Rulemaking To Reaffirm the Promulgation of Revisions of the Acid Rain Program Rules, 75954-75959 [E8-29389]

Download as PDF 75954 Federal Register / Vol. 73, No. 241 / Monday, December 15, 2008 / Rules and Regulations ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 72, 73, 74, 77, and 78 [EPA–HQ–OAR–2008–0774; FRL–8750–9] RIN 2060–AP35 Rulemaking To Reaffirm the Promulgation of Revisions of the Acid Rain Program Rules pwalker on PROD1PC71 with RULES AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule. SUMMARY: EPA is taking direct final action to reaffirm the promulgation of certain revisions of the Acid Rain Program rules in order to prevent disruption of this program, which has achieved significant, cost-effective reductions in sulfur dioxide (SO2) emissions from utility sources since its commencement in 1995. These rule revisions were finalized in the Federal Register notices that also finalized the Clean Air Interstate Rule (CAIR) and the Federal Implementation Plans for CAIR (CAIR FIPs). The U.S. Court of Appeals for the District of Columbia Circuit recently issued a decision vacating and remanding CAIR and the CAIR FIPs. EPA and other parties have petitioned for rehearing, and the Court has not yet issued a mandate in the case. These revisions to the Acid Rain Program rules were not addressed by, or involved in any of the issues raised by, any parties in the proceeding or the Court. EPA believes it is reasonable to view these revisions as unaffected by the Court’s decision. However, EPA is reaffirming— pursuant to its authority under Title IV of the Clean Air Act (CAA) and CAA section 301—the promulgation of these revisions in this direct final rule in order to remove any uncertainty about their legal status because they have been in effect since mid-2006, most of them are crucial to the ongoing operation of the Acid Rain Program, and the rest of them streamline and clarify requirements of the program. DATES: This rule is effective, and the interim final rule (EPA–HQ–OAR– 2008–0744; FRL–8750–8) published simultaneously in the Federal Register is withdrawn, on April 14, 2009 without further notice, unless EPA receives adverse comment on the rule by January 29, 2009. If EPA receives timely adverse comment on the direct final rule, the Agency will publish a timely VerDate Aug<31>2005 16:19 Dec 12, 2008 Jkt 217001 withdrawal of the direct final rule in the Federal Register informing the public that the direct final rule is being withdrawn and will not take effect and that the interim final rule is not being withdrawn. In addition to submitting written comments on this rule, any party wanting to submit oral testimony on the rule must request a public hearing by telephone or by e-mail to EPA by December 22, 2008. If such a telephone or e-mail request for a public hearing is received by that date, a public hearing will be held on December 30, 2008 in Washington, DC. For further information on requesting a public hearing, see the DATES and SUPPLEMENTARY INFORMATION sections of the proposed rule published in the Federal Register simultaneously with this notice. ADDRESSES: Submit your comments, identified by Docket ID No. EPA–HQ– OAR–2008–0774, by one of the following methods: • https://www.regulations.gov: Follow the on-line instructions for submitting comments. • Mail: Air and Radiation Docket and Information Center, U.S. Environmental Protection Agency, Mailcode: 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 20460 • Hand Delivery: Air and Radiation Docket, EPA West Building, Room 3334, 1301 Constitution Ave., NW., Washington, DC 20460. Such deliveries are only accepted during the Docket’s normal hours of operation, and special arrangements should be made for deliveries of boxed information. Instructions. Direct your comments to Docket ID No. EPA–HQ–OAR–2008– 0774 (which incorporates by reference the dockets for CAIR and the CAIR FIPs, i.e., Docket ID Nos. EPA–HQ–OAR– 2003–0053 and EPA–HQ–OAR–2004– 0076). EPA’s policy is that all comments received will be included in the public docket without change and may be made available online at https:// www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through https:// www.regulations.gov or e-mail. The https://www.regulations.gov Web site is an ‘‘anonymous access’’ system, which PO 00000 Frm 00028 Fmt 4700 Sfmt 4700 means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD–ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA’s public docket visit the EPA Docket Center homepage at https:// www.epa.gov/epahome/dockets.htm. Docket: All documents in the docket are listed in the https:// www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in https:// www.regulations.gov or in hard copy at the Air and Radiation Docket, EPA West Building, Room 3334, 1301 Constitution Ave., NW., Washington, DC 20460. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566–1744, and the telephone number for the Air and Radiation Docket is (202) 566–1742. FOR FURTHER INFORMATION CONTACT: Dwight C. Alpern, Clean Air Markets Division, U.S. Environmental Protection Agency, Clean Air Markets Division, Mailcode: 6204J, Ariel Rios Building, 1200 Pennsylvania Ave., NW., Washington, DC 20460, telephone (202) 343–9151, e-mail at alpern.dwight@epa.gov. Electronic copies of this document can be accessed through the EPA Web site at: https:// epa.gov/airmarkets. SUPPLEMENTARY INFORMATION: Regulated Entities. Entities regulated by this action primarily are fossil fuelfired boilers, turbines, and combined cycle units that serve generators that produce electricity for sale or cogenerate electricity for sale and steam. Regulated categories and entities include: E:\FR\FM\15DER1.SGM 15DER1 Federal Register / Vol. 73, No. 241 / Monday, December 15, 2008 / Rules and Regulations 75955 NAICS code Examples of potentially regulated industries Industry .............................................................................. pwalker on PROD1PC71 with RULES Category 221112 and others ............................................................. Electric service providers. This table is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities, of which EPA is now aware, that could potentially be regulated by this action. Other types of entities not listed in this table could also be regulated. To determine whether your facility, company, business, organization, etc., is regulated by this action, you should carefully examine the applicability provisions in §§ 72.6, 72.7, and 72.8 of title 40 of the Code of Federal Regulations. If you have questions regarding the applicability of this action to a particular entity, consult the person in the preceding FOR FURTHER INFORMATION CONTACT section. Administrative Procedures Used in This Action. EPA is publishing this rule without a prior proposed rule because the Agency views this as a noncontroversial action and anticipates no adverse comment. In this rule, EPA is simply reaffirming the promulgation of certain revisions, of the Acid Rain Program rules, that were previously issued and have been in effect since mid-2006 and withdrawing the interim final rule that reaffirms the promulgation of the same revisions. However, in the ‘‘Proposed Rules’’ section of this Federal Register, EPA is publishing a separate document that will serve as the proposed rule to reaffirm the promulgation of these revisions to the Acid Rain Program rules, and withdraw the interim final rule, if any adverse comment is received on this direct final rule during the comment period. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so during the comment period established by this notice. For further information about commenting on this rule, see the DATES and ADDRESSES sections of this preamble. If EPA receives any adverse comment on this direct final rule during the comment period, the Agency will publish a timely withdrawal of the direct final rule in the Federal Register informing the public that the direct final rule is being withdrawn and will not take effect and that the interim final rule is not being withdrawn. EPA will address timely comments on the direct final rule in any subsequent final rule based on the proposed rule. EPA notes that it is also simultaneously publishing the interim VerDate Aug<31>2005 16:19 Dec 12, 2008 Jkt 217001 final rule, referenced above, that reaffirms the promulgation of these revisions. The interim final rule is effective immediately upon the date of publication in the Federal Register and will continue in effect until December 15, 2009, unless the interim final rule is withdrawn on an earlier date by the direct final rule or (if the direct final rule itself is withdrawn) the final rule addressing these revisions. Considerations in Preparing Comments for EPA A. Submitting CBI. Do not submit this information to EPA through https:// www.regulations.gov or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD–ROM that you mail to EPA, mark the outside of the disk or CD–ROM as CBI and then identify electronically within the disk or CD–ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. B. Tips for Preparing Your Comments. When submitting comments, remember to: • Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number). • Follow directions—EPA may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number. • Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes. • Describe any assumptions and provide any technical information and/ or data that you used. • If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. • Provide specific examples to illustrate your concerns, and suggest alternatives. • Explain your views as clearly as possible, avoiding the use of profanity or personal threats. PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 • Make sure to submit your comments by the comment period deadline identified. Judicial Review. Under CAA section 307(b)(1), judicial review of this final rule is available only by filing a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit on or before February 13, 2009. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review, does not extend the time within which a petition for judicial review may be filed, and does not postpone the effectiveness of this rule. Under CAA section 307(b)(2), the requirements established by this rule may not be challenged separately in any civil or criminal proceedings brought by EPA to enforce these requirements. Outline. The following outline is provided to aid in locating information in this preamble. I. Overview II. Acid Rain Rule Revisions Whose Promulgation Is Reaffirmed III. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer Advancement Act J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations K. Congressional Review Act I. Overview In May 2005 and April 2006, EPA promulgated certain revisions to the rules for the Acid Rain Program (in 40 CFR parts 72 through 78). These revisions were finalized in the Federal Register notices that also finalized CAIR and the CAIR FIPs.1 70 FR 25162 (May 1 The titles for the May 12, 2005 and April 28, 2006 Federal Register notices identify the actions taken in those notices. The full title for the May 12, 2005 notice is ‘‘Rule to Reduce Interstate Transport E:\FR\FM\15DER1.SGM Continued 15DER1 75956 Federal Register / Vol. 73, No. 241 / Monday, December 15, 2008 / Rules and Regulations pwalker on PROD1PC71 with RULES 12, 2005); 71 FR 25328 (Apr. 28, 2006). Most of these revisions were adopted for reasons independent of CAIR and the CAIR FIPs, although some were adopted to facilitate coordination of the Acid Rain trading program with the trading programs offered by EPA in CAIR and the CAIR FIPs. A few additional revisions, which are not being reaffirmed by this rule, were adopted to implement CAIR and the CAIR FIPs. On July 11, 2008, the U.S. Court of Appeals for the District of Columbia Circuit issued a decision vacating and remanding CAIR and the CAIR FIPs. North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008). EPA and other parties in the proceeding have petitioned for rehearing, and the Court has not yet issued a mandate in the case. While the Court upheld petitioners’ objections concerning a number of issues related to CAIR and the CAIR FIPs, none of the issues raised by the petitioners, and none of the Court’s determinations, addressed the Acid Rain Program rule revisions reaffirmed by this rule. Only a few of the Acid Rain Program rule revisions were adopted to implement CAIR and the CAIR FIPs and thus were encompassed by petitioners’ arguments and the Court’s decision: i.e., revisions to part 73 providing that SO2 allowances used for compliance with CAIR and CAIR FIPs would not be used for compliance in the Acid Rain Program and revisions to part 78 providing that final actions of the Administrator under the CAIR and CAIR FIP trading programs could be appealed under the administrative appeal procedures applicable to the Acid Rain Program. See 70 FR 25,335/3 (revision adding § 73.35(a)(3)) and 25,338–39 (revisions referencing subparts AA through IIII of part 96 and the CAIR designated representative and CAIR authorized account representative); and 71 FR 25,379–80 (revisions referencing subparts AA through IIII of part 97 and the CAIR designated representative and CAIR authorized account representative). This notice reaffirms the promulgation of only the other Acid Rain Program rule revisions—i.e., the revisions that were not necessary for implementing CAIR and the CAIR FIPs—finalized in the Federal Register notices that also finalized the CAIR and of Fine Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program; Revisions to the NOX SIP Call.’’ 70 FR 25162. The full title for the April 28, 2006 Federal Register notice is ‘‘Rulemaking on Section 126 Petition from North Carolina to Reduce Interstate Transport of Fine Particulate Matter and Ozone; Federal Implementation Plans to Reduce Interstate Transport of Fine Particulate Matter and Ozone; Revisions to the Acid Rain Program.’’ 71 FR 25328. VerDate Aug<31>2005 16:19 Dec 12, 2008 Jkt 217001 CAIR FIP rules. (These revisions are herein referred to as ‘‘non-CAIR- and non-CAIR-FIP-related Acid Rain Program rule revisions’’.) EPA believes it is reasonable to view the non-CAIRand non-CAIR-FIP-related Acid Rain Program rule revisions (which are described in detail above) as unaffected by the Court’s decision, which did not address them. However, EPA is concerned that there be no uncertainty about the legal status of these rule revisions. Most of them are crucial to the ongoing operation of the Acid Rain Program, while the rest of them streamline and, in some cases, clarify the requirements of the program, thereby facilitating its operation. EPA is, in this notice, reaffirming— pursuant to its authority under Title IV of the CAA and CAA section 301—the promulgation of the non-CAIR- and nonCAIR-FIP-related revisions to the Acid Rain Program rules as a direct final rule and withdrawing the interim final rule as of the effective date of the direct final rule. The reasons why the rule revisions are appropriate for the Acid Rain Program, why EPA maintains that it should remove any uncertainty about the legal status of the rule revisions, and therefore why EPA is issuing this direct final rule are set forth in detail in the preamble of the interim final rule published in the Federal Register simultaneously with this notice and in the preceding SUPPLEMENTARY INFORMATION section. In addition, EPA is publishing simultaneously in the Federal Register a parallel proposed rule reaffirming the promulgation of these revisions and withdrawing the interim final rule in order to provide interested persons a full opportunity to comment on the rule revisions in the direct final rule. The interim final rule reaffirming the promulgation of these revisions is effective immediately upon the date of promulgation in the Federal Register and continues to be effective for 12 months from that date, unless the interim final rule is withdrawn on an earlier date by the direct final rule or (if the direct final rule itself is withdrawn) the final rule addressing these revisions. The interim final rule removes any potential that these non-CAIR- and nonCAIR-FIP-related revisions would suddenly become no longer effective while this direct final rule and the parallel proposed rule are providing the opportunity for public comment on these revisions. II. Acid Rain Rule Revisions Whose Promulgation Is Reaffirmed In this notice, EPA is reaffirming, as a direct final rule, the promulgation of the non-CAIR- and non-CAIR-FIP- PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 related revisions of the Acid Rain Program rules, which revisions were finalized in the Federal Register notices that also finalized CAIR and the CAIR FIPs. EPA is reaffirming the following three types of non-CAIR- and non-CAIRFIP-related revisions to the Acid Rain Program rules: (1) Revisions that implement source-level, rather than unit-level compliance with the allowance-holding requirement in the Acid Rain Program, effective on July 1, 2006; (2) revisions that expressly allow designated representatives, authorized account representatives, and alternates to use agents to make electronic submissions to the Administrator, effective on June 27, 2006; and (3) revisions making technical changes to streamline and, in some cases, clarify the requirements of the Acid Rain Program, effective on June 27 and July 1, 2006 depending on the specific revision. Of all the Acid Rain Program rule revisions that were finalized in the Federal Register notices that also finalized CAIR and the CAIR FIPs, the only revisions whose promulgation EPA is not reaffirming are those that are related to CAIR and the CAIR FIPs, i.e., those (which are described in detail in Section I of this preamble) that are necessary for implementation of the CAIR and CAIR FIP trading programs. This action will have no impact on those revisions. The non-CAIR- and non-CAIR-FIPrelated revisions whose promulgation is reaffirmed in this direct final rule are described in detail, along with EPA’s reasons for such reaffirmation, in the interim final rule published in the Federal Register simultaneously with this notice. The revisions whose promulgation is reaffirmed in this direct final rule comprise all of the revisions of the Acid Rain Program rules that were included in May 12, 2005 final rulemaking notice that also finalized CAIR (70 FR 25,333–39) and the April 28, 2006 final rulemaking notice that also finalized the CAIR FIPs (71 FR 25,377–80) except those listed in section III.D of the preamble of the interim final rule. III. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review This action is not a ‘‘significant regulatory action’’ under the terms of Executive Order 12866 (58 FR 51735 (October 4, 1993)) and is therefore not subject to review under the Executive Order. In this action, EPA is simply reaffirming the promulgation of Acid Rain Program rule revisions that were E:\FR\FM\15DER1.SGM 15DER1 Federal Register / Vol. 73, No. 241 / Monday, December 15, 2008 / Rules and Regulations previously issued and are currently in effect and have been since mid-2006. pwalker on PROD1PC71 with RULES B. Paperwork Reduction Act This action does not impose any new information collection burden. This rule simply reaffirms the promulgation of Acid Rain Program rule revisions that were previously issued, does not change the existing requirements in 40 CFR parts 72, 73, 74, 77, and 78, and thus does not change the existing information collection burden. Moreover, EPA maintains that the effect of these revisions when they were first promulgated was, if anything, to reduce somewhat the information collection burden on regulated sources, e.g., by requiring compliance with the allowance-holding requirement at a source, rather than unit, level (thereby removing the need to transfer allowances among units at the same source) and by making other changes to the rules in place when the rule revisions were originally promulgated (such as removing the requirement for submission of an annual compliance certification report). However, the Office of Management and Budget (OMB) has previously approved the information collection requirements in the existing rules under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501, et seq., and has assigned OMB control number 2060–0258. OMB control numbers for EPA’s regulations in 40 CFR are listed in 40 CFR part 9. C. Regulatory Flexibility Act The Regulatory Flexibility Act (5 U.S.C. 601, et seq.) (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of today’s rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration’s regulations at 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 is independently owned and operated and is not dominant in its field. After considering the economic impacts of this final rule on small VerDate Aug<31>2005 16:19 Dec 12, 2008 Jkt 217001 75957 entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on small entities, the impact of concern is any significant adverse economic impact on small entities, since the primary purpose of the regulatory flexibility analysis is to identify and address regulatory alternatives ‘‘which minimize any significant economic impact of the rule on small entities.’’ 5 U.S.C. 603 and 604. Thus, an agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden or otherwise has a positive economic effect on all of the small entities subject to the rule. This rule does not change the existing Acid Rain Program rules and thus the economic impact of those rules on small entities. This rule simply reaffirms the promulgation of existing Acid Rain Program rule revisions that have been in effect since mid-2006. Moreover, when first promulgated, the effect of these revisions was, if anything, to reduce somewhat the economic impact of the then-existing rules on all regulated sources and thus on small entities that might be, or own, regulated sources. For example, by requiring compliance on a source, rather than a unit, basis, the revisions reduced the potential for excess emissions penalties due to an inadvertent error, e.g., in the owner’s distribution of allowances among the units at a source that would cause one unit to have more than enough allowances to cover emissions and another unit to not have enough allowances to cover emission. As a further example, the revisions removed some requirements (e.g., the required submission of an annual compliance certification report) and thereby removed some costs of compliance for all regulated sources. D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104–4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with ‘‘Federal mandates’’ that may result in expenditures to State, local, and 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 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 rule does not change the existing Acid Rain Program rules and therefore does not result in any additional expenditures to State, local, and tribal governments or to the private sector. The rule simply reaffirms the promulgation of Acid Rain Program rule revisions that were previously issued and that are still in effect and have been since mid-2006. Moreover, when first promulgated, the effect of these revisions was, if anything, to reduce somewhat the expenditures of State, local, and tribal governments and the private sector under the then-existing Acid Rain Program rules. For the same reasons, EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. E. Executive Order 13132: Federalism Executive Order 13132, entitled ‘‘Federalism’’ (64 FR 43255 (August 10, 1999)), requires EPA to develop an accountable process to ensure ‘‘meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.’’ ‘‘Policies that have federalism implications’’ is defined in the Executive Order to include regulations that have ‘‘substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.’’ PO 00000 Frm 00031 Fmt 4700 Sfmt 4700 E:\FR\FM\15DER1.SGM 15DER1 75958 Federal Register / Vol. 73, No. 241 / Monday, December 15, 2008 / Rules and Regulations This rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This rule simply reaffirms the promulgation of Acid Rain Program rule revisions that were previously issued and that are still in effect and have been since mid-2006. Moreover, when first promulgated, these revisions did not have substantial direct effects on States, the relationship between the national government and the States, or the distribution of power and responsibilities. Thus, Executive Order 13132 does not apply to this rule. pwalker on PROD1PC71 with RULES F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Executive Order 13175, entitled ‘‘Consultation and Coordination With Indian Tribal Governments’’ (65 FR 67249 (November 9, 2000)), requires EPA to develop an accountable process to ensure ‘‘meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.’’ This final rule does not have tribal implications, as specified in Executive Order 13175. This rule simply reaffirms the promulgation of Acid Rain Program rule revisions that were previously issued and that are still in effect and have been since mid-2006. Moreover, when first promulgated, these revisions did not have substantial direct effects on tribal governments, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes. Thus, Executive Order 13175 does not apply to this rule. G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks Executive Order 13045, entitled ‘‘Protection of Children From Environmental Health Risks and Safety Risks’’ (62 FR 19885 (April 23, 1997)), applies to any rule that: (1) Is determined to be ‘‘economically significant’’ as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is VerDate Aug<31>2005 16:19 Dec 12, 2008 Jkt 217001 preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5–501 of the Executive Order has the potential to influence the regulation. This rule is not subject to the Executive Order because it is not a significant regulatory action under Executive Order 12866 and is not based on health or safety risks. This rule simply reaffirms the promulgation of Acid Rain Program rule revisions that were previously issued and that are still in effect and have been since mid-2006. Moreover, when first promulgated, these revisions implemented certain requirements of the Acid Rain Program that were not on based on health or safety risks. H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use This rule is not subject to Executive Order 13211, entitled ‘‘Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use’’ (66 FR 28355 (May 22, 2001)), because it is not a significant regulatory action under Executive Order 12866. I. National Technology Transfer Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law No. 104–113, section 12(d) (15 U.S.C. 272 note), directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This rule simply reaffirms the promulgation of Acid Rain Program rule revisions that were previously issued and that are still in effect and have been since mid-2006. Moreover, when first promulgated, these revisions did not address the use of any technical standards. Thus, this rule is not subject to the NTTAA. PO 00000 Frm 00032 Fmt 4700 Sfmt 4700 J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations Executive Order 12898 (59 FR 7629 (February 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. EPA has determined that this rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not change the level of protection provided to human health or the environment, but simply reaffirms the promulgation of Acid Rain Program rule revisions that were previously issued and that are still in effect and have been since mid-2006. Moreover, when first promulgated, these revisions did not change the level of protection provided to human health or the environment. 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. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a ‘‘major rule’’ as defined by 5 U.S.C. 804(2). This rule will be effective on April 14, 2009 without further notice, except to the extent EPA receives adverse comment on the rule or one or more provisions of the rule by January 29, 2009 or date 30 days from date on which public hearing will be held. If EPA receives timely adverse comment, the Agency will publish a timely withdrawal in the Federal Register informing the public which provisions of this rule are being withdrawn and will not take effect. E:\FR\FM\15DER1.SGM 15DER1 Federal Register / Vol. 73, No. 241 / Monday, December 15, 2008 / Rules and Regulations List of Subjects in 40 CFR Parts 72, 73, 74, 77, and 78 Environmental protection, Acid rain, Administrative practice and procedure, Air pollution control, Electric utilities, Intergovernmental relations, Reporting and recordkeeping requirements, Sulfur oxides. Dated: December 5, 2008. Stephen L. Johnson, Administrator. [FR Doc. E8–29389 Filed 12–12–08; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 72, 73, 74, 77, and 78 [EPA–HQ–OAR–2008–0744; FRL–8750–8] RIN 2060–AP35 Rulemaking To Reaffirm the Promulgation of Revisions of the Acid Rain Program Rules AGENCY: Environmental Protection Agency (EPA). ACTION: Interim final rule. SUMMARY: EPA is taking interim final action to reaffirm the promulgation of certain revisions of the Acid Rain Program rules in order to prevent disruption of this program, which has achieved significant, cost-effective reductions in sulfur dioxide (SO2) emissions from utility sources since its commencement in 1995. These rule revisions were finalized in the Federal Register notices that also finalized the Clean Air Interstate Rule (CAIR) and the Federal Implementation Plans for CAIR (CAIR FIPs). The U.S. Court of Appeals for the District of Columbia Circuit recently issued a decision vacating and remanding CAIR and the CAIR FIPs. EPA and other parties have petitioned for rehearing, and the Court has not yet issued a mandate in the case. These revisions to the Acid Rain Program rules were not addressed by, or involved in any of the issues raised by, any parties in the proceeding or the Court. EPA believes it is reasonable to view these revisions as unaffected by the Court’s decision. However, EPA is reaffirming— pursuant to its authority under Title IV of the Clean Air Act (CAA) and CAA section 301—the promulgation of these revisions in this interim final rule in order to remove any uncertainty about their legal status because they have been in effect since mid-2006, most of them are crucial to the ongoing operation of the Acid Rain Program, and the rest of them streamline and clarify requirements of the program. DATES: This action is effective on December 15, 2008 and will continue in effect until December 15, 2009. ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA–HQ–OAR–2008–0774, which incorporates by reference the dockets for CAIR and the CAIR FIPs (Docket ID Nos. EPA–HQ–OAR–2003–0053 and EPA– HQ–OAR–2004–0076). All documents in the docket are listed in the Federal Docket Management System index at https://www.regulations.gov. Although listed in the index, some information is 75959 not publicly available, e.g., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through https:// www.regulations.gov or in hard copy at the Air and Radiation Docket, EPA West Building, Room 3334, 1301 Constitution Ave., NW., Washington, DC 20460. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566–1744, and the telephone number for the Air and Radiation Docket is (202) 566–1742. FOR FURTHER INFORMATION CONTACT: Dwight C. Alpern, Clean Air Markets Division, U.S. Environmental Protection Agency, Clean Air Markets Division, MC 6204J, Ariel Rios Building, 1200 Pennsylvania Ave., NW., Washington, DC 20460, telephone (202) 343–9151, e-mail at alpern.dwight@epa.gov. Electronic copies of this document can be accessed through the EPA Web site at: https://www.epa.gov/airmarkets. Regulated Entities. Entities regulated by this action primarily are fossil fuel-fired boilers, turbines, and combined cycle units that serve generators that produce electricity for sale or cogenerate electricity for sale and steam. Regulated categories and entities include: SUPPLEMENTARY INFORMATION: NAICS code Examples of potentially regulated industries Industry .............................................................................. pwalker on PROD1PC71 with RULES Category 221112 and others ............................................................. Electric service providers. This table is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities, of which EPA is now aware, that could potentially be regulated by this action. Other types of entities not listed in this table could also be regulated. To determine whether your facility, company, business, organization, etc., is regulated by this action, you should carefully examine the applicability provisions in §§ 72.6, 72.7, and 72.8 of title 40 of the Code of Federal Regulations. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section. VerDate Aug<31>2005 16:19 Dec 12, 2008 Jkt 217001 Judicial Review. Under CAA section 307(b)(1), judicial review of this final rule is available only by filing a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit on or before February 13, 2009. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review, does not extend the time within which a petition for judicial review may be filed, and does not postpone the effectiveness of this rule. Under CAA section 307(b)(2), the requirements established by this rule may not be challenged separately in any civil or criminal proceedings brought by EPA to enforce these requirements. PO 00000 Frm 00033 Fmt 4700 Sfmt 4700 Outline. The following outline is provided to aid in locating information in this preamble. I. Overview II. Administrative Procedures Used in This Action III. Acid Rain Rule Revisions Whose Promulgation Is Reaffirmed A. Rule Revisions Implementing SourceLevel Compliance B. Rule Revisions Allowing Use of Agents by Designated Representative and Authorized Account Representatives C. Rule Revisions Making Technical Changes D. Identification of Specific Rule Revisions Whose Promulgation Is Reaffirmed IV. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review B. Paperwork Reduction Act C. Regulatory Flexibility Act E:\FR\FM\15DER1.SGM 15DER1

Agencies

[Federal Register Volume 73, Number 241 (Monday, December 15, 2008)]
[Rules and Regulations]
[Pages 75954-75959]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-29389]



[[Page 75954]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 72, 73, 74, 77, and 78

[EPA-HQ-OAR-2008-0774; FRL-8750-9]
RIN 2060-AP35


Rulemaking To Reaffirm the Promulgation of Revisions of the Acid 
Rain Program Rules

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is taking direct final action to reaffirm the promulgation 
of certain revisions of the Acid Rain Program rules in order to prevent 
disruption of this program, which has achieved significant, cost-
effective reductions in sulfur dioxide (SO2) emissions from 
utility sources since its commencement in 1995. These rule revisions 
were finalized in the Federal Register notices that also finalized the 
Clean Air Interstate Rule (CAIR) and the Federal Implementation Plans 
for CAIR (CAIR FIPs). The U.S. Court of Appeals for the District of 
Columbia Circuit recently issued a decision vacating and remanding CAIR 
and the CAIR FIPs. EPA and other parties have petitioned for rehearing, 
and the Court has not yet issued a mandate in the case. These revisions 
to the Acid Rain Program rules were not addressed by, or involved in 
any of the issues raised by, any parties in the proceeding or the 
Court. EPA believes it is reasonable to view these revisions as 
unaffected by the Court's decision. However, EPA is reaffirming--
pursuant to its authority under Title IV of the Clean Air Act (CAA) and 
CAA section 301--the promulgation of these revisions in this direct 
final rule in order to remove any uncertainty about their legal status 
because they have been in effect since mid-2006, most of them are 
crucial to the ongoing operation of the Acid Rain Program, and the rest 
of them streamline and clarify requirements of the program.

DATES: This rule is effective, and the interim final rule (EPA-HQ-OAR-
2008-0744; FRL-8750-8) published simultaneously in the Federal Register 
is withdrawn, on April 14, 2009 without further notice, unless EPA 
receives adverse comment on the rule by January 29, 2009. If EPA 
receives timely adverse comment on the direct final rule, the Agency 
will publish a timely withdrawal of the direct final rule in the 
Federal Register informing the public that the direct final rule is 
being withdrawn and will not take effect and that the interim final 
rule is not being withdrawn.
    In addition to submitting written comments on this rule, any party 
wanting to submit oral testimony on the rule must request a public 
hearing by telephone or by e-mail to EPA by December 22, 2008. If such 
a telephone or e-mail request for a public hearing is received by that 
date, a public hearing will be held on December 30, 2008 in Washington, 
DC. For further information on requesting a public hearing, see the 
DATES and SUPPLEMENTARY INFORMATION sections of the proposed rule 
published in the Federal Register simultaneously with this notice.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2008-0774, by one of the following methods:
     https://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     Mail: Air and Radiation Docket and Information Center, 
U.S. Environmental Protection Agency, Mailcode: 2822T, 1200 
Pennsylvania Ave., NW., Washington, DC 20460
     Hand Delivery: Air and Radiation Docket, EPA West 
Building, Room 3334, 1301 Constitution Ave., NW., Washington, DC 20460. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions. Direct your comments to Docket ID No. EPA-HQ-OAR-
2008-0774 (which incorporates by reference the dockets for CAIR and the 
CAIR FIPs, i.e., Docket ID Nos. EPA-HQ-OAR-2003-0053 and EPA-HQ-OAR-
2004-0076). EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
https://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through https://
www.regulations.gov or e-mail. The https://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you submit an electronic comment, EPA recommends that 
you include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at https://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the https://
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in https://www.regulations.gov or in hard copy at the Air and Radiation 
Docket, EPA West Building, Room 3334, 1301 Constitution Ave., NW., 
Washington, DC 20460. The Public Reading Room is open from 8:30 a.m. to 
4:30 p.m., Monday through Friday, excluding legal holidays. The 
telephone number for the Public Reading Room is (202) 566-1744, and the 
telephone number for the Air and Radiation Docket is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: Dwight C. Alpern, Clean Air Markets 
Division, U.S. Environmental Protection Agency, Clean Air Markets 
Division, Mailcode: 6204J, Ariel Rios Building, 1200 Pennsylvania Ave., 
NW., Washington, DC 20460, telephone (202) 343-9151, e-mail at 
alpern.dwight@epa.gov. Electronic copies of this document can be 
accessed through the EPA Web site at: https://epa.gov/airmarkets.

SUPPLEMENTARY INFORMATION:
    Regulated Entities. Entities regulated by this action primarily are 
fossil fuel-fired boilers, turbines, and combined cycle units that 
serve generators that produce electricity for sale or cogenerate 
electricity for sale and steam. Regulated categories and entities 
include:

[[Page 75955]]



----------------------------------------------------------------------------------------------------------------
                                                                           Examples of potentially regulated
                Category                           NAICS code                          industries
----------------------------------------------------------------------------------------------------------------
Industry................................  221112 and others..........  Electric service providers.
----------------------------------------------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather to provide 
a guide for readers regarding entities likely to be regulated by this 
action. This table lists the types of entities, of which EPA is now 
aware, that could potentially be regulated by this action. Other types 
of entities not listed in this table could also be regulated. To 
determine whether your facility, company, business, organization, etc., 
is regulated by this action, you should carefully examine the 
applicability provisions in Sec. Sec.  72.6, 72.7, and 72.8 of title 40 
of the Code of Federal Regulations. If you have questions regarding the 
applicability of this action to a particular entity, consult the person 
in the preceding FOR FURTHER INFORMATION CONTACT section.
    Administrative Procedures Used in This Action. EPA is publishing 
this rule without a prior proposed rule because the Agency views this 
as a noncontroversial action and anticipates no adverse comment. In 
this rule, EPA is simply reaffirming the promulgation of certain 
revisions, of the Acid Rain Program rules, that were previously issued 
and have been in effect since mid-2006 and withdrawing the interim 
final rule that reaffirms the promulgation of the same revisions. 
However, in the ``Proposed Rules'' section of this Federal Register, 
EPA is publishing a separate document that will serve as the proposed 
rule to reaffirm the promulgation of these revisions to the Acid Rain 
Program rules, and withdraw the interim final rule, if any adverse 
comment is received on this direct final rule during the comment 
period. EPA will not institute a second comment period on this action. 
Any parties interested in commenting must do so during the comment 
period established by this notice. For further information about 
commenting on this rule, see the DATES and ADDRESSES sections of this 
preamble.
    If EPA receives any adverse comment on this direct final rule 
during the comment period, the Agency will publish a timely withdrawal 
of the direct final rule in the Federal Register informing the public 
that the direct final rule is being withdrawn and will not take effect 
and that the interim final rule is not being withdrawn. EPA will 
address timely comments on the direct final rule in any subsequent 
final rule based on the proposed rule.
    EPA notes that it is also simultaneously publishing the interim 
final rule, referenced above, that reaffirms the promulgation of these 
revisions. The interim final rule is effective immediately upon the 
date of publication in the Federal Register and will continue in effect 
until December 15, 2009, unless the interim final rule is withdrawn on 
an earlier date by the direct final rule or (if the direct final rule 
itself is withdrawn) the final rule addressing these revisions.

Considerations in Preparing Comments for EPA

    A. Submitting CBI. Do not submit this information to EPA through 
https://www.regulations.gov or e-mail. Clearly mark the part or all of 
the information that you claim to be CBI. For CBI information in a disk 
or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM 
as CBI and then identify electronically within the disk or CD-ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
    B. Tips for Preparing Your Comments. When submitting comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Follow directions--EPA may ask you to respond to specific 
questions or organize comments by referencing a Code of Federal 
Regulations (CFR) part or section number.
     Explain why you agree or disagree; suggest alternatives 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.
    Judicial Review. Under CAA section 307(b)(1), judicial review of 
this final rule is available only by filing a petition for review in 
the U.S. Court of Appeals for the District of Columbia Circuit on or 
before February 13, 2009. Filing a petition for reconsideration by the 
Administrator of this final rule does not affect the finality of this 
rule for the purposes of judicial review, does not extend the time 
within which a petition for judicial review may be filed, and does not 
postpone the effectiveness of this rule. Under CAA section 307(b)(2), 
the requirements established by this rule may not be challenged 
separately in any civil or criminal proceedings brought by EPA to 
enforce these requirements.
    Outline. The following outline is provided to aid in locating 
information in this preamble.

I. Overview
II. Acid Rain Rule Revisions Whose Promulgation Is Reaffirmed
III. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Congressional Review Act

I. Overview

    In May 2005 and April 2006, EPA promulgated certain revisions to 
the rules for the Acid Rain Program (in 40 CFR parts 72 through 78). 
These revisions were finalized in the Federal Register notices that 
also finalized CAIR and the CAIR FIPs.\1\ 70 FR 25162 (May

[[Page 75956]]

12, 2005); 71 FR 25328 (Apr. 28, 2006). Most of these revisions were 
adopted for reasons independent of CAIR and the CAIR FIPs, although 
some were adopted to facilitate coordination of the Acid Rain trading 
program with the trading programs offered by EPA in CAIR and the CAIR 
FIPs. A few additional revisions, which are not being reaffirmed by 
this rule, were adopted to implement CAIR and the CAIR FIPs.
---------------------------------------------------------------------------

    \1\ The titles for the May 12, 2005 and April 28, 2006 Federal 
Register notices identify the actions taken in those notices. The 
full title for the May 12, 2005 notice is ``Rule to Reduce 
Interstate Transport of Fine Particulate Matter and Ozone (Clean Air 
Interstate Rule); Revisions to Acid Rain Program; Revisions to the 
NOX SIP Call.'' 70 FR 25162. The full title for the April 
28, 2006 Federal Register notice is ``Rulemaking on Section 126 
Petition from North Carolina to Reduce Interstate Transport of Fine 
Particulate Matter and Ozone; Federal Implementation Plans to Reduce 
Interstate Transport of Fine Particulate Matter and Ozone; Revisions 
to the Acid Rain Program.'' 71 FR 25328.
---------------------------------------------------------------------------

    On July 11, 2008, the U.S. Court of Appeals for the District of 
Columbia Circuit issued a decision vacating and remanding CAIR and the 
CAIR FIPs. North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008). EPA 
and other parties in the proceeding have petitioned for rehearing, and 
the Court has not yet issued a mandate in the case. While the Court 
upheld petitioners' objections concerning a number of issues related to 
CAIR and the CAIR FIPs, none of the issues raised by the petitioners, 
and none of the Court's determinations, addressed the Acid Rain Program 
rule revisions reaffirmed by this rule.
    Only a few of the Acid Rain Program rule revisions were adopted to 
implement CAIR and the CAIR FIPs and thus were encompassed by 
petitioners' arguments and the Court's decision: i.e., revisions to 
part 73 providing that SO2 allowances used for compliance 
with CAIR and CAIR FIPs would not be used for compliance in the Acid 
Rain Program and revisions to part 78 providing that final actions of 
the Administrator under the CAIR and CAIR FIP trading programs could be 
appealed under the administrative appeal procedures applicable to the 
Acid Rain Program. See 70 FR 25,335/3 (revision adding Sec.  
73.35(a)(3)) and 25,338-39 (revisions referencing subparts AA through 
IIII of part 96 and the CAIR designated representative and CAIR 
authorized account representative); and 71 FR 25,379-80 (revisions 
referencing subparts AA through IIII of part 97 and the CAIR designated 
representative and CAIR authorized account representative).
    This notice reaffirms the promulgation of only the other Acid Rain 
Program rule revisions--i.e., the revisions that were not necessary for 
implementing CAIR and the CAIR FIPs--finalized in the Federal Register 
notices that also finalized the CAIR and CAIR FIP rules. (These 
revisions are herein referred to as ``non-CAIR- and non-CAIR-FIP-
related Acid Rain Program rule revisions''.) EPA believes it is 
reasonable to view the non-CAIR- and non-CAIR-FIP-related Acid Rain 
Program rule revisions (which are described in detail above) as 
unaffected by the Court's decision, which did not address them. 
However, EPA is concerned that there be no uncertainty about the legal 
status of these rule revisions. Most of them are crucial to the ongoing 
operation of the Acid Rain Program, while the rest of them streamline 
and, in some cases, clarify the requirements of the program, thereby 
facilitating its operation.
    EPA is, in this notice, reaffirming--pursuant to its authority 
under Title IV of the CAA and CAA section 301--the promulgation of the 
non-CAIR- and non-CAIR-FIP-related revisions to the Acid Rain Program 
rules as a direct final rule and withdrawing the interim final rule as 
of the effective date of the direct final rule. The reasons why the 
rule revisions are appropriate for the Acid Rain Program, why EPA 
maintains that it should remove any uncertainty about the legal status 
of the rule revisions, and therefore why EPA is issuing this direct 
final rule are set forth in detail in the preamble of the interim final 
rule published in the Federal Register simultaneously with this notice 
and in the preceding SUPPLEMENTARY INFORMATION section. In addition, 
EPA is publishing simultaneously in the Federal Register a parallel 
proposed rule reaffirming the promulgation of these revisions and 
withdrawing the interim final rule in order to provide interested 
persons a full opportunity to comment on the rule revisions in the 
direct final rule. The interim final rule reaffirming the promulgation 
of these revisions is effective immediately upon the date of 
promulgation in the Federal Register and continues to be effective for 
12 months from that date, unless the interim final rule is withdrawn on 
an earlier date by the direct final rule or (if the direct final rule 
itself is withdrawn) the final rule addressing these revisions. The 
interim final rule removes any potential that these non-CAIR- and non-
CAIR-FIP-related revisions would suddenly become no longer effective 
while this direct final rule and the parallel proposed rule are 
providing the opportunity for public comment on these revisions.

II. Acid Rain Rule Revisions Whose Promulgation Is Reaffirmed

    In this notice, EPA is reaffirming, as a direct final rule, the 
promulgation of the non-CAIR- and non-CAIR-FIP-related revisions of the 
Acid Rain Program rules, which revisions were finalized in the Federal 
Register notices that also finalized CAIR and the CAIR FIPs. EPA is 
reaffirming the following three types of non-CAIR- and non-CAIR-FIP-
related revisions to the Acid Rain Program rules: (1) Revisions that 
implement source-level, rather than unit-level compliance with the 
allowance-holding requirement in the Acid Rain Program, effective on 
July 1, 2006; (2) revisions that expressly allow designated 
representatives, authorized account representatives, and alternates to 
use agents to make electronic submissions to the Administrator, 
effective on June 27, 2006; and (3) revisions making technical changes 
to streamline and, in some cases, clarify the requirements of the Acid 
Rain Program, effective on June 27 and July 1, 2006 depending on the 
specific revision. Of all the Acid Rain Program rule revisions that 
were finalized in the Federal Register notices that also finalized CAIR 
and the CAIR FIPs, the only revisions whose promulgation EPA is not 
reaffirming are those that are related to CAIR and the CAIR FIPs, i.e., 
those (which are described in detail in Section I of this preamble) 
that are necessary for implementation of the CAIR and CAIR FIP trading 
programs. This action will have no impact on those revisions.
    The non-CAIR- and non-CAIR-FIP-related revisions whose promulgation 
is reaffirmed in this direct final rule are described in detail, along 
with EPA's reasons for such reaffirmation, in the interim final rule 
published in the Federal Register simultaneously with this notice. The 
revisions whose promulgation is reaffirmed in this direct final rule 
comprise all of the revisions of the Acid Rain Program rules that were 
included in May 12, 2005 final rulemaking notice that also finalized 
CAIR (70 FR 25,333-39) and the April 28, 2006 final rulemaking notice 
that also finalized the CAIR FIPs (71 FR 25,377-80) except those listed 
in section III.D of the preamble of the interim final rule.

III. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735 (October 4, 1993)) and is 
therefore not subject to review under the Executive Order. In this 
action, EPA is simply reaffirming the promulgation of Acid Rain Program 
rule revisions that were

[[Page 75957]]

previously issued and are currently in effect and have been since mid-
2006.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden. 
This rule simply reaffirms the promulgation of Acid Rain Program rule 
revisions that were previously issued, does not change the existing 
requirements in 40 CFR parts 72, 73, 74, 77, and 78, and thus does not 
change the existing information collection burden. Moreover, EPA 
maintains that the effect of these revisions when they were first 
promulgated was, if anything, to reduce somewhat the information 
collection burden on regulated sources, e.g., by requiring compliance 
with the allowance-holding requirement at a source, rather than unit, 
level (thereby removing the need to transfer allowances among units at 
the same source) and by making other changes to the rules in place when 
the rule revisions were originally promulgated (such as removing the 
requirement for submission of an annual compliance certification 
report). However, the Office of Management and Budget (OMB) has 
previously approved the information collection requirements in the 
existing rules under the provisions of the Paperwork Reduction Act, 44 
U.S.C. 3501, et seq., and has assigned OMB control number 2060-0258. 
OMB control numbers for EPA's regulations in 40 CFR are listed in 40 
CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601, et seq.) (RFA) 
generally requires an agency to prepare a regulatory flexibility 
analysis of any rule subject to notice and comment rulemaking 
requirements under the Administrative Procedure Act or any other 
statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions. For purposes of assessing the impacts of 
today's rule on small entities, small entity is defined as: (1) A small 
business as defined by the Small Business Administration's regulations 
at 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 is independently owned and 
operated and is not dominant in its field.
    After considering the economic impacts of this final rule on small 
entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. In 
determining whether a rule has a significant economic impact on small 
entities, the impact of concern is any significant adverse economic 
impact on small entities, since the primary purpose of the regulatory 
flexibility analysis is to identify and address regulatory alternatives 
``which minimize any significant economic impact of the rule on small 
entities.'' 5 U.S.C. 603 and 604. Thus, an agency may certify that a 
rule will not have a significant economic impact on a substantial 
number of small entities if the rule relieves regulatory burden or 
otherwise has a positive economic effect on all of the small entities 
subject to the rule.
    This rule does not change the existing Acid Rain Program rules and 
thus the economic impact of those rules on small entities. This rule 
simply reaffirms the promulgation of existing Acid Rain Program rule 
revisions that have been in effect since mid-2006. Moreover, when first 
promulgated, the effect of these revisions was, if anything, to reduce 
somewhat the economic impact of the then-existing rules on all 
regulated sources and thus on small entities that might be, or own, 
regulated sources. For example, by requiring compliance on a source, 
rather than a unit, basis, the revisions reduced the potential for 
excess emissions penalties due to an inadvertent error, e.g., in the 
owner's distribution of allowances among the units at a source that 
would cause one unit to have more than enough allowances to cover 
emissions and another unit to not have enough allowances to cover 
emission. As a further example, the revisions removed some requirements 
(e.g., the required submission of an annual compliance certification 
report) and thereby removed some costs of compliance for all regulated 
sources.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and 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 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 rule does not change the existing Acid Rain Program rules and 
therefore does not result in any additional expenditures to State, 
local, and tribal governments or to the private sector. The rule simply 
reaffirms the promulgation of Acid Rain Program rule revisions that 
were previously issued and that are still in effect and have been since 
mid-2006. Moreover, when first promulgated, the effect of these 
revisions was, if anything, to reduce somewhat the expenditures of 
State, local, and tribal governments and the private sector under the 
then-existing Acid Rain Program rules. For the same reasons, EPA has 
determined that this rule contains no regulatory requirements that 
might significantly or uniquely affect small governments.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255 (August 
10, 1999)), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''

[[Page 75958]]

    This rule does not have federalism implications. It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132. This rule simply reaffirms the 
promulgation of Acid Rain Program rule revisions that were previously 
issued and that are still in effect and have been since mid-2006. 
Moreover, when first promulgated, these revisions did not have 
substantial direct effects on States, the relationship between the 
national government and the States, or the distribution of power and 
responsibilities. Thus, Executive Order 13132 does not apply to this 
rule.

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

    Executive Order 13175, entitled ``Consultation and Coordination 
With Indian Tribal Governments'' (65 FR 67249 (November 9, 2000)), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This final rule does not have 
tribal implications, as specified in Executive Order 13175. This rule 
simply reaffirms the promulgation of Acid Rain Program rule revisions 
that were previously issued and that are still in effect and have been 
since mid-2006. Moreover, when first promulgated, these revisions did 
not have substantial direct effects on tribal governments, on the 
relationship between the Federal Government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian tribes. Thus, Executive Order 13175 does not 
apply to this rule.

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

    Executive Order 13045, entitled ``Protection of Children From 
Environmental Health Risks and Safety Risks'' (62 FR 19885 (April 23, 
1997)), applies to any rule that: (1) Is determined to be 
``economically significant'' as defined under Executive Order 12866, 
and (2) concerns an environmental health or safety risk that EPA has 
reason to believe may have a disproportionate effect on children. If 
the regulatory action meets both criteria, the Agency must evaluate the 
environmental health or safety effects of the planned rule on children, 
and explain why the planned regulation is preferable to other 
potentially effective and reasonably feasible alternatives considered 
by the Agency. EPA interprets Executive Order 13045 as applying only to 
those regulatory actions that are based on health or safety risks, such 
that the analysis required under section 5-501 of the Executive Order 
has the potential to influence the regulation.
    This rule is not subject to the Executive Order because it is not a 
significant regulatory action under Executive Order 12866 and is not 
based on health or safety risks. This rule simply reaffirms the 
promulgation of Acid Rain Program rule revisions that were previously 
issued and that are still in effect and have been since mid-2006. 
Moreover, when first promulgated, these revisions implemented certain 
requirements of the Acid Rain Program that were not on based on health 
or safety risks.

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

    This rule is not subject to Executive Order 13211, entitled 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)), because it 
is not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law No. 104-113, section 12(d) (15 U.S.C. 
272 note), directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards. This 
rule simply reaffirms the promulgation of Acid Rain Program rule 
revisions that were previously issued and that are still in effect and 
have been since mid-2006. Moreover, when first promulgated, these 
revisions did not address the use of any technical standards. Thus, 
this rule is not subject to the NTTAA.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629 (February 16, 1994)) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States. EPA has determined that this rule 
will not have disproportionately high and adverse human health or 
environmental effects on minority or low-income populations because it 
does not change the level of protection provided to human health or the 
environment, but simply reaffirms the promulgation of Acid Rain Program 
rule revisions that were previously issued and that are still in effect 
and have been since mid-2006. Moreover, when first promulgated, these 
revisions did not change the level of protection provided to human 
health or the environment.

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. EPA will submit a report containing this 
rule and other required information to the U.S. Senate, the U.S. House 
of Representatives, and the Comptroller General of the United States 
prior to publication of the rule in the Federal Register. A major rule 
cannot take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective on April 14, 2009 without further 
notice, except to the extent EPA receives adverse comment on the rule 
or one or more provisions of the rule by January 29, 2009 or date 30 
days from date on which public hearing will be held.
    If EPA receives timely adverse comment, the Agency will publish a 
timely withdrawal in the Federal Register informing the public which 
provisions of this rule are being withdrawn and will not take effect.

[[Page 75959]]

List of Subjects in 40 CFR Parts 72, 73, 74, 77, and 78

    Environmental protection, Acid rain, Administrative practice and 
procedure, Air pollution control, Electric utilities, Intergovernmental 
relations, Reporting and recordkeeping requirements, Sulfur oxides.

    Dated: December 5, 2008.
Stephen L. Johnson,
Administrator.
 [FR Doc. E8-29389 Filed 12-12-08; 8:45 am]
BILLING CODE 6560-50-P