[Federal Register Volume 74, Number 211 (Tuesday, November 3, 2009)]
[Rules and Regulations]
[Pages 56721-56726]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-25596]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51 and 52

[EPA-HQ-OAR-2009-0021; FRL-8972-7]
RIN 2060-AP46


Administrative Stay of Clean Air Interstate Rule for Minnesota; 
Administrative Stay of Federal Implementation Plan To Reduce Interstate 
Transport of Fine Particulate Matter and Ozone for Minnesota

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This final rule administratively stays the effectiveness, for 
Minnesota and Minnesota sources only, of two rules issued under section 
110 of the Clean Air Act (CAA) related to the interstate transport of 
pollutants. On May 12, 2005, EPA issued the Clean Air Interstate Rule 
(CAIR) requiring Minnesota and other states in the eastern U.S. to 
submit State Implementation Plan (SIP) revisions to limit sulfur 
dioxide (SO2) and nitrogen oxides (NOX) emissions 
in order to eliminate the significant contribution of these states to 
nonattainment for fine particulate matter (PM2.5) and/or 
ozone, and eliminates interference with maintenance of attainment, in 
downwind states. On April 28, 2006, EPA issued Federal Implementation 
Plans (CAIR FIPs) to serve as a backstop until replaced by approved 
SIPs. Subsequently, the U.S. Court of Appeals for the District of 
Columbia Circuit reversed and remanded CAIR. Among other things, the 
Court held that EPA had not properly addressed possible errors in 
analysis supporting the inclusion of Minnesota in CAIR for fine 
particulate matter. In this final rule, EPA is administratively staying 
the effectiveness of CAIR and the CAIR FIP with respect to Minnesota 
and sources in Minnesota only, pending further rulemaking in response 
to the remand.

DATES: The effective date of this final rule is December 3, 2009.

ADDRESSES: Docket: EPA has established a docket for this final rule 
under Docket ID No. EPA-HQ-OAR-2009-0021. All documents in the docket 
are listed on the www.regulations.gov Web site. Although listed in the 
index, some information is not publicly available, e.g., confidential 
business information or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, will be publicly available only in hard copy. Publicly 
available docket materials are available either electronically at 
www.regulations.gov or in hard copy at the EPA Docket Center EPA/DC, 
EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The 
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744, and the telephone number for the EPA 
Docket Center is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: Jeb Stenhouse, Program Development 
Branch, Clean Air Markets Division, Office of Atmospheric Programs, 
Mail Code 6204J, Environmental Protection Agency, Washington, DC 20460, 
telephone number 202-343-9781, fax number 202-343-2359, and e-mail 
address [email protected].

SUPPLEMENTARY INFORMATION:

Outline

I. Background
II. What Is the Scope of this Final Rule?
III. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act (RFA)
    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
    L. Judicial Review

I. Background

    Section 110(a)(2)(D)(i)(I) of the CAA requires that a state's SIP 
prohibit emissions by any source or other type of emissions activity in 
the state that will ``contribute significantly to nonattainment in, or 
interfere with maintenance by, any other State'' with respect to any 
national ambient air quality standard (NAAQS). 42 U.S.C. 
7410(a)(2)(D)(i)(I). On May 12, 2005, EPA issued CAIR (70 FR 25162, May 
12, 2005). In that rule, EPA found that 28 states and Washington, DC 
contribute significantly to nonattainment, and interfere with 
maintenance, of the NAAQS for fine particulate matter and/or ozone in 
downwind states. CAIR required these upwind states to revise their SIPs 
to include control measures to reduce emissions of SO2 and/
or NOX and thereby meet the requirements of section 
110(a)(2)(D)(i)(I). One of the states included in CAIR for fine 
particulate matter, but not for ozone, was the State of Minnesota. 
Minnesota was thus required to reduce annual SO2 and annual 
NOX emissions in accordance with the requirements of the 
rule. Further, in CAIR, EPA offered to administer, as a remedy through 
which states could comply with CAIR, SO2 annual, 
NOX annual, and NOX ozone season trading programs 
that states could choose to incorporate in their SIPs. CAIR included 
model rules for these trading programs and provided that states could 
adopt the model rules in their SIPs and thereby incorporate the trading 
programs in the SIPs.
    On April 28, 2006, EPA issued the CAIR FIPs (71 FR 25330, April 28 
2006). In the April 28, 2006, notice, EPA promulgated FIPs to implement 
the emission reduction requirements of CAIR in each state covered by 
CAIR until the FIP is replaced by an approved SIP. EPA issued the CAIR 
FIPs to provide a federal backstop for CAIR. EPA decided to adopt as 
the FIP for

[[Page 56722]]

each state in the CAIR region (including Minnesota) the SIP model 
trading programs in CAIR, modified slightly to allow for federal, 
instead of state, implementation.
    A number of petitioners brought legal challenges to several aspects 
of CAIR and of the CAIR FIPs in the U.S. Court of Appeals for the 
District of Columbia Circuit. Among the parties challenging the rule 
was Minnesota Power, an electric utility operating in Minnesota, who 
argued that EPA erred in the analysis of the contribution of Minnesota 
sources to downwind nonattainment and thus in including Minnesota in 
CAIR for fine particulate matter.
    On July 11, 2008, in North Carolina v. EPA, 531 F.3d 896, 926-30 
(DC Cir. 2008), the D.C. Circuit ruled on these challenges and vacated 
and remanded CAIR and the CAIR FIPs. Of particular relevance here, the 
Court granted Minnesota Power's petition and remanded to EPA the issue 
of the inclusion of Minnesota and Minnesota sources in CAIR and the 
CAIR FIPs because the Court concluded that EPA had failed to fully 
address alleged errors in its contribution analysis for Minnesota. Id. 
at 926-27. In addition, the Court granted petitions of several other 
parties and remanded to EPA issues concerning: EPA's interpretation of 
the requirement in section 110(a)(2)(D)(i)(I) that SIPs must prohibit 
``interference with maintenance'' with respect to any NAAQS (id. at 
909-11); the lawfulness of the CAIR trading programs for NOX 
and SO2 as a remedy that will assure that States abate 
emissions that significantly contribute to downwind nonattainment or 
interfere with maintenance (id. at 907-8); the 2015 deadline for states 
to remedy their failure to eliminate their significant contribution 
(id. at 911-12); the SO2 and NOX budgets used for 
the trading programs (id. at 916-21); and EPA's authority to terminate 
or limit Title IV allowances through a trading program under section 
110(a)(2)(D)(i)(I) or through a requirement that, to comply with 
section 110(a)(2)(D)(i)(I), SIPs have Title IV allowance retirement 
provisions (id. at 921-22).
    On September 24, 2008, EPA filed a petition for rehearing with the 
DC Circuit. This petition sought rehearing of a number of the Court's 
findings, but did not seek rehearing of the findings regarding 
Minnesota. On October 31, 2008, EPA sent a letter to Minnesota Power 
indicating its intent to stay the effectiveness of CAIR with respect to 
sources located in Minnesota until the Agency determined whether 
Minnesota should be included in CAIR. This letter was also submitted to 
the Court during briefing on the petitions for rehearing.
    On December 23, 2008, the DC Circuit granted EPA's petition for 
rehearing only with regard to the vacatur and remanded CAIR without 
vacatur. This decision means that CAIR and the CAIR FIPs remain in 
effect while EPA develops a replacement rule consistent with the July 
11, 2008, opinion.

II. What Is the Scope of This Final Rule?

    In this final rule, EPA is only staying the effectiveness of CAIR 
and the CAIR FIPs with respect to Minnesota and sources in Minnesota. 
EPA intends to conduct further rulemaking in response to the Court's 
remand of CAIR and the CAIR FIPs. EPA intends that the stay with 
respect to Minnesota and Minnesota sources will remain in effect 
pending such further rulemaking.
    EPA believes that the stay in this final rule is appropriate in 
light of several factors related to EPA's consideration, following the 
July 11, 2008 decision, of the issue concerning Minnesota's inclusion 
in CAIR. First, as discussed above, EPA did not seek rehearing of the 
Court's July 11, 2008 decision regarding the contribution analysis for 
Minnesota. Instead, before the Court ruled on the petitions for 
rehearing, EPA stated its intention to stay CAIR for Minnesota and 
sources in Minnesota pending a final agency determination concerning 
Minnesota's inclusion in CAIR. This information was presented to the 
Court during the rehearing process that resulted in the December 23, 
2008 decision to remand CAIR without vacatur. This final rule carries 
out EPA's stated intent.
    Second, the issue of whether Minnesota significantly contributes to 
nonattainment for fine particulate matter in any downwind state, 
contrary to one of the requirements for SIPs in section 
110(a)(2)(D)(i)(I), is logically severable from the other issues 
(described above) that were remanded to EPA by the DC Circuit in North 
Carolina. This issue relates solely to whether EPA properly decided 
whether Minnesota should be covered by-CAIR for fine particulate 
matter. In contrast, the other remanded issues affect multiple states 
and relate either to another requirement in section 110(a)(2)(D)(i)(I) 
or to whether the specific emission reduction requirements in CAIR were 
proper or adequate as a remedy for each state's 110(a)(2)(D)(i)(I) 
problems. One of the other remanded issues concerns the Court's 
determination that EPA failed to give independent meaning to the 
requirement, in section 110(a)(2)(D)(i)(I), that states also eliminate 
emissions that interfere with maintenance in downwind states. North 
Carolina, 531 F.3d at 910. The remaining remanded issues concern 
various aspects of the remedies (e.g., the trading programs) EPA may 
approve in SIPs for states determined to have failed to meet the 
significant contribution requirement and raise complex questions about 
precisely what is required for each state to eliminate its 
significantly contributing emissions prohibited by section 
110(a)(2)(D)(i)(I). The issue about Minnesota and Minnesota sources 
concerns the discrete question of whether EPA erred in its analysis of 
the contribution of Minnesota sources to downwind nonattainment areas 
and is logically severable from all the other remanded issues.
    Third, as discussed in detail below, EPA finds that the stay with 
respect to Minnesota and Minnesota sources can be implemented 
immediately without disrupting the operation of the trading programs 
under CAIR and the CAIR FIPs and the allowance market. The stay is thus 
consistent with the Court's July 11, 2008 and the December 28, 2008 
decisions leaving the CAIR and CAIR FIPs in place as promulgated while 
EPA develops a replacement rule. In addition, as noted above, the Court 
was aware of EPA's intent to stay CAIR with respect to Minnesota and 
Minnesota sources when it issued the December 28, 2008 decision.
    Minnesota sources are currently subject to the CAIR annual 
SO2 and annual NOX trading programs, and the 
major issue in implementing the stay is how to treat, during the stay 
period, allowances that are usable in the trading programs and have 
already been allocated and recorded for Minnesota sources. As explained 
below, SO2 and NOX allowances must be treated 
differently.
    In the CAIR SO2 trading program as promulgated, sources 
(including those in Minnesota) are not issued new allowances but 
instead must use title IV allowances for compliance in the trading 
program.\1\ Under title IV, allowances were allocated to sources, 
generally during 1993 in perpetuity, with each allowance authorizing in 
the Acid Rain Program one ton of emissions in the year for which the 
allowance was allocated or any year thereafter. In the CAIR 
SO2 trading program, the same allowances are usable and 
authorize emissions in the same years, but those allowances allocated 
for years before

[[Page 56723]]

2010 authorize one ton of emissions, those allocated for 2010 through 
2014 authorize one-half ton of emissions, and those allocated for 2015 
and thereafter authorize 0.35 ton of emissions. Implementation of the 
stay adopted in this final rule does not involve EPA making any changes 
in this final rule with regard to Minnesota sources' title IV 
allowances. Under the stay, these sources retain the title IV 
allowances that they currently hold (including any allocations for 2010 
and thereafter that the sources have not transferred). Moreover, like 
any other title IV allowance that has not already been used or retired, 
title IV allowances allocated to Minnesota sources continue to be 
usable in either the Acid Rain Program or the CAIR SO2 
trading program and retain the above-described emission tonnage 
authorizations because those authorizations depend on the year for 
which the allowances were issued and the trading program in which they 
are used, not on whether the entity to which the allowances were 
allocated is subject to CAIR.
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    \1\ While CAIR SO2 opt-in units are allocated new 
CAIR SO2 allowances, the Minnesota FIP does not allow for 
opt-in units.
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    In contrast, the CAIR NOX annual trading program 
provides for the issuance of new CAIR NOX allowances and 
such allowances for 2009 have already been allocated for existing 
Minnesota sources and recorded in the sources' compliance accounts in 
the allowance tracking system for that program under the CAIR FIP for 
Minnesota. For the reasons discussed below, implementation of the stay 
in this final rule requires that an amount of 2009 CAIR NOX 
allowances equivalent to the amount that has already been allocated and 
recorded for these sources be removed from the CAIR NOX 
annual trading program and that no more CAIR NOX allowances 
be allocated to Minnesota sources for the period that the stay is in 
place. However, as discussed below, EPA finds that this can be 
accomplished without disruption of the trading program and the 
allowance market.
    While the stay in this final rule is in place, Minnesota sources 
will not need to use any of their allowance allocations to authorize 
their annual NOX emissions. If those allowances that have 
already been recorded were not removed from the trading program and if 
allowances for future years continued to be allocated and recorded for 
Minnesota sources, the full amount of these allowances could be traded 
for use by non-Minnesota sources to authorize their own annual 
NOX emissions. This would increase the total amount of 
allowances available each year for use by sources in the states that 
will continue to be subject to the NOX annual trading 
program under CAIR or the CAIR FIPs. As a result, the total amount of 
CAIR NOX allowances available each year for sources in these 
states would exceed the sum of the NOX annual trading 
budgets under CAIR and the CAIR FIPs for these states. If this were 
allowed, the CAIR NOX annual trading program would not 
achieve the NOX emission reductions intended under CAIR and 
the CAIR FIPs and reflected in the state NOX annual trading 
budgets.
    EPA could have accomplished the removal from the trading program of 
the amount of the 2009 CAIR NOX allowances allocated and 
recorded for Minnesota sources under the FIP for the CAIR 
NOX annual trading program by simply requiring those sources 
to surrender those specific allowances. However, EPA understands that, 
although most of the CAIR NOX allowances allocated and 
recorded for sources in Minnesota are still held in the sources' 
compliance accounts, at least one Minnesota source has traded some of 
its recorded allowance allocations.\2\ Consequently, the final rule 
requires that each Minnesota source with a recorded allowance 
allocation in the CAIR NOX annual trading program hold an 
amount of CAIR NOX allowances issued for the same year as 
the recorded allocation (i.e., 2009) equal to the amount of the 
recorded allocation, regardless of whether the allowances held are the 
same ones that were allocated to the Minnesota source. Further, under 
the final rule, the Administrator will deduct, and thereby retire, 
these required allowance holdings, and no additional allowance 
allocations from the state NOX annual trading budget for 
Minnesota will be recorded.
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    \2\ According to EPA's allowance tracking system, a total amount 
of 29,875 CAIR NOX allowances were allocated to Minnesota 
sources for 2009, and 68 of such allowances were sold (in a single 
transfer on March 7, 2008) by the recipient of the allocation to 
another party.
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    For the reasons outlined in the following paragraphs, EPA believes 
that this approach of requiring Minnesota sources to hold 2009 CAIR 
NOX allowances equal in amount to such sources' allocations 
will achieve the allowance removal necessary to implement the stay 
without disrupting the operation of the CAIR NOX annual 
trading program under CAIR and the CAIR FIPs, the allowance market, and 
the participation of non-Minnesota sources in the program. EPA also 
believes that it is reasonable that Minnesota sources be given the 
responsibility of holding in their compliance accounts the allowances 
that the Administrator needs to remove.
    First, each Minnesota source with a recorded allocation for 2009 
can meet this responsibility by continuing to hold its allocated 2009 
CAIR NOX allowances that it has not transferred and--to the 
extent necessary to replace any of its allocated 2009 CAIR 
NOX allowances that have been included in the few trades of 
Minnesota-source-allocated allowances that have occurred--by obtaining 
other 2009 CAIR NOX allowances. EPA does not believe it 
needs to require Minnesota sources to hold for deduction exactly the 
same CAIR NOX allowances that were allocated to such 
sources. Because all CAIR NOX allowances issued for a given 
year (here, 2009) under the CAIR NOX annual trading program 
under CAIR and the CAIR FIPs are fungible, deduction of the same amount 
of CAIR NOX allowances issued for 2009 has the desired 
effect of removing the extra allowances for 2009 whether the deducted 
allowances are the ones allocated to Minnesota sources or those 
allocated to other sources. In short, a deduction--but no 
reallocation--of CAIR NOX allowances is necessary to 
implement the stay of the effectiveness of CAIR and the CAIR FIP rule 
with regard to Minnesota and Minnesota sources.
    Further, this approach avoids disruption of the trading program, 
the allowance market, and the participation of non-Minnesota sources 
because no allowance transfers that have occurred will be reversed or 
invalidated. Any party that purchased allocated CAIR NOX 
allowances from a Minnesota source will retain the ability to use, 
hold, or transfer those purchased allowances, and any planning, based 
on such purchased allowances, for compliance with the requirement to 
hold allowances covering emissions will not be affected.
    EPA believes that it is reasonable to make Minnesota sources 
responsible for holding 2009 CAIR NOX allowances for 
deduction in order to implement the stay. The burden of doing so will 
be minimal because, as discussed above, these sources have transferred, 
and so will have to replace, only a few of their allocated 2009 CAIR 
NOX allowances and most of these sources will simply 
continue to hold their existing 2009 CAIR NOX allocations. 
Further, these sources benefit from the stay in that they would remain 
subject to CAIR but for the stay. In summary, the stay can be 
implemented--through removal from the CAIR NOX annual 
trading program of the amount of Minnesota sources' 2009 CAIR 
NOX allowances--without

[[Page 56724]]

disrupting the trading program (including sources' compliance planning) 
or the allowance market or unreasonably burdening Minnesota and non-
Minnesota sources.
    EPA received several comments on the proposed rule for a stay of 
CAIR and the CAIR FIP for Minnesota and Minnesota sources. All of the 
comments supported the proposal.\3\ One commenter also requested 
clarification of the amount of allowances for 2009 that EPA will deduct 
from each Minnesota source's compliance account. The amount of 2009 
CAIR NOX allowances deducted will be equal to the amount 
originally recorded as the allocation for 2009 for the source. As is 
stated explicitly in the text of this final rule, EPA will not deduct, 
pursuant to the final rule, any other allowances. Any source in 
Minnesota holding any allowances in addition to 2009 CAIR 
NOX allowances in the amount of its 2009 CAIR NOX 
allocation will retain such additional allowances and may hold them or 
transfer them at any time, as the source prefers.
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    \3\ In addition, some commenters provided comments, along with 
supporting information, that Minnesota was improperly included in 
CAIR and that the stay should remain in effect until EPA 
prolmulgates a replacement rule for CAIR consistent with the Court's 
decisions. One commenter also attached to its comment on the 
proposal a copy of comments presented during the CAIR FIPs 
rulemaking, concerning the applicability and allowance allocation 
provisions in the CAIR FIP trading programs. In this rulemaking, EPA 
is only staying CAIR and the CAIR FIPs with respect to Minnesota and 
sources in Minnesota, without specifying at this time how long the 
stay will remain in effect, and is not taking any action regarding 
any other issues concerning CAIR and the CAIR FIPs. These comments 
thus are beyond the scope of this rule and do not require a 
response. EPA will respond to these comments in the context of the 
Agency's rulemaking in response to the remand of CAIR and the CAIR 
FIPs.
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    Although the proposed rule set June 30, 2009, as the date on which 
Minnesota sources must hold these allowances for deduction, that date 
has passed. Instead, EPA is adopting in this final rule midnight of the 
date 30 days after the Federal Register publication date for this final 
rule (which EPA is also setting as the final rule's effective date) as 
the earliest, reasonable time and date on which to require the holding 
of such allowances. EPA believes that the requirement to hold such 
allowances as of midnight of December 3, 2009 will provide sufficient 
time for Minnesota sources to obtain the proper amount of CAIR 
NOX allowances, particularly in light of the few trades of 
Minnesota-source-allocated allowances that have occurred. Moreover, 
EPA's preferred approach, as explained in the proposed rule, is 
removing these allowances from the trading program as quickly as 
possible. None of the commenters opposed that general approach.

III. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is 
therefore not subject to review under the EO.

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(b). This action does not impose any 
information collection burden on any state, local, or tribal 
governments or the private sector and instead temporarily relieves 
Minnesota sources of any information collection burden under the CAIR 
trading programs.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of this rule on small 
entities, small entity is defined as: (1) A small business as defined 
by the Small Business Administration's (SBA) regulations at 13 CFR 
121.201; (2) a small governmental jurisdiction that is a government of 
a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise that is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of this final rule on small 
entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This final 
rule does not impose any requirements on small entities and instead 
temporarily relieves Minnesota sources (including any small entities in 
Minnesota) of the allowance-holding and other requirements under the 
CAIR trading programs, except for the one-time requirement to hold 
allowances equal to the sources' 2009 CAIR NOX allowance 
allocations.

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 (URMA), 2 U.S.C. 
1531-1538 for state, local, or tribal governments or the private 
sector. This action does not impose any new obligations or enforceable 
duties on any state, local, or tribal governments or the private sector 
and instead temporarily relieves Minnesota sources of the allowance-
holding and other requirements under the CAIR trading programs, except 
for the one-time requirement to hold allowances equal to the sources' 
2009 CAIR NOX allowance allocations. Therefore, this action 
is not subject to the requirements of sections 202 and 205 of the UMRA.
    This action is also not subject to the requirements of section 203 
of URMA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments. This action does 
not impose any new obligations or enforceable duties on any small 
governments.

E. Executive Order 13132: Federalism

    This action 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 does not impose any new 
obligations or enforceable duties on any state, local, or tribal 
governments and instead temporarily relieves Minnesota sources of the 
allowance-holding and other requirements under the CAIR trading 
programs, except for the one-time requirement to hold allowances equal 
to the sources' 2009 CAIR NOX allowance allocations. Thus, 
Executive Order 13132 does not apply to this rule.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and state and local 
governments, EPA specifically solicited comments on the proposed action 
from state and local officials.

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). It will not have 
substantial direct effects on tribal governments, on the

[[Page 56725]]

relationship between the federal government and Indian Tribes, or on 
the distribution of power and responsibilities between the federal 
government and Indian Tribes, as specified in Executive Order 13175. 
This action does not significantly or uniquely affect the communities 
of Indian Tribal governments. As discussed above, this action imposes 
no new requirements that would impose compliance burdens and instead 
temporarily relieves Minnesota sources of the allowance-holding and 
other requirements under the CAIR trading programs, except for the one-
time requirement to hold allowances equal to the sources' 2009 CAIR 
NOX allowance allocations. Thus, Executive Order 13175 does 
not apply to this action.

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

    EPA interprets Executive Order 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 Executive Order has the potential to influence the regulation. This 
action is not subject to Executive Order 13045 because it imposes no 
new requirements and instead temporarily relieves Minnesota sources of 
the allowance-holding and other requirements under the CAIR trading 
programs, except for the one-time requirement to hold allowances equal 
to the sources' 2009 CAIR NOX allowance allocations.

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

    This action is not subject to Executive Order 13211 (66 FR 28355, 
May 22, 2001), because it is not a significant regulatory action under 
Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. NTTAA directs EPA to provide 
Congress, through the Office of Management and Budget, explanations 
when the Agency decides not to use available and applicable voluntary 
consensus standards.
    This action does not involve technical standards. Therefore, EPA 
did not consider the use of any voluntary consensus standards.

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 its programs, 
policies, and activities on minorities and low-income populations in 
the United States.
    EPA has determined that this final rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
impose any new requirements and only temporarily relieves Minnesota 
sources of the allowance-holding and other requirements under the CAIR 
trading programs, except for the one-time requirement to hold 
allowances equal to the sources' 2009 CAIR NOX allowance 
allocations.

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 final rule is not a ``major rule'' as defined by 5 
U.S.C. 804(2). This rule will be effective on December 3, 2009.

L. Judicial Review

    Section 307(b)(1) of the CAA indicates which U.S. Courts of Appeal 
have venue for petitions of review of final actions by EPA. This 
section provides, in part, that petitions for review must be filed in 
the U.S. Court of Appeals for the District of Columbia Circuit if (i) 
the agency action consists of ``nationally applicable regulations 
promulgated, or final action taken, by the Administrator,'' or (ii) 
such action is locally or regionally applicable, if ``such action is 
based on a determination of nationwide scope or effect and if in taking 
such action the Administrator finds and publishes that such action is 
based on such a determination.''
    Any final action related to CAIR is ``nationally applicable'' 
within the meaning of section 307(b)(1). Through CAIR and the CAIR 
FIPs, EPA interprets section 110 of the CAA, a provision that has 
nationwide applicability. In addition, the determination of whether a 
state (here, Minnesota) is covered by CAIR is based on a common core of 
factual findings and analyses concerning the transport of pollutants 
between different states. Finally, EPA has established uniform 
approvability criteria that would be applied to the SIP revisions 
submitted by all states subject to CAIR. For these reasons, the 
Administrator also is determining that any final action regarding CAIR 
is of nationwide scope and effect for purposes of section 307(b)(1). 
Thus, any petitions for review of this final rule must be filed in the 
Court of Appeals for the District of Columbia Circuit within 60 days 
from the date the final rule is published in the Federal Register.

List of Subjects

40 CFR Part 51

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

40 CFR Part 52

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

    Dated: October 15, 2009.
Lisa P. Jackson,
Administrator.

0
For the reasons set forth in the preamble, parts 51 and 52 of chapter I 
of title 40 of the Code of Federal Regulations are amended as follows:

[[Page 56726]]

PART 51--REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF 
IMPLEMENTATION PLANS

0
1. The authority citation for part 51 continues to read as follows:

    Authority:  23 U.S.C. 101; 42 U.S.C. 7401-7671q.


0
2. Section 51.123 is amended by adding a new paragraph (a)(3) to read 
as follows:


Sec.  51.123  Findings and requirements for submission of State 
implementation plan revisions relating to emissions of oxides of 
nitrogen pursuant to the Clean Air Interstate Rule.

    (a) * * *
    (3) Notwithstanding the other provisions of this section, such 
provisions are not applicable as they relate to the State of Minnesota 
as of December 3, 2009.
* * * * *

0
3. Section 51.124 is amended by redesignating paragraph (a) as 
paragraph (a)(1) and adding a new paragraph (a)(2) to read as follows:


Sec.  51.124  Findings and requirements for submission of State 
implementation plan revisions relating to emissions of sulfur dioxide 
pursuant to the Clean Air Interstate Rule.

    (a) * * *
    (2) Notwithstanding the other provisions of this section, such 
provisions are not applicable as they relate to the State of Minnesota 
as of December 3, 2009.
* * * * *

0
4. Section 51.125 is amended by adding a new paragraph (a)(3) to read 
as follows:


Sec.  51.125  Emissions reporting requirements for SIP revisions 
relating to budgets for SO2 and NOX emissions.

    (a) * * *
    (3) Notwithstanding the other provisions of this section, such 
provisions are not applicable as they relate to the State of Minnesota 
as of December 3, 2009.
* * * * *

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
5. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401, et seq.


0
6. Section 52.35 is amended by adding a new paragraph (e) to read as 
follows:


Sec.  52.35  What are the requirements of the Federal Implementation 
Plans (FIPs) for the Clean Air Interstate Rule (CAIR) relating to 
emissions of nitrogen oxides?

* * * * *
    (e) Notwithstanding paragraphs (a) and (b) of this section, such 
paragraphs are not applicable as they relate to sources in the State of 
Minnesota as of December 3, 2009, except as provided in Sec.  
52.1240(b).

0
7. Section 52.36 is amended by adding a new paragraph (d) to read as 
follows:


Sec.  52.36  What are the requirements of the Federal Implementation 
Plans (FIPs) for the Clean Air Interstate Rule (CAIR) relating to 
emissions of sulfur dioxide?

* * * * *
    (d) Notwithstanding paragraph (a) of this section, such paragraph 
is not applicable as it relates to sources in the State of Minnesota as 
of December 3, 2009.

0
8. Section 52.1240 is amended by adding a new paragraph (b) to read as 
follows:


Sec.  52.1240  Interstate pollutant transport provisions; What are the 
FIP requirements for decreases in emissions of nitrogen oxides?

* * * * *
    (b) Notwithstanding paragraph (a) of this section, such paragraph 
is not applicable as it relates to sources in the State of Minnesota as 
of December 3, 2009, except that:
    (1) The owner and operator of each source referenced in such 
paragraph in whose compliance account any allocation of CAIR 
NOX allowances was recorded under the Federal CAIR 
NOX Annual Trading Program in part 97 of this chapter shall 
hold in that compliance account, as of midnight of December 3, 2009 and 
with regard to each such recorded allocation, CAIR NOX 
allowances that are usable in such trading program, issued for the same 
year as the recorded allocation, and in the same amount as the recorded 
allocation. The owner and operator shall hold such allowances for the 
purpose of deduction by the Administrator under paragraph (b)(2) of 
this section.
    (2) After December 3, 2009, the Administrator will deduct from the 
compliance account of each source in the State of Minnesota any CAIR 
NOX allowances required to be held in that compliance 
account under paragraph (b)(1) of this section. The Administrator will 
not deduct, for purposes of implementing the stay, any other CAIR 
NOX allowances held in that compliance account and, starting 
no later than December 3, 2009, will not record any allocation of CAIR 
NOX allowances included in the State trading budget for 
Minnesota for any year.

0
9. Section 52.1241 is amended by redesignating the existing text as 
paragraph (a) and adding a new paragraph (b) to read as follows:


Sec.  52.1241  Interstate pollutant transport provisions; What are the 
FIP requirements for decreases in emissions of sulfur dioxide?

* * * * *
    (b) Notwithstanding paragraph (a) of this section, such paragraph 
is not applicable as it relates to sources in the State of Minnesota as 
of December 3, 2009.

[FR Doc. E9-25596 Filed 11-2-09; 8:45 am]
BILLING CODE 6560-50-P