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Federal Register / Vol. 86, No. 122 / Tuesday, June 29, 2021 / Rules and Regulations
lotter on DSK11XQN23PROD with RULES1

Judicial challenges to the EPAs denials of petitions for reconsideration of CAA
actions belong in the same venue as any challenge to the action that such petitions request the agency to reconsider.1
The D.C. Circuit is the only appropriate venue for both challenges to the final action titled, Air Quality Designations for the 2010 Sulfur Dioxide SO2 Primary National Ambient Air Quality Standard Supplement to Round 2 for Four Areas in Texas: Freestone and Anderson Counties, Milam County, Rusk and Panola Counties, and Titus County, 81
FR 89870 December 13, 2016 Round 2 Supplement and challenges to these actions denying administrative petitions on the Round 2 Supplement. The EPA
made a finding in the Round 2
Supplement, that the Round 2
Supplement is based on a determination of nationwide scope or effect within the meaning of CAA section 307b1.
See 81 FR at 8987475. That action is currently being challenged in the Court of Appeals for the Fifth Circuit;
however, the EPA maintains that the proper venue for that action is the D.C.
Circuit.2 Thus, judicial challenges to the actions noticed here, denying administrative petitions for reconsideration and/or stay of the Round 2 Supplement, also belong in the D.C. Circuit.
To the extent a court finds these actions denying the administrative petitions on the Round 2 Supplement to be locally or regionally applicable, the Administrator is exercising the complete discretion afforded to him under the CAA to make and publish a finding that each of these actions are based on a determination of nationwide scope or effect within the 1 Cf. Natural Res. Def. Council, Inc. v. Thomas, 838 F.2d 1224, 1249 D.C. Cir. 1988 the clause in CAA section 307b governing nationally applicable regulations provides jurisdiction over both the direct challenge to the regulations and the petition for reconsideration.
2 The EPA intends to maintain this position in merits briefing in the 5th Circuit, as the 5th Circuits venue decision denied the EPAs motion to dismiss or transfer the case to the D.C. Circuit without prejudice to reconsideration of the issue by the merits panel. Texas v. EPA, 706 Fed. Appx. 159, 161, 165 5th Cir. 2017 EPAs motion therefore is denied without prejudice to reconsideration by the merits panel . . . merits briefing will provide greater clarity on what determinations lie at the Round 2 Supplements core, by, for example, illuminating that the key determinations in the rule are determinations that specific methodologies are appropriate or preferable for assessing sulfur dioxide levels nationwide, as opposed to factspecific assessments of sulfur dioxide levels in the four Texas regions. In that case, the merits panel should not be constrained from revisiting the issue..

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meaning of CAA section 307b1.3
Both the Round 2 Supplement and these final actions noticed here are finalized pursuant to a common, uniform nationwide analytical method and interpretation of CAA section 107d. In denying the petitions for reconsideration and administrative stay of the Round 2 Supplement, these final actions apply the same common, uniform nationwide analytical method and interpretation of CAA section 107d that the EPA applied across the country in designations for the SO2
Primary National Ambient Air Quality Standard NAAQS, including the EPAs nationwide approach to and technical evaluation of air quality modeling and monitoring data within the EPAs interpretation of statutory terms under section 107d1 of the CAA.4 These final actions are based on this same common core of determinations regarding the nationwide analytical method and interpretation of CAA
section 107d, determinations that specific methodologies are appropriate or preferable for assessing sulfur dioxide levels nationwide.5 More specifically, these final actions are based on a determination by the EPA to evaluate areas nationwide using a common fivefactor analysis in determining whether areas are in violation of or contributing to an area in violation of the 2010 SO2
NAAQS at the time of the designations final action. The actions denying the petitions for reconsideration explained, for example, that the EPAs designations and the denials for reconsideration are based on the EPAs determination to consider and assess the technical representativeness of all available information regarding then-current air quality at the time of designations e.g., to consider third party modeling submitted to the EPA of the then-most recent years of air quality and thencurrently available monitoring information, and not to consider projections or intended monitoring of future years emissions, for SO2
designations under the CAA. For these 3 In deciding whether to invoke the exception by making and publishing a finding that this final action is based on a determination of nationwide scope or effect, the Administrator has also taken into account a number of policy considerations, including his judgment balancing the benefit of obtaining the D.C. Circuits authoritative centralized review versus allowing development of the issue in other contexts and the best use of agency resources.
4 In the report on the 1977 Amendments that revised section 307b1 of the CAA, Congress noted that the Administrators determination that the nationwide scope or effect exception applies would be appropriate for any action that has a scope or effect beyond a single judicial circuit. See H.R. Rep. No. 95294 at 323, 324, reprinted in 1977
U.S.C.C.A.N. 140203.
5 See, supra, n.2.

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reasons, the Administrator is exercising the complete discretion afforded to him by the CAA and hereby finds that each of these final actions is based on a determination of nationwide scope or effect for purposes of CAA section 307b1 and is hereby publishing those findings in the Federal Register.
Under CAA section 307b, any petition for review of these actions denying the petitions for reconsideration and/or stay must be filed in the Court of Appeals for the District of Columbia Circuit within 60
days from the date this notice is published in the Federal Register.
Filing a petition for reconsideration by the Administrator of these final actions does not affect the finality of the actions for the purposes of judicial review, nor does it extend the time within which a petition for judicial review must be filed, and shall not postpone the effectiveness of such actions.
Michael S. Regan, Administrator.
FR Doc. 202113938 Filed 62821; 8:45 am BILLING CODE 656050P

ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 180
EPAHQOPP20190474; FRL1002518

Bacillus subtilis Strain RTI477;
Exemption From the Requirement of a Tolerance Environmental Protection Agency EPA.
ACTION: Final rule.
AGENCY:

This regulation establishes an exemption from the requirement of a tolerance for residues of Bacillus subtilis strain RTI477 in or on all food commodities when used in accordance with label directions and good agricultural practices. FMC Corporation submitted a petition to EPA under the Federal Food, Drug, and Cosmetic Act FFDCA, requesting an exemption from the requirement of a tolerance. This regulation eliminates the need to establish a maximum permissible level for residues of Bacillus subtilis strain RTI477 under FFDCA when used in accordance with this exemption.
DATES: This regulation is effective June 29, 2021. Objections and requests for hearings must be received on or before August 30, 2021 and must be filed in accordance with the instructions provided in 40 CFR part 178 see also Unit I.C. of the SUPPLEMENTARY
INFORMATION.
SUMMARY:

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29JNR1