[Federal Register Volume 73, Number 241 (Monday, December 15, 2008)]
[Rules and Regulations]
[Pages 75954-75959]
From the Federal Register Online via the Government Publishing 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.
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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is withdrawn, on April 14, 2009 without further notice, unless EPA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:
http://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
http://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 http://www.regulations.gov or e-mail. The http://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 http://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket are listed in the http://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 http://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
[email protected]. Electronic copies of this document can be
accessed through the EPA Web site at: http://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]]
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Examples of potentially regulated
Category NAICS code industries
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Industry................................ 221112 and others.......... Electric service providers.
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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
http://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.
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\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.
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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