[Federal Register Volume 73, Number 214 (Tuesday, November 4, 2008)]
[Rules and Regulations]
[Pages 65554-65556]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-26264]



[[Page 65554]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 75

[EPA-HQ-OAR-2008-0800; FRL-8737-5]
RIN 2060-AP39


Stay of the Effectiveness of Requirements for Air Emission 
Testing Bodies

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to stay the effectiveness of 
requirements for air emission testing bodies.
    On January 24, 2008, final amendments to regulations on competency 
requirements for air emission testing bodies (AETBs) were published in 
the Federal Register. The AETB provision generally requires stack 
testers and stack testing companies to meet certain minimum competency 
requirements described in ASTM D 7036 by January 1, 2009.
    On March 25, 2008, the Utility Air Regulatory Group (UARG) filed a 
Petition for Review primarily claiming that EPA could not by the AETB 
requirement hold utilities responsible for something they cannot 
control. While EPA is considering revisions to the requirements to 
address UARG's concerns, it cannot propose and complete any such 
revision through notice and comment rulemaking before the compliance 
date contained in the existing rule, thus necessitating this action. 
EPA needs to complete this action staying effectiveness of the AETB 
requirements in order to secure an extension of an Order Granting 
Abeyance of Further Proceedings which expires on October 29, 2008, when 
the Agency must file Motions to Govern Further Proceedings.

DATES: Effective on November 4, 2008, in Appendix A to 40 CFR Part 75, 
the effectiveness of Section 6.1.2(a) through (c) is stayed 
indefinitely.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-HQ-OAR-2008-0800. All documents in the docket are listed in the 
Federal Docket Management System index at http://www.regulations.gov. 
Although listed in the index, some information is 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 
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: John Schakenbach, U.S. Environmental 
Protection Agency, Clean Air Markets Division, MC 6204J, Ariel Rios 
Building, 1200 Pennsylvania Ave., NW., Washington, DC 20460, telephone 
(202) 343-9158, 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:

------------------------------------------------------------------------
                                                         Examples of
          Category                 NAICS code            potentially
                                                    regulated 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 which EPA is now aware 
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 listed in the 
preceding FOR FURTHER INFORMATION CONTACT section.
    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 January 5, 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. Administrative Procedures Used in This Action
III. Staying the Effectiveness of Requirements for Air Emission 
Testing Bodies
    A. Rule revision staying the effectiveness of requirements for 
air emission testing bodies
IV. 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

    On January 24, 2008, final amendments to 40 CFR part 75 on 
competency requirements for air emission testing bodies (AETBs) were 
published in the Federal Register (See 73 FR 4365, 4367, and 4372). The 
AETB provision generally requires stack testers and stack testing 
companies to meet certain minimum competency requirements described in 
ASTM D 7036 by January 1, 2009.

[[Page 65555]]

    On March 25, 2008, the Utility Air Regulatory Group (UARG) filed a 
Petition for Review primarily claiming that EPA could not by the AETB 
requirement hold utilities responsible for something they cannot 
control. While EPA is considering revisions to the requirements to 
address UARG's concerns, it cannot propose and complete any such 
revision through notice and comment rulemaking before the compliance 
date contained in the existing rule, thus necessitating this action. 
EPA needs to complete this action staying effectiveness of the AETB 
requirements in order to secure an extension of an Order Granting 
Abeyance of Further Proceedings which expires on October 29, 2008, when 
the Agency must file Motions to Govern Further Proceedings.
    EPA believes that this rulemaking qualifies for the ``good cause'' 
exemption under section 553(b)(3)(B) of the APA. EPA has determined 
that prior proposal and opportunity for comment are unnecessary because 
the public is not likely to be particularly interested, and notice and 
opportunity for comment were previously provided for the AETB provision 
(see, proposed rule 71 FR 49300, August 22, 2006).
    EPA believes that this rulemaking qualifies for the ``good cause'' 
exemption to make the rule effective immediately under section 553(d) 
of the APA because it is a relaxation of a restriction by staying the 
effectiveness of requirements for air emission testing bodies.

II. Administrative Procedures Used in This Action

    Under CAA section 307(d)(1)(S), this action revising the Acid Rain 
Program rules is subject to the requirements of CAA section 307(d). 
Section 307(d)(3) provides that a notice of proposed rulemaking, 
providing an opportunity for a public hearing and comment, must be 
published in the Federal Register, except under certain circumstances, 
as provided in the Administrative Procedure Act (5 U.S.C. 553(b)). Two 
examples of where the requirement for such a notice does not apply are: 
(1) The public is not likely to be particularly interested; and (2) 
notice and opportunity for comment were previously provided (See 5 
U.S.C. 553(b)(B)).
    EPA finds, for the following reasons, that notice and opportunity 
for public hearing and comment concerning the stay of effectiveness of 
requirements for air emission testing bodies is not required because 
(1) the public is not likely to be particularly interested because of 
the relatively minor nature of this rulemaking action; and (2) notice 
and opportunity for comment were previously provided for the AETB 
provision (see, proposed rule 71 FR 49300, August 22, 2006). As 
discussed above, this rule revision was finalized--after notice and 
opportunity for comment--on January 24, 2008.
    In addition, EPA also finds that there is good cause under 5 U.S.C. 
553(d) to make this final rule--staying the effectiveness of 
requirements for air emission testing bodies--immediately effective 
upon publication in the Federal Register. As explained above, the final 
rule provides a relaxation of a requirement by staying the 
effectiveness of requirements for air emission testing bodies.

III. Staying the Effectiveness of Requirements for Air Emission Testing 
Bodies

    In this final rule, EPA is staying the effectiveness of 
requirements for air emission testing bodies.

IV. 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 (Oct. 4, 1993)) and is 
therefore not subject to review under the Executive Order. In this 
action, EPA is simply staying the effectiveness of requirements for air 
emission testing bodies that were previously issued and would have 
become effective on January 1, 2009.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
Burden is defined at 5 CFR 1320.3(b). This action does not impose any 
new information collection burden because it is simply staying the 
effectiveness of requirements for AETBs.

C. Regulatory Flexibility Act

    This final rule is not subject to the Regulatory Flexibility Act 
(RFA), which generally requires an agency to prepare a regulatory 
flexibility analysis for any rule that will have a significant economic 
impact on a substantial number of small entities. The RFA applies only 
to rules subject to notice and comment rulemaking requirements under 
the Administrative Procedure Act (APA) or any other statute. This rule 
is not subject to notice and comment requirements under the APA or any 
other statute, because although the rule is subject to the APA, the 
Agency has invoked the ``good cause'' exemption under 5 U.S.C. 553(b), 
therefore it is not subject to the notice and comment requirement.

D. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for State, local, or tribal governments or the private 
sector. The action imposes no enforceable duty on any State, local or 
tribal governments or the private sector [The term ``enforceable duty'' 
does not include duties and conditions in voluntary Federal contracts 
for goods and services.] Therefore, this action is not subject to the 
requirements of sections 202 or 205 of the UMRA.
    This action is also not subject to the requirements of section 203 
of UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments. This rule simply 
stays the effectiveness of requirements for air emission testing bodies 
and therefore does not result in any additional expenditures to State, 
local, and tribal governments or to the private sector. 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 (Aug. 
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 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 stays the 
effectiveness of requirements for air emission testing bodies that 
would have become effective on January 1, 2009. Thus, Executive Order 
13132 does not apply to this rule.

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

    This action does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000). This rule simply 
stays the effectiveness of requirements for air emission testing bodies 
that would have become effective on January 1, 2009. Thus, Executive 
Order 13175 does not apply to this action.

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

    EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying 
only to those regulatory actions that concern health or safety risks, 
such that the analysis required under section 5-501 of the EO has the 
potential to influence the regulation. This action is not subject to EO 
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 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 stays the effectiveness of requirements for air emission 
testing bodies that would have become effective on January 1, 2009. 
Moreover, when first promulgated, the AETB provision required the use 
of ASTM D 7036-04, an applicable voluntary consensus standard.

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 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 stays the effectiveness of requirements for air 
emission testing bodies that would have become effective on January 1, 
2009. Moreover, when first promulgated, the AETB provision 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. Section 808 allows the issuing agency to make a rule 
effective sooner than otherwise provided by the CRA if the agency makes 
a good cause finding that notice and public procedure is impracticable, 
unnecessary or contrary to the public interest. This determination must 
be supported by a brief statement. 5 U.S.C. 808(2). As stated 
previously, EPA has made such a good cause finding, including the 
reasons therefor, and established that the effective date shall be upon 
publication in the Federal Register. 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. 
This action is not a ``major rule'' as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 75

    Environmental protection, Acid rain, Administrative practice and 
procedure, Air pollution control, Electric utilities, Carbon dioxide, 
Continuous emission monitoring, Intergovernmental relations, Nitrogen 
oxides, Reporting and recordkeeping requirements, Sulfur oxides, 
Reference test methods.

    Dated: October 29, 2008.
Stephen L. Johnson,
Administrator.

0
40 CFR part 75 is amended as follows:

PART 75--CONTINUOUS EMISSION MONITORING

0
1. The authority citation for part 75 continues to read as follows:

    Authority: 42 U.S.C. 7401-7671q.

Appendix A to Part 75--[Amended]

0
2. In Appendix A to Part 75, the effectiveness of Section 6.1.2(a) 
through (c) is stayed indefinitely.

[FR Doc. E8-26264 Filed 11-3-08; 8:45 am]
BILLING CODE 6560-50-P