72268 Federal Register / Vol. 70, No. 231 / Friday, December 2, 2005 / Proposed Rules 

Age 

Male Female 

Non-annuitant 

table Annuitant table 

Optional 

combined 

table 

for small plans 

Non-annuitant 

table Annuitant table 

Optional 

combined 

table 

for small plans 

71 ............................................................ 0.008002 0.019884 0.019606 0.007450 0.017078 0.016784 

72 ............................................................ 0.009777 0.022078 0.021822 0.008714 0.018995 0.018716 

73 ............................................................ 0.012439 0.024592 0.024371 0.010610 0.020819 0.020577 

74 ............................................................ 0.015988 0.027435 0.027256 0.013139 0.023074 0.022872 

75 ............................................................ 0.020425 0.031057 0.030919 0.016299 0.025117 0.024967 

76 ............................................................ 0.025749 0.034615 0.034523 0.020092 0.027673 0.027570 

77 ............................................................ 0.031961 0.039054 0.038999 0.024516 0.030911 0.030846 

78 ............................................................ 0.039059 0.044018 0.043992 0.029573 0.034074 0.034043 

79 ............................................................ 0.047046 0.049617 0.049610 0.035261 0.037618 0.037610 

80 ............................................................ 0.055919 0.055919 0.055919 0.041582 0.041582 0.041582 

81 ............................................................ 0.063476 0.063476 0.063476 0.046024 0.046024 0.046024 

82 ............................................................ 0.071926 0.071926 0.071926 0.051021 0.051021 0.051021 

83 ............................................................ 0.080176 0.080176 0.080176 0.056651 0.056651 0.056651 

84 ............................................................ 0.090433 0.090433 0.090433 0.063006 0.063006 0.063006 

85 ............................................................ 0.100383 0.100383 0.100383 0.071188 0.071188 0.071188 

86 ............................................................ 0.111295 0.111295 0.111295 0.080522 0.080522 0.080522 

87 ............................................................ 0.125051 0.125051 0.125051 0.091080 0.091080 0.091080 

88 ............................................................ 0.140385 0.140385 0.140385 0.101448 0.101448 0.101448 

89 ............................................................ 0.155142 0.155142 0.155142 0.114246 0.114246 0.114246 

90 ............................................................ 0.173400 0.173400 0.173400 0.126258 0.126258 0.126258 

91 ............................................................ 0.188868 0.188868 0.188868 0.138648 0.138648 0.138648 

92 ............................................................ 0.207683 0.207683 0.207683 0.151126 0.151126 0.151126 

93 ............................................................ 0.224037 0.224037 0.224037 0.165722 0.165722 0.165722 

94 ............................................................ 0.240367 0.240367 0.240367 0.177747 0.177747 0.177747 

95 ............................................................ 0.260098 0.260098 0.260098 0.189133 0.189133 0.189133 

96 ............................................................ 0.276058 0.276058 0.276058 0.199703 0.199703 0.199703 

97 ............................................................ 0.291564 0.291564 0.291564 0.212246 0.212246 0.212246 

98 ............................................................ 0.310910 0.310910 0.310910 0.220832 0.220832 0.220832 

99 ............................................................ 0.325614 0.325614 0.325614 0.228169 0.228169 0.228169 

100 .......................................................... 0.339763 0.339763 0.339763 0.234164 0.234164 0.234164 

101 .......................................................... 0.358628 0.358628 0.358628 0.244834 0.244834 0.244834 

102 .......................................................... 0.371685 0.371685 0.371685 0.254498 0.254498 0.254498 

103 .......................................................... 0.383040 0.383040 0.383040 0.266044 0.266044 0.266044 

104 .......................................................... 0.392003 0.392003 0.392003 0.279055 0.279055 0.279055 

105 .......................................................... 0.397886 0.397886 0.397886 0.293116 0.293116 0.293116 

106 .......................................................... 0.400000 0.400000 0.400000 0.307811 0.307811 0.307811 

107 .......................................................... 0.400000 0.400000 0.400000 0.322725 0.322725 0.322725 

108 .......................................................... 0.400000 0.400000 0.400000 0.337441 0.337441 0.337441 

109 .......................................................... 0.400000 0.400000 0.400000 0.351544 0.351544 0.351544 

110 .......................................................... 0.400000 0.400000 0.400000 0.364617 0.364617 0.364617 

111 .......................................................... 0.400000 0.400000 0.400000 0.376246 0.376246 0.376246 

112 .......................................................... 0.400000 0.400000 0.400000 0.386015 0.386015 0.386015 

113 .......................................................... 0.400000 0.400000 0.400000 0.393507 0.393507 0.393507 

114 .......................................................... 0.400000 0.400000 0.400000 0.398308 0.398308 0.398308 

115 .......................................................... 0.400000 0.400000 0.400000 0.400000 0.400000 0.400000 

116 .......................................................... 0.400000 0.400000 0.400000 0.400000 0.400000 0.400000 

117 .......................................................... 0.400000 0.400000 0.400000 0.400000 0.400000 0.400000 

118 .......................................................... 0.400000 0.400000 0.400000 0.400000 0.400000 0.400000 

119 .......................................................... 0.400000 0.400000 0.400000 0.400000 0.400000 0.400000 

120 .......................................................... 1.000000 1.000000 1.000000 1.000000 1.000000 1.000000 

(f) Effective date. The mortality tables 

described in this section apply for plan 

years beginning on or after January 1, 

2007. 

Mark E. Matthews, 

Deputy Commissioner for Services and 

Enforcement. 

[FR Doc. E5–6742 Filed 12–1–05; 8:45 am] 

BILLING CODE 4830–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 51 and 96 

[OAR 2003–0053; FRL–8003–7] 

Rule To Reduce Interstate Transport of 

Fine Particulate Matter and Ozone 

(Clean Air Interstate Rule): 

Reconsideration 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice of reconsideration; 

request for comment; notice of public 

hearing. 

SUMMARY: On May 12, 2005, EPA 

published in the Federal Register the 

final ‘‘Rule to Reduce Interstate 

Transport of Fine Particulate Matter and 

Ozone’’ (Clean Air Interstate Rule or 

CAIR). The CAIR requires certain 

upwind States to reduce emissions of 

nitrogen oxides (NOX) and/or sulfur 

dioxide (SO2) that significantly 

contribute to nonattainment of, or 

interfere with maintenance by, 

Federal Register / Vol. 70, No. 231 / Friday, December 2, 2005 / Proposed Rules 72269 

downwind States with respect to the 

fine particle and/or 8-hour ozone 

national ambient air quality standards 

(NAAQS). Subsequently, EPA received 

11 petitions for reconsideration of the 

final rule. In this notice, EPA is 

announcing its decision to reconsider 

four specific issues in the CAIR and is 

requesting comment on those issues. 

The EPA is seeking comment only on 

the aspects of the CAIR specifically 

identified in this notice. We will not 

respond to comments addressing other 

provisions of the CAIR or any related 

rulemakings. 

DATES: Comments must be received on 

or before January 13, 2006. A public 

hearing will be held on December 14, 

2005 in Washington, DC. For additional 

information on the public hearing, see 

the SUPPLEMENTARY INFORMATION section 

of this preamble. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. OAR–2003–

0053, by one of the following methods: 

• Federal Rulemaking Portal: http:// 

www.regulations.gov. Follow the on-line 

instructions for submitting comments. 

Attention E-Docket No. OAR–2003–

0053. 

• Agency Web site: http:// 

www.epa.gov/edocket. EDOCKET, EPA’s 

electronic public docket and comment 

system, is EPA’s preferred method for 

receiving comments. Follow the on-line 

instructions for submitting comments. 

Attention E-Docket No. OAR–2003–

0053. 

• E-mail: A-and-R-Docket@epa.gov. 

Attention E-Docket No. OAR–2003–

0053. 

• Fax: The fax number of the Air 

Docket is (202) 566–1741. Attention EDocket No. OAR–2003–0053. 

• Mail: EPA Docket Center, EPA West 

(Air Docket), Attention E-Docket No. 

OAR–2003–0053, Environmental 

Protection Agency, Mail Code: 6102T, 

1200 Pennsylvania Ave., NW., 

Washington, DC 20460. 

• Hand Delivery: EPA Docket Center 

(Air Docket), Attention E-Docket No. 

OAR–2003–0053, Environmental 

Protection Agency, 1301 Constitution 

Avenue, NW., Room B102, Washington, 

DC. Such deliveries are only accepted 

during the Docket’s normal hours of 

operation, and special arrangements 

should be made for deliveries of boxed 

information. 

Instructions: Direct your comments to 

Docket ID No. OAR–2003–0053. The 

EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available on-line at http:// 

www.epa.gov/edocket, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through EDOCKET, 

regulations.gov, or e-mail. (For 

instructions on submitting CBI, see 

below under SUPPLEMENTARY

INFORMATION.) 

The EPA EDOCKET and the Federal 

regulations.gov Web sites are 

‘‘anonymous access’’ systems, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through 

EDOCKET or regulations.gov, your email address will be automatically 

captured and included as part of the 

comment that is placed in the public 

docket and made available on the 

Internet. If you submit an electronic 

comment, EPA recommends that you 

include your name and other contact 

information in the body of your 

comment and with any disk or CD–ROM 

you submit. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. Electronic files should avoid 

the use of special characters, any form 

of encryption, and be free of any defects 

or viruses. For additional information 

about EPA’s public docket visit 

EDOCKET on-line or see the Federal 

Register of May 31, 2002 (67 FR 38102). 

For additional information on 

submitting comments, go to the 

SUPPLEMENTARY INFORMATION section of 

this document. 

Docket: All documents in the docket 

are listed in the EDOCKET index at 

http://www.epa.gov/edocket. Although 

listed in the index, some information is 

not publicly available, i.e., 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 in EDOCKET or in hard 

copy at the EPA Docket Center (Air 

Docket), EPA/DC, EPA West, Room 

B102, 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) 

566–1742 and the fax number is (202) 

566–1741. 

FOR FURTHER INFORMATION CONTACT: For 

general questions concerning today’s 

action, please contact Carla Oldham, 

U.S. EPA, Office of Air Quality Planning 

and Standards, Air Quality Strategies 

and Standards Division, Mail Code 

C539–02, Research Triangle Park, NC 

27711, phone number (919) 541–3347, 

e-mail addressoldham.carla@epa.gov. 

For questions concerning the analyses 

described in section III of this notice, 

please contact Chitra Kumar, U.S. EPA, 

Office of Atmospheric Programs, Clean 

Air Markets Division, Mail Code 6204J, 

1200 Pennsylvania Avenue, NW., 

Washington, DC 20460, telephone (202) 

343–9128, e-mail address 

kumar.chitra@epa.gov. For legal 

questions, please contact Sonja Rodman, 

U.S. EPA, Office of General Counsel, 

Mail Code 2344A, 1200 Pennsylvania 

Avenue, NW., Washington, DC 20460, 

telephone 202–564–4079, e-mail 

address rodman.sonja@epa.gov. 

For information concerning the public 

hearing, please contact Jo Ann Allman, 

U.S. EPA, Office of Air Quality Planning 

and Standards, Air Quality Strategies 

and Standards Division, Mail Code 

C539–02, Research Triangle Park, NC 

27711, phone number (919) 541–1815, 

e-mail address allman.joann@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Does This Action Apply to Me? 

The CAIR does not directly regulate 

emissions sources. Instead, it requires 

States to develop, adopt, and submit SIP 

revisions that would achieve the 

necessary SO2 and NOX emissions 

reductions, and leaves to the States the 

task of determining how to obtain those 

reductions, including which entities to 

regulate. 

Public Hearing. On December 14, 

2005, EPA will hold a public hearing on 

today’s notice at EPA Headquarters, 

1310 L Street (closest cross street is 13th 

Street), 1st floor conference rooms 152 

and 154, Washington, DC. The closest 

Metro stop is McPherson Square 

(Orange and Blue lines)—take 14th 

Street/Franklin Square Exit. Because the 

hearing will be held at a U.S. 

government facility, everyone planning 

to attend should be prepared to show 

valid picture identification to the 

security staff in order to gain access to 

the meeting room. 

The hearing will begin at 9 a.m. and 

end at 12 noon. Persons wishing to 

speak at the public hearing should 

contact Jo Ann Allman by December 9 

at telephone number (919) 541–1815 or 

by e-mail at allman.joann@epa.gov. The 

hearing will be limited to the subject 

matter of this document. Oral testimony 

will be limited to 5 minutes. The EPA 

encourages commenters to provide 

72270 Federal Register / Vol. 70, No. 231 / Friday, December 2, 2005 / Proposed Rules 

written versions of their oral testimonies 

either electronically (on computer disk 

or CD–ROM) or in paper copy. The 

public hearing schedule, including the 

list of speakers, will be posted on EPA’s 

Web site at: www.epa.gov/cair. Verbatim 

transcripts and written statements will 

be included in the rulemaking docket. 

The public hearings will provide 

interested parties the opportunity to 

present data, views, or arguments 

concerning the proposed rules. The EPA 

may ask clarifying questions during the 

oral presentations, but will not respond 

to the presentations or comments at that 

time. Written statements and supporting 

information submitted during the 

comment period will be considered 

with the same weight as any oral 

comments and supporting information 

presented at a public hearing. 

Because of the need to resolve the 

issues in this document in a timely 

manner, EPA will not grant requests for 

extensions of the public comment 

period. 

What Should I Consider as I Prepare 

My Comments for EPA? 

Note that general instructions for 

submitting comments are provided 

above under the ADDRESSES section. 

Submitting CBI. Do not submit 

comments that include CBI to EPA 

through EDOCKET, regulations.gov or email. Clearly mark the part or all of the 

information that you claim to be CBI. 

For CBI information in a disk or CD 

ROM that you mail to EPA, mark the 

outside of the disk or CD ROM as CBI 

and then identify electronically within 

the disk or CD ROM the specific 

information that is claimed as CBI. In 

addition to one complete version of the 

comment that includes information 

claimed as CBI, a copy of the comment 

that does not contain the information 

claimed as CBI must be submitted for 

inclusion in the public docket. 

Information so marked will not be 

disclosed except in accordance with 

procedures set forth in 40 CFR part 2. 

Send or deliver information identified 

as CBI only to the following address: 

Roberto Morales, U.S. EPA, Office of Air 

Quality Planning and Standards, Mail 

Code C404–02, Research Triangle Park, 

NC 27711, telephone (919) 541–0880, email at morales.roberto@epa.gov, 

Attention Docket ID No. OAR–2003–

0053. 

Tips for Preparing Your Comments. 

When submitting comments, remember 

to: 

i. Identify the rulemaking by docket 

number and other identifying 

information (subject heading, Federal 

Register date and page number). 

ii. Follow directions—The agency 

may ask you to respond to specific 

questions or organize comments by 

referencing a Code of Federal 

Regulations (CFR) part or section 

number. 

iii. Explain why you agree or disagree; 

suggest alternatives and substitute 

language for your requested changes. 

iv. Describe any assumptions and 

provide any technical information and/ 

or data that you used. 

v. If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

vi. Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

vii. Explain your views as clearly as 

possible, avoiding the use of profanity 

or personal threats. 

viii. Make sure to submit your 

comments by the comment period 

deadline identified. 

Availability of Related Information 

Documents related to the CAIR are 

available for inspection in docket OAR–

2003–0053 at the address and times 

given above. The EPA has established a 

Web site for the CAIR at http:// 

www.epa.gov/cleanairinterstaterule or 

more simply http://www.epa.gov/cair/. 

Outline 

I. Background 

II. Today’s Action 

A. Grant of Reconsideration 

B. Schedule for Reconsideration 

III. Discussion of Issues 

A. SO2 Allocation Methodology in the 

CAIR Model Trading Rules 

B. Fuel Adjustment Factors Used To Set 

State NOX Budgets 

C. PM2.5 Modeling for Minnesota 

D. Inclusion of Florida in the CAIR Region 

for Ozone 

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 

I. Background 

On May 12, 2005, the EPA (Agency or 

we) promulgated the final ‘‘Rule to 

Reduce Interstate Transport of Fine 

Particulate Matter and Ozone’’ (Clean 

Air Interstate Rule or CAIR) (70 FR 

25162). In this action, EPA found that 

28 States and the District of Columbia 

contribute significantly to 

nonattainment of, or interfere with 

maintenance by, downwind States with 

respect to the NAAQS for fine particles 

(PM2.5) and/or 8-hour ozone. The CAIR 

requires these upwind States to revise 

their State implementation plans (SIPs) 

to include control measures to reduce 

emissions of SO2 and/or NOX. Sulfur 

dioxide is a precursor to PM2.5

formation and NOX is a precursor to 

PM2.5 and ozone formation. By reducing 

upwind emissions of SO2 and NOX, 

CAIR will assist downwind PM2.5 and 8- 

hour ozone nonattainment areas in 

achieving the NAAQS. 

The EPA promulgated the CAIR based 

on the ‘‘good neighbor’’ provision of the 

Clean Air Act (CAA), section 

110(a)(2)(D), which establishes State 

obligations to address interstate 

transport of pollution. The EPA 

conducted extensive air modeling to 

determine the extent to which emissions 

from certain upwind States were 

impacting downwind nonattainment 

areas. All States found to contribute 

significantly to downwind PM2.5

nonattainment or maintenance problems 

are included in the CAIR region for 

PM2.5 and are required to reduce annual 

emissions of SO2 and NOX. All States 

found to contribute significantly to 

downwind 8-hour ozone nonattainment 

are included in the CAIR region for 

ozone and required to reduce NOX

emissions during the 5-month ozone 

season (May–September). The CAIR 

establishes regional emission reduction 

requirements for annual SO2 and NOX

emissions and seasonal NOX emissions. 

The reduction requirements are based 

on control technologies known to be 

highly cost effective for electric 

generating units (EGUs). The first phase 

of NOX reductions starts in 2009 

(covering 2009–2014) and the first phase 

of SO2 reductions starts in 2010 

(covering 2010–2014). The second phase 

of both SO2 and NOX reductions starts 

in 2015 (covering 2015 and thereafter). 

Each State covered by CAIR may 

independently determine which 

emission sources to control, and which 

control measures to adopt. States that 

choose to base their programs on 

emissions reductions from EGUs may 

allow their EGUs to participate in an 

EPA-administered cap and trade 

program. The CAIR includes model 

Federal Register / Vol. 70, No. 231 / Friday, December 2, 2005 / Proposed Rules 72271 

1Petitions for reconsideration were filed by: State 

of North Carolina (OAR–2003–0053–2192); FPL 

Group OAR–2003–0053–2201); Florida Association 

of Electric Utilities (OAR–2003–0053–2200); 

Entergy Corporation (OAR–2003–0053–2195 and 

2198 (attachment 1)); Massachusetts Department of 

Environmental Protection (OAR–2003–0053–2199); 

Integrated Waste Services Association (OAR–2003–

0053–2193); Texas Commision on Environmental 

Quality (OAR–2003–0053–2212); Northern Indiana 

Public Service Corporation (OAR–2003–0053–2194 

and 2213 (supplemental petition)); City of Amarillo, 

Texas, El Paso Electric Company, Occidental 

Permian Ltd, and Southwestern Public Service 

Company d/b/a/ Xcel Energy (OAR–2003–0053–

2196 and 2197 (attachment 1) and 2205–2207 

(attachments 2–4)); Connecticut Business and 

Industry Ass’n (OAR–2003–0053–2203); and 

Minnesota Power, a division of ALLETE. Inc. 

(OAR–2003–0053–2212). 

2State of North Carolina v. EPA (No. 05–1244); 

Minnesota Power v. EPA (No. 05–1246); ARIPPA v. 

EPA (No. 05–1249); South Carolina Public Service 

Authority et al. v. EPA (No. 05–1250); Entergy Corp. 

v. EPA (No. 05–1251); Florida Ass’n of Electric 

Utilities (No. 05–1252); FPL Group v. EPA (No. 05–

1253); Northern Indiana Public Service Co. v. EPA 

(No. 05–1254); South Carolina Electric & Gas Co. v. 

EPA (No. 05–1256); Integrated Waste Services Ass’n 

v. EPA (No. 05–1257); AES Corp v. EPA (No. 05–

1259); City of Amarillo, Texas et al. v. EPA (No. 05–

1260); Appalachian Mountain Club et al. v. EPA 

(No. 05–1246); Duke Energy v. EPA (No. 05–1246). 

3These letters are available in the CAIR Docket. 

(OAR–2003–0053–2209 and 2210). 

4This letter is also available in the CAIR Docket 

(OAR–2003–0053–2208). 

rules for multi-State cap and trade 

programs for annual SO2 and NOX

emissions, and seasonal NOX emissions. 

States may choose to adopt these rules 

to meet the required emissions 

reductions in a flexible and highly costeffective manner. To learn more about 

the CAIR and its impacts, the reader is 

encouraged to read the preamble to the 

CAIR (70 FR 25162; May 10, 2005). 

The CAIR was promulgated through a 

process that involved significant public 

participation. The EPA published a 

notice of proposed rulemaking on 

January 30, 2004 (69 FR 4566) and a 

notice of supplemental rulemaking on 

June 10, 2004 (69 FR 32684). The EPA 

also published a notice of data 

availability on August 6, 2004 (69 FR 

47828). The Agency held public 

hearings on the January 2004 proposed 

rule on February 25 and 26, 2004, and 

an additional hearing on the 

supplemental proposal on June 3, 2004. 

In addition, the EPA received thousands 

of comments on the proposals. We 

responded to all significant public 

comments in the preamble to the final 

rule and the final response to comments 

document available in the CAIR docket 

(Docket No. OAR–2003–0053–2172). 

Following publication of the final rule 

on May 12, 2005, the Administrator 

received eleven petitions requesting 

reconsideration of certain aspects of the 

final CAIR. These petitions were filed 

pursuant to section 307(d)(7)(B) of the 

CAA. Under this provision, the 

Administrator is to initiate 

reconsideration proceedings if the 

petitioner can show that an objection is 

of central relevance to the rule and that 

it was impracticable to raise the 

objection to the rule within the public 

comment period or that the grounds for 

the objection arose after the public 

comment period but before the time for 

judicial review had run. The petitions 

for reconsideration of the CAIR ask EPA 

to reconsider several specific aspects of 

the final rule, and many of the petitions 

make similar requests. This notice 

addresses four of the issues raised in 

those petitions. The EPA expects to 

issue decisions on all remaining issues 

raised in the petitions for 

reconsideration by March 15, 2006. The 

complete petitions are available in the 

docket for the CAIR.1

In addition, fourteen petitions for 

judicial review of the final rule were 

filed with the U.S. Court of Appeals for 

the District of Columbia.2 The fourteen 

cases have been consolidated into a 

single case, State of North Carolina v. 

EPA (No. 05–1244) (D.C. Cir). Many of 

the parties who petitioned EPA for 

reconsideration of the CAIR also 

petitioned for judicial review of the 

rule. 

By letters dated August 1, 2005, EPA 

granted reconsideration of the definition 

of ‘‘electric generating unit’’ or ‘‘EGU’’

as it relates to solid waste incinerators 

(and particularly municipal waste 

incinerators).3 The EPA explained that 

the issue would be addressed in the 

proposed rule signed the same day. That 

proposed rule, entitled ‘‘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 

Clean Air Interstate Rule; Revisions to 

the Acid Rain Program; Proposed Rule,’’

was published on August 24, 2005 (70 

FR 49708). In that proposed rule, EPA 

reconsidered the definition of ‘‘EGU’’ in 

the final CAIR as it relates to solid waste 

incinerators (70 FR 49738). We 

proposed revisions to the definition of 

‘‘EGU’’ and requested comment on this 

issue. In that action, we did not address 

any other issues raised in the petitions 

for reconsideration of the CAIR. Today’s 

action does not reopen for comment any 

aspect of the August 24, 2005, proposed 

rule. 

The EPA also received two requests to 

stay the implementation of the CAIR in 

limited geographic areas pending 

resolution of this reconsideration 

process. One petitioner requested a stay 

of implementation of the CAIR in the 

State of Florida, and one petitioner 

requested a stay of implementation of 

the CAIR in the State of Minnesota. By 

letter dated August 1, 2005, EPA 

declined to stay implementation of the 

CAIR in Florida.4 The EPA has not yet 

acted on the request to stay 

implementation of the CAIR in 

Minnesota. 

By letters dated November 21, 2005, 

we informed several petitioners of our 

intent to grant reconsideration on one or 

more issues addressed in their petitions 

for reconsideration. We indicated in 

those letters that we would initiate the 

reconsideration process by publishing 

this notice. 

II. Today’s Action 

A. Grant of Reconsideration 

In this notice, EPA is announcing its 

decision to grant reconsideration on 

four issues raised in the petitions for 

reconsideration. This notice initiates 

that reconsideration process and 

requests comment on the issues to be 

addressed. Given the intense public 

interest in this rule, EPA has decided to 

provide this additional opportunity for 

public comment. At this time, however, 

EPA does not believe that any of the 

information submitted to date 

demonstrates that EPA’s final decisions 

were erroneous or inappropriate. 

Therefore, we are not proposing any 

modifications to the final CAIR. 

The first issue on which EPA is 

requesting comment relates to analysis 

done by EPA to address petitioner’s 

claims regarding alleged inequities 

resulting from the application of the SO2

allowance allocation methodology that 

States choosing to participate in the 

trading program would use to allocate 

SO2 allowances to sources. The second 

issue relates to EPA’s use of specific fuel 

adjustment factors to establish NOX

budgets for each State. The third issue 

relates to modeling inputs used by EPA 

to determine whether emissions from 

Minnesota should be included in the 

CAIR region for PM2.5. And the fourth 

issue relates to EPA’s determination that 

the State of Florida should be included 

in the CAIR region for ozone. Each issue 

is described in greater detail in Section 

III of this notice. 

The EPA is requesting comment only 

on the issues specifically described in 

Section III. We are not taking comment 

on any other provisions in the CAIR or 

otherwise reopening any other issues 

decided in the CAIR for reconsideration 

or comment. 

72272 Federal Register / Vol. 70, No. 231 / Friday, December 2, 2005 / Proposed Rules 

B. Schedule for Reconsideration 

For the four issues addressed in this 

notice, EPA expects to take final action 

on reconsideration by March 15, 2006. 

By that date, EPA will finalize the 

process of reconsideration by issuing a 

final rule or proposing a new approach. 

EPA also expects, by March 15, 2006, to 

issue decisions on all remaining issues 

raised in the petitions for 

reconsideration. 

III. Discussion of Issues 

A. SO2 Allocation Methodology in the 

CAIR Model Trading Rules 

One petitioner argues that the SO2

allowance allocation methodology in 

the CAIR model trading rules is 

unreasonable and inequitable, and asks 

EPA to establish a different approach. 

According to the petitioner, the 

methodology is inequitable because it 

results in owners of units that have 

lower emission rates, historically, 

buying allowances from historically 

higher emitting units that install new 

emission controls. EPA does not accept 

the petitioner’s characterization of this 

issue. EPA continues to believe that the 

methodology selected is reasonable for 

the reasons explained in the final rule 

and further outlined below. 

Furthermore, numerous opportunities 

for public comment on this issue were 

provided, and a full discussion of the 

allowance allocation options occurred 

during the rule development process. 

Nonetheless, given the intense public 

interest in this issue, EPA has decided 

to grant the Petition for Reconsideration 

insofar as it raises issues regarding 

alleged inequities resulting from the 

application of the SO2 allowance 

allocation. 

As explained below, EPA has 

conducted additional analyses 

concerning the impact of the SO2

allowance allocation approach adopted 

in the model rules, comparing this 

approach to various other alternatives 

considered during the rulemaking 

process. These analyses further 

illustrate that the approach selected 

produces a reasonable result, not the 

inequities alleged in the Petition for 

Reconsideration. Therefore EPA is not 

proposing any changes to the CAIR SO2

allocation approach as part of this 

reconsideration notice. We are taking 

comment on the analyses conducted 

and our discussion of the petitioner’s 

concerns. 

Title IV and CAIR 

The CAIR model SO2 trading program 

relies on the use of title IV SO2

allowances for compliance with the 

allowance-holding requirements of 

CAIR. Title IV SO2 allowances have 

already been allocated on a unit-by-unit 

basis in perpetuity, based on formulas 

set forth in section 405 and 406 of title 

IV, which were implemented through 

final regulations issued in 1998 (Sec 42 

U.S.C. 7651d and 7651e; and 18 CFR 

73.10(b)). The statutory formula for SO2

allocations was generally based on unit 

data for 1985–1987 and, for some units, 

data for years up to 1995. For the title 

IV SO2 trading program, each allowance 

authorizes one ton of SO2 emissions. 

For the CAIR SO2 trading program, 

SO2 reductions would be achieved by 

generally requiring CAIR sources to 

retire more than one title IV allowance 

for each ton of their SO2 emissions for 

2010 and thereafter. Specifically, each 

title IV SO2 allowance issued for 2009 

or earlier would be used for compliance 

by CAIR sources at a ratio of one 

allowance per ton of SO2 emissions and 

would authorize one ton of SO2

emissions. Each title IV allowance of 

vintage 2010 through 2014 would be 

used for compliance under CAIR at a 

two-to-one ratio and authorize 0.5 tons 

of SO2 emissions. Each title IV 

allowance of vintage 2015 and later 

would be used at a 2.86-to-1 ratio and 

authorize 0.35 tons of SO2 emissions. 

See discussion in the preamble to the 

final CAIR in section VII (70 FR 25255–

25273) and section IX (70 FR 25290–

25291). 

SO2 Allocation Options in CAIR 

A variety of SO2 allowance allocation 

methodologies were raised and analyzed 

during the rulemaking process, 

including the one EPA selected. 

Alternative methodologies analyzed 

included allocating on the basis of 

historic tonnage emissions, heat input 

(with alternatives based on heat input 

from all fossil generation, and heat 

input from coal- and oil-fired generation 

only) and output (with alternatives 

based on all generation and all fossilfired generation). While every allocation 

methodology suggested by commenters 

during the rulemaking process has its 

advantages and disadvantages for 

different companies and States, EPA 

explained in the final rule that its 

chosen methodology is reasonable on 

several grounds. First, EPA believes that 

‘‘achieving SO2 reductions for EGUs 

using the title IV allowances is 

necessary in order to ensure the 

preservation of a viable title IV 

program’’ (Response to Comments (RTC) 

at page 511, section X.A.26, 2005). See 

also discussion in preamble to the final 

CAIR in section IX (70 FR 25290–

25291). Second, in using the title IV 

allowances, EPA relied on the selection 

by Congress of the permanent allocation 

methodology established in title IV for 

purposes of reducing SO2 emissions. As 

stated in the RTC (page 512), ‘‘Congress 

clearly did not choose a policy to 

regularly revisit and revise these 

allocations, believing that its allocations 

methodology for title IV allowances 

would be appropriate for future time 

periods.’’

Third, title IV allowance allocations 

provide a logical and well understood 

starting point from which additional 

EGU SO2 emission reductions can be 

achieved for Acid Rain units, which 

account for over 90% of the SO2

emissions from CAIR EGUs. Finally, 

EPA’s State-by-State analysis of several 

methods for SO2 allocations shows that 

the use of title IV allowances to develop 

state budgets creates a reasonable result 

(See RTC, section X.A.26). The policy 

decision to base the CAIR SO2 budgets 

on the existing title IV allowance 

system, and EPA’s demonstration that 

the result of using the system is 

reasonable fully support the use of an 

allocation system based on title IV 

allowances. 

Analysis of SO2 Allocation Options 

As a part of this reconsideration, EPA 

performed additional analyses, 

explained below, to evaluate the SO2

allocation methodology in the final 

CAIR rule in light of the petitioner’s 

concerns. In these analyses, EPA 

compared three alternative SO2

allowance allocation methodologies to 

the methodology in the final CAIR to see 

how companies fared in terms of the 

amount of allowances allocated relative 

to their projected SO2 emissions. The 

allocation allowance methodologies 

evaluated by EPA were the ones referred 

to by the petitioner in the Petition for 

Reconsideration. EPA believes that, for 

purposes of evaluating the various 

allocation methodologies, computing 

allocations on a company-by-company 

basis is more appropriate than 

comparing allocations on a unit-by-unit 

basis. This is because, while one unit 

could be allocated fewer allowances 

under one methodology, another unit 

owned by the same company could be 

allocated more allowances, which may 

offset the smaller allocation of the first 

unit. 

The three alternative allowance 

allocation methodologies EPA analyzed 

were suggested by various commenters 

during the rulemaking process. Also 

note that methodologies 2 and 3 were 

suggested by the petitioner. These 

methodologies are: 

1. Allocating allowances based on 

more recent heat input data; 

Federal Register / Vol. 70, No. 231 / Friday, December 2, 2005 / Proposed Rules 72273 

5The greatest cost associating with opting in to 

the title IV program is the cost of monitoring. Since 

these sources are already required to monitor using 

the same monitoring methodologies that would be 

required if they were to opt in, their costs for opting 

in are significantly reduced. 

6According to EPA inventory data, there are a 

total of 921 CAIR affected plants. EPA did not have 

complete owner, parent company information for 

all of these plants. 

2. Allocating allowances based on 

more recent heat input data adjusted for 

fuel type (e.g., coal, oil and gas); 

3. Allocating allowances based on 

more recent heat input data adjusted 

both for fuel type (e.g., coal, oil and gas) 

and for coal type (e.g., bituminous, subbituminous and lignite). 

In comparing the CAIR final SO2

allocation methodology and the three 

alternative methodologies, EPA took 

into account certain factors that are 

applicable to the CAIR final allocation 

methodology but not to the three 

alternative methodologies. For all four 

methodologies, EPA analyzed the 

resulting total allowance allocations, 

and the total projected emissions, for 

companies’ sources located in the States 

subject to CAIR. In addition, for all the 

methodologies, EPA analyzed the 

relationship between allowances and 

emissions in two ways. In the first, EPA 

calculated the ratio of allowances to 

total projected emissions before CAIR 

controls (base case). This measures how 

much each company falls short of 

allowance needs. Then, in the second 

approach, EPA calculated the ratio of 

allowances to total projected emissions 

with CAIR controls installed (control 

case). This way measures how many 

allowances a company would need to 

purchase after controls are installed. 

For the CAIR final methodology, EPA 

also considered both the allowance 

allocations and emissions for 

companies’ sources both in the CAIR 

region and outside the CAIR region. 

EPA believes that this is appropriate 

because, under the CAIR final 

methodology, if a company’s sources 

outside the CAIR region have more title 

IV allowances than needed to cover 

their emissions under the Acid Rain 

Program, the company could transfer, at 

little or no net cost, excess allowances 

to the company’s sources in the CAIR 

region for use to cover emissions under 

the CAIR trading program. Under the 

three alternative methodologies, which 

would require creating new CAIR SO2

allowances independent of the existing 

title IV allocations, CAIR sources could 

not use title IV for compliance with the 

CAIR SO2 allowance holding 

requirements. 

Further, in the analysis of the CAIR 

final methodology, EPA considered the 

allocation of title IV allowances to CAIR 

region units that are not currently in the 

Acid Rain Program but that could opt 

into the Acid Rain Program and receive 

title IV allowances (see 42 U.S.C. 7651i 

and 18 CFR part 74). This analysis 

assumed that companies owning nonAcid Rain units affected by CAIR would 

opt into the Acid Rain Program because 

they would receive title IV allowances 

to cover a portion of the unit’s 

emissions under CAIR. EPA believes 

this assumption is reasonable because 

there is very little cost associated with 

opting into the Acid Rain Program.5 In 

contrast, the analysis of the three 

alternative methodologies did not 

consider Acid Rain Program opt-in 

allowances because these approaches do 

not use title IV allowances for CAIR 

compliance. 

EPA’s analyses, of which a detailed 

description is available in the docket, 

encompassed 112 (control case) to 114 

(base case) parent/holding companies 

with sources covered by the CAIR. 

These 112 to 114 companies represent 

about two-thirds of the total number of 

CAIR plants, over 95 percent of total 

annual allocations for all methodologies 

during 2015, and about 97 percent of the 

total projected emissions in the CAIR 

region in 2015.6

While allocations vary from company 

to company under the four 

methodologies, overall, the distributions 

of allowances that companies received 

relative to their projected emissions for 

both the base case and control case are 

very similar. In other words, no 

methodology stands out as providing a 

more reasonable method of allocation 

across all companies when examining 

allowance needs under either the base 

case or control case. Figures 1 and 2, 

below, show the distribution of values 

for each methodology under the two 

cases, and support this conclusion. EPA 

repeated these analyses for 2010, which 

show similar results. Separate analyses 

of owner/operating company allowances 

compared to emissions in 2010 and 

2015, show similar results, as well. See 

TSD Memo, ‘‘Technical Support 

Document for Clean Air Interstate Rule 

Response to Petition for 

Reconsideration.’’

BILLING CODE 6560–50–P 

72274 Federal Register / Vol. 70, No. 231 / Friday, December 2, 2005 / Proposed Rules 


EP02DE05.037</GPH>
Federal Register / Vol. 70, No. 231 / Friday, December 2, 2005 / Proposed Rules 72275 

BILLING CODE 6560–50–C 


EP02DE05.038</GPH>
72276 Federal Register / Vol. 70, No. 231 / Friday, December 2, 2005 / Proposed Rules 

7A permanent allocation approach, such as the 

CAIR allocation methodology in the model trading 

rules, should not affect where controls are installed. 

This is true regardless of the type of approach used 

to permanently allocate allowances (e.g., heat input, 

adjusted heat input, or output). The use of an 

updating allocation system, on the other hand, 

could impact future generation behavior. 

8 It should be noted that simple heat input or 

adjusted heat input are used to set State budgets 

and do not imply that States would allocate 

allowances to units in that manner. In the proposal, 

EPA gives States flexibility in the distribution of 

allowances. 

EPA also notes that, while the 

Petitioner states that the CAIR final 

allocation methodology is ‘‘inequitable’’

because lower emitting units would buy 

allowances from higher emitting units 

that install emission controls, it is 

unclear why such a result would 

actually be inequitable. On the contrary, 

the owner of each of the units involved 

would be choosing to adopt the most 

economic compliance strategy in light of 

the unit’s emission control costs and the 

market value of allowances. The ability 

of the owners to make such choices 

reflects the flexibility provided by a cap 

and trade program. 

The EPA requests comment on its 

analyses of the four allocation 

methodologies and on the above 

discussion of the Petitioner’s concerns. 

B. Fuel Adjustment Factors Used To Set 

State NOX Budgets 

Several petitioners argue the Agency 

did not provide adequate notice 

regarding the use of specific fuel 

adjustment factors to establish NOX

budgets for States in the CAIR region. 

As explained below, EPA believes that 

it provided adequate notice both that 

the fuel adjustment factors might be 

used and of the calculation procedures 

that it would use to determine the 

specific factors. Nevertheless, given the 

significant public interest in this issue, 

EPA has decided to grant 

reconsideration of, and to take comment 

on, EPA’s use of fuel adjustment factors 

(i.e., 1.0 for coal, 0.4 for gas, and 0.6 for 

fuel oil) in setting State NOX budgets. 

Today’s action also presents additional 

analysis that EPA conducted to further 

explain the impact of these factors on 

State annual NOX budgets. This analysis 

demonstrates that the factors selected 

are reasonable and decrease the 

disparity between most States’ actual 

electric generation unit (EGU) emissions 

and their State NOX budgets. For that 

reason, EPA is not proposing any 

changes to the final CAIR at this time. 

The CAIR establishes regional 

emission budgets for annual NOX, and 

seasonal NOX emissions. These regional 

budgets are then further divided into 

State budgets, with a share of each total 

regional budget allocated to each State 

in the corresponding CAIR region. 

States choosing to participate in the 

trading programs will be able to 

allocate, to sources in their State, the 

number of allowances in their budgets. 

Petitioners challenge the methodology 

EPA used to establish these State 

budgets for annual and seasonal NOX. 

Background 

For States choosing to participate in 

the trading program, these budgets 

determine the number of allowances 

that could be allocated to sources in that 

State. In a cap and trade system, 

however, the methodology used to 

allocate allowances in any given year 

would not affect where control 

technologies are installed.7 Rather, the 

determinant would be the cost of adding 

controls compared to the cost of buying, 

or the profit from selling, allowances. 

Controls are expected to be installed 

where it is relatively less expensive, 

without regard to which units received 

the initial allocation of allowances. 

Further, the total cost to industry of 

controlling emissions and the total 

amount of reductions achieved would 

not be affected by the allocation 

methodology in a given year (for a 

permanent system). The allocation 

method, however, could have financial 

impacts on individual units and 

companies. A unit that receives more 

allocations than it has emissions would 

get a benefit at the expense of a unit that 

does not receive enough allocations to 

cover its emissions. While States 

choosing to participate in the cap and 

trade program can determine how to 

allocate allowances among their units, 

companies in States whose budgets 

exceed projected EGU emissions would 

likely receive a financial benefit while 

companies in States whose budgets are 

lower than their EGU emissions would 

likely incur additional costs. In the 

absence of other considerations, EPA 

believes that it is in the public interest 

to reduce the disparity between the 

number of allowances in a State budget 

and total projected State EGU emissions. 

Notice of Fuel Factor Use in CAIR 

Promulgation 

In the CAIR notice of proposed 

rulemaking (NPR), EPA proposed to use 

the simple heat input method. (69 FR 

4566) This approach used the unadjusted heat input to set budgets based 

on heat input data from the years 1999 

through 2002. EPA proposed to give 

each State a pro rata share of the 

regional NOX budget based on the ratio 

of its average annual heat input to the 

regional total average annual heat input. 

In the Supplemental Notice of 

Proposed Rulemaking (SNPR), EPA 

proposed to supplement and update the 

data used to calculate the State annual 

NOX budgets (69 FR 32684). EPA also 

described an alternative method that 

could be used to calculate the budgets—

the adjusted heat input (fuel factor) 

method. This approach, EPA explained, 

would ‘‘* * * reflect the inherently 

higher emissions rate of coal-fired 

plants, and consequently the greater 

burden on coal plants to control 

emissions.’’ (See 69 FR 32689.) The 

SNPR further explains ‘‘in contrast to 

allocations based on historic emissions, 

the factors would also not penalize coalfired plants that have already installed 

pollution controls’’ (69 FR 32689). In 

the SNPR, EPA also described the 

method that it would use to derive 

specific fuel factors if this adjusted heat 

input method was selected. EPA 

explained, ‘‘States’ shares would be 

determined by the amount of the State 

heat input, as adjusted, in proportion to 

the total regional heat input. The factors 

could be based on average historic 

emissions rates (in lbs/mmBtu) by fuel 

type (coal, gas, and oil) for the years 

1999–2002’’ (69 FR 32689). The SNPR 

did not identify the specific numeric 

factors that would be used. EPA 

received and responded to numerous 

comments addressing this alternative 

fuel factor approach. (See ‘‘Corrected 

Response to Significant Public 

Comments on the Proposed Clean Air 

Interstate Rule,’’ pp. 520–576.) 

EPA established State NOX budgets 

for the final CAIR using the adjusted 

heat input method. The specific fuel 

factors used to adjust heat input data 

were 1.0 for coal, 0.4 for gas and 0.6 for 

oil. These factors are based on the 

average historic NOX emissions rate for 

each fuel. They reflect for each fuel, the 

1999–2002 average emissions by State 

summed for the CAIR region, divided by 

average heat input by fuel by State, 

summed for the CAIR region (70 FR 

25230–25231). 

EPA Analyses of Potential Impacts 

EPA conducted two analyses to 

evaluate the potential impact of using 

the adjusted heat input method versus 

the simple heat input method on State 

annual NOX budgets: one on a 

regionwide scale and the second on a 

State-by-State level. 

The regionwide analysis of the 

potential impacts compared regionwide 

budgets using both approaches (i.e. 

simple heat input and fuel factor) to the 

regionwide projected emissions of units 

fired with that fuel.8 Regional budgets 

and emissions, by fuel type, are 

summarized in Table 1. 

Federal Register / Vol. 70, No. 231 / Friday, December 2, 2005 / Proposed Rules 72277 

TABLE 1.—REGIONWIDE COMPARISON OF CAIR ALLOWANCE DISTRIBUTIONS AND EMISSIONS BY FUEL TYPE

[Thousand tons] 

Projected 2009* emissions and 

allowances 

Projected 2015 emissions and allowances 

Coal Other 

fossil** Total Coal Other fossil Total 

Base Case Emissions .............................................................................. 2,635 97 2,732 2,650 96 2,746 

CAIR Emissions ....................................................................................... 1,404 99 1,503 1,151 89 1,254 

Simple Heat Input Allowances ................................................................. 1,197 308 1,505 998 256 1,254 

Fuel Factor Adjusted Allowances ............................................................ 1,349 156 1,505 1,124 130 1,254 

* Numeric value is based on 2010 projections. 

** Numeric value includes wood and refuse in three States. 

Assuming allowancesare often passed 

through to generation units in the same 

way that they are apportioned to the 

States, Table 1 illustrates that under 

either approach natural gas-fired and 

other non-coal-fired generation receives 

more allowances than their projected 

emissions in both 2009 and 2015 and 

therefore States with more units of this 

type receive a greater share of the 

budget. However, using the fuel factor 

approach, the disparity between the 

number of allowances provided and the 

emissions is less than under the simple 

heat input method. Table 1 also 

demonstrates that the majority of 

emission reductions are made by coalfired sources. States with more of these 

types of units receive a greater share of 

the regional budget under the fuel factor 

approach (however, the portion of the 

budget derived from the heat input from 

these units is still generally smaller than 

their projected emissions). Therefore, 

the fuel factor approach generally 

provides additional allowances to States 

with large amounts of coal-fired units 

that are making the investments in 

emission control measures and 

technologies. Conversely the simple 

heat input approach provides more 

allowances to States with larger 

amounts of gas-fired units that are not 

making reductions. Note that under 

either approach the portion of the State 

budgets derived from the heat input 

from the gas-fired units generally 

exceeds both the historical and the 

future projected emissions from these 

units. This finding led EPA to believe 

that the fuel factor approach better 

reduced the disparity between projected 

emissions and State budgets. 

EPA conducted a second analysis that 

examined the potential impacts of the 

two approaches for developing 

Statewide budgets (i.e., simple heat 

input and fuel factor) on a State-by-State 

basis. This analysis, summarized in 

Tables 2 and 3 below, shows that States 

receiving fewer allowances using a fuel 

factor approach, generally still receive 

Statewide budgets that are greater than 

their projected emissions in 2009 and 

2015. This results because a substantial 

portion of their generation portfolio 

consists of gas-fired sources with 

generally low NOX emission levels. 

TABLE 2.—COMPARISON OF PROJECTED NOX MISSIONS AND STATE BUDGETS FOR CAIR STATES NOT DOMINATED BY

COAL GENERATION

[Thousand tons] 

State 

Projected 2009 * emissions and 

budgets 

Projected 2015 emissions and 

budgets 

Coal Other 

fossil Total Coal Other fossil Total 

DC ** ...... Base Case Emissions .......................................................... 0 0 0 0 <1 <1 

CAIR Emissions ................................................................... 0 <1 <1 0 <1 <1 

Simple Heat Input Budget ................................................... 0 <1 <1 0 <1 <1 

Fuel Factor Adjusted Budget ............................................... 0 <1 <1 0 <1 <1 

LA .......... Base Case Emissions .......................................................... 45 5 49 45 5 50 

CAIR Emissions ................................................................... 30 4 35 27 5 32 

Simple Heat Input Budget ................................................... 19 23 42 16 26 42 

Fuel Factor Adjusted Budget ............................................... 21 14 36 18 12 30 

NY .......... Base Case Emissions .......................................................... 38 7 45 38 6 44 

CAIR Emissions ................................................................... 29 7 36 15 6 21 

Simple Heat Input Budget ................................................... 19 42 61 16 35 51 

Fuel Factor Adjusted Budget ............................................... 21 25 46 17 21 38 

TX .......... Base Case Emissions .......................................................... 141 45 186 141 39 179 

CAIR Emissions ................................................................... 122 44 166 122 35 157 

Simple Heat Input Budget ................................................... 114 118 231 95 98 192 

Fuel Factor Adjusted Budget ............................................... 128 53 181 106 44 151 

MS ......... Base Case Emissions .......................................................... 36 1 37 36 2 37 

CAIR Emissions ................................................................... 30 1 31 6 2 8 

Simple Heat Input Budget ................................................... 11 10 21 9 8 18 

Fuel Factor Adjusted Budget ............................................... 13 5 18 10 4 15 

FL ........... Base Case Emissions .......................................................... 132 19 151 132 18 151 

CAIR Emissions ................................................................... 51 17 69 44 18 61 

Simple Heat Input Budget ................................................... 58 58 116 48 48 97 

72278 Federal Register / Vol. 70, No. 231 / Friday, December 2, 2005 / Proposed Rules 

TABLE 2.—COMPARISON OF PROJECTED NOX MISSIONS AND STATE BUDGETS FOR CAIR STATES NOT DOMINATED BY

COAL GENERATION—Continued 

[Thousand tons] 

State 

Projected 2009 * emissions and 

budgets 

Projected 2015 emissions and 

budgets 

Coal Other 

fossil Total Coal Other fossil Total 

Fuel Factor Adjusted Budget ............................................... 65 34 99 54 28 83 

* Numeric value is based on 2010 projections. 

** For DC: Projected Base Case emissions are 35 tons in 2015. CAIR Emissions are projected to be 35 tons in both 2009 and 2015. Simple 

Heat Input budgets are 213 and 178 tons in 2009 and 2015, respectively. Fuel Factor budgets are 144 and 120 tons in 2009 and 2015, 

respectively. 

Table 2 lists those States in the CAIR 

region that have significant amounts 

(i.e., 40 percent or greater) of generation 

sources that combust fossil fuels other 

than coal. As illustrated by Table 2, DC, 

FL, LA, MS, NY, and TX, while 

receiving fewer allowances under a fuel 

factor approach, are provided with 

reasonable Statewide budgets that are 

comparable to their projected emissions 

in 2009 and 2015. If the States were to 

directly pass through allowances to 

their gas-fired units, these units would 

still have excess allowances. 

Furthermore in most cases, these States 

still receive a larger budget than they 

need to cover their projected emissions. 

TABLE 3.—COMPARISON OF PROJECTED NOX EMISSIONS AND STATE BUDGETS FOR CAIR STATES

[Thousand tons] 

State 

Projected 2009 * emissions and budgets Projected 2015 emissions and budgets 

Emissions Budget Emissions Budget 

Base 

case CAIR 

Simple 

heat input 

Fuel 

factor 

adjusted 

Percent 

change Base 

case CAIR 

Simple 

heat input 

Fuel 

factor 

adjusted 

Percent 

change 

DC ** ......................... 0 <1 <1 <1 ¥32 <1 <1 <1 <1 ¥33 

LA ............................. 49 35 50 36 ¥29 50 32 42 30 ¥29 

NY ............................ 45 36 61 46 ¥25 44 21 51 38 ¥25 

TX ............................. 186 166 231 181 ¥22 179 157 192 151 ¥22 

MS ............................ 37 31 21 18 ¥16 37 8 18 15 ¥16 

FL ............................. 151 69 116 99 ¥14 151 61 97 83 ¥14 

MI ............................. 117 88 64 65 3 120 90 53 54 3 

MD ............................ 57 13 27 28 4 57 12 22 23 4 

VA ............................. 68 43 35 36 5 60 39 29 30 5 

AL ............................. 132 65 64 69 8 134 49 53 58 8 

GA ............................ 143 106 61 66 9 141 67 51 55 9 

IL .............................. 146 66 70 76 9 159 65 58 64 9 

WI ............................. 71 47 37 41 9 69 34 31 34 9 

PA ............................. 198 86 90 99 10 193 72 75 83 10 

SC ............................ 49 38 30 33 10 50 36 25 27 10 

MO ............................ 116 64 54 60 10 118 66 45 50 10 

MN ............................ 72 36 28 31 11 74 37 24 26 11 

NC ............................ 60 59 56 62 11 61 49 47 52 11 

IN .............................. 234 121 98 109 11 233 79 81 91 11 

OH ............................ 264 91 97 109 12 274 90 81 91 12 

TN ............................. 106 37 46 51 12 106 27 38 42 12 

KY ............................. 176 99 74 83 12 176 74 62 69 12 

IA .............................. 76 45 29 33 12 81 47 24 27 12 

WV ............................ 179 62 66 74 13 176 40 55 62 13 

Total .................. 2732 1503 1505 1505 0 2746 1254 1254 1254 0 

* Numeric value is based on 2010 projections. 

** For DC: Projected ** Base Case emissions are 35 tons in 2015. CAIR Emissions are projected to be 35 tons in both 2009 and 2015. Simple 

Heat Input budgets are 213 and 178 tons in 2009 and 2015, respectively. Fuel Factor budgets are 144 and 120 tons in 2009 and 2015, 

respectively. 

Table 3 shows that relative to the 

simple heat input method the fuel factor 

method reduces the disparity between 

projected State emissions and State 

budgets, because the fuel factor 

approach allocates State budgets that are 

generally closer to projected State 

emissions. As explained above, the 

States that receive smaller budgets 

under the fuel factor method are still 

generally receiving budgets that exceed 

their projected emissions. States that 

receive larger budgets under the fuel 

factor method are generally States with 

a large amount of coal-fired generation 

that are installing post combustion 

controls as a result of CAIR. 

Federal Register / Vol. 70, No. 231 / Friday, December 2, 2005 / Proposed Rules 72279 

Analysis of Potential Delaware and New 

Jersey Impacts 

The analyses described above were 

conducted for the States in the CAIR 

PM2.5 region only. EPA has proposed to 

add Delaware and New Jersey to the 

CAIR region for PM2.5 (‘‘Inclusion of 

Delaware and New Jersey in the Clean 

Air Interstate Rule’’, EPA, May 10, 

2005), but has not yet taken final action 

on this proposal. EPA proposed a 

separate 2-State ‘‘regional’’ budget for 

Delaware and New Jersey of just over 

14,000 tons. EPA’s analysis, presented 

in Table 4, shows that apportioning this 

budget between the two States based on 

a fuel factor method instead of a simple 

heat input method, is reasonable. 

(‘‘Inclusion of Delaware and New Jersey 

in the Clean Air Interstate Rule’’, EPA, 

May 10, 2005) 

TABLE 4.—COMPARISON OF PROJECTED NOX EMISSIONS AND STATE BUDGETS FOR NEW JERSEY AND DELAWARE

[Thousand tons] 

State 

Projected 2009 * emissions and allowance allocation Projected 2015 emissions and allowance allocation 

Base 

case 

emissions 

CAIR 

emissions 

Simple 

heat input 

budget 

Fuel 

factor 

adjusted 

budget 

Percent 

change 

Base 

case 

emissions 

CAIR 

emissions 

Simple 

heat input 

budget 

Fuel 

factor 

adjusted 

budget 

Percent 

change 

NJ ............................. 16.8 12.0 13.4 12.7 ¥5.6 17.9 12.8 11.2 10.6 ¥5.6 

DE ............................ 9.4 8.5 3.4 4.2 22.1 10.7 9.5 2.8 3.5 22.2 

* Numeric value is based on 2010 projections. 

Other Considerations 

EPA notes that the analyses above 

were conducted for State annual NOX

budgets established in the CAIR. CAIR 

also establishes seasonal NOX budgets 

using the fuel factor approach. EPA did 

not conduct a similar analysis of the 

seasonal NOX budgets. EPA modeling 

indicates that the ozone season program 

is likely to function as a backstop to the 

annual NOX program, and that the 

annual NOX program is likely to impose 

the binding constraint on NOX

emissions. 

Finally, to ensure that our estimates 

appropriately reflect the distribution of 

emissions in the case of higher 

electricity demand and increased gas 

and oil prices, EPA conducted a 

sensitivity run using EIA’s forecast of 

higher electricity demand and gas and 

oil prices. This run produced very 

similar emissions results to the original 

NOX analysis, showing that EPA’s 

original analysis is robust enough to 

support the fuel adjusted heat input 

approach finalized in CAIR. (See the 

‘‘CAIR Statewide NOX Budget 

Calculations Technical Support 

Document, EPA 2005, for additional 

discussion of the analysis.) 

C. PM2.5 Modeling for Minnesota 

One petitioner asserts that EPA’s 

modeling to determine whether 

emissions from Minnesota significantly 

contribute to downwind nonattainment 

of the PM2.5 NAAQS failed to take into 

account certain emissions reductions 

required by State programs. The 

petitioner asserts that if these reductions 

had been properly included in the 

modeling done for CAIR, the modeling 

might show that the State of Minnesota 

does not significantly contribute to 

downwind nonattainment of the PM2.5

NAAQS. The petitioner also asked EPA 

to stay implementation of the CAIR in 

Minnesota. The Agency is not taking 

action on the request for a stay at this 

time. 

The Agency agrees that EPA’s 

modeling of the contribution of 

emissions from Minnesota to downwind 

PM2.5 nonattainment for the final CAIR 

did not fully account for the effects on 

future year emissions of certain State 

control programs. In order to ensure that 

all parties have ample opportunity to 

comment on all aspects of this issue, 

EPA is reconsidering the air quality 

modeling inputs for Minnesota. 

Using the corrected inputs described 

below, EPA recently remodeled the 

PM2.5 contributions from emissions in 

Minnesota. In this analysis, EPA used 

the same PM2.5 modeling platform that 

was used for the final CAIR modeling. 

This modeling platform is described in 

the CAIR Air Quality Modeling 

Technical Support Document 

(‘‘Technical Support Document for the 

Final Clean Air Interstate Rule, Air 

Quality Modeling,’’ March 2005, OAR–

2003–0053–2123). The EPA is not taking 

comment on the modeling platform 

itself, only on the corrected 2010 

emissions inputs for Minnesota, as 

described below. 

The result of the revised 2010 

Minnesota PM2.5 contribution modeling 

is that Minnesota contributes a 

maximum of 0.20 μg/m3 to PM2.5

nonattainment in Chicago, IL. This 

result confirms the findings from the 

CAIR PM2.5 contribution modeling that 

emissions in Minnesota make a 

significant contribution to PM2.5

nonattainment in Chicago, IL. The 2010 

emissions inputs used in the revised 

Minnesota modeling and the revised 

contributions to each downwind 

nonattainment receptor county can be 

found in the CAIR docket. 

The following discussion provides 

background on the corrected emissions 

inputs for Minnesota and on air quality 

analyses that the Agency conducted 

prior to finalizing CAIR. 

The emissions for the electric power 

sector used in EPA’s contribution 

modeling for the final CAIR were 

derived from the Integrated Planning 

Model (IPM). The IPM is designed to 

forecast the projected impact of 

environmental polices on the electric 

power sector. The Agency updated its 

IPM modeling for the final CAIR. As 

part of a routine model update to the 

IPM and in response to comments from 

various parties, EPA updated the 

inventory of EGUs, made revisions to 

several model assumptions, and added 

various State rules, regulations, and 

New Source Review settlements to best 

reflect available data and information. 

In that IPM update for the final CAIR, 

the Agency included emission reduction 

actions that are required by Minnesota 

for certain units, based on the data 

available. However, as discussed in the 

RTC for the final CAIR (‘‘Corrected 

Response to Significant Public 

Comments on the Proposed Clean Air 

Interstate Rule,’’ March 2005, corrected 

April 2005, OAR–2003–0053–2172) as 

well as in a memorandum to the CAIR 

docket entitled ‘‘Emissions in 

Minnesota: Additional Analysis’’ (OAR–

2003–0053–2091) (’’Minnesota 

memorandum’’), the Agency discovered 

that there may be some discrepancies 

between how the Agency represented 

the Minnesota emissions reductions in 

the final CAIR IPM update and how the 

reductions would be implemented. The 

Agency revised its IPM model to better 

reflect the emissions reductions from 

72280 Federal Register / Vol. 70, No. 231 / Friday, December 2, 2005 / Proposed Rules 

9Although the petition acknowledges that the 

Agency revised its IPM emissions analysis to reflect 

emission reductions at certain Minnesota units, it 

states incorrectly that ‘‘EPA subsequently learned 

that emission levels in the IPM sensitivity analysis 

were overstated by an additional 16,500 tons of 

annual NOX emissions and 5,800 tons of annual 

SO2 emissions’’ (petition, p. 7). As discussed above, 

the emission projections in EPA’s revised IPM 

modeling (the sensitivity analysis) were in fact 

lower by 16,500 tons of annual NOX emissions and 

5,800 tons of SO2 emissions than the emission 

projections in EPA’s modeling for the final CAIR. 

For the same reason, the petition is incorrect in 

stating (p. 7) that EAP failed to consider these 

emission reductions in its analysis. 

those Minnesota units and conducted 

revised emissions modeling using the 

IPM (in the memorandum mentioned 

above, the revised emissions modeling 

is described as a sensitivity analysis.) 

The revised emissions modeling 

(sensitivity analysis) resulted in 

somewhat lower NOX and SO2 emission 

projections for Minnesota in the base 

case, compared to the emissions 

modeling done for the final CAIR. The 

revised emissions modeling was 

discussed in the RTC for the final CAIR 

and in the Minnesota memorandum. 

Specifically, that revised IPM 

modeling projects statewide utility NOX

emissions roughly 16,500 tons lower 

and SO2 emissions about 5,800 tons 

lower than the emissions modeling used 

in the final CAIR. These revised NOX

and SO2 emission projections result in 

lower total NOX and SO2 emissions of 

4.6 percent and 4.3 percent, 

respectively, than the emission 

projections used in the final CAIR 

modeling. In order to account for these 

revised emission projections, the 

Agency performed two analyses to 

estimate whether air quality modeling 

based on the lower emission projections 

would show that Minnesota’s 

downwind contribution was below the 

PM2.5 significance threshold of 0.2 

μg/m3. The EPA’s modeling of 

Minnesota for the final CAIR showed 

that Minnesota’s maximum downwind 

contribution is 0.21 μ/m3 to Cook 

County, Illinois. The Agency’s analyses 

of the effects of the lower emission 

projections on Minnesota’s maximum 

contribution, which were presented in 

the RTC for the final CAIR and the 

Minnesota Memorandum, are 

summarized below: 

• Analysis 1: We reduced the 

maximum PM2.5 contribution by the 

larger of the percent reduction in NOX

and SO2 emissions (i.e., the 4.6 percent 

reduction in NOX). The maximum PM2.5

contribution after making this 

adjustment is 0.2 μg/m3. 

• Analysis 2: We reduced the sulfate 

and nitrate portions of the maximum 

PM2.5 contribution by the corresponding 

reductions in SO2 and NOX emissions. 

Specifically, the sulfate portion 

(including sulfate, ammonium, and 

particle-bound water) was reduced by 

the 4.3 percent reduction in SO2

emissions and the nitrate portion was 

reduced by the 4.6 percent reduction in 

NOX emissions. We then recalculated 

the maximum contribution using these 

lower components. The result is that the 

adjusted maximum PM2.5 contribution 

is 0.2 μg/m3. 

Thus, the analyses presented in the 

RTC and the Minnesota memorandum 

indicate that Minnesota makes a 

significant contribution to PM2.5

nonattainment, even after considering 

the lower emissions levels in the revised 

emissions modeling.9

Although the Agency’s analyses of 

downwind impacts from Minnesota 

which were based on the revised 

emissions modeling (and presented in 

the RTC and the Minnesota 

memorandum) indicate that the State 

makes a significant contribution to 

downwind PM2.5 nonattainment, the 

Agency acknowledges that it did not at 

that time conduct air quality modeling 

based on the revised emissions 

modeling. However, as discussed above, 

the Agency has now remodeled the 

PM2.5 contribution from emissions in 

Minnesota and the results of that 

revised modeling confirm that 

emissions in Minnesota make a 

significant contribution to PM2.5

nonattainment in Chicago, IL. This 

revised PM2.5 contribution modeling 

used the same modeling platform as 

EPA used for the final CAIR modeling 

coupled with the revised emissions 

inputs for Minnesota discussed above. 

The EPA is taking comment only on the 

revised inputs for Minnesota discussed 

above. 

D. Inclusion of Florida in the CAIR 

Region for Ozone 

Florida petitioners (the Florida 

Association of Electric Utilities and FPL 

Group) maintain that neither the 

proposed rule nor the supplemental 

proposal or notice of additional data 

availability gave adequate notice that 

Florida might be included within the 

CAIR region as a significant contributor 

for ozone. They further maintain that 

EPA’s ultimate determination to include 

Florida within the ozone CAIR region 

was based on modeling inputs not 

readily available for comment. The 

petitioners state that they therefore 

lacked adequate opportunity to 

comment on this issue. 

The EPA does not fully accept the 

Florida petitioners’ characterization. 

Clearly, for example, EPA gave notice 

that it would utilize a different 

modeling platform for the final rule, 

with the necessary implication that this 

could change the makeup of the CAIR 

ozone (and PM2.5) regions (69 FR 47828; 

August 6, 2004). The EPA also provided 

access to the data inputs for the 

modeling runs, including emissions 

data and the information necessary to 

process that emissions data into modelready files. Nonetheless, considering all 

the factors here (notably the absence of 

Florida from the CAIR region for ozone 

in the NPR and SNPR), EPA has decided 

to provide an opportunity for additional 

public comment on the inclusion of 

Florida within the CAIR region for 

ozone. 

IV. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), the Agency 

must determine whether the regulatory 

action is ‘‘significant’’ and, therefore, 

subject to Office of Management and 

Budget (OMB) review and the 

requirements of the Executive Order. 

The Order defines ‘‘significant 

regulatory action’’ as one that is likely 

to result in a rule that may: 

(1) Have an annual effect on the 

economy of $100 million or more or 

adversely affect in a material way the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, or Tribal governments or 

communities; 

(2) Create a serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency; 

(3) Materially alter the budgetary 

impact of entitlements, grants, user fees, 

or loan programs or the rights and 

obligations of recipients thereof; or 

(4) Raise novel legal or policy issues 

arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in the Executive Order. 

Pursuant to the terms of Executive 

Order 12866, OMB has determined that 

this is not a significant regulatory 

action. This notice takes comment on 

several aspects of the CAIR, but does not 

propose any modifications. 

B. Paperwork Reduction Act 

This action does not propose 

information collection request 

requirements under the provisions of 

the Paperwork Reduction Act, 44 U.S.C. 

3501 et seq. Therefore, an information 

collection request document is not 

required. 

Burden means the total time, effort, or 

financial resources expended by persons 

to generate, maintain, retain, or disclose 

Federal Register / Vol. 70, No. 231 / Friday, December 2, 2005 / Proposed Rules 72281 

or provide information to or for a 

Federal agency. This includes the time 

needed to review instructions; develop, 

acquire, install, and utilize technology 

and systems for the purposes of 

collecting, validating, and verifying 

information, processing and 

maintaining information, and disclosing 

and providing information; adjust the 

existing ways to comply with any 

previously applicable instructions and 

requirements; train personnel to be able 

to respond to a collection of 

information; search data sources; 

complete and review the collection of 

information; and transmit or otherwise 

disclose the information. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for EPA’s regulations in 40 

CFR are listed in 40 CFR part 9. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act 

generally requires an Agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedures Act or any 

other statute unless the Agency certifies 

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 proposed rule on small 

entities, small entity is defined as: (1) A 

small business that is a small industrial 

entity as defined in the U.S. Small 

Business Administration (SBA) size 

standards. (See 13 CFR part 121.); (2) a 

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-forprofit enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of today’s proposed rule on 

small entities, I certify that this action 

will not have a significant economic 

impact on a substantial number of small 

entities. This notice does not impose 

any requirements on small entities. We 

are only announcing our decision to 

reconsider and request comment on 

specific issues in the CAIR. We continue 

to be interested in the potential impacts 

of the rule on small entities and 

welcome comments on issues related to 

such impacts. 

D. Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), 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 by State, local, 

and Tribal governments, in the 

aggregate, or by the private sector, of 

$100 million or more in any 1 year. 

Before promulgating an EPA rule for 

which a written statement is needed, 

UMRA section 205 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 leastcostly, most cost-effective, or leastburdensome 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’s regulatory 

proposals with significant Federal 

intergovernmental mandates, and 

informing, educating, and advising 

small governments on compliance with 

the regulatory requirements. 

The EPA has determined that today’s 

notice of reconsideration does not 

contain a Federal mandate that may 

result in expenditures of $100 million or 

more for State, local, and Tribal 

governments, in the aggregate, or the 

private sector in any 1 year. Today’s 

notice of reconsideration of the CAIR 

does not add new requirements that 

would increase the cost of the CAIR. 

Thus, today’s notice of reconsideration 

is not subject to the requirements of 

sections 202 and 205 of the UMRA. In 

addition, EPA has determined that 

today’s notice of reconsideration does 

not significantly or uniquely affect small 

governments because it contains no 

requirements that apply to such 

governments or impose obligations 

upon them. Therefore, today’s notice of 

reconsideration is not subject to section 

203 of the UMRA. 

E. Executive Order 13132: Federalism 

Executive Order 13132, entitled 

‘‘Federalism’’ (64 FR 43255, August 10, 

1999), requires EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have federalism 

implications’’ ‘‘Policies that have 

federalism implications’’ is defined in 

the Executive Order to include 

regulations that have ‘‘substantial direct 

effects on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government.’’

This action does not have federalism 

implications. It would 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. The CAA 

establishes the relationship between the 

Federal Government and the States, and 

this action would not impact that 

relationship. Thus, Executive Order 

13132 does not apply to this action. 

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.’’

For the same reasons stated in the 

final CAIR, today’s notice does not have 

Tribal implications as defined by 

Executive Order 13175. It does not have 

a substantial direct effect on one or 

more Indian Tribes, since no Tribe has 

implemented a federally-enforceable air 

quality management program under the 

CAA at this time. Furthermore, this 

action does not affect the relationship or 

distribution of power and 

responsibilities between the Federal 

government and Indian Tribes. The 

CAA and the Tribal Air Rule establish 

the relationship of the Federal 

government and Tribes in developing 

plans to attain the NAAQS, and today’s 

notice does nothing to modify that 

relationship. Because this notice does 

72282 Federal Register / Vol. 70, No. 231 / Friday, December 2, 2005 / Proposed Rules 

10U.S. Environmental Protection Agency, 1998. 

Guidance for Incorporating Environmental Justice 

Concerns in EPA’s NEPA Compliance Analyses. 

Office of Federal Activities, Washington, DC, April, 

1998. 

not have Tribal implications, Executive 

Order 13175 does not apply. 

If one assumes a Tribe is 

implementing a Tribal implementation 

plan, the CAIR could have implications 

for that Tribe, but it would not impose 

substantial direct costs upon the Tribe, 

nor would it preempt Tribal Law. 

Although Executive Order 13175 does 

not apply to the CAIR or this notice of 

reconsideration of the CAIR, EPA 

consulted with Tribal officials in 

developing the CAIR. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

Executive Order 13045: ‘‘Protection of 

Children From Environmental Health 

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. 

This notice is not subject to Executive 

Order 13045 because it does not involve 

decisions on environmental health risks 

or safety risks that may 

disproportionately affect children. The 

EPA believes that the emissions 

reductions from the CAIR will further 

improve air quality and children’s 

health. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

Executive Order 13211 (66 FR 28355, 

May 22, 2001) provides that agencies 

shall prepare and submit to the 

Administrator of the Office of 

Regulatory Affairs, OMB, a Statement of 

Energy Effects for certain actions 

identified as ‘‘significant energy 

actions.’’ Section 4(b) of Executive 

Order 13211 defines ‘‘significant energy 

actions’’ as ‘‘any action by an agency 

(normally published in the Federal 

Register) that promulgates or is 

expected to lead to the promulgation of 

a final rule or regulation, including 

notices of inquiry, advance notices of 

final rulemaking, and notices of final 

rulemaking (1)(i) a significant regulatory 

action under Executive Order 12866 or 

any successor order, and (ii) likely to 

have a significant adverse effect on the 

supply, distribution, or use of energy; or 

(2) designated by the Administrator of 

the Office of Information and Regulatory 

Affairs as a ‘‘significant energy action.’’

The final CAIR is a significant 

regulatory action under Executive Order 

12866, and EPA concluded that the final 

CAIR rule may have a significant 

adverse effect on the supply, 

distribution, or use of energy. The 

impacts are detailed in the final CAIR 

(70 FR 25315). Today’s notice of 

reconsideration of the CAIR is not a 

significant action under Executive Order 

12866 and does not change EPA’s 

previous conclusions. 

I. National Technology Transfer 

Advancement Act 

Section 12(d) of the National 

Technology Transfer Advancement Act 

of 1995, 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 National 

Technology Transfer Advancement Act 

of 1995 directs EPA to provide 

Congress, through OMB, explanations 

when the Agency decides not to use 

available and applicable voluntary 

consensus standards. 

Today’s notice does not involve 

technical standards. Therefore, the 

National Technology Transfer and 

Advancement Act of 1995 does not 

apply. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898, ‘‘Federal 

Actions to Address Environmental 

Justice in Minority Populations and 

Low-Income Populations,’’ requires 

Federal agencies to consider the impact 

of programs, policies, and activities on 

minority populations and low-income 

populations. According to EPA 

guidance,10 agencies are to assess 

whether minority or low-income 

populations face risks or a rate of 

exposure to hazards that are significant 

and that ‘‘appreciably exceed or is likely 

to appreciably exceed the risk or rate to 

the general population or to the 

appropriate comparison group.’’ (EPA, 

1998). 

In accordance with Executive Order 

12898, the Agency has considered 

whether the CAIR may have 

disproportionate negative impacts on 

minority or low-income populations. 

The EPA expects the CAIR to lead to 

reductions in air pollution and 

exposures generally. Therefore, EPA 

concluded that negative impacts to 

these sub-populations that appreciably 

exceed similar impacts to the general 

population are not expected. For the 

same reasons, EPA is drawing the same 

conclusion for today’s notice to 

reconsider certain aspects of the CAIR. 

List of Subjects 

40 CFR Part 51 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Intergovernmental 

relations, Nitrogen dioxide, Ozone, 

Particulate matter, Reporting and 

recordkeeping requirements, Sulfur 

oxides. 

40 CFR Part 96 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Nitrogen oxides, 

Reporting and recordkeeping 

requirements. 

Dated: November 22, 2005. 

Stephen L. Johnson, 

Administrator. 

[FR Doc. 05–23501 Filed 12–1–05; 8:45 am] 

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