[Federal Register Volume 72, Number 212 (Friday, November 2, 2007)]
[Proposed Rules]
[Pages 62175-62178]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-20845]


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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-HQ-0AR-2007-0510; FRL-8485-8]


Federal Implementation Plans for the Clean Air Interstate Rule: 
Automatic Withdrawal Provisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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

SUMMARY: EPA is proposing to amend the Federal Implementation Plans 
(FIPs) for the Clean Air Interstate Rule (CAIR) to provide for 
automatic withdrawal of the CAIR FIPs in a State upon the effective 
date of EPA's approval of a full State implementation plan (SIP) 
revision meeting the CAIR requirements. EPA believes it is appropriate 
for the FIP withdrawal to be automatic because to the extent EPA 
approves the State's full CAIR SIP, this corrects the deficiency that 
provided the basis for EPA's promulgation of the FIPs in that State.
    In the ``Rules'' section of this Federal Register, we are issuing 
this action as a direct final rule without a prior proposed rule. If we 
receive no adverse comment, we will not take further action on this 
proposed rule.

DATES: Written comments must be received by December 17, 2007.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2007-0510, by one of the following methods:
     http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     E-mail: [email protected]. Attention Docket ID No. 
EPA-HQ-OAR-2007-0510.
     Fax: (202) 566-9744. Attention Docket ID No. EPA-HQ-OAR-
2007-0510.
     Mail: EPA Docket Center, EPA West (Air Docket), Attention 
Docket ID No. EPA-HQ-OAR-2007-0510, Environmental Protection Agency, 
Mailcode: 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
     Hand Delivery: EPA Docket Center (Air Docket), Attention 
Docket ID No. EPA-HQ-OAR-2007-0510, Environmental Protection Agency, 
1301 Constitution Avenue, NW., Room 3334; Washington, DC. 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-
2007-0510. 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 www.regulations.gov 
or e-mail. The 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 
send an e-mail comment directly to EPA without going through 
www.regulations.gov your e-mail address will be automatically captured 
and included as part of the comment that is placed in the public docket 
and made available on the Internet. 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 and 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 
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 www.regulations.gov or in hard copy at the EPA Docket Center EPA/DC, 
EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. 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 EPA 
Docket Center is (202) 566-1742.
    Rulemaking actions related to the CAIR and the CAIR FIPs are also 
available at the EPA's CAIR Web site at www.epa.gov/cair.

FOR FURTHER INFORMATION CONTACT: Carla Oldham, Air Quality Planning 
Division, Office of Air Quality Planning and Standards, mail code C539-
04, Environmental Protection Agency, Research Triangle Park, North 
Carolina 27711; telephone number: 919-541-3347; fax number: 919-541-
0824; e-mail address: [email protected].

SUPPLEMENTARY INFORMATION:

I. Why Is EPA Issuing This Proposed Rule?

    This document proposes to amend the CAIR FIPs to provide for 
automatic withdrawal of the CAIR FIPs in a State upon the effective 
date of EPA's approval of a full SIP revision meeting the CAIR 
requirements. We have published a direct final rule making such 
amendments in the ``Rules'' section of this Federal Register because we 
view this as a noncontroversial 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 based 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 this proposal is identical to that for the 
direct final rule published in the ``Rules'' section of this Federal 
Register. For further information and the detailed rationale for this 
proposal, see the information provided in the direct final rule.

II. Does This Action Apply to Me?

    This action does not propose any control requirements. It proposes 
to amend the CAIR FIPs to provide for automatic withdrawal of the CAIR 
FIPs in a State upon the effective date of EPA's approval of the CAIR 
SIP for the State. EPA promulgated the CAIR FIPs on April 28, 2006 (71 
FR 25328). Categories and entities potentially regulated by the CAIR 
FIPs include the following:

[[Page 62176]]



------------------------------------------------------------------------
                                                 Examples of potentially
            Category              NAICS code\1\     regulated entities
------------------------------------------------------------------------
Industry.......................          221112  Fossil fuel-fired
                                                  electric utility steam
                                                  generating units.
Federal government.............      \2\ 221122  Fossil fuel-fired
                                                  electric utility steam
                                                  generating units owned
                                                  by the Federal
                                                  government.
State/local/Tribal government..      \2\ 221122  Fossil fuel-fired
                                                  electric utility steam
                                                  generating units owned
                                                  by municipalities.
                                         921150  Fossil fuel-fired
                                                  electric utility steam
                                                  generating units in
                                                  Indian Country.
------------------------------------------------------------------------
\1\ North American Industry Classification System.
\2\ Federal, State, or local government-owned and operated
  establishments are classified according to the activity in which they
  are engaged.

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by the CAIR 
FIPs. To determine whether your facility is affected by the CAIR FIPs, 
you should examine the definitions and applicability criteria in 40 CFR 
97.102, 97.104, 97.105, 97.202, 97.204, 97.205, 97.302, 97.304, and 
97.305. If you have any questions regarding the applicability of the 
CAIR FIPs to a particular entity, consult the person listed in the 
preceding section under FOR FURTHER INFORMATION CONTACT.

III. What Action Is EPA Proposing?

    The EPA is proposing to amend the CAIR FIPs to provide for 
automatic withdrawal of the CAIR FIPs in a State upon the effective 
date of EPA's approval of a full SIP revision meeting the CAIR 
requirements. All CAIR States are required to revise their SIPs to 
include control measures to reduce emissions of nitrogen oxides and/or 
sulfur dioxide. The EPA issued the CAIR FIPs as a backstop to implement 
the CAIR in each CAIR State until that State has an EPA-approved CAIR 
SIP in place to achieve the required reductions. In the FIP rulemaking, 
EPA stated it would withdraw the FIPs in a State in coordination with 
the approval of the CAIR SIP for that State. EPA believes it is 
appropriate for the FIP withdrawal to be automatic because to the 
extent EPA approves the State's full CAIR SIP, this corrects the 
deficiency that provided the basis for EPA's promulgation of the FIPs 
in that State. The automatic withdrawal provision would not apply to 
EPA approvals of any abbreviated SIPs revisions submitted pursuant to 
40 CFR 51.123(p), 40 CFR 51.123(ee) and 40 CFR 51.124(r). The detailed 
description of and rational for this proposal appears in the direct 
final rule published in the ``Rules'' section of this Federal Register.

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.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden. 
This action proposes to amend the CAIR FIPs to provide for automatic 
withdrawal of the CAIR FIPs in a State once the State's CAIR SIP is in 
place. EPA believes that the Paperwork Reduction Act (44 U.S.C. 3501 et 
seq.) requirements of the existing CAIR FIPs rule are satisfied through 
the Information Collection Request (ICR) (EPA ICR number 2152.02; OMB 
control number 2060-0570) submitted to the OMB for review and approval 
as part of the CAIR (70 FR 25162-25405) and approved by the OMB in 
September 2005. A copy of the OMB approved Information Collection 
Request (ICR) may be obtained from Susan Auby, Collection Strategies 
Division; U.S. Environmental Protection Agency (2822T); 1200 
Pennsylvania Ave., NW., Washington, DC 20460 or by calling (202) 566-
1672.
    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 (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 this 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 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 proposed rule on small entities, I certify that this 
action will not have a significant economic impact on a substantial 
number of small entities. This proposed rule will not impose any 
requirements on small entities. This proposal would not impose new 
requirements on any entities, but instead would provide for the 
automatic withdrawal of the CAIR FIPs in certain circumstances. We 
continue to be interested in the potential impacts of the proposed rule 
on small entities and welcome comments on issues related to such 
impacts.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. 
L. 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, 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,

[[Page 62177]]

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 contains no Federal mandates (under the regulatory 
provisions of Title II of the UMRA) for State, local, or tribal 
governments or the private sector. The rule imposes no enforceable duty 
on any State, local or tribal governments or the private sector because 
this proposal would not impose new requirements on any entities, but 
instead would provide for the automatic withdrawal of the CAIR FIPs in 
certain circumstances. Thus, this rule is not subject to the 
requirements of sections 202 and 205 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. This proposal would not impose 
an enforceable duty on any State, local or tribal governments or the 
private sector. Thus, Executive Order 13132 does not apply to this 
proposal. In the spirit of Executive Order 13132, and consistent with 
EPA policy to promote communications between EPA and State and local 
governments, EPA specifically solicits comment on this proposed rule 
from State and local officials.

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 because 
it would not impose an enforceable duty on any State, local or tribal 
governments or the private sector. 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: ``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 Order has the 
potential to influence the regulation. This rule is not subject to 
Executive Order 13045 because it does not establish an environmental 
standard intended to mitigate health or safety risks.

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

    This proposal is not subject to 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.

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, 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 proposed rulemaking does not involve technical standards. 
Therefore, EPA is not considering the use of any voluntary consensus 
standards.
    EPA welcomes comments on this aspect of the proposed rulemaking 
and, specifically, invites the public to identify potentially-
applicable voluntary consensus standards and to explain why such 
standards should be used in this regulation.

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

    Executive Order 12898 (59 FR 7629 (Feb. 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 proposal would not have

[[Page 62178]]

disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it would not 
affect the level of protection provided to human health or the 
environment. This action does not propose an enforceable duty on any 
State, local or tribal governments or the private sector. It would 
neither increase nor decrease environmental protection.

List of Subjects in 40 CFR Part 52

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Electric utilities, Intergovernmental relations, 
Nitrogen oxides, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur dioxide.

    Dated: October 17, 2007.
Stephen L. Johnson,
Administrator.
[FR Doc. E7-20845 Filed 11-1-07; 8:45 am]
BILLING CODE 6560-50-P