[Federal Register Volume 73, Number 241 (Monday, December 15, 2008)]
[Rules and Regulations]
[Pages 75959-75968]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-29382]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 72, 73, 74, 77, and 78
[EPA-HQ-OAR-2008-0744; FRL-8750-8]
RIN 2060-AP35
Rulemaking To Reaffirm the Promulgation of Revisions of the Acid
Rain Program Rules
AGENCY: Environmental Protection Agency (EPA).
ACTION: Interim final rule.
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SUMMARY: EPA is taking interim final action to reaffirm the
promulgation of certain revisions of the Acid Rain Program rules in
order to prevent disruption of this program, which has achieved
significant, cost-effective reductions in sulfur dioxide
(SO2) emissions from utility sources since its commencement
in 1995. These rule revisions were finalized in the Federal Register
notices that also finalized the Clean Air Interstate Rule (CAIR) and
the Federal Implementation Plans for CAIR (CAIR FIPs). The U.S. Court
of Appeals for the District of Columbia Circuit recently issued a
decision vacating and remanding CAIR and the CAIR FIPs. EPA and other
parties have petitioned for rehearing, and the Court has not yet issued
a mandate in the case. These revisions to the Acid Rain Program rules
were not addressed by, or involved in any of the issues raised by, any
parties in the proceeding or the Court. EPA believes it is reasonable
to view these revisions as unaffected by the Court's decision. However,
EPA is reaffirming--pursuant to its authority under Title IV of the
Clean Air Act (CAA) and CAA section 301--the promulgation of these
revisions in this interim final rule in order to remove any uncertainty
about their legal status because they have been in effect since mid-
2006, most of them are crucial to the ongoing operation of the Acid
Rain Program, and the rest of them streamline and clarify requirements
of the program.
DATES: This action is effective on December 15, 2008 and will continue
in effect until December 15, 2009.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-OAR-2008-0774, which incorporates by reference the dockets
for CAIR and the CAIR FIPs (Docket ID Nos. EPA-HQ-OAR-2003-0053 and
EPA-HQ-OAR-2004-0076). All documents in the docket are listed in the
Federal Docket Management System index at 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: Dwight C. Alpern, Clean Air Markets
Division, U.S. Environmental Protection Agency, Clean Air Markets
Division, MC 6204J, Ariel Rios Building, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460, telephone (202) 343-9151, e-mail at
[email protected]. Electronic copies of this document can be
accessed through the EPA Web site at: http://www.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:
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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
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 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. Administrative Procedures Used in This Action
III. Acid Rain Rule Revisions Whose Promulgation Is Reaffirmed
A. Rule Revisions Implementing Source-Level Compliance
B. Rule Revisions Allowing Use of Agents by Designated
Representative and Authorized Account Representatives
C. Rule Revisions Making Technical Changes
D. Identification of Specific Rule Revisions Whose Promulgation
Is Reaffirmed
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
[[Page 75960]]
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. 70 FR 25162 (May 12, 2005); 71
FR 25328 (Apr. 28, 2006).\1\ 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. However, depending
on its response to the petitions, the Court may issue a mandate. While
the Court's July 11, 2008 decision 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 could 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 below) 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.
For example, some of the Acid Rain Program rule revisions published
in the same Federal Register notice as CAIR, require owners and
operators to meet the requirement to hold SO2 allowances
covering annual SO2 emissions by maintaining a sufficient
amount of allowances in an allowance account for each entire plant
(i.e., source). Consistent with this approach, the rule revisions also
provide for SO2 allowance transfers to be made from one
source account to another source account. See 70 FR 25,296-98. Under
the Acid Rain Program rules in place before these revisions, owners and
operators were required to have a separate allowance account for each
unit (e.g., boiler or combustion turbine) and could trade allowances by
transferring allowances from one unit account to another. (Of course,
under both the pre-revision Acid Rain Program rules and the revised
rules, general accounts, which are not associated with a specific unit
or source, can also be involved in allowance transfers.) The revisions
requiring source-based compliance were made effective on July 1, 2006
in order to give EPA time to make the software changes necessary for
implementing source-based allowance compliance and transfers and to
conduct the testing to ensure proper operation of the revised allowance
tracking system and in order to give owners time to adapt to source-
based compliance. Id. at 25,296-97.
By further example, the Acid Rain Program rule revisions published
in the same Federal Register notice as the CAIR FIPs, made effective on
June 27, 2006, expressly allow, and govern, the use of agents by
designated representatives, authorized account representatives, and
alternates to make various types of electronic submissions under the
Acid Rain Program, while preserving the representatives' ultimate
responsibility for such submissions. 71 FR 25,365. These revisions give
each regulated company greater flexibility in distributing, among its
individual employees, the task of making electronic submissions.
After the non-CAIR- and non-CAIR-FIP-related Acid Rain Program rule
revisions became final and effective in mid-2006, EPA modified its
electronic allowance and emissions tracking systems to reflect the
revisions. For example, EPA removed individual-unit allowance accounts,
replaced them with source accounts to which previously recorded
allowance holdings were moved, and established elements in the tracking
systems for making allowance transfers to and from source accounts
(instead of unit accounts) and comparing the sum of the annual
emissions of all regulated units at each source (instead of only an
individual unit's annual emissions) to the allowances held in the
source account. See 69 FR 32,684, 32,701 (June 10, 2004). EPA also
added elements to the tracking systems for designated representatives,
authorized account representatives, and alternates to create and use
agents to submit quarterly emissions reports, including the
resubmissions that are often necessary to correct reporting errors
found by EPA. The revised Acid Rain Program provisions have been used
and relied on by most, if not all, regulated companies since mid-2006.
[[Page 75961]]
EPA is concerned that the non-CAIR- and non-CAIR-FIP-related Acid
Rain Program revisions are too important to the ongoing operation of
the Acid Rain Program to allow for any uncertainty concerning their
legal status, which might result in the event that the Court issues a
mandate in North Carolina. This is particularly true for the large
number of revisions that significantly affect how SO2
allowance transfers are made and recorded, how owners and operators
submit quarterly emissions reports, and how EPA compares each year the
amount of allowances held and the amount of SO2 emissions.
Allowance transfer, emissions reporting, and the comparison of
emissions and allowances are matters that go to the heart of the Acid
Rain Program. Under this program, an annual cap (which is about 40%
lower than historical emissions for utility emissions sources) is set
on the total amount of allowances issued each year. Each allowance
authorizes the emission of one ton of SO2 in the year for
which the allowance is issued or in a later year. Nationwide
SO2 emissions are reduced through implementation of an
emissions limitation that requires each utility emissions source to
have annual SO2 emissions not exceeding the emissions
authorized by the allowances held for the year and allows for
compliance through the use of allowances obtained through allocation or
auction from EPA or transferred from other allowance holders. The
ability of each utility emissions source to consider potential,
alternative compliance options involving emission reduction actions
and/or purchases or sales of SO2 allowances in the
SO2 allowance market and to choose the option that is the
most cost-effective for that emissions source results in cost-effective
achievement of the national SO2 emissions reduction goals of
the Acid Rain Program. EPA implements the annual SO2
emissions limitation through electronic allowance and tracking
emissions systems that incorporate the existing Acid Rain Program rules
(including rule revisions whose promulgation is reaffirmed in this
notice).
If (contrary to EPA's position as discussed above) the rule
revisions affecting allowance transfer, submission of quarterly
emissions reports, and comparison of emissions and allowances were
suddenly to become no longer effective, EPA would likely be unable to
operate its electronic allowance tracking system, and might be unable
to operate its electronic emissions tracking system, until extensive
system modifications were made. Were the rule revisions no longer
effective, the allowance tracking system would likely have to be
modified to reinstate unit accounts and unit-based compliance.
Similarly, the emissions tracking system might have to be modified to
provide an alternative, workable approach for submission of quarterly
emissions reports by designated representatives (for whom direct
involvement in the submission and resubmission process for emissions
reports is often not practical). Consequently, it is likely that, in
the near term until the systems were modified, EPA could not record
allowances transfers, owners and operators could not use transferred
allowances to comply with the allowance-holding requirement, and EPA
could not determine if, and owners and operators could not demonstrate
that, utility emissions sources were in compliance with the
SO2 emissions limitation. Moreover, the inability--or even
uncertainty about the ability--to transfer and use allowances for
compliance in the near term would likely have a significant, adverse
effect on the SO2 allowance market in the near term. Under
these circumstances, it is likely that potential market participants
would be reluctant to rely on allowance purchases for compliance, would
have difficulty determining the value of allowances that were or might
be unusable, and so would be reluctant to buy or sell allowances.
For these reasons and the reasons discussed below, EPA is, in this
notice, reaffirming--pursuant to its authority under Title IV of the
Clean Air Act (CAA) and CAA section 301--the promulgation of the non-
CAIR- and non-CAIR-FIP-related revisions to the Acid Rain Program rules
as an interim final rule, whose effectiveness is immediate upon the
date of promulgation in the Federal Register. Because it is immediately
effective, the interim final rule provides no opportunity for hearing
and comment. This action removes any uncertainty concerning the legal
status of these non-CAIR- and non-CAIR-FIP-related revisions in the
event that the Court issues a mandate in North Carolina. Further,
simultaneously with this notice, EPA is publishing in the Federal
Register parallel notices of proposed and direct final rules
reaffirming the promulgation of the non-CAIR- and non-CAIR-FIP-related
Acid Rain Program rule revisions. As explained in the proposed and
direct final notices, those notices provide interested persons an
opportunity for public hearing and comment on the rule revisions. This
interim final rule will continue in effect until December 15, 2009,
unless it 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 rule revisions.
Under this approach, EPA is ensuring that the public will have an
opportunity to comment on these Acid Rain Program rule revisions and
that these revisions will continue in effect in the meantime on an
interim basis. In the event that any timely adverse comments are
submitted on any of the revisions whose promulgation is reaffirmed in
the proposed and direct final rules, EPA will withdraw the direct final
rule, address the merits of such comments, and finalize, to the extent
appropriate, any revisions. EPA intends to complete that rulemaking
process and have any final Acid Rain Program rule revisions in place
December 15, 2009. If that rulemaking process is completed and the
resulting direct final rule or final rule is effective before December
15, 2009, the interim final rule will be withdrawn as of the effective
date of the direct final rule or final rule.
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)). The
requirement for such a notice does not apply ``when the agency for good
cause finds * * * that notice and public procedure thereon are
impracticable, unnecessary, or contrary to the public interest.'' 5
U.S.C. 553(b)(3)(B).
EPA finds, for the following reasons, that providing notice and
opportunity for public hearing and comment before reaffirming the
promulgation of the non-CAIR- and non-CAIR-FIP-related revisions of the
Acid Rain Program rules in the instant rulemaking are impracticable,
unnecessary, and contrary to the public interest. As discussed above,
these rule revisions were finalized on May 12, 2005 and April 28, 2006
and, since mid-2006 when they became effective, have been implemented
by EPA and utilized by most, if not all, regulated companies and EPA.
In fact, most of these revisions have been incorporated in the software
for the allowance tracking system, which likely could not be operated
without extensive modifications, and for the emissions tracking system,
which
[[Page 75962]]
might not be operable without extensive modifications, if the
incorporated revisions were no longer in effect. Consequently, as
discussed above in Section I of this preamble, the loss of the
effectiveness of these revisions--or even uncertainty about their
continuing effectiveness--would likely result in a significant
disruption of the operation of the Acid Rain Program and the
SO2 allowance market in the near term, contrary to
Congressional intent that EPA implement the Acid Rain Program under CAA
Title IV and contrary to the public interest in continuation of the
significant, cost-effective emission reductions required, and actually
achieved, under the Acid Rain Program since its commencement in 1995.
Moreover, no party petitioned for review of these rule revisions.
The judicial proceedings involving the rulemaking notices (i.e., the
May 12, 2005 notice at 70 FR 25162, which also finalized CAIR, and the
April 28, 2006 notice at 71 FR 25328, which also finalized the CAIR
FIPs) in which these Acid Rain Program rule revisions were promulgated,
relate only to Petitions for Review of specific aspects of CAIR and the
CAIR FIPs. No party to those proceedings asked the Court to review
these revisions to the Acid Rain Program rules, and no issues
concerning these revisions were raised or addressed by any petitioners,
any intervenors, amici, EPA, or the Court.
Although EPA therefore believes that the Court's July 11, 2008
decision vacating and remanding of CAIR and the CAIR FIPs in North
Carolina can reasonably be interpreted as not applying to these
revisions, it is important that the legal status of these revisions be
absolutely clear. EPA is concerned that, if and when the Court issues a
mandate for the North Carolina decision, that might create uncertainty
about whether these revisions remain in effect, despite EPA's belief
that the decision does not apply to these revisions.
For the reasons discussed above, any such uncertainty about their
continuing effectiveness would likely cause significant disruption in
the near term to operation of the Acid Rain Program, the SO2
allowance market, and the achievement of the significant, cost-
effective emission reductions required under the Acid Rain Program. In
order to avoid such disruption, EPA maintains that it should provide
certainty about the legal status of these rule revisions as soon as
possible. However, the delay inherent in providing notice and
opportunity for hearing and public comment before taking final action
would prevent EPA from providing this certainty as soon as possible.
EPA therefore finds that providing notice and opportunity for comment
in the instant rulemaking before reaffirming the promulgation of the
revisions incorporated in the electronic allowance and emissions
tracking systems is impracticable and contrary to the public interest.
In addition, EPA finds that providing notice and opportunity for
comment in the instant rulemaking before reaffirming the promulgation
of the non-CAIR- and non-CAIR-FIP-related revisions of the Acid Rain
Program rules --including both those revisions incorporated in the
electronic allowance and emissions tracking systems and the other
revisions--is unnecessary. No petitions for review of these rule
revisions were filed. Since, in addition, these rule revisions have
been in effect since mid-2006 without any indication they have caused
concern or problems for sources subject to the Acid Rain Program or any
other members of the public, EPA maintains that it is unlikely that the
public will be particularly interested in commenting on the revisions.
Moreover, EPA is limiting the effectiveness of the interim final
rule reaffirming the promulgation of these rule revisions and, during
the period of the interim final rule's effectiveness, is providing a
full opportunity for comment on the rule revisions. Specifically, EPA
is providing that the interim final rule will be effective for one year
and, simultaneously with this notice, is publishing in the Federal
Register parallel notices of direct final and proposed rules that will
provide the opportunity for comment on these rule revisions. If any
timely adverse comment is submitted on the direct final rule, EPA will
withdraw the direct final rule and may issue a final rule that changes
the revisions and implements any such change in a manner that will not
disrupt the ongoing operation of the Acid Rain Program and the
SO2 allowance market. In order to coordinate the interim
final, direct final, and proposed rulemakings, EPA is making the
interim final rule effective 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.
For all of the above-discussed reasons, EPA finds, under 5 U.S.C.
553(b)(3)(B), that providing notice of proposed rulemaking and hearing
and comment opportunity before making these revisions final on an
interim basis is impracticable, unnecessary, and/or contrary to the
public interest.
In addition, EPA also finds that there is good cause under 5 U.S.C.
553(d) to make this interim final rule--reaffirming the promulgation of
the Acid Rain Program rule revisions--immediately effective upon
publication in the Federal Register. As explained above, operation of
the Acid Rain Program and the SO2 allowance market in the
near term would likely be significantly disrupted by any uncertainty
over the effectiveness of most of the rule revisions. Further, no
petitions for review of these revisions were filed, and no concerns or
issues have been raised on the merits of any of the revisions in the
proceedings concerning CAIR and the CAIR FIPs. EPA therefore finds that
the effectiveness of the rule revisions should be made clear as soon as
possible by making the interim final rule immediately effective upon
publication.
III. Acid Rain Rule Revisions Whose Promulgation Is Reaffirmed
In this notice, EPA is reaffirming, as an interim 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. Out 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 III.D 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.
[[Page 75963]]
A. Rule Revisions Implementing Source-Level Compliance
As noted above, on May 12, 2005, EPA finalized revisions to the
Acid Rain Program rules to implement the allowance-holding requirement
on a source-by-source, rather than on a unit-by-unit, basis.
Specifically, these revisions require each source to hold (as of the
allowance transfer deadline, which is generally March 1) an amount of
allowances in its allowance tracking system account at least equal to
the tonnage of SO2 emissions for all Acid Rain Program units
at the source for the preceding calendar year. These revisions replaced
earlier Acid Rain Program rule language that instead required each unit
to hold allowances in its own allowance tracking system account at
least equal to the tonnage of SO2 emissions for the unit in
such calendar year.
For the reasons detailed in the Notice of Supplemental Proposal
published on June 10, 2004 (69 FR 32,698-701) and adopted in the final
rule published on May 12, 2005 (70 FR 25,296), EPA reaffirms its
findings that: (1) Title IV is ambiguous concerning whether the
allowance-holding requirement must be met on a unit-by-unit basis and
so EPA has discretion in deciding what approach to adopt in the rules
implementing Title IV; (2) it is important to provide additional
compliance flexibility by allowing a unit at a source to use allowances
from any other unit at the same source; and (3) many non-allowance-
holding provisions of Title IV evidence a unit-by-unit orientation. For
these reasons, as explained in the final CAIR (id.), EPA reaffirms its
conclusion that the adoption of source-level compliance with the
allowance-holding requirement reasonably balances these considerations.
In balancing these considerations, EPA also reaffirms its conclusion
that company-level compliance is not appropriate because it represents
too much of a deviation from the unit-by-unit orientation in the non-
allowance holding provisions of Title IV and is likely to require much
more dramatic changes in the operation of the Acid Rain Program. See 69
FR 32,700. For example, company-level compliance would add to the
compliance determination process complexities such as the need to
identify the ``company'' in cases where owners or operators are
organized using complex corporate or other ownership structures and to
handle cases where ownership structures are changed, or units or
sources are transferred among corporate or other entities, during the
year. EPA notes that these conclusions about source-by-source
compliance address only compliance with the allowance-holding
requirement, not with the emissions monitoring and reporting
requirements, which continue to be applied unit by unit.
Because language reflecting or referencing the unit-by-unit
compliance approach was included in many provisions throughout the
earlier Acid Rain Program rules, a significant number of rule revisions
was necessary to implement source-by-source allowance holding. Other
than implementing the shift from unit-to source-level compliance, the
rule revisions did not make any substantive changes to the revised
provisions. Examples of the revisions necessary to implement source-
based compliance are as follows:
1. The term ``unit account'' was replaced by ``compliance account''
in Sec. 72.2 and, as appropriate, in every other provision of the Acid
Rain Program rules in which the term appeared. Similarly, references to
a ``unit's'' account in the allowance tracking system were replaced by
references to a ``source's'' account. In addition, references to
allowances held by a ``unit'' were changed to refer to allowances held
by a ``source.''
2. References to a ``unit's'' Acid Rain emissions limitation for
SO2 were replaced by references to a ``source's'' Acid Rain emissions
limitation for SO2 throughout the Acid Rain Program rules. Similarly,
references to a ``unit's'' SO2 emissions for purposes of applying the
SO2 emissions limitation (or a ``unit's'' excess emissions) were
replaced, where appropriate, by references to the SO2 emissions of the
``affected units at a source'' (or to a ``source's'' excess emissions).
3. The provisions in Sec. Sec. 72.90(b)(5) and 73.35(e) concerning
the assignment of allowance deductions, for compliance with the
allowance-holding requirement, among units at a common stack were
removed. These provisions were made unnecessary by the shift from unit-
to source-level compliance because all units at a common stack are
necessarily at the same source.
4. The terms ``compliance subaccount'', ``future year subaccount'',
and ``current year subaccount'' and their definitions were removed or
replaced, as appropriate, throughout the Acid Rain Program rules. The
earlier rules distinguished between two subaccounts in each unit
account, i.e., a ``compliance subaccount'' for allowances usable for
compliance in a given year and a ``future year subaccount'' for
allowances not usable until a future year. Similarly, the earlier rules
referred to a ``current year subaccount'' and a ``future year
subaccount'' of a general account. However, whether compliance was on a
unit-or source-level, there was no need to use or refer to the
subaccounts. In fact, the electronic allowance tracking system has
never actually used subaccounts. See 69 FR 32,700. Consequently, for
example, Sec. 73.34(a) and (b)--providing that the allowance tracking
system show in allowance accounts the holdings of allowances issued for
30 years and that each year the holdings of allowances issued for the
new 30th year will be added--were revised to set forth these
requirements without using the obsolete references to subaccounts.
5. The provision in Sec. 73.35(b)(3) limiting the use of
allowances from another unit at the same source for compliance was
removed. In that provision, a unit that would otherwise have excess
emissions was allowed to use a limited number of allowances from other
units at the same source in order to reduce, but not to eliminate, the
excess emissions. Such a limitation was unnecessary, and indeed was
inconsistent, with source-based compliance.
6. The provision in Sec. 74.4(c) allowing two designated
representatives for the same source under certain circumstances was
removed.\2\ While it was workable to have one designated representative
for a non-opt-in unit at a source and a different designated
representative for an opt-in unit at the same source where compliance
with the allowance-holding requirement was required on a unit-by-unit
basis, EPA maintains that this is not workable where compliance is at
the source-level and one individual must be responsible for compliance
by all units at the source.
---------------------------------------------------------------------------
\2\ In the Acid Rain Program rule revisions finalized in May 12,
2005 Federal Register notice certain language in Sec. 74.4(c) was
revised. However, in the revisions finalized in the April 28, 2006
Federal Register notice these Sec. 74.4(c) revisions were
superseded by entirely removing and reserving Sec. 74.4(c) in light
of the change from unit-to source-level compliance with the
allowance-holding requirement. 71 FR 25379/2. While the April 28,
2006 rule revisions did not also remove all references to Sec.
74.4(c), EPA is not reaffirming their promulgation since they refer
to a non-existent provision (i.e., Sec. 74.4(c)).
---------------------------------------------------------------------------
When EPA first proposed the Acid Rain Program rule revisions to
implement source-based compliance, some commenters supported, and some
opposed, the shift to source-by-source allowance holding. EPA addressed
each of the comments opposing the change and reaffirms, in this notice,
the responses to those comments. For
[[Page 75964]]
example, a commenter opposed the change claiming that a source-by-
source allowance-holding requirement was ``contrary to market-based
principles.'' In response, EPA rejected the comment, explaining that
the adoption of source-by-source compliance preserves market-based
principles. Whether compliance is unit-by-unit or source-by-source, the
owner or operators of Acid Rain Program units still have the option to
change or maintain emissions and/or to retain, purchase, or sell
allowances and the responsibility to take whatever actions are
necessary to ensure that enough allowances are held to cover emissions.
The only difference between the types of actions taken under unit-level
and source-level compliance is that, under unit-level compliance, the
owners or operators must transfer an allowance from one unit at a
source to a second unit at that source (except as discussed above
concerning the removed Sec. 73.35(b)(3)) in order to use the first
unit's allowances for compliance by the second unit, while under
source-level compliance, any allowance held for compliance can be
used--without a transfer--for compliance by any units at the source.
While fewer allowance transfers may be needed with source-level
compliance, the market price of allowances still plays a crucial role
in owners' or operators' decisions on what actions to take (including
whether to transfer allowances between sources). See 70 FR 25,296-97.
As a further example, a commenter opposed a source-level compliance
because the NOX Budget Trading Program (established under the
NOX State Implementation Plan Call (NOX SIP Call)
and aimed at reducing ozone season emissions) uses unit-level
compliance but allows owners or operators to establish source-level
overdraft accounts, in which may be held extra allowances usable for
compliance by any unit at the source. In response, EPA rejected the
comment, explaining that, based on experience with the Acid Rain and
the NOX Budget trading programs, EPA concluded that a source-level
allowance-holding requirement results in a less complicated program and
a reduced likelihood of owners or operators making inadvertent, minor
errors that could result in significant excess emissions penalties and
yet still achieves the trading program's environmental goals. See 69 FR
32,699-700; and 70 FR 25,297.
As a further example, a commenter stated that EPA should revise the
Acid Rain Program rules to allow owners or operators, each year, the
option of choosing whether to use unit-level or source-level
compliance. In response, EPA rejected the comment, explaining that such
an approach would significantly complicate the achievement by owners or
operators, and the determination by EPA, of compliance. The potential
for error (e.g., due to erroneous assumptions about whether unit-or
source-level compliance would be applicable to a particular source for
a particular year) on the part of owners or EPA would be significantly
increased. EPA concluded that the only reasonable options for the
allowance-holding requirement in the Acid Rain Program were to require
either compliance by all sources each year on a unit-level basis or
compliance by all sources each year on a source-level basis. See 70 FR
25,297.
For the reasons discussed above (including the reasons for
rejecting the comments opposing source-level compliance), EPA reaffirms
its promulgation of the revisions implementing source-level compliance.
B. Rule Revisions Allowing use of Agents by Designated Representative
and Authorized Account Representatives
As noted above, in the April 28, 2006 Federal Register notice that
also finalized the CAIR FIPs, EPA finalized revisions to the Acid Rain
Program rules clarifying that designated representatives, authorized
account representatives, and alternates may use agents to make
electronic submissions to the Administrator. The revisions in
Sec. Sec. 72.26 and 73.33(g) clarified this by making this option
explicitly available and establishing procedures and requirements for
such use of agents.
EPA reaffirms its conclusion that the Acid Rain Program rules, even
without these revisions, already allowed designated representatives,
authorized account representatives, and alternates to use agents to
make electronic submissions. Specifically, the Acid Rain Program rules
provided before the revisions were adopted, and continue to provide,
for certain submissions (i.e., certificates of representation,
applications for general account, allowance transfers, and quarterly
emissions reports) required to be ``in a format prescribed'' or ``in a
format specified'' by the Administrator. (The terms ``prescribed'' and
``specified'' have the identical meaning in these contexts.) These
submissions may be made, and in the case of quarterly emissions reports
must be made, electronically. The electronic formats prescribed by the
Administrator for the Acid Rain Program allowed before the revisions
were adopted, and continue to allow, the designated representative,
authorized account representative, or alternate, as appropriate, to
designate other individuals (``agents'') who may make the electronic
submissions for him and required that the designated representative,
authorized account representative, or alternate be fully bound by the
agent's actions. (EPA notes that the NOX Budget Trading Program
includes analogous regulatory provisions for electronic submissions to
the Administrator and prescribes analogous electronic formats.) See 71
FR 25,363-64 and 25,365.
Consequently, EPA reaffirms its conclusion that the references in
the Acid Rain Program (as well as the NOX Budget Trading Program) rules
to ``prescribed'' or ``specified'' formats, coupled with the existing
electronic formats, provide the legal authority necessary for
designated representatives, authorized account representatives, and
alternates to use agents to make electronic submissions to the
Administrator. However, in order to remove any uncertainty about such
legal authority and in order to provide more detail concerning the
procedures and requirements for using agents, EPA also reaffirms the
promulgation of the Acid Rain Program rule revisions that explicitly
authorize, and govern, the use of agents for electronic submissions.
C. Rule Revisions Making Technical Changes
As noted above, in the May 12, 2005 and April 28, 2006 Federal
Register notices that also finalized the CAIR and the CAIR FIPs, EPA
finalized revisions to the Acid Rain Program rules making technical
changes. In those notices, EPA generally categorized these technical
revisions as changes that facilitated interaction among the trading
programs administered by EPA under Title IV, the NOX SIP
Call, CAIR, and the CAIR FIPs. However, independent of any need to
coordinate the Acid Rain Program with the CAIR and CAIR FIP trading
programs, EPA maintains that these technical revisions streamline, and
in some cases clarify, the requirements of the Acid Rain Program.
Further, these revisions have been in effect, and used by, source
owners, operators, designated representatives, and EPA since around
mid-2006. Based on that experience with these technical revisions, EPA
finds that they streamline and, in some cases, clarify the Acid Rain
Program requirements without adversely affecting the achievement of,
and compliance with, the emissions reductions required under Title IV.
For reasons independent of CAIR and the
[[Page 75965]]
CAIR FIPs (including the above-stated reasons and the more detailed
reasons discussed below), EPA reaffirms its promulgation of these
revisions.
For example, some of the Acid Rain Program rule revisions clarified
that EPA intended to use the original definition of ``cogeneration
unit'' in Sec. 72.2. EPA noted in the May 12, 2005 Federal Register
notice that the Agency had recently changed the ``cogeneration unit''
definition in Sec. 72.2 in June 2002 (67 FR 40394, 40420 (June 12,
2002)). The original definition in Sec. 72.2 had been used since the
commencement of the Acid Rain Program. The only significant difference
between the original and revised definitions was that the former refers
to a unit ``having the equipment used to produce'' electricity and
useful thermal energy through sequential use of energy, while the
latter simply refers to a unit ``that produces'' electricity and useful
thermal energy in that manner. The reason that EPA gave for revising
the definition in June 2002 was to conform with the definition in a
rule issued under CAA section 126 related to the NOX SIP
Call. However, neither that rule nor the NOX SIP Call
actually specified a ``cogeneration unit'' definition. Consequently,
there is no reason to use the June 2002 revised definition. Moreover,
EPA is concerned that the change in the definition of ``cogeneration
unit'' as of June 2002 may cause confusion or raise question about what
units qualify for exemptions for ``cogeneration units'' from the Acid
Rain Program. Under these circumstances, EPA concludes that the
definition should be changed back to the original definition in Sec.
72.2 and, in any event, intends to interpret the June 2002 revised
definition as having the same meaning as the original definition.
As a further example, some Acid Rain Program rule revisions
involved units meeting the requirements for new units and retired units
exemptions under Sec. Sec. 72.7 and 72.8. The revisions clarify that
such units are treated as unaffected units under the Acid Rain Program
but continue to be subject to any permitting requirements under parts
70 and 71 applicable to unaffected units.
As a further example, some Acid Rain Program rule revisions
involved the certification that a designated representative must
include with each submission made to the Administrator and the
certificate of representation for a designated representative and an
authorized account representative. The language in Sec. 72.21(b)(1)
for the certification of any submission by a designated representative
and in Sec. 72.24(a) and Sec. 73.31(c)(1) for the certificates of
representation was streamlined by removing extraneous language. Not
only does this streamline the language, but also makes the
certification and certificates of representation essentially the same
as in the NOX Budget Trading Program under the
NOX SIP Call, which allows use of essentially the same forms
for the two trading programs.
As part of this streamlining of language, Sec. 72.24(a)(5),
(a)(7), and (a)(10) and an analogous provision in Sec. 73.31(c)(1)(v),
setting forth certain required provisions for the certificate of
representation, were removed as unnecessary. Among other things, this
results in removal of the requirement of 1-day newspaper notice for the
selection of designated representatives for sources subject to the Acid
Rain Program, which was required in addition to submission to the
Administrator of the certification of such selection. EPA believes that
this notice requirement is unnecessary because information on the
identity of designated representatives (as well as authorized account
representatives) for Acid Rain Program sources and allowance accounts
is already available to the public, as well as State permitting
authorities, through on-line access to the allowance tracking system.
This availability 24 hours a day on the allowance tracking system seems
to be a much better way of ensuring interested persons access to the
information than publication of a single notice in a local newspaper of
which interested parties may or may not become aware. Consequently, EPA
maintains that the newspaper notice requirement is obsolete and
unnecessary.
In addition, the provisions listing the content of a certificate of
representation for a designated representative were revised to clarify
that the identification of each unit covered by the certificate of
representation includes identification and nameplate capacity of each
generator served by the unit. EPA believes that the current rule
language requiring ``identification'' of each unit subject to the
trading program is already broad enough to encompass such information
concerning each generator served by the unit, particularly since the
nameplate capacity of each generator served by a unit may determine
whether and to what extent the unit is subject to requirements under
the Acid Rain Program. However, in order to remove any uncertainty, EPA
concludes that the revised language should be adopted to make it clear
that generator information is required in the certificate of
representation.
In addition, some of the Acid Rain Program rule revisions were
technical revisions to the provisions in Sec. 72.23(c) concerning the
reflection in certificates of representation of the owners and
operators of the source and units involved. The changes make it clear
that all owners and operators must be listed and that those that should
be, but are not, listed are still bound by the certificate of
representation.
EPA notes that the revised certification accompanying every
submission and the revised certificate of representation have been
widely used since mid-2006 without any adverse consequences. For all of
the above reasons, EPA concludes that these streamlining and clarifying
revisions concerning the certification and certificate of
representation are appropriate for the Acid Rain Program.
As a further example of Acid Rain Program rule revisions, one
revision involved elimination of the requirement in Sec. Sec. 72.90
and 74.43 for owners and operators to submit an annual compliance
certification report for each source. EPA notes that other provisions
of the Acid Rain Program rules require designated representatives of
owners and operators of sources subject to the Acid Rain Program to
submit, with each quarterly emissions report, a certification that the
monitoring and reporting requirements under part 75 of the Acid Rain
Program rules have been met. See 40 CFR 75.64(c). The quarterly
emissions reports are available on-line to the public and the States.
In addition, owners and operators of Acid Rain Program sources must
submit, under title V of the CAA, annual compliance certification
reports concerning all CAA requirements, including all Acid Rain
Program requirements. EPA also notes that it appears that, up to the
time (around mid-2006) that the requirement to submit annual compliance
certification reports under the Acid Rain Program was removed, few (if
any) requests for copies of these annual compliance certification
reports had been made by States or any other persons since the
commencement of the Acid Rain Program. Apparently, other certifications
and submissions required of owners and operators have been sufficient.
Under these circumstances, EPA concludes that the separate Acid Rain
Program annual compliance certification reports are duplicative and
unnecessary.
As further examples of Acid Rain Program rule revisions, several
involved removal of provisions in part 73 of those rules. One was the
removal of Sec. 73.32 (prescribing the contents of an allowance
account), which has proved to be superfluous. Section 73.32 set forth a
rather self-evident list of
[[Page 75966]]
information to be recorded in an allowance account in the allowance
tracking system, such as the name of the authorized account
representative, the persons represented by the authorized account
representative, and the transfers of allowances in and out of the
account. This section also stated that an allowance account must
include a compliance or current year subaccount and a future year
subaccount, as well as emissions information. Several items on this
list of informational contents for allowance accounts are obsolete in
that they do not reflect how the electronic allowance tracking system
operated or will operate in the near future. As noted above, the
electronic allowance tracking system has not actually ever used or
referred to subaccounts. Also, emissions data, which, under Sec.
73.32, were to be reflected in the allowance tracking system account,
have always been available instead through the electronic emissions
tracking system. Because the information list in Sec. 73.32 contains
either self-evident items or items that are obsolete and because the
NOX Allowance Tracking System has been operating
successfully even though the NOX Budget Trading Program
rules lack a provision analogous to Sec. 73.32, EPA concludes that
Sec. 73.32 should be removed.
Another provision removed in part 73 was Sec. 73.33(c) requiring
that the authorized account representative of a general account (i.e.,
an account for an entity (such as an allowance broker) other than an
Acid Rain source) notify all owners of allowances in the account of any
submissions made under the Acid Rain Program, unless the owner waived
the requirement. EPA believes that, because the establishment of a
general account (as distinguished from a compliance account) by owners
of allowances is entirely discretionary, it is reasonable to leave it
to those owners to determine whether and when they want notification
from their authorized account representative.
Other provisions removed in part 73 were Sec. 73.37(a) through (c)
and (e) through (f). EPA concludes that these provisions should be
removed because the claim of error procedure has never been used and so
has proved to be superfluous. The provision in Sec. 73.37(d), setting
forth the Administrator's ability to correct, on his own motion, any
type of error that he finds in an allowance tracking system account
remains, renumbered as Sec. 73.37.
Another provision removed in part 73 was Sec. 73.51. Section 73.51
prohibited the transfer of allowances from a future year subaccount to
a subaccount for an earlier year. The removal of this section is
consistent with the elimination throughout the rest of the Acid Rain
Program rules of any references to subaccounts. Further, the
prohibition on using allowances allocated for a year to meet the
allowance-holding requirement for a preceding year is retained in other
provisions of the Acid Rain Program rules, e.g., Sec. Sec. 72.9(c)(5)
and 73.35(a)(1).
As further examples, Sec. Sec. 73.50 and 73.52 were revised to
remove superfluous language. Language referring to ``subaccounts'' was
removed as obsolete. Language referring to allowance transfers in
perpetuity was also removed since such transfers can be made under
these sections without such language. Further, the requirement in Sec.
73.50(b)(3)--that transfers of allowances, after the allowance transfer
deadline but before completion of compliance determinations concerning
the allowance-holding requirement, were not recorded until such
completion if the transferred allowances were usable for compliance--
was removed and then restated in Sec. 73.52(b) without using the
obsolete reference to compliance subaccounts.
EPA notes that these revisions to part 73 have been in effect since
mid-2006 without any adverse consequences. For all of the above
reasons, EPA concludes that these streamlining revisions are
appropriate for the Acid Rain Program.
As a further example, the Acid Rain Program rule revisions included
revising Sec. 74.42. This section was revised to remove references of
subaccounts and still preserve the existing requirement that allowances
allocated for a future year for an opt-in unit cannot be transferred to
another unit before completion of the determination of compliance with
the allowance-holding requirement (including the deduction of
allowances to account for the opt-in unit's emissions and reduced
utilization). EPA concludes that these streamlining revisions are
appropriate for the Acid Rain Program.
D. Identification of Specific Rule Revisions Whose Promulgation is
Reaffirmed
In this interim final rule, EPA is reaffirming the promulgation of
all of the revisions of the Acid Rain Program rules that were finalized
in the 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 the following
revisions:
1. For Sec. 72.2, item 2.l (70 FR 25,334/1 (adding language
referencing Sec. 74.4(c), which is entirely removed and reserved in
the revisions in the April 28, 2006 notice));
2. For Sec. 73.35, item 9.f (70 FR 25,335/3 (adding a new
paragraph providing that an allowance deducted or otherwise permanently
retired in accordance with CAIR or the CAIR FIPs is not available for
compliance with the allowance-holding requirement in the Acid Rain
Program));
3. For Sec. 74.4, item 2.b (70 FR 25,336/3 (revising Sec.
74.4(c)(2), which is entirely removed and reserved in the revisions in
the April 28, 2006 notice));
4. For Sec. 74.40, in item 4.b, the addition of the language ``or
the opt-in source has, under Sec. 74.4(c), a different designated
representative than the designated representative for the source'' (70
FR 25,336/3 (adding language referencing Sec. 74.4(c), which is
entirely removed and reserved in the revisions in the April 28, 2006
notice));
5. For Sec. 78.1, items 3.a and 3.c (70 FR 25,338/1 (referencing
the CAIR model trading rules, subparts AA through IIII of part 96));
6. For Sec. 78.3, items 4.a through 4.d (70 FR 25,338/2-3 and
25,339/1 (adding language referencing the CAIR designated
representative, the CAIR authorized account representative, and the
CAIR model trading rules, subparts AA through IIII of part 96));
7. For Sec. 78.4, item 5 (70 FR 25,339/1 (adding language
referencing the CAIR designated representative and the CAIR authorized
account representative));
8. For Sec. 78.12 item 7.b (70 FR 25,339/1 (adding language
referencing the CAIR permit));
9. For Sec. 78.1, item 2.b (71 FR 25,379/2 (adding language
referencing the CAIR FIPs trading rules, subparts AA through IIII of
part 97)); and
10. For Sec. 78.3, items 3.a through 3.c (71 FR 25,379/3 and
25,380/1-2 (adding language referencing the CAIR FIPs trading rules,
subparts AA through IIII of part 97)).
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 (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 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
[[Page 75967]]
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.
Because EPA has made a ``good cause'' finding that this action is
not subject to notice and comment requirements under the Administrative
Procedure Act and CAA section 307(d), it is not subject to the
regulatory flexibility provisions of the RFA.
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.''
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 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.
[[Page 75968]]
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 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 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 December 15, 2008 for good cause
found as explained in Section II of this preamble.
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. E8-29382 Filed 12-12-08; 8:45 am]
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