Notice of Finding That Certain States Did Not Submit Clean Air Mercury Rule (CAMR) State Plans for New and Existing Electric Utility Steam Generating Units and Status of Submission of Such Plans, 75117-75121 [E6-21283]

Download as PDF Federal Register / Vol. 71, No. 240 / Thursday, December 14, 2006 / Rules and Regulations List of Subjects for 29 CFR Parts 4050 and 4281 Employee benefit plans, Pension insurance, Reporting and recordkeeping requirements. I For the reasons set forth above, PBGC amends parts 4050 and 4281 of 29 CFR chapter XL as follows: PART 4050—MISSING PARTICIPANTS 1. The authority citation for part 4050 continues to read as follows: I Authority: 29 U.S.C. 1302(b)(3), 1350. 2. Amend § 4050.2, by revising paragraphs (2) and (4) of the definition of Missing participant annuity assumptions to read as follows: I § 4050.2 Definitions. * * * * * Missing participant annuity assumptions means the interest rate assumptions and actuarial methods for valuing benefits under § 4044.52 of this chapter, applied— (1) * * * (2) Using mortality rates that are a fixed blend of 50 percent of the healthy male mortality rates in § 4044.53(c)(1) of this chapter and 50 percent of the healthy female mortality rates in § 4044.53(c)(2) of this chapter; (3) * * * (4) Without making the adjustment for expenses provided for in § 4044.52(d) of this chapter; and * * * * * PART 4281—DUTIES OF PLAN SPONSOR FOLLOWING MASS WITHDRAWAL 3. The authority citation for part 4281 continues to read as follows: I Authority: 29 U.S.C. 1302(b)(3), 1341a, 1399(c)(1)(D), and 1441. I 4. Revise § 4281.14 to read as follows: mstockstill on PROD1PC61 with RULES § 4281.14 Mortality assumptions. (a) General rule. Subject to paragraph (b) of this section (regarding certain death benefits), the plan administrator shall use the mortality factors prescribed in paragraphs (c), (d), (e), and (f) of this section to value benefits under § 4281.13. (b) Certain death benefits. If an annuity for one person is in pay status on the valuation date, and if the payment of a death benefit after the valuation date to another person, who need not be identifiable on the valuation date, depends in whole or in part on the death of the pay status annuitant, then the plan administrator shall value the death benefit using— VerDate Aug<31>2005 15:47 Dec 13, 2006 Jkt 211001 (1) The mortality rates that are applicable to the annuity in pay status under this section to represent the mortality of the pay status annuitant; and (2) The mortality rates applicable to annuities not in pay status and to deferred benefits other than annuities, under paragraph (c) of this section, to represent the mortality of the death beneficiary. (c) Mortality rates for healthy lives. The mortality rates applicable to annuities in pay status on the valuation date that are not being received as disability benefits, to annuities not in pay status on the valuation date, and to deferred benefits other than annuities, are,— (1) For male participants, the rates in Table 1 of Appendix A to part 4044 of this chapter projected from 1994 to the calendar year in which the valuation date occurs plus 10 years using Scale AA from Table 2 of Appendix A to part 4044 of this chapter; and (2) For female participants, the rates in Table 3 of Appendix A to part 4044 of this chapter projected from 1994 to the calendar year in which the valuation date occurs plus 10 years using Scale AA from Table 4 of Appendix A to part 4044 of this chapter. (d) Mortality rates for disabled lives (other than Social Security disability). The mortality rates applicable to annuities in pay status on the valuation date that are being received as disability benefits and for which neither eligibility for, nor receipt of, Social Security disability benefits is a prerequisite, are,— (1) For male participants, the lesser of— (i) The rate determined from Table 1 of Appendix A to part 4044 of this chapter projected from 1994 to the calendar year in which the valuation date occurs plus 10 years using Scale AA from Table 2 of Appendix A to part 4044 of this chapter and setting the resulting table forward three years, or (ii) The rate in Table 5 of Appendix A to part 4044 of this chapter. (2) For female participants, the lesser of— (i) The rate determined from Table 3 of Appendix A to part 4044 of this chapter projected from 1994 to the calendar year in which the valuation date occurs plus 10 years using Scale AA from Table 4 of Appendix A to part 4044 of this chapter and setting the resulting table forward three years, or (ii) The rate in Table 6 of Appendix A to part 4044 of this chapter. (e) Mortality rates for disabled lives (Social Security disability). The mortality rates applicable to annuities in PO 00000 Frm 00033 Fmt 4700 Sfmt 4700 75117 pay status on the valuation date that are being received as disability benefits and for which either eligibility for, or receipt of, Social Security disability benefits is a prerequisite, are— (1) For male participants, the rates in Table 5 of Appendix A to part 4044 of this chapter; and (2) For female participants, the rates in Table 6 of Appendix A to part 4044 of this chapter. (f) Contingent annuitant mortality during deferral period. If a participant’s joint and survivor benefit is valued as a deferred annuity, the mortality of the contingent annuitant during the deferral period will be disregarded. Issued in Washington, DC, this 8th day of December, 2006. Elaine L. Chao, Chairman, Board of Directors, Pension Benefit Guaranty Corporation. Issued on the date set forth above pursuant to a resolution of the Board of Directors authorizing its Chairman to issue this final rule. Judith R. Starr, Secretary, Board of Directors, Pension Benefit Guaranty Corporation. [FR Doc. E6–21280 Filed 12–13–06; 8:45 am] BILLING CODE 7709–01–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 60 and 62 [OAR; FRL–8255–9] Notice of Finding That Certain States Did Not Submit Clean Air Mercury Rule (CAMR) State Plans for New and Existing Electric Utility Steam Generating Units and Status of Submission of Such Plans Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: SUMMARY: In this action, EPA is making a finding on the status of submission of State Plans in response to the Clean Air Mercury Rule (CAMR). CAMR requires States to develop plans for implementing a phased cap on mercury emissions from new and existing large, coal-fired electric generating units leading to nationwide reductions in mercury emissions from such units and establishes November 17, 2006 as the deadline for submitting those plans. At present, some States have submitted plans, others are still in the process of developing plans, and some are choosing not to submit plans but instead to allow a Federal Plan addressing such emissions to go into effect in that State. E:\FR\FM\14DER1.SGM 14DER1 75118 Federal Register / Vol. 71, No. 240 / Thursday, December 14, 2006 / Rules and Regulations In this action, EPA is making specific findings that certain States did not submit CAMR State Plans by the November 17, 2006 deadline and is otherwise providing notice of the status of State Plan submissions. In conjunction with this rule, EPA is also providing letters to each State regarding this action. DATES: Effective Date: The effective date of this rule is December 14, 2006. FOR FURTHER INFORMATION CONTACT: Mr. Murat Kavlak, U.S. Environmental Protection Agency, (202) 343–9634. For questions related to a specific State, please contact the appropriate regional office: SUPPLEMENTARY INFORMATION: States and tribes Dave Conroy, Acting Branch Chief, Air Programs Branch, EPA New England, I Congress Street, Suite 1100, Boston, MA 02114–2023, (617) 918–1661. Raymond Werner, Chief, Air Programs Branch, EPA Region 2, 290 Broadway, 25th Floor, New York, NY 10007–1866, (212) 637–4249. Dave Campbell, Chief, Permits and Technical Assessment Branch, EPA Region 3, 1650 Arch Street, Philadelphia, PA 19103–2187, (215) 814–2196. Dr. Kenneth Mitchell, Chief, Air Toxics Assessment and Implementation Section, EPA Region 4, Sam Nun Atlanta Federal Center, 61 Forsyth Street, SW, 12th Floor, Atlanta, GA 30303– 8960, (404) 562–9065. Carl Nash, Chief, Integrated Air Toxics Section, EPA Region 5, 77 West Jackson Street, Chicago, IL 60604, (312) 886–6030. Rebecca Weber, Branch Chief, EPA Region 6, 1445 Ross Avenue, Dallas, TX 75202, (214) 665–6656. Michael Jay, Air Programs Branch, EPA Region 7, 901 North 5th Street, Kansas City, Kansas 66101–2907, (913) 551–7460. Richard R. Long, Director, Air and Radiation Program, EPA Region 8, 999 18th Street, Suite 300, Denver, CO 80202, (303) 312–6005. Andrew Steckel, Chief, Rules Office, EPA Region 9, 75 Hawthorne Street, San Francisco, CA 94105, (415) 947–4115. Mahbubul Islam, Manager, State and Tribal Air Programs, EPA Region 10, Office of Air, Waste, and Toxics, Mail Code OAQ–107, 1200 Sixth Avenue, Seattle, WA 98101, (206) 553–6985. Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont. New Jersey, New York, Puerto Rico, and Virgin Islands. Delaware, District of Columbia, Maryland, Pennsylvania, Virginia, and West Virginia. Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, and Tennessee. Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin. Arkansas, Louisiana, New Mexico, Oklahoma, and Texas. Iowa, Kansas, Missouri, and Nebraska. Table of Contents: I. Background II. This Action III. Statutory and Executive Order Reviews A. Notice and Comment Under the Administrative Procedures Act B. Executive Order 12866: Regulatory Planning and Review C. Paperwork Reduction Act D. Regulatory Flexibility Act E. Unfunded Mandates Reform Act F. Executive Order 13132: Federalism G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments H. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks I. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use J. National Technology Transfer Advancement Act K. Congressional Review Act L. Judicial Review mstockstill on PROD1PC61 with RULES Regional offices implementation. Under CAMR, coalfired EGUs that commence construction starting on or after January 30, 2004 will have to meet new source performance standards, in addition to being subject to the CAMR emission caps. CAMR requires States to submit State Plans to EPA by November 17, 2006 (40 CFR 60.24(h)(2)). The rule provides each State with flexibility to achieve the required mercury emission reductions in a manner chosen by the State and provides a model mercury trading rule that a State may choose to adopt to achieve the reductions. Section 60.24(h)(1) in CAMR lists the States required to submit CAMR State Plans (70 FR 28649–50). I. Background On March 15, 2005, EPA finalized CAMR and established standards of performance for reducing mercury emissions from new and existing coalfired electric generating units (EGUs) (70 FR 28606, May 18, 2005). CAMR was revised on June 9, 2006 (71 FR 33388, June 9, 2006). CAMR affects 53 jurisdictions, including the 50 States, the District of Columbia, and 2 Tribes, and requires State Plan submissions by these jurisdictions, except for the 2 VerDate Aug<31>2005 15:47 Dec 13, 2006 Jkt 211001 Tribes. (The States and the District of Columbia are generally referred to in this notice as ‘‘States’’.) CAMR requires each State to submit a State Plan containing provisions that ensure that the State’s applicable annual EGU mercury emissions budget is not exceeded. In choosing a mechanism for meeting the applicable State budget, States are free to choose the mechanism that best suits the particular State’s needs, so long as that mechanism ensures that the State budget is not exceeded. CAMR also established a nationwide, EPA-administered cap-andtrade program that affected jurisdictions may choose to adopt in order to achieve the required reductions. The mercury reductions are required under CAMR in two phases. The first phase will cap nationwide annual EGU mercury emissions at 38 tons beginning in 2010. The first phase cap reflects ‘‘cobenefit’’ reductions, i.e., mercury reductions that will result from reductions of sulfur dioxide (SO2) and nitrogen oxides (NOX) emissions under the Clean Air Interstate Rule (CAIR), issued on May 12, 2005 and revised on April 28, 2006. Because of incentives for early emission reductions under CAMR, mercury emissions are projected to be below the cap level in 2010. The second phase commences in 2018 and will limit nationwide annual EGU mercury emissions to 15 tons upon full PO 00000 Frm 00034 Fmt 4700 Sfmt 4700 Colorado, Montana, North Dakota, South Dakota, Utah, and Wyoming. Arizona, California, Guam, Hawaii, and Nevada. Alaska, Idaho, Oregon, and Washington. Status of Submission of State Plans EPA acknowledges and appreciates the extensive effort that States have undertaken to develop CAMR State Plans as quickly as possible. In particular, EPA acknowledges that certain States (listed below) have submitted State Plans in response to CAMR by the November 17, 2006, deadline. (EPA intends to treat State Plans as being timely submitted as long as the plan is postmarked November 17, 2006 or earlier, regardless of when it is actually received. As a result, it is possible that one or more of the States not listed below did in fact submit a State Plan by November 17, 2006 that E:\FR\FM\14DER1.SGM 14DER1 mstockstill on PROD1PC61 with RULES Federal Register / Vol. 71, No. 240 / Thursday, December 14, 2006 / Rules and Regulations EPA has not yet received. If this is the case, EPA will notify each State in question of that fact and will withdraw today’s finding that the State did not submit the required State Plan by November 17, 2006.) EPA is now reviewing these plans. EPA also recognizes that additional States that did not submit CAMR State Plans by November 17, 2006 are, nevertheless, making substantial efforts to complete and submit State Plans. EPA encourages continuation of these efforts and will continue to assist States as they develop their plans. EPA looks forward to receiving these State Plans in the relatively near future, will give full consideration to all State Plans, and will approve those plans that meet the criteria specified in CAMR and subpart B of 40 CFR part 60, regardless of when the plan is submitted. EPA also believes that some States may choose Federal implementation of CAMR and, therefore, do not intend to submit a State Plan. This may be advantageous for States with limited resources. EPA believes that it is appropriate for States to determine whether it is more effective to develop their own plans or to decide to allow Federal implementation of the required mercury emission reductions. EPA fully supports either approach. There are no sanctions that apply to States that choose Federal implementation of CAMR. EPA will continue to work with States that have not yet submitted State Plans to meet the requirements in CAMR and wish to submit such a plan. Under 40 CFR 60.27(b), the Administrator must approve or disapprove State Plans within 4 months of the November 17, 2006 submission deadline. Moreover, under 40 CFR 60.27(c), the Administrator must propose a Federal Plan for States that did not submit State Plans by the submission deadline or whose State Plans the Administrator disapproves. Within 6 months of the submission deadline, the Administrator must finalize a Federal Plan for such States under 40 CFR 60.27(d), unless in the meantime the State submits a State Plan that the Administrator determines to be approvable. Consistent with the regulation, EPA is proposing a Federal Plan in a separate action and intends to then proceed with promulgating a final Federal Plan. The final Federal Plan will only apply in those States that have not submitted a State Plan, whose State Plan submitted by November 17, 2006 has been disapproved by EPA as of the date of promulgation of the final Federal Plan, or whose State Plan submitted after November 17, 2006 has not been approved as of the date of promulgation VerDate Aug<31>2005 15:47 Dec 13, 2006 Jkt 211001 75119 of the final Federal Plan. The final Federal Plan will not apply in States that have submitted a State Plan by November 17, 2006 on which EPA has not taken final action. EPA intends to review any submitted State Plans as expeditiously as practicable. Even if EPA finalizes a Federal Plan for a State, it is EPA’s intention to work quickly to review any State Plan or revision of a State Plan submitted by the State so that an approvable State Plan can take the place of the Federal Plan as quickly as possible. EPA’s administrative efforts for CAMR will be similar to those occurring for CAIR in that the Agency wants to work with States to implement the program using mechanisms chosen by the States (for States choosing to implement the programs), while also guaranteeing the public that in a timely manner all coal-fired EGUs will be covered by the CAMR requirements, including emissions monitoring that begins in 2009 and the annual emissions cap that starts in 2010. EPA intends to propose a CAMR Federal Plan with provisions that provide administrative flexibility to States, similar to the flexibility provided in the CAIR Federal Implementation Plan (FIP) (see 71 FR 25328, April 28, 2006). discussed above, EPA is proposing a Federal Plan in a separate action. II. This Action B. Executive Order 12866: Regulatory Planning and Review By this action, EPA is, in accordance with sections 110(c) and 111(d)(2) of the CAA and 40 CFR 60.27(c)(1), making a finding that certain States did not submit a CAMR State Plan by November 17, 2006, as required by CAMR. CAMR covers the States listed in 40 CFR 60.24(h)(1). The following States submitted CAMR State Plans as of the November 17, 2006, deadline: Alabama, Arizona, Connecticut, Delaware, Idaho, Illinois, Iowa, Louisiana, Massachusetts, Montana, Nevada, New Hampshire, New Jersey, New York, North Dakota, Pennsylvania, Rhode Island, South Dakota, Texas, Vermont, and West Virginia. No other States subject to CAMR submitted CAMR State Plans by the November 17, 2006 deadline. As to those States that did not submit CAMR State Plans, EPA finds, in accordance with CAA sections 110(c) and 111(d)(2) and 40 CFR 60.27(c)(1), that each such State did not submit a State Plan by the November 17, 2006 deadline. Recognizing that many States that did not submit CAMR State Plans by November 17, 2006 are making substantial efforts to complete and submit their State Plans, EPA encourages continuation of these efforts and looks forward to receiving and reviewing those State Plans. As PO 00000 Frm 00035 Fmt 4700 Sfmt 4700 III. Statutory and Executive Order Reviews A. Notice and Comment Under the Administrative Procedures Act This is a final EPA action, but is not subject to notice-and-comment requirements of the Administrative Procedures Act (APA), 5 U.S.C. 553(b). The EPA invokes, consistent with past practice, the good cause exception pursuant to APA, 5 U.S.C. 553(b)(3)(B). Notice and comment are unnecessary because no significant EPA judgment is involved in finding that certain States did not submit a State Plan by the November 17, 2006 deadline specified in CAMR and providing notice of the status of submission of State Plans. In addition, EPA believes that providing notice and an opportunity to comment would be contrary to the public interest in that the finding is a necessary predicate to EPA proposing a Federal Plan that will ultimately ensure that emission reductions are achieved in areas not covered by an approved State Plan and EPA needs to proceed promptly with proposing a Federal Plan to ensure that the Federal Plan can be finalized in a timely manner. This action is not a ‘‘significant regulatory action’’ under the terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the EO. This final rule simply identifies those States that did not submit a CAMR State Plan and provides notice of the status of State Plan submissions in response to CAMR, therefore, EPA did not prepare an analysis of the potential costs and benefits associated with this action. C. Paperwork Reduction Act This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501, et seq. This rule relates to the requirement in CAMR for States to submit State Plans. The present final rule simply identifies those States that did not submit a CAMR State Plan by the November 17, 2006 deadline specified in CAMR and, otherwise, provides notice of the status of State Plan submissions and does not establish any new information collection requirement. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. E:\FR\FM\14DER1.SGM 14DER1 75120 Federal Register / Vol. 71, No. 240 / Thursday, December 14, 2006 / Rules and Regulations mstockstill on PROD1PC61 with RULES This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An Agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA’s regulations in the Code of Federal Regulations (CFR) are listed in 40 CFR part 9. D. Regulatory Flexibility Act The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedures Act (APA) or any other statute unless the EPA certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For the purpose of assessing the impacts of today’s final rule on small entities, small entity is defined as: (1) A small business that is a small industry entity as defined in the U.S. Small Business Administration (SBA) size standards (see 13 CFR 121.201); (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-forprofit enterprise which independently owned and operated is not dominate in its field. Courts have interpreted the RFA to require a regulatory flexibility analysis only when small entities will be subject to the requirements of the rule. See Michigan v. EPA, 213 F.3d 663, 668–69 (D.C. Cir., 2000), cert. den., 532 U.S. 903 (2001). The present final rule simply identifies those States that did not submit a CAMR State Plan by the November 17, 2006 deadline specified in CAMR and, otherwise, provides notice of the status of State Plan submissions and does not establish requirements applicable to small entities. After considering the economic impacts of today’s final rule on small VerDate Aug<31>2005 15:47 Dec 13, 2006 Jkt 211001 entities, I certify that this rule will not have a significant economic impact on a substantial number of small entities. E. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. L. 104–4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, or Tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with ‘‘Federal mandates’’ that may result in expenditures to State, local, or Tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most costeffective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the Administrator publishes with the final rule an explanation of why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including Tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. This action does not include a Federal mandate within the meaning of UMRA that may result in expenditures of $100 million or more in any 1 year by either State, local, or Tribal governments in the aggregate or to the private sector and, therefore, is not subject to the requirements of sections 202 and 205 of the UMRA. It does not create any additional requirements beyond those of CAMR. Therefore, no UMRA analysis is needed. The present final rule simply identifies those States that did not submit a CAMR State Plan by the November 17, 2006 deadline specified PO 00000 Frm 00036 Fmt 4700 Sfmt 4700 in CAMR and, otherwise, provides notice of the status of State Plan submissions in response to CAMR. Inasmuch as this action simply provides notice of the status of State submissions in response to pre-existing requirements under CAMR, EPA has determined that this action contains no regulatory requirements that might significantly or uniquely affect small governments. F. Executive Order 13132: Federalism Executive Order 13132, entitled ‘‘Federalism’’ (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure ‘‘meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.’’ ‘‘Policies that have federalism implications’’ is defined in the Executive Order to include regulations that have ‘‘substantial direct effects on the States, or the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.’’ This final rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. The Clean Air Act (CAA) establishes the scheme whereby States take the lead in developing plans to meet the standards of performance for new and existing sources. This rule will not modify the relationship of the States and EPA for purposes of developing programs to implement the standards. In addition, this rule does not impose any new obligations on the States. Thus, Executive Order 13132 does not apply to this rule. G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Executive Order 13175, entitled ‘‘Consultation and Coordination with Indian Tribal Governments’’ (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure ‘‘meaningful and timely input by Tribal officials in the development of regulatory policies that have Tribal implications.’’ This final rule does not have ‘‘Tribal implications’’ as specified in Executive Order 13175. The present final rule simply identifies those States that did not submit a CAMR State Plan by the November 17, 2006 deadline specified in CAMR and, otherwise, E:\FR\FM\14DER1.SGM 14DER1 Federal Register / Vol. 71, No. 240 / Thursday, December 14, 2006 / Rules and Regulations provides notice of the status of State Plan submissions in response to CAMR. The Tribal Authority Rule (TAR) gives Tribes the opportunity to develop and implement CAA programs, but it leaves to the discretion of the Tribe whether to develop these programs and which programs, or appropriate elements of a program, the Tribe will adopt. Moreover, the present final rule does not have a substantial direct effect on one or more Indian Tribes, because no Tribe has implemented an air quality management program related to the standards of performance for new and existing EGUs under CAMR at this time. Furthermore, this rule does not affect the relationship or distribution of power and responsibilities between the Federal government and Indian Tribes. The CAA and the TAR establish the relationship of the Federal government and Tribes in developing plans to implement the standards of performance for new and existing EGUs, and this rule does nothing to modify that relationship. Because this rule does not have Tribal implications, Executive Order 13175 does not apply. mstockstill on PROD1PC61 with RULES H. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks Executive Order 13045: ‘‘Protection of Children from Environmental Health and Safety Risks’’ (62 FR 19885, April 23, 1997) applies to any rule that (1) is determined to be ‘‘economically significant’’ as defined under Executive Order 12866, and (2) concerns an environmental health and safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, EPA must evaluate the environmental health or safety effects of the planned rule on children and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by EPA. This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866 and because EPA does not have reason to believe that the environmental health risks or safety risks addressed by this action present a disproportionate risk or safety risk to children. I. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use This action is not subject to Executive Order 13211, ‘‘Actions that Significantly Affect Energy Supply, Distribution, or Use’’ (66 FR 28355, May 22, 2001), because it is not a significant regulatory action under Executive Order 12866. VerDate Aug<31>2005 15:47 Dec 13, 2006 Jkt 211001 The present final rule simply identifies those States that did not submit a CAMR State Plan by the November 17, 2006 deadline specified in CAMR and, otherwise, provides notice of the status of State Plan submissions in response to CAMR. J. National Technology Transfer Advancement Act Section 12(d) of the National Technology Transfer Advancement Act of 1995 (NTTAA), Public Law No. 104– 113, section 12(d) (15 U.S.C. 272 note), directs EPA to use voluntary consensus standards (VCS) in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impracticable. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by VCS bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when EPA decides not to use available and applicable VCS. This action does not involve technical standards. Therefore, EPA did not consider the use of any VCS. K. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801, et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the Agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. This action is not a ‘‘major rule’’ as defined by the 5 U.S.C. 804(2). This rule will be effective upon promulgation. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. L. Judicial Review Section 307 (b)(1) of the CAA indicates which Federal Courts of Appeal have jurisdiction and are the appropriate venue for filing petitions of review of final actions by EPA. This section provides, in part, that petitions for review must be filed in the Court of Appeals for the District of Columbia Circuit: (i) When the EPA action consists of ‘‘nationally applicable regulations promulgated, or final actions taken, by the Administrator;’’ or (ii) when such action is locally or regionally applicable, if ‘‘such action is based on a determination of nationwide scope or PO 00000 Frm 00037 Fmt 4700 Sfmt 4700 75121 effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination.’’ This action identifying those States that did not submit a CAMR State Plan by the November 17, 2006 deadline specified in CAMR and, otherwise, providing notice of the status of State Plan submissions in response to CAMR is ‘‘nationally applicable’’ within the meaning of section 307(b)(1). For the same reasons, the Administrator also is determining that notice of the status of submission of CAMR State Plans is based on a determination of nationwide scope and effect for the purposes of section 307(b)(1). This is particularly appropriate because in the report on the 1977 Amendments that revised section 307(b)(1) of the CAA, Congress noted that the Administrator’s determination that an action is of ‘‘nationwide scope or effect’’ would be appropriate for any action that has ‘‘scope or effect beyond a single judicial circuit.’’ H.R. Rep. No. 95–294 at 323, 324, reprinted in 1977 U.S.C.C.A.N. 1402–03. Here, the scope and effect of this rulemaking extends to numerous judicial circuits since the findings and notice of the status of submission of CAMR State Plans apply to all areas of the country. In these circumstances, section 307(b)(1) and its legislative history call for the Administrator to find the rule to be of ‘‘nationwide scope or effect’’ and for venue to be in the D.C. Circuit. Thus, any petitions for review of this action related to the present final rule must be filed in the Court of Appeals for the District of Columbia Circuit within 60 days from the date final action is published in the Federal Register. List of Subjects in 40 CFR Parts 60 and 62 Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations. Dated: December 7, 2006. Stephen L. Johnson, Administrator. [FR Doc. E6–21283 Filed 12–13–06; 8:45 am] BILLING CODE 6560–50–P E:\FR\FM\14DER1.SGM 14DER1

Agencies

[Federal Register Volume 71, Number 240 (Thursday, December 14, 2006)]
[Rules and Regulations]
[Pages 75117-75121]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-21283]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 60 and 62

[OAR; FRL-8255-9]


Notice of Finding That Certain States Did Not Submit Clean Air 
Mercury Rule (CAMR) State Plans for New and Existing Electric Utility 
Steam Generating Units and Status of Submission of Such Plans

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: In this action, EPA is making a finding on the status of 
submission of State Plans in response to the Clean Air Mercury Rule 
(CAMR). CAMR requires States to develop plans for implementing a phased 
cap on mercury emissions from new and existing large, coal-fired 
electric generating units leading to nationwide reductions in mercury 
emissions from such units and establishes November 17, 2006 as the 
deadline for submitting those plans. At present, some States have 
submitted plans, others are still in the process of developing plans, 
and some are choosing not to submit plans but instead to allow a 
Federal Plan addressing such emissions to go into effect in that State.

[[Page 75118]]

    In this action, EPA is making specific findings that certain States 
did not submit CAMR State Plans by the November 17, 2006 deadline and 
is otherwise providing notice of the status of State Plan submissions. 
In conjunction with this rule, EPA is also providing letters to each 
State regarding this action.

DATES: Effective Date: The effective date of this rule is December 14, 
2006.

FOR FURTHER INFORMATION CONTACT: Mr. Murat Kavlak, U.S. Environmental 
Protection Agency, (202) 343-9634.

SUPPLEMENTARY INFORMATION: For questions related to a specific State, 
please contact the appropriate regional office:

------------------------------------------------------------------------
               Regional offices                    States and tribes
------------------------------------------------------------------------
Dave Conroy, Acting Branch Chief, Air          Connecticut, Maine,
 Programs Branch, EPA New England, I Congress   Massachusetts, New
 Street, Suite 1100, Boston, MA 02114-2023,     Hampshire, Rhode Island,
 (617) 918-1661.                                and Vermont.
Raymond Werner, Chief, Air Programs Branch,    New Jersey, New York,
 EPA Region 2, 290 Broadway, 25th Floor, New    Puerto Rico, and Virgin
 York, NY 10007-1866, (212) 637-4249.           Islands.
Dave Campbell, Chief, Permits and Technical    Delaware, District of
 Assessment Branch, EPA Region 3, 1650 Arch     Columbia, Maryland,
 Street, Philadelphia, PA 19103-2187, (215)     Pennsylvania, Virginia,
 814-2196.                                      and West Virginia.
Dr. Kenneth Mitchell, Chief, Air Toxics        Alabama, Florida,
 Assessment and Implementation Section, EPA     Georgia, Kentucky,
 Region 4, Sam Nun Atlanta Federal Center, 61   Mississippi, North
 Forsyth Street, SW, 12th Floor, Atlanta, GA    Carolina, South
 30303-8960, (404) 562-9065.                    Carolina, and Tennessee.
Carl Nash, Chief, Integrated Air Toxics        Illinois, Indiana,
 Section, EPA Region 5, 77 West Jackson         Michigan, Minnesota,
 Street, Chicago, IL 60604, (312) 886-6030.     Ohio, and Wisconsin.
Rebecca Weber, Branch Chief, EPA Region 6,     Arkansas, Louisiana, New
 1445 Ross Avenue, Dallas, TX 75202, (214)      Mexico, Oklahoma, and
 665-6656.                                      Texas.
Michael Jay, Air Programs Branch, EPA Region   Iowa, Kansas, Missouri,
 7, 901 North 5th Street, Kansas City, Kansas   and Nebraska.
 66101-2907, (913) 551-7460.
Richard R. Long, Director, Air and Radiation   Colorado, Montana, North
 Program, EPA Region 8, 999 18th Street,        Dakota, South Dakota,
 Suite 300, Denver, CO 80202, (303) 312-6005.   Utah, and Wyoming.
Andrew Steckel, Chief, Rules Office, EPA       Arizona, California,
 Region 9, 75 Hawthorne Street, San             Guam, Hawaii, and
 Francisco, CA 94105, (415) 947-4115.           Nevada.
Mahbubul Islam, Manager, State and Tribal Air  Alaska, Idaho, Oregon,
 Programs, EPA Region 10, Office of Air,        and Washington.
 Waste, and Toxics, Mail Code OAQ-107, 1200
 Sixth Avenue, Seattle, WA 98101, (206) 553-
 6985.
------------------------------------------------------------------------

Table of Contents:

I. Background
II. This Action
III. Statutory and Executive Order Reviews
    A. Notice and Comment Under the Administrative Procedures Act
    B. Executive Order 12866: Regulatory Planning and Review
    C. Paperwork Reduction Act
    D. Regulatory Flexibility Act
    E. Unfunded Mandates Reform Act
    F. Executive Order 13132: Federalism
    G. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    H. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    I. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    J. National Technology Transfer Advancement Act
    K. Congressional Review Act
    L. Judicial Review

I. Background

    On March 15, 2005, EPA finalized CAMR and established standards of 
performance for reducing mercury emissions from new and existing coal-
fired electric generating units (EGUs) (70 FR 28606, May 18, 2005). 
CAMR was revised on June 9, 2006 (71 FR 33388, June 9, 2006). CAMR 
affects 53 jurisdictions, including the 50 States, the District of 
Columbia, and 2 Tribes, and requires State Plan submissions by these 
jurisdictions, except for the 2 Tribes. (The States and the District of 
Columbia are generally referred to in this notice as ``States''.) CAMR 
requires each State to submit a State Plan containing provisions that 
ensure that the State's applicable annual EGU mercury emissions budget 
is not exceeded. In choosing a mechanism for meeting the applicable 
State budget, States are free to choose the mechanism that best suits 
the particular State's needs, so long as that mechanism ensures that 
the State budget is not exceeded. CAMR also established a nationwide, 
EPA-administered cap-and-trade program that affected jurisdictions may 
choose to adopt in order to achieve the required reductions.
    The mercury reductions are required under CAMR in two phases. The 
first phase will cap nationwide annual EGU mercury emissions at 38 tons 
beginning in 2010. The first phase cap reflects ``co-benefit'' 
reductions, i.e., mercury reductions that will result from reductions 
of sulfur dioxide (SO2) and nitrogen oxides (NOX) 
emissions under the Clean Air Interstate Rule (CAIR), issued on May 12, 
2005 and revised on April 28, 2006. Because of incentives for early 
emission reductions under CAMR, mercury emissions are projected to be 
below the cap level in 2010. The second phase commences in 2018 and 
will limit nationwide annual EGU mercury emissions to 15 tons upon full 
implementation. Under CAMR, coal-fired EGUs that commence construction 
starting on or after January 30, 2004 will have to meet new source 
performance standards, in addition to being subject to the CAMR 
emission caps.
    CAMR requires States to submit State Plans to EPA by November 17, 
2006 (40 CFR 60.24(h)(2)). The rule provides each State with 
flexibility to achieve the required mercury emission reductions in a 
manner chosen by the State and provides a model mercury trading rule 
that a State may choose to adopt to achieve the reductions. Section 
60.24(h)(1) in CAMR lists the States required to submit CAMR State 
Plans (70 FR 28649-50).

Status of Submission of State Plans

    EPA acknowledges and appreciates the extensive effort that States 
have undertaken to develop CAMR State Plans as quickly as possible. In 
particular, EPA acknowledges that certain States (listed below) have 
submitted State Plans in response to CAMR by the November 17, 2006, 
deadline. (EPA intends to treat State Plans as being timely submitted 
as long as the plan is postmarked November 17, 2006 or earlier, 
regardless of when it is actually received. As a result, it is possible 
that one or more of the States not listed below did in fact submit a 
State Plan by November 17, 2006 that

[[Page 75119]]

EPA has not yet received. If this is the case, EPA will notify each 
State in question of that fact and will withdraw today's finding that 
the State did not submit the required State Plan by November 17, 2006.) 
EPA is now reviewing these plans. EPA also recognizes that additional 
States that did not submit CAMR State Plans by November 17, 2006 are, 
nevertheless, making substantial efforts to complete and submit State 
Plans. EPA encourages continuation of these efforts and will continue 
to assist States as they develop their plans. EPA looks forward to 
receiving these State Plans in the relatively near future, will give 
full consideration to all State Plans, and will approve those plans 
that meet the criteria specified in CAMR and subpart B of 40 CFR part 
60, regardless of when the plan is submitted.
    EPA also believes that some States may choose Federal 
implementation of CAMR and, therefore, do not intend to submit a State 
Plan. This may be advantageous for States with limited resources. EPA 
believes that it is appropriate for States to determine whether it is 
more effective to develop their own plans or to decide to allow Federal 
implementation of the required mercury emission reductions. EPA fully 
supports either approach. There are no sanctions that apply to States 
that choose Federal implementation of CAMR. EPA will continue to work 
with States that have not yet submitted State Plans to meet the 
requirements in CAMR and wish to submit such a plan.
    Under 40 CFR 60.27(b), the Administrator must approve or disapprove 
State Plans within 4 months of the November 17, 2006 submission 
deadline. Moreover, under 40 CFR 60.27(c), the Administrator must 
propose a Federal Plan for States that did not submit State Plans by 
the submission deadline or whose State Plans the Administrator 
disapproves. Within 6 months of the submission deadline, the 
Administrator must finalize a Federal Plan for such States under 40 CFR 
60.27(d), unless in the meantime the State submits a State Plan that 
the Administrator determines to be approvable. Consistent with the 
regulation, EPA is proposing a Federal Plan in a separate action and 
intends to then proceed with promulgating a final Federal Plan. The 
final Federal Plan will only apply in those States that have not 
submitted a State Plan, whose State Plan submitted by November 17, 2006 
has been disapproved by EPA as of the date of promulgation of the final 
Federal Plan, or whose State Plan submitted after November 17, 2006 has 
not been approved as of the date of promulgation of the final Federal 
Plan. The final Federal Plan will not apply in States that have 
submitted a State Plan by November 17, 2006 on which EPA has not taken 
final action. EPA intends to review any submitted State Plans as 
expeditiously as practicable. Even if EPA finalizes a Federal Plan for 
a State, it is EPA's intention to work quickly to review any State Plan 
or revision of a State Plan submitted by the State so that an 
approvable State Plan can take the place of the Federal Plan as quickly 
as possible.
    EPA's administrative efforts for CAMR will be similar to those 
occurring for CAIR in that the Agency wants to work with States to 
implement the program using mechanisms chosen by the States (for States 
choosing to implement the programs), while also guaranteeing the public 
that in a timely manner all coal-fired EGUs will be covered by the CAMR 
requirements, including emissions monitoring that begins in 2009 and 
the annual emissions cap that starts in 2010. EPA intends to propose a 
CAMR Federal Plan with provisions that provide administrative 
flexibility to States, similar to the flexibility provided in the CAIR 
Federal Implementation Plan (FIP) (see 71 FR 25328, April 28, 2006).

II. This Action

    By this action, EPA is, in accordance with sections 110(c) and 
111(d)(2) of the CAA and 40 CFR 60.27(c)(1), making a finding that 
certain States did not submit a CAMR State Plan by November 17, 2006, 
as required by CAMR. CAMR covers the States listed in 40 CFR 
60.24(h)(1). The following States submitted CAMR State Plans as of the 
November 17, 2006, deadline: Alabama, Arizona, Connecticut, Delaware, 
Idaho, Illinois, Iowa, Louisiana, Massachusetts, Montana, Nevada, New 
Hampshire, New Jersey, New York, North Dakota, Pennsylvania, Rhode 
Island, South Dakota, Texas, Vermont, and West Virginia. No other 
States subject to CAMR submitted CAMR State Plans by the November 17, 
2006 deadline. As to those States that did not submit CAMR State Plans, 
EPA finds, in accordance with CAA sections 110(c) and 111(d)(2) and 40 
CFR 60.27(c)(1), that each such State did not submit a State Plan by 
the November 17, 2006 deadline. Recognizing that many States that did 
not submit CAMR State Plans by November 17, 2006 are making substantial 
efforts to complete and submit their State Plans, EPA encourages 
continuation of these efforts and looks forward to receiving and 
reviewing those State Plans. As discussed above, EPA is proposing a 
Federal Plan in a separate action.

III. Statutory and Executive Order Reviews

A. Notice and Comment Under the Administrative Procedures Act

    This is a final EPA action, but is not subject to notice-and-
comment requirements of the Administrative Procedures Act (APA), 5 
U.S.C. 553(b). The EPA invokes, consistent with past practice, the good 
cause exception pursuant to APA, 5 U.S.C. 553(b)(3)(B). Notice and 
comment are unnecessary because no significant EPA judgment is involved 
in finding that certain States did not submit a State Plan by the 
November 17, 2006 deadline specified in CAMR and providing notice of 
the status of submission of State Plans. In addition, EPA believes that 
providing notice and an opportunity to comment would be contrary to the 
public interest in that the finding is a necessary predicate to EPA 
proposing a Federal Plan that will ultimately ensure that emission 
reductions are achieved in areas not covered by an approved State Plan 
and EPA needs to proceed promptly with proposing a Federal Plan to 
ensure that the Federal Plan can be finalized in a timely manner.

B. Executive Order 12866: Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and 
is therefore not subject to review under the EO.
    This final rule simply identifies those States that did not submit 
a CAMR State Plan and provides notice of the status of State Plan 
submissions in response to CAMR, therefore, EPA did not prepare an 
analysis of the potential costs and benefits associated with this 
action.

C. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501, et seq. 
This rule relates to the requirement in CAMR for States to submit State 
Plans. The present final rule simply identifies those States that did 
not submit a CAMR State Plan by the November 17, 2006 deadline 
specified in CAMR and, otherwise, provides notice of the status of 
State Plan submissions and does not establish any new information 
collection requirement. Burden means the total time, effort, or 
financial resources expended by persons to generate, maintain, retain, 
or disclose or provide information to or for a Federal agency.

[[Page 75120]]

This includes the time needed to review instructions; develop, acquire, 
install, and utilize technology and systems for the purposes of 
collecting, validating, and verifying information, processing and 
maintaining information, and disclosing and providing information; 
adjust the existing ways to comply with any previously applicable 
instructions and requirements; train personnel to be able to respond to 
a collection of information; search data sources; complete and review 
the collection of information; and transmit or otherwise disclose the 
information. An Agency may not conduct or sponsor, and a person is not 
required to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in the Code of Federal Regulations (CFR) are listed in 40 
CFR part 9.

D. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedures Act (APA) or any other statute unless the EPA certifies that 
the rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For the purpose of assessing the impacts of today's final rule on 
small entities, small entity is defined as: (1) A small business that 
is a small industry entity as defined in the U.S. Small Business 
Administration (SBA) size standards (see 13 CFR 121.201); (2) a small 
governmental jurisdiction that is a government of a city, county, town, 
school district or special district with a population of less than 
50,000; and (3) a small organization that is any not-for-profit 
enterprise which independently owned and operated is not dominate in 
its field.
    Courts have interpreted the RFA to require a regulatory flexibility 
analysis only when small entities will be subject to the requirements 
of the rule. See Michigan v. EPA, 213 F.3d 663, 668-69 (D.C. Cir., 
2000), cert. den., 532 U.S. 903 (2001). The present final rule simply 
identifies those States that did not submit a CAMR State Plan by the 
November 17, 2006 deadline specified in CAMR and, otherwise, provides 
notice of the status of State Plan submissions and does not establish 
requirements applicable to small entities. After considering the 
economic impacts of today's final rule on small entities, I certify 
that this rule will not have a significant economic impact on a 
substantial number of small entities.

E. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. 
L. 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, or Tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, or Tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective, or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective, or least burdensome alternative if the 
Administrator publishes with the final rule an explanation of why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including Tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    This action does not include a Federal mandate within the meaning 
of UMRA that may result in expenditures of $100 million or more in any 
1 year by either State, local, or Tribal governments in the aggregate 
or to the private sector and, therefore, is not subject to the 
requirements of sections 202 and 205 of the UMRA. It does not create 
any additional requirements beyond those of CAMR. Therefore, no UMRA 
analysis is needed. The present final rule simply identifies those 
States that did not submit a CAMR State Plan by the November 17, 2006 
deadline specified in CAMR and, otherwise, provides notice of the 
status of State Plan submissions in response to CAMR.
    Inasmuch as this action simply provides notice of the status of 
State submissions in response to pre-existing requirements under CAMR, 
EPA has determined that this action contains no regulatory requirements 
that might significantly or uniquely affect small governments.

F. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, or the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This final rule does not have federalism implications. It will not 
have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. The Clean Air Act (CAA) 
establishes the scheme whereby States take the lead in developing plans 
to meet the standards of performance for new and existing sources. This 
rule will not modify the relationship of the States and EPA for 
purposes of developing programs to implement the standards. In 
addition, this rule does not impose any new obligations on the States. 
Thus, Executive Order 13132 does not apply to this rule.

G. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by Tribal officials in the development of regulatory 
policies that have Tribal implications.'' This final rule does not have 
``Tribal implications'' as specified in Executive Order 13175. The 
present final rule simply identifies those States that did not submit a 
CAMR State Plan by the November 17, 2006 deadline specified in CAMR 
and, otherwise,

[[Page 75121]]

provides notice of the status of State Plan submissions in response to 
CAMR. The Tribal Authority Rule (TAR) gives Tribes the opportunity to 
develop and implement CAA programs, but it leaves to the discretion of 
the Tribe whether to develop these programs and which programs, or 
appropriate elements of a program, the Tribe will adopt. Moreover, the 
present final rule does not have a substantial direct effect on one or 
more Indian Tribes, because no Tribe has implemented an air quality 
management program related to the standards of performance for new and 
existing EGUs under CAMR at this time.
    Furthermore, this rule does not affect the relationship or 
distribution of power and responsibilities between the Federal 
government and Indian Tribes. The CAA and the TAR establish the 
relationship of the Federal government and Tribes in developing plans 
to implement the standards of performance for new and existing EGUs, 
and this rule does nothing to modify that relationship. Because this 
rule does not have Tribal implications, Executive Order 13175 does not 
apply.

H. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    Executive Order 13045: ``Protection of Children from Environmental 
Health and Safety Risks'' (62 FR 19885, April 23, 1997) applies to any 
rule that (1) is determined to be ``economically significant'' as 
defined under Executive Order 12866, and (2) concerns an environmental 
health and safety risk that EPA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, EPA must evaluate the environmental health or safety 
effects of the planned rule on children and explain why the planned 
regulation is preferable to other potentially effective and reasonably 
feasible alternatives considered by EPA. This action is not subject to 
Executive Order 13045 because it is not economically significant as 
defined in Executive Order 12866 and because EPA does not have reason 
to believe that the environmental health risks or safety risks 
addressed by this action present a disproportionate risk or safety risk 
to children.

I. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This action is not subject to Executive Order 13211, ``Actions that 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355, May 22, 2001), because it is not a significant regulatory action 
under Executive Order 12866. The present final rule simply identifies 
those States that did not submit a CAMR State Plan by the November 17, 
2006 deadline specified in CAMR and, otherwise, provides notice of the 
status of State Plan submissions in response to CAMR.

J. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer Advancement Act 
of 1995 (NTTAA), Public Law No. 104-113, section 12(d) (15 U.S.C. 272 
note), directs EPA to use voluntary consensus standards (VCS) in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impracticable. Voluntary consensus 
standards are technical standards (e.g., materials specifications, test 
methods, sampling procedures, and business practices) that are 
developed or adopted by VCS bodies. The NTTAA directs EPA to provide 
Congress, through OMB, explanations when EPA decides not to use 
available and applicable VCS.
    This action does not involve technical standards. Therefore, EPA 
did not consider the use of any VCS.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801, et seq., as added by 
the Small Business Regulatory Enforcement Fairness Act of 1996, 
generally provides that before a rule may take effect, the Agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. This action is not a ``major rule'' as 
defined by the 5 U.S.C. 804(2). This rule will be effective upon 
promulgation. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register.

L. Judicial Review

    Section 307 (b)(1) of the CAA indicates which Federal Courts of 
Appeal have jurisdiction and are the appropriate venue for filing 
petitions of review of final actions by EPA. This section provides, in 
part, that petitions for review must be filed in the Court of Appeals 
for the District of Columbia Circuit: (i) When the EPA action consists 
of ``nationally applicable regulations promulgated, or final actions 
taken, by the Administrator;'' or (ii) when such action is locally or 
regionally applicable, if ``such action is based on a determination of 
nationwide scope or effect and if in taking such action the 
Administrator finds and publishes that such action is based on such a 
determination.''
    This action identifying those States that did not submit a CAMR 
State Plan by the November 17, 2006 deadline specified in CAMR and, 
otherwise, providing notice of the status of State Plan submissions in 
response to CAMR is ``nationally applicable'' within the meaning of 
section 307(b)(1). For the same reasons, the Administrator also is 
determining that notice of the status of submission of CAMR State Plans 
is based on a determination of nationwide scope and effect for the 
purposes of section 307(b)(1). This is particularly appropriate because 
in the report on the 1977 Amendments that revised section 307(b)(1) of 
the CAA, Congress noted that the Administrator's determination that an 
action is of ``nationwide scope or effect'' would be appropriate for 
any action that has ``scope or effect beyond a single judicial 
circuit.'' H.R. Rep. No. 95-294 at 323, 324, reprinted in 1977 
U.S.C.C.A.N. 1402-03. Here, the scope and effect of this rulemaking 
extends to numerous judicial circuits since the findings and notice of 
the status of submission of CAMR State Plans apply to all areas of the 
country. In these circumstances, section 307(b)(1) and its legislative 
history call for the Administrator to find the rule to be of 
``nationwide scope or effect'' and for venue to be in the D.C. Circuit. 
Thus, any petitions for review of this action related to the present 
final rule must be filed in the Court of Appeals for the District of 
Columbia Circuit within 60 days from the date final action is published 
in the Federal Register.

List of Subjects in 40 CFR Parts 60 and 62

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations.

    Dated: December 7, 2006.
Stephen L. Johnson,
Administrator.
[FR Doc. E6-21283 Filed 12-13-06; 8:45 am]
BILLING CODE 6560-50-P