[Federal Register Volume 72, Number 165 (Monday, August 27, 2007)]
[Proposed Rules]
[Pages 48953-48956]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-16835]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 65

[EPA-HQ-OAR-2007-0429; FRL-8459-6]
RIN 2060-A045


Revisions to Consolidated Federal Air Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA is proposing to revise the General Provisions for 
Consolidated Federal Air Rule. On May 16, 2007, we published a final 
rule that revised the General Provisions for Standards of Performance 
for New Stationary Sources, for National Emission Standards for 
Hazardous Air Pollutants, and for National Emission Standards for 
Hazardous Air Pollutants for Source Categories to allow extensions to 
the deadline imposed for source owners and operators to conduct initial 
or other required performance tests in certain specified force majeure 
circumstances. We recently realized that we should have also revised 
the Consolidated Federal Air Rule to allow similar extensions.

DATES: Written comments must be received by September 26, 2007.

[[Page 48954]]


ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2007-0429 by mail to Revisions to Consolidated Federal Air Rule, 
Environmental Protection Agency, Mailcode: 2822T, 1200 Pennsylvania 
Ave., NW., Washington, DC 20460. Please include a total of two copies. 
Comments may also be submitted electronically or through hand delivery/
courier by following the detailed instructions in the ADDRESSES section 
of the direct final rule located in the rules section of this Federal 
Register.

FOR FURTHER INFORMATION CONTACT: Ms. Lula Melton, Air Quality 
Assessment Division (C304-02), Office of Air Quality Planning and 
Standards, U.S. Environmental Protection Agency, Research Triangle 
Park, North Carolina 27711; telephone number: (919) 541-2910; fax 
number: (919) 541-4511; e-mail address ``[email protected].''

SUPPLEMENTARY INFORMATION: 

I. Why Is EPA Issuing This Proposed Rule?

    This document proposes to take action on Revisions to the 
Consolidated Federal Air Rule. We have published a direct final rule to 
revise the Consolidated Federal Air Rule to allow extensions to the 
deadline imposed for source owners and operators to conduct performance 
tests in certain specified force majeure circumstances in the ``Rules 
and Regulations'' section of this Federal Register. These revisions 
would mirror those contained in a May 16, 2007 final rule revising the 
General Provisions for Standards of Performance for New Stationary 
Sources, for National Emission Standards for Hazardous Air Pollutants, 
and for National Emission Standards for Hazardous Air Pollutants for 
Source Categories to allow extensions to the deadline imposed for 
source owners and operators to conduct initial or other required 
performance tests in certain specified force majeure circumstances. We 
recently realized that we should have also revised the Consolidated 
Federal Air Rule for the same reasons. We view this as a non-
controversial action and anticipate no adverse comment. We have 
explained our reasons for this action in the preamble to the direct 
final rule.
    If we receive no adverse comment, we will not take further action 
on this proposed rule. If we receive adverse comment, we will withdraw 
the direct final rule, and it will not take effect. We would address 
all public comments in any subsequent final rule base on this proposed 
rule. We do not intend to institute a second comment period on this 
action. Any parties interested in commenting must do so at this time.
    The regulatory text for the proposal is identical to that for the 
direct final rule published in the ``Rules and Regulations'' section of 
this Federal Register. For further supplementary information, the 
detailed rationale for the proposal and the regulatory revisions, see 
the direct final rule published in a separate part of this Federal 
Register.

II. Does This Action Apply to Me?

    This action applies to any owner or operator of a source required 
to conduct performance testing to demonstrate compliance with 
applicable standards under the General Provisions for Consolidated 
Federal Air Rule.

III. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Reviews

    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 EO.

B. Paperwork Reduction Act

    The information collection requirements in this proposed rule have 
been submitted for approval to the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The 
Information Collection Request (ICR) document prepared by EPA has been 
assigned EPA ICR No. xxxx.
    The proposed rule would require a written notification only if a 
plant owner or operator needs an extension of a performance test 
deadline due to certain rare events, such as acts of nature, acts of 
war or terrorism, or equipment failure or safety hazard beyond the 
control of the affected facility. Since EPA believes such events will 
be rare, the projected cost and hour burden will be minimal.
    The increased annual average reporting burden for this collection 
(averaged over the first 3 years of the ICR) is estimated to total 6 
labor hours per year at a cost of $377.52. This includes one response 
per year from six respondents for an average of 1 hour per response. No 
capital/startup costs or operation and maintenance costs are associated 
with the proposed reporting requirements. Burden means the total time, 
effort, or financial resources expended by persons to generate, 
maintain, retain, or disclose or provide information to or for a 
Federal agency. This includes the time needed to review instructions; 
develop, acquire, install, and utilize technology and systems for the 
purposes of collecting, validating, and verifying information, 
processing and maintaining information, and disclosing and providing 
information; adjust the existing ways to comply with any previously 
applicable instructions and requirements; train personnel to be able to 
respond to, a collection of information; search data sources; complete 
and review the collection of information; and transmit or otherwise 
disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act 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 not-for-profit 
enterprises, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's proposed rule on 
small entities, small entity is defined as: (1) A small business as 
defined by the Small Business Administration's (SBA) regulations at 13 
CFR 121.201; (2) a 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 today's proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. Extensions 
to deadlines for conducting performance tests will provide flexibility 
to small entities and reduce the burden on them by providing them an 
opportunity for additional time to comply with performance test 
deadlines during force majeure events. Furthermore, we expect force 
majeure events to be rare since these events include circumstances such 
as acts of nature, acts of war or terrorism, or equipment failure or 
safety hazard beyond the control of the affected facility.

[[Page 48955]]

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.
    EPA has determined that the proposed rule does not contain a 
Federal mandate that may result in expenditures of $100 million or more 
for State, local, and Tribal governments, in the aggregate, or the 
private sector in any one year. The maximum total annual cost of this 
proposed rule for any year has been estimated to be less than $435.00. 
Thus, today's proposed rule is not subject to the requirements of 
sections 202 and 205 of the UMRA.
    EPA has determined that the proposed rule contains no regulatory 
requirements that might significantly or uniquely affect small 
governments. The proposed rule requires source owners and operators to 
provide a written notification to the Agency only if an extension to a 
performance test deadline is necessary due to a rare force majeure 
event. Therefore, the proposed rule is not subject to the requirements 
of section 203 of the UMRA.

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.''
    This proposed rule does not have federalism implications. It will 
not have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. The proposed rule requirements 
will not supersede State regulations that are more stringent. In 
addition, the proposed rule requires a written notification only if a 
plant owner or operator needs an extension of a performance test 
deadline due to certain rare events, such as acts of nature, acts of 
war or terrorism, or equipment failure or safety hazard beyond the 
control of the affected facility. Since EPA believes that such events 
will be rare, the projected cost and hour burden will be minimal. 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 proposed rule does not 
have tribal implications as specified in Executive Order 13175. This 
proposed rule will 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, as specified in 
Executive Order 13175. 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 (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.
    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern 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 proposed rule is not 
subject to Executive Order 13045 because it is not economically 
significant as defined in Executive Order 12866 and because the Agency 
does not have reason to believe that the environmental health or safety 
risks addressed by this action present a disproportionate risk to 
children. This rule does not affect the underlying control requirements 
established by the applicable standards but only the timeframe 
associated with performance testing in limited circumstances.

H. 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 proposed rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of

[[Page 48956]]

protection provided to human health or the environment. The rule merely 
allows extensions to performance test deadlines in rare force majeure 
events.

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

    The proposed rule is not a ``significant energy action'' as defined 
in Executive Order 13211, ``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.

J. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law 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. New 
test methods are not being proposed in this rulemaking, but EPA is 
allowing for extensions of the regulatory deadlines by which owners or 
operators are required to conduct performance tests when a force 
majeure is about to occur, occurs, or has occurred which prevents 
owners or operators from testing within the regulatory deadline. 
Therefore, NTTAA does not apply.

List of Subjects in 40 CFR Part 65

    Air pollution control, Environmental protection, Intergovernmental 
relations, Reporting and recordkeeping requirements.

    Dated: August 17, 2007.
Stephen L. Johnson,
Administrator.
[FR Doc. E7-16835 Filed 8-24-07; 8:45 am]
BILLING CODE 6560-50-P