65554 Federal Register / Vol. 73, No. 214 / Tuesday, November 4, 2008 / Rules and Regulations 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 75 

[EPA–HQ–OAR–2008–0800; FRL–8737–5] 

RIN 2060–AP39 

Stay of the Effectiveness of 

Requirements for Air Emission Testing 

Bodies 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is taking final action to 

stay the effectiveness of requirements 

for air emission testing bodies. 

On January 24, 2008, final 

amendments to regulations on 

competency requirements for air 

emission testing bodies (AETBs) were 

published in the Federal Register. The 

AETB provision generally requires stack 

testers and stack testing companies to 

meet certain minimum competency 

requirements described in ASTM D 

7036 by January 1, 2009. 

On March 25, 2008, the Utility Air 

Regulatory Group (UARG) filed a 

Petition for Review primarily claiming 

that EPA could not by the AETB 

requirement hold utilities responsible 

for something they cannot control. 

While EPA is considering revisions to 

the requirements to address UARG’s 

concerns, it cannot propose and 

complete any such revision through 

notice and comment rulemaking before 

the compliance date contained in the 

existing rule, thus necessitating this 

action. EPA needs to complete this 

action staying effectiveness of the AETB 

requirements in order to secure an 

extension of an Order Granting 

Abeyance of Further Proceedings which 

expires on October 29, 2008, when the 

Agency must file Motions to Govern 

Further Proceedings. 

DATES: Effective on November 4, 2008, 

in Appendix A to 40 CFR Part 75, the 

effectiveness of Section 6.1.2(a) through 

(c) is stayed indefinitely. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–OAR–2008–0800. All 

documents in the docket are listed in 

the Federal Docket Management System 

index at http://www.regulations.gov. 

Although listed in the index, some 

information is not publicly available, 

e.g., Confidential Business Information 

(CBI) or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

http://www.regulations.gov or in hard 

copy at the Air and Radiation Docket, 

EPA West Building, Room 3334, 1301 

Constitution Ave., NW., Washington, 

DC 20460. The Public Reading Room is 

open from 8:30 a.m. to 4:30 p.m., 

Monday through Friday, excluding legal 

holidays. The telephone number for the 

Public Reading Room is (202) 566–1744, 

and the telephone number for the Air 

and Radiation Docket is (202) 566–1742. 

FOR FURTHER INFORMATION CONTACT: John 

Schakenbach, U.S. Environmental 

Protection Agency, Clean Air Markets 

Division, MC 6204J, Ariel Rios Building, 

1200 Pennsylvania Ave., NW., 

Washington, DC 20460, telephone (202) 

343–9158, e-mail at 

schakenbach.john@epa.gov. Electronic 

copies of this document can be accessed 

through the EPA Web site at: http:// 

epa.gov/airmarkets. 

SUPPLEMENTARY INFORMATION: 

Regulated Entities. Entities regulated 

by this action primarily are fossil fuelfired 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: 

Category NAICS code Examples of potentially regulated industries 

Industry ............................................................... 221112 and others ........................................... Electric service providers. 

This table is not intended to be 

exhaustive, but rather to provide a guide 

for readers regarding entities likely to be 

regulated by this action. This table lists 

the types of entities which EPA is now 

aware could potentially be regulated by 

this action. Other types of entities not 

listed in this table could also be 

regulated. To determine whether your 

facility, company, business, 

organization, etc., is regulated by this 

action, you should carefully examine 

the applicability provisions in §§ 72.6, 

72.7, and 72.8 of title 40 of the Code of 

Federal Regulations. If you have 

questions regarding the applicability of 

this action to a particular entity, consult 

the person listed in the preceding FOR

FURTHER INFORMATION CONTACT section. 

Judicial Review. Under CAA section 

307(b)(1), judicial review of this final 

rule is available only by filing a petition 

for review in the U.S. Court of Appeals 

for the District of Columbia Circuit on 

or before January 5, 2009. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this rule for the 

purposes of judicial review, does not 

extend the time within which a petition 

for judicial review may be filed, and 

does not postpone the effectiveness of 

this rule. Under CAA section 307(b)(2), 

the requirements established by this 

rule may not be challenged separately in 

any civil or criminal proceedings 

brought by EPA to enforce these 

requirements. 

Outline. The following outline is 

provided to aid in locating information 

in this preamble. 

I. Overview 

II. Administrative Procedures Used in This 

Action 

III. Staying the Effectiveness of Requirements 

for Air Emission Testing Bodies 

A. Rule revision staying the effectiveness 

of requirements for air emission testing 

bodies 

IV. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer 

Advancement Act 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Congressional Review Act 

I. Overview 

On January 24, 2008, final 

amendments to 40 CFR part 75 on 

competency requirements for air 

emission testing bodies (AETBs) were 

published in the Federal Register (See 

73 FR 4365, 4367, and 4372). The AETB 

provision generally requires stack 

testers and stack testing companies to 

meet certain minimum competency 

requirements described in ASTM D 

7036 by January 1, 2009. 


dwashington3 on PRODPC61 with RULES
Federal Register / Vol. 73, No. 214 / Tuesday, November 4, 2008 / Rules and Regulations 65555 

On March 25, 2008, the Utility Air 

Regulatory Group (UARG) filed a 

Petition for Review primarily claiming 

that EPA could not by the AETB 

requirement hold utilities responsible 

for something they cannot control. 

While EPA is considering revisions to 

the requirements to address UARG’s 

concerns, it cannot propose and 

complete any such revision through 

notice and comment rulemaking before 

the compliance date contained in the 

existing rule, thus necessitating this 

action. EPA needs to complete this 

action staying effectiveness of the AETB 

requirements in order to secure an 

extension of an Order Granting 

Abeyance of Further Proceedings which 

expires on October 29, 2008, when the 

Agency must file Motions to Govern 

Further Proceedings. 

EPA believes that this rulemaking 

qualifies for the ‘‘good cause’’ 

exemption under section 553(b)(3)(B) of 

the APA. EPA has determined that prior 

proposal and opportunity for comment 

are unnecessary because the public is 

not likely to be particularly interested, 

and notice and opportunity for 

comment were previously provided for 

the AETB provision (see, proposed rule 

71 FR 49300, August 22, 2006). 

EPA believes that this rulemaking 

qualifies for the ‘‘good cause’’ 

exemption to make the rule effective 

immediately under section 553(d) of the 

APA because it is a relaxation of a 

restriction by staying the effectiveness 

of requirements for air emission testing 

bodies. 

II. Administrative Procedures Used in 

This Action 

Under CAA section 307(d)(1)(S), this 

action revising the Acid Rain Program 

rules is subject to the requirements of 

CAA section 307(d). Section 307(d)(3) 

provides that a notice of proposed 

rulemaking, providing an opportunity 

for a public hearing and comment, must 

be published in the Federal Register, 

except under certain circumstances, as 

provided in the Administrative 

Procedure Act (5 U.S.C. 553(b)). Two 

examples of where the requirement for 

such a notice does not apply are: (1) The 

public is not likely to be particularly 

interested; and (2) notice and 

opportunity for comment were 

previously provided (See 5 U.S.C. 

553(b)(B)). 

EPA finds, for the following reasons, 

that notice and opportunity for public 

hearing and comment concerning the 

stay of effectiveness of requirements for 

air emission testing bodies is not 

required because (1) the public is not 

likely to be particularly interested 

because of the relatively minor nature of 

this rulemaking action; and (2) notice 

and opportunity for comment were 

previously provided for the AETB 

provision (see, proposed rule 71 FR 

49300, August 22, 2006). As discussed 

above, this rule revision was finalized— 

after notice and opportunity for 

comment—on January 24, 2008. 

In addition, EPA also finds that there 

is good cause under 5 U.S.C. 553(d) to 

make this final rule—staying the 

effectiveness of requirements for air 

emission testing bodies—immediately 

effective upon publication in the 

Federal Register. As explained above, 

the final rule provides a relaxation of a 

requirement by staying the effectiveness 

of requirements for air emission testing 

bodies. 

III. Staying the Effectiveness of 

Requirements for Air Emission Testing 

Bodies 

In this final rule, EPA is staying the 

effectiveness of requirements for air 

emission testing bodies. 

IV. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

This action is not a ‘‘significant 

regulatory action’’ under the terms of 

Executive Order 12866 (58 FR 51735 

(Oct. 4, 1993)) and is therefore not 

subject to review under the Executive 

Order. In this action, EPA is simply 

staying the effectiveness of requirements 

for air emission testing bodies that were 

previously issued and would have 

become effective on January 1, 2009. 

B. Paperwork Reduction Act 

This action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq. Burden is 

defined at 5 CFR 1320.3(b). This action 

does not impose any new information 

collection burden because it is simply 

staying the effectiveness of requirements 

for AETBs. 

C. Regulatory Flexibility Act 

This final rule is not subject to the 

Regulatory Flexibility Act (RFA), which 

generally requires an agency to prepare 

a regulatory flexibility analysis for any 

rule that will have a significant 

economic impact on a substantial 

number of small entities. The RFA 

applies only to rules subject to notice 

and comment rulemaking requirements 

under the Administrative Procedure Act 

(APA) or any other statute. This rule is 

not subject to notice and comment 

requirements under the APA or any 

other statute, because although the rule 

is subject to the APA, the Agency has 

invoked the ‘‘good cause’’ exemption 

under 5 U.S.C. 553(b), therefore it is not 

subject to the notice and comment 

requirement. 

D. Unfunded Mandates Reform Act 

This action contains no Federal 

mandates under the provisions of Title 

II of the Unfunded Mandates Reform 

Act of 1995 (UMRA), 2 U.S.C. 1531– 

1538 for State, local, or tribal 

governments or the private sector. The 

action imposes no enforceable duty on 

any State, local or tribal governments or 

the private sector [The term 

‘‘enforceable duty’’ does not include 

duties and conditions in voluntary 

Federal contracts for goods and 

services.] Therefore, this action is not 

subject to the requirements of sections 

202 or 205 of the UMRA. 

This action is also not subject to the 

requirements of section 203 of UMRA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. This 

rule simply stays the effectiveness of 

requirements for air emission testing 

bodies and therefore does not result in 

any additional expenditures to State, 

local, and tribal governments or to the 

private sector. For the same reasons, 

EPA has determined that this rule 

contains no regulatory requirements that 

might significantly or uniquely affect 

small governments. 

E. Executive Order 13132: Federalism 

Executive Order 13132, entitled 

‘‘Federalism’’ (64 FR 43255 (Aug. 10, 

1999)), requires EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have federalism 

implications.’’ ‘‘Policies that have 

federalism implications’’ is defined in 

the Executive Order to include 

regulations that have ‘‘substantial direct 

effects on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government.’’ 

This rule does not have federalism 

implications. It will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. This rule simply 

stays the effectiveness of requirements 

for air emission testing bodies that 

would have become effective on January 

1, 2009. Thus, Executive Order 13132 

does not apply to this rule. 


dwashington3 on PRODPC61 with RULES
65556 Federal Register / Vol. 73, No. 214 / Tuesday, November 4, 2008 / Rules and Regulations 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000). This rule simply stays the 

effectiveness of requirements for air 

emission testing bodies that would have 

become effective on January 1, 2009. 

Thus, Executive Order 13175 does not 

apply to this action. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

EPA interprets EO 13045 (62 FR 

19885, April 23, 1997) as applying only 

to those regulatory actions that concern 

health or safety risks, such that the 

analysis required under section 5–501 of 

the EO has the potential to influence the 

regulation. This action is not subject to 

EO 13045 because it does not establish 

an environmental standard intended to 

mitigate health or safety risks. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This rule is not subject to Executive 

Order 13211, entitled ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355 (May 

22, 2001)), because it is not a significant 

regulatory action under Executive Order 

12866. 

I. National Technology Transfer 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (NTTAA), Public Law No. 

104–113, section 12(d) (15 U.S.C. 272 

note), directs EPA to use voluntary 

consensus standards in its regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. Voluntary 

consensus standards are technical 

standards (e.g., materials specifications, 

test methods, sampling procedures, and 

business practices) that are developed or 

adopted by voluntary consensus 

standards bodies. The NTTAA directs 

EPA to provide Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. This 

rule simply stays the effectiveness of 

requirements for air emission testing 

bodies that would have become effective 

on January 1, 2009. Moreover, when 

first promulgated, the AETB provision 

required the use of ASTM D 7036–04, 

an applicable voluntary consensus 

standard. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629 

(Feb. 16, 1994)) establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. EPA 

has determined that this rule will not 

have disproportionately high and 

adverse human health or environmental 

effects on minority or low-income 

populations because it does not change 

the level of protection provided to 

human health or the environment, but 

simply stays the effectiveness of 

requirements for air emission testing 

bodies that would have become effective 

on January 1, 2009. Moreover, when 

first promulgated, the AETB provision 

did not change the level of protection 

provided to human health or the 

environment. 

K. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. Section 808 allows 

the issuing agency to make a rule 

effective sooner than otherwise 

provided by the CRA if the agency 

makes a good cause finding that notice 

and public procedure is impracticable, 

unnecessary or contrary to the public 

interest. This determination must be 

supported by a brief statement. 5 U.S.C. 

808(2). As stated previously, EPA has 

made such a good cause finding, 

including the reasons therefor, and 

established that the effective date shall 

be upon publication in the Federal 

Register. EPA will submit a report 

containing this rule and other required 

information to the U.S. Senate, the U.S. 

House of Representatives, and the 

Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. This action is not 

a ‘‘major rule’’ as defined by 5 U.S.C. 

804(2). 

List of Subjects in 40 CFR Part 75 

Environmental protection, Acid rain, 

Administrative practice and procedure, 

Air pollution control, Electric utilities, 

Carbon dioxide, Continuous emission 

monitoring, Intergovernmental relations, 

Nitrogen oxides, Reporting and 

recordkeeping requirements, Sulfur 

oxides, Reference test methods. 

Dated: October 29, 2008. 

Stephen L. Johnson, 

Administrator. 

■ 40 CFR part 75 is amended as follows: 

PART 75—CONTINUOUS EMISSION 

MONITORING 

■ 1. The authority citation for part 75 

continues to read as follows: 

Authority: 42 U.S.C. 7401–7671q. 

Appendix A to Part 75—[Amended] 

■ 2. In Appendix A to Part 75, the 

effectiveness of Section 6.1.2(a) through 

(c) is stayed indefinitely. 

[FR Doc. E8–26264 Filed 11–3–08; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 147 

[EPA–R09–OW–2007–0248; FRL–8734–5] 

Navajo Nation; Underground Injection 

Control (UIC) Program; Primacy 

Approval 

AGENCY: Environmental Protection 

Agency. 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is approving an 

application from the Navajo Nation 

(‘‘Tribe’’) under Section 1425 of the Safe 

Drinking Water Act (SDWA) for primary 

enforcement responsibility (or 

‘‘primacy’’) for the underground 

injection control (UIC) program for Class 

II (oil and gas-related) injection wells 

located within the exterior boundaries 

of the formal Navajo Reservation, 

including the three satellite reservations 

(Alamo, Canoncito and Ramah), but 

excluding the former Bennett Freeze 

Area, the Four Corners Power Plant and 

the Navajo Generating Station; and on 

Navajo Nation tribal trust lands and 

trust allotments outside the exterior 

boundaries of the formal Navajo 

Reservation. (These areas are 

collectively referred to hereinafter as 

‘‘areas covered by the Tribe’s Primacy 

Application.’’) 

DATES: This approval is effective 

December 4, 2008. The incorporation by 


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