing request with the Hearing Clerk Hazardous substances, Docket is (703) 305–5805. Please review as described in 40 CFR part 178, please Intergovernmental relations, Reporting the visitor instructions and additional submit a copy of the filing (excluding and recordkeeping requirements. information about the docket available any Confidential Business Information Dated: June 9, 2017. at http://www.epa.gov/dockets. (CBI)) for inclusion in the public docket. E. Scott Pruitt, FOR FURTHER INFORMATION CONTACT: Information not marked confidential Administrator. Michael Goodis, Registration Division pursuant to 40 CFR part 2 may be [FR Doc. 2017–12340 Filed 6–13–17; 8:45 am] (7505P), Office of Pesticide Programs, disclosed publicly by EPA without prior BILLING CODE 6560–50–P Environmental Protection Agency, 1200 notice. Submit the non-CBI copy of your Pennsylvania Ave. NW., Washington, objection or hearing request, identified DC 20460–0001; telephone number: by docket ID number EPA–HQ–OPP– ENVIRONMENTAL PROTECTION (703) 305–7090; email address: 2016–0255, by one of the following AGENCY [email protected]. methods: • SUPPLEMENTARY INFORMATION: Federal eRulemaking Portal: http:// 40 CFR Part 180 www.regulations.gov. Follow the online I. General Information instructions for submitting comments. [EPA–HQ–OPP–2016–0255; FRL–9961–95] A. Does this action apply to me? Do not submit electronically any Spirotetramat; Pesticide Tolerances information you consider to be CBI or You may be potentially affected by other information whose disclosure is AGENCY: Environmental Protection this action if you are an agricultural restricted by statute. Agency (EPA). producer, food manufacturer, or • Mail: OPP Docket, Environmental ACTION: Final rule. pesticide manufacturer. The following Protection Agency Docket Center (EPA/ list of North American Industrial DC), (28221T), 1200 Pennsylvania Ave. SUMMARY: This regulation establishes Classification System (NAICS) codes is NW., Washington, DC 20460–0001. tolerances for residues of spirotetramat not intended to be exhaustive, but rather • Hand Delivery: To make special in or on multiple commodities which provides a guide to help readers arrangements for hand delivery or are identified and discussed later in this determine whether this document delivery of boxed information, please document. In addition, this regulation applies to them. Potentially affected follow the instructions at http:// removes several previously established entities may include: www.epa.gov/dockets/contacts.html. tolerances that are superseded by this • Crop production (NAICS code 111). Additional instructions on final rule. Interregional Research Project • Animal production (NAICS code commenting or visiting the docket, Number 4 (IR–4) and Bayer 112). along with more information about CropScience, requested these tolerances • Food manufacturing (NAICS code dockets generally, is available at http:// 311). www.epa.gov/dockets. 22 See EPA, Regulatory Impact Analysis, • Pesticide manufacturing (NAICS Accidental Release Prevention Requirements: Risk code 32532). II. Summary of Petitioned-For Management Programs Under the Clean Air Act, Tolerance Section 112(r)(7), December 16, 2016, pp 71, Docket B. How can I get electronic access to ID No. EPA–HQ–OEM–2015–0725. In the Federal Register of Wednesday, other related information? 23 The new compliance date for the emergency June 22, 2016 (81 FR 40594) (FRL– response coordination provision will be February You may access a frequently updated 9947–32) and Monday, August 29, 2016 19, 2019, unless we propose and finalize a revised compliance date in conjunction with future electronic version of EPA’s tolerance (81 FR 59165) (FRL–9950–22), EPA revisions to the Risk Management Program regulations at 40 CFR part 180 through issued documents pursuant to FFDCA Amendments. the Government Printing Office’s e-CFR section 408(d)(3), 21 U.S.C. 346a(d)(3),

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