Federal Register / Vol. 74, No. 211 / Tuesday, November 3, 2009 / Rules and Regulations 56721 

■ For the reasons set forth in the 

preamble, 31 CFR part 285 is amended 

as follows: 

PART 285—DEBT COLLECTION 

AUTHORITIES UNDER THE DEBT 

COLLECTION IMPROVEMENT ACT OF 

1996 

■ 1. The authority citation for part 285 

continues to read as follows: 

Authority: 5 U.S.C. 5514; 26 U.S.C. 6402; 

31 U.S.C. 321, 3701, 3711, 3716, 3719, 

3720A, 3720B, 3720D; 42 U.S.C. 664; E.O. 

13019, 61 FR 51763, 3 CFR, 1996 Comp., 

p. 216. 

■ 2. Revise § 285.6, paragraph (f), to 

read as follows: 

285.6 Administrative offset under 

reciprocal agreements with states. 

* * * * * 

(f) State debts submitted to FMS for 

tax refund offset. A State shall be 

deemed to have complied with the 

requirements of paragraph (e)(2) of this 

section with respect to any State debt 

that the State certified to Treasury for 

collection pursuant to § 285.8 of this 

part. 

* * * * * 

Dated: October 23, 2009. 

Richard L. Gregg, 

Acting Fiscal Assistant Secretary. 

[FR Doc. E9–26303 Filed 11–2–09; 8:45 am] 

BILLING CODE 4810–35–M 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 51 and 52 

[EPA–HQ–OAR–2009–0021; FRL–8972–7] 

RIN 2060–AP46 

Administrative Stay of Clean Air 

Interstate Rule for Minnesota; 

Administrative Stay of Federal 

Implementation Plan To Reduce 

Interstate Transport of Fine Particulate 

Matter and Ozone for Minnesota 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: This final rule 

administratively stays the effectiveness, 

for Minnesota and Minnesota sources 

only, of two rules issued under section 

110 of the Clean Air Act (CAA) related 

to the interstate transport of pollutants. 

On May 12, 2005, EPA issued the Clean 

Air Interstate Rule (CAIR) requiring 

Minnesota and other states in the 

eastern U.S. to submit State 

Implementation Plan (SIP) revisions to 

limit sulfur dioxide (SO2) and nitrogen 

oxides (NOX) emissions in order to 

eliminate the significant contribution of 

these states to nonattainment for fine 

particulate matter (PM2.5) and/or ozone, 

and eliminates interference with 

maintenance of attainment, in 

downwind states. On April 28, 2006, 

EPA issued Federal Implementation 

Plans (CAIR FIPs) to serve as a backstop 

until replaced by approved SIPs. 

Subsequently, the U.S. Court of Appeals 

for the District of Columbia Circuit 

reversed and remanded CAIR. Among 

other things, the Court held that EPA 

had not properly addressed possible 

errors in analysis supporting the 

inclusion of Minnesota in CAIR for fine 

particulate matter. In this final rule, 

EPA is administratively staying the 

effectiveness of CAIR and the CAIR FIP 

with respect to Minnesota and sources 

in Minnesota only, pending further 

rulemaking in response to the remand. 

DATES: The effective date of this final 

rule is December 3, 2009. 

ADDRESSES: Docket: EPA has established 

a docket for this final rule under Docket 

ID No. EPA–HQ–OAR–2009–0021. All 

documents in the docket are listed on 

the www.regulations.gov Web site. 

Although listed in the index, some 

information is not publicly available, 

e.g., confidential business information 

or other information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically at www.regulations.gov or 

in hard copy at the EPA Docket Center 

EPA/DC, EPA West, Room 3334, 1301 

Constitution Ave., NW., Washington, 

DC. The Public Reading Room is open 

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

through Friday, excluding legal 

holidays. The telephone number for the 

Public Reading Room is (202) 566–1744, 

and the telephone number for the EPA 

Docket Center is (202) 566–1742. 

FOR FURTHER INFORMATION CONTACT: Jeb 

Stenhouse, Program Development 

Branch, Clean Air Markets Division, 

Office of Atmospheric Programs, Mail 

Code 6204J, Environmental Protection 

Agency, Washington, DC 20460, 

telephone number 202–343–9781, fax 

number 202–343–2359, and e-mail 

address stenhouse.jeb@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Outline 

I. Background 

II. What Is the Scope of this Final Rule? 

III. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act (RFA) 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer 

Advancement Act 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Congressional Review Act 

L. Judicial Review 

I. Background 

Section 110(a)(2)(D)(i)(I) of the CAA 

requires that a state’s SIP prohibit 

emissions by any source or other type of 

emissions activity in the state that will 

‘‘contribute significantly to 

nonattainment in, or interfere with 

maintenance by, any other State’’ with 

respect to any national ambient air 

quality standard (NAAQS). 42 U.S.C. 

7410(a)(2)(D)(i)(I). On May 12, 2005, 

EPA issued CAIR (70 FR 25162, May 12, 

2005). In that rule, EPA found that 28 

states and Washington, DC contribute 

significantly to nonattainment, and 

interfere with maintenance, of the 

NAAQS for fine particulate matter and/ 

or ozone in downwind states. CAIR 

required these upwind states to revise 

their SIPs to include control measures to 

reduce emissions of SO2 and/or NOX

and thereby meet the requirements of 

section 110(a)(2)(D)(i)(I). One of the 

states included in CAIR for fine 

particulate matter, but not for ozone, 

was the State of Minnesota. Minnesota 

was thus required to reduce annual SO2

and annual NOX emissions in 

accordance with the requirements of the 

rule. Further, in CAIR, EPA offered to 

administer, as a remedy through which 

states could comply with CAIR, SO2

annual, NOX annual, and NOX ozone 

season trading programs that states 

could choose to incorporate in their 

SIPs. CAIR included model rules for 

these trading programs and provided 

that states could adopt the model rules 

in their SIPs and thereby incorporate the 

trading programs in the SIPs. 

On April 28, 2006, EPA issued the 

CAIR FIPs (71 FR 25330, April 28 2006). 

In the April 28, 2006, notice, EPA 

promulgated FIPs to implement the 

emission reduction requirements of 

CAIR in each state covered by CAIR 

until the FIP is replaced by an approved 

SIP. EPA issued the CAIR FIPs to 

provide a federal backstop for CAIR. 

EPA decided to adopt as the FIP for 


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56722 Federal Register / Vol. 74, No. 211 / Tuesday, November 3, 2009 / Rules and Regulations 

1While CAIR SO2 opt-in units are allocated new 

CAIR SO2 allowances, the Minnesota FIP does not 

allow for opt-in units. 

each state in the CAIR region (including 

Minnesota) the SIP model trading 

programs in CAIR, modified slightly to 

allow for federal, instead of state, 

implementation. 

A number of petitioners brought legal 

challenges to several aspects of CAIR 

and of the CAIR FIPs in the U.S. Court 

of Appeals for the District of Columbia 

Circuit. Among the parties challenging 

the rule was Minnesota Power, an 

electric utility operating in Minnesota, 

who argued that EPA erred in the 

analysis of the contribution of 

Minnesota sources to downwind 

nonattainment and thus in including 

Minnesota in CAIR for fine particulate 

matter. 

On July 11, 2008, in North Carolina v. 

EPA, 531 F.3d 896, 926–30 (DC Cir. 

2008), the D.C. Circuit ruled on these 

challenges and vacated and remanded 

CAIR and the CAIR FIPs. Of particular 

relevance here, the Court granted 

Minnesota Power’s petition and 

remanded to EPA the issue of the 

inclusion of Minnesota and Minnesota 

sources in CAIR and the CAIR FIPs 

because the Court concluded that EPA 

had failed to fully address alleged errors 

in its contribution analysis for 

Minnesota. Id. at 926–27. In addition, 

the Court granted petitions of several 

other parties and remanded to EPA 

issues concerning: EPA’s interpretation 

of the requirement in section 

110(a)(2)(D)(i)(I) that SIPs must prohibit 

‘‘interference with maintenance’’ with 

respect to any NAAQS (id. at 909–11); 

the lawfulness of the CAIR trading 

programs for NOX and SO2 as a remedy 

that will assure that States abate 

emissions that significantly contribute 

to downwind nonattainment or interfere 

with maintenance (id. at 907–8); the 

2015 deadline for states to remedy their 

failure to eliminate their significant 

contribution (id. at 911–12); the SO2 and 

NOX budgets used for the trading 

programs (id. at 916–21); and EPA’s 

authority to terminate or limit Title IV 

allowances through a trading program 

under section 110(a)(2)(D)(i)(I) or 

through a requirement that, to comply 

with section 110(a)(2)(D)(i)(I), SIPs have 

Title IV allowance retirement provisions 

(id. at 921–22). 

On September 24, 2008, EPA filed a 

petition for rehearing with the DC 

Circuit. This petition sought rehearing 

of a number of the Court’s findings, but 

did not seek rehearing of the findings 

regarding Minnesota. On October 31, 

2008, EPA sent a letter to Minnesota 

Power indicating its intent to stay the 

effectiveness of CAIR with respect to 

sources located in Minnesota until the 

Agency determined whether Minnesota 

should be included in CAIR. This letter 

was also submitted to the Court during 

briefing on the petitions for rehearing. 

On December 23, 2008, the DC Circuit 

granted EPA’s petition for rehearing 

only with regard to the vacatur and 

remanded CAIR without vacatur. This 

decision means that CAIR and the CAIR 

FIPs remain in effect while EPA 

develops a replacement rule consistent 

with the July 11, 2008, opinion. 

II. What Is the Scope of This Final 

Rule? 

In this final rule, EPA is only staying 

the effectiveness of CAIR and the CAIR 

FIPs with respect to Minnesota and 

sources in Minnesota. EPA intends to 

conduct further rulemaking in response 

to the Court’s remand of CAIR and the 

CAIR FIPs. EPA intends that the stay 

with respect to Minnesota and 

Minnesota sources will remain in effect 

pending such further rulemaking. 

EPA believes that the stay in this final 

rule is appropriate in light of several 

factors related to EPA’s consideration, 

following the July 11, 2008 decision, of 

the issue concerning Minnesota’s 

inclusion in CAIR. First, as discussed 

above, EPA did not seek rehearing of the 

Court’s July 11, 2008 decision regarding 

the contribution analysis for Minnesota. 

Instead, before the Court ruled on the 

petitions for rehearing, EPA stated its 

intention to stay CAIR for Minnesota 

and sources in Minnesota pending a 

final agency determination concerning 

Minnesota’s inclusion in CAIR. This 

information was presented to the Court 

during the rehearing process that 

resulted in the December 23, 2008 

decision to remand CAIR without 

vacatur. This final rule carries out EPA’s 

stated intent. 

Second, the issue of whether 

Minnesota significantly contributes to 

nonattainment for fine particulate 

matter in any downwind state, contrary 

to one of the requirements for SIPs in 

section 110(a)(2)(D)(i)(I), is logically 

severable from the other issues 

(described above) that were remanded to 

EPA by the DC Circuit in North 

Carolina. This issue relates solely to 

whether EPA properly decided whether 

Minnesota should be covered by-CAIR 

for fine particulate matter. In contrast, 

the other remanded issues affect 

multiple states and relate either to 

another requirement in section 

110(a)(2)(D)(i)(I) or to whether the 

specific emission reduction 

requirements in CAIR were proper or 

adequate as a remedy for each state’s 

110(a)(2)(D)(i)(I) problems. One of the 

other remanded issues concerns the 

Court’s determination that EPA failed to 

give independent meaning to the 

requirement, in section 110(a)(2)(D)(i)(I), 

that states also eliminate emissions that 

interfere with maintenance in 

downwind states. North Carolina, 531 

F.3d at 910. The remaining remanded 

issues concern various aspects of the 

remedies (e.g., the trading programs) 

EPA may approve in SIPs for states 

determined to have failed to meet the 

significant contribution requirement 

and raise complex questions about 

precisely what is required for each state 

to eliminate its significantly 

contributing emissions prohibited by 

section 110(a)(2)(D)(i)(I). The issue 

about Minnesota and Minnesota sources 

concerns the discrete question of 

whether EPA erred in its analysis of the 

contribution of Minnesota sources to 

downwind nonattainment areas and is 

logically severable from all the other 

remanded issues. 

Third, as discussed in detail below, 

EPA finds that the stay with respect to 

Minnesota and Minnesota sources can 

be implemented immediately without 

disrupting the operation of the trading 

programs under CAIR and the CAIR 

FIPs and the allowance market. The stay 

is thus consistent with the Court’s July 

11, 2008 and the December 28, 2008 

decisions leaving the CAIR and CAIR 

FIPs in place as promulgated while EPA 

develops a replacement rule. In 

addition, as noted above, the Court was 

aware of EPA’s intent to stay CAIR with 

respect to Minnesota and Minnesota 

sources when it issued the December 28, 

2008 decision. 

Minnesota sources are currently 

subject to the CAIR annual SO2 and 

annual NOX trading programs, and the 

major issue in implementing the stay is 

how to treat, during the stay period, 

allowances that are usable in the trading 

programs and have already been 

allocated and recorded for Minnesota 

sources. As explained below, SO2 and 

NOX allowances must be treated 

differently. 

In the CAIR SO2 trading program as 

promulgated, sources (including those 

in Minnesota) are not issued new 

allowances but instead must use title IV 

allowances for compliance in the 

trading program.1 Under title IV, 

allowances were allocated to sources, 

generally during 1993 in perpetuity, 

with each allowance authorizing in the 

Acid Rain Program one ton of emissions 

in the year for which the allowance was 

allocated or any year thereafter. In the 

CAIR SO2 trading program, the same 

allowances are usable and authorize 

emissions in the same years, but those 

allowances allocated for years before 


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Federal Register / Vol. 74, No. 211 / Tuesday, November 3, 2009 / Rules and Regulations 56723 

2According to EPA’s allowance tracking system, 

a total amount of 29,875 CAIR NOX allowances 

were allocated to Minnesota sources for 2009, and 

68 of such allowances were sold (in a single transfer 

on March 7, 2008) by the recipient of the allocation 

to another party. 

2010 authorize one ton of emissions, 

those allocated for 2010 through 2014 

authorize one-half ton of emissions, and 

those allocated for 2015 and thereafter 

authorize 0.35 ton of emissions. 

Implementation of the stay adopted in 

this final rule does not involve EPA 

making any changes in this final rule 

with regard to Minnesota sources’ title 

IV allowances. Under the stay, these 

sources retain the title IV allowances 

that they currently hold (including any 

allocations for 2010 and thereafter that 

the sources have not transferred). 

Moreover, like any other title IV 

allowance that has not already been 

used or retired, title IV allowances 

allocated to Minnesota sources continue 

to be usable in either the Acid Rain 

Program or the CAIR SO2 trading 

program and retain the above-described 

emission tonnage authorizations 

because those authorizations depend on 

the year for which the allowances were 

issued and the trading program in 

which they are used, not on whether the 

entity to which the allowances were 

allocated is subject to CAIR. 

In contrast, the CAIR NOX annual 

trading program provides for the 

issuance of new CAIR NOX allowances 

and such allowances for 2009 have 

already been allocated for existing 

Minnesota sources and recorded in the 

sources’ compliance accounts in the 

allowance tracking system for that 

program under the CAIR FIP for 

Minnesota. For the reasons discussed 

below, implementation of the stay in 

this final rule requires that an amount 

of 2009 CAIR NOX allowances 

equivalent to the amount that has 

already been allocated and recorded for 

these sources be removed from the CAIR 

NOX annual trading program and that 

no more CAIR NOX allowances be 

allocated to Minnesota sources for the 

period that the stay is in place. 

However, as discussed below, EPA finds 

that this can be accomplished without 

disruption of the trading program and 

the allowance market. 

While the stay in this final rule is in 

place, Minnesota sources will not need 

to use any of their allowance allocations 

to authorize their annual NOX

emissions. If those allowances that have 

already been recorded were not 

removed from the trading program and 

if allowances for future years continued 

to be allocated and recorded for 

Minnesota sources, the full amount of 

these allowances could be traded for use 

by non-Minnesota sources to authorize 

their own annual NOX emissions. This 

would increase the total amount of 

allowances available each year for use 

by sources in the states that will 

continue to be subject to the NOX

annual trading program under CAIR or 

the CAIR FIPs. As a result, the total 

amount of CAIR NOX allowances 

available each year for sources in these 

states would exceed the sum of the NOX

annual trading budgets under CAIR and 

the CAIR FIPs for these states. If this 

were allowed, the CAIR NOX annual 

trading program would not achieve the 

NOX emission reductions intended 

under CAIR and the CAIR FIPs and 

reflected in the state NOX annual 

trading budgets. 

EPA could have accomplished the 

removal from the trading program of the 

amount of the 2009 CAIR NOX

allowances allocated and recorded for 

Minnesota sources under the FIP for the 

CAIR NOX annual trading program by 

simply requiring those sources to 

surrender those specific allowances. 

However, EPA understands that, 

although most of the CAIR NOX

allowances allocated and recorded for 

sources in Minnesota are still held in 

the sources’ compliance accounts, at 

least one Minnesota source has traded 

some of its recorded allowance 

allocations.2 Consequently, the final 

rule requires that each Minnesota source 

with a recorded allowance allocation in 

the CAIR NOX annual trading program 

hold an amount of CAIR NOX

allowances issued for the same year as 

the recorded allocation (i.e., 2009) equal 

to the amount of the recorded 

allocation, regardless of whether the 

allowances held are the same ones that 

were allocated to the Minnesota source. 

Further, under the final rule, the 

Administrator will deduct, and thereby 

retire, these required allowance 

holdings, and no additional allowance 

allocations from the state NOX annual 

trading budget for Minnesota will be 

recorded. 

For the reasons outlined in the 

following paragraphs, EPA believes that 

this approach of requiring Minnesota 

sources to hold 2009 CAIR NOX

allowances equal in amount to such 

sources’ allocations will achieve the 

allowance removal necessary to 

implement the stay without disrupting 

the operation of the CAIR NOX annual 

trading program under CAIR and the 

CAIR FIPs, the allowance market, and 

the participation of non-Minnesota 

sources in the program. EPA also 

believes that it is reasonable that 

Minnesota sources be given the 

responsibility of holding in their 

compliance accounts the allowances 

that the Administrator needs to remove. 

First, each Minnesota source with a 

recorded allocation for 2009 can meet 

this responsibility by continuing to hold 

its allocated 2009 CAIR NOX allowances 

that it has not transferred and—to the 

extent necessary to replace any of its 

allocated 2009 CAIR NOX allowances 

that have been included in the few 

trades of Minnesota-source-allocated 

allowances that have occurred—by 

obtaining other 2009 CAIR NOX

allowances. EPA does not believe it 

needs to require Minnesota sources to 

hold for deduction exactly the same 

CAIR NOX allowances that were 

allocated to such sources. Because all 

CAIR NOX allowances issued for a given 

year (here, 2009) under the CAIR NOX

annual trading program under CAIR and 

the CAIR FIPs are fungible, deduction of 

the same amount of CAIR NOX

allowances issued for 2009 has the 

desired effect of removing the extra 

allowances for 2009 whether the 

deducted allowances are the ones 

allocated to Minnesota sources or those 

allocated to other sources. In short, a 

deduction—but no reallocation—of 

CAIR NOX allowances is necessary to 

implement the stay of the effectiveness 

of CAIR and the CAIR FIP rule with 

regard to Minnesota and Minnesota 

sources. 

Further, this approach avoids 

disruption of the trading program, the 

allowance market, and the participation 

of non-Minnesota sources because no 

allowance transfers that have occurred 

will be reversed or invalidated. Any 

party that purchased allocated CAIR 

NOX allowances from a Minnesota 

source will retain the ability to use, 

hold, or transfer those purchased 

allowances, and any planning, based on 

such purchased allowances, for 

compliance with the requirement to 

hold allowances covering emissions will 

not be affected. 

EPA believes that it is reasonable to 

make Minnesota sources responsible for 

holding 2009 CAIR NOX allowances for 

deduction in order to implement the 

stay. The burden of doing so will be 

minimal because, as discussed above, 

these sources have transferred, and so 

will have to replace, only a few of their 

allocated 2009 CAIR NOX allowances 

and most of these sources will simply 

continue to hold their existing 2009 

CAIR NOX allocations. Further, these 

sources benefit from the stay in that 

they would remain subject to CAIR but 

for the stay. In summary, the stay can be 

implemented—through removal from 

the CAIR NOX annual trading program 

of the amount of Minnesota sources’ 

2009 CAIR NOX allowances—without 


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56724 Federal Register / Vol. 74, No. 211 / Tuesday, November 3, 2009 / Rules and Regulations 

3 In addition, some commenters provided 

comments, along with supporting information, that 

Minnesota was improperly included in CAIR and 

that the stay should remain in effect until EPA 

prolmulgates a replacement rule for CAIR 

consistent with the Court’s decisions. One 

commenter also attached to its comment on the 

proposal a copy of comments presented during the 

CAIR FIPs rulemaking, concerning the applicability 

and allowance allocation provisions in the CAIR 

FIP trading programs. In this rulemaking, EPA is 

only staying CAIR and the CAIR FIPs with respect 

to Minnesota and sources in Minnesota, without 

specifying at this time how long the stay will 

remain in effect, and is not taking any action 

regarding any other issues concerning CAIR and the 

CAIR FIPs. These comments thus are beyond the 

scope of this rule and do not require a response. 

EPA will respond to these comments in the context 

of the Agency’s rulemaking in response to the 

remand of CAIR and the CAIR FIPs. 

disrupting the trading program 

(including sources’ compliance 

planning) or the allowance market or 

unreasonably burdening Minnesota and 

non-Minnesota sources. 

EPA received several comments on 

the proposed rule for a stay of CAIR and 

the CAIR FIP for Minnesota and 

Minnesota sources. All of the comments 

supported the proposal.3 One 

commenter also requested clarification 

of the amount of allowances for 2009 

that EPA will deduct from each 

Minnesota source’s compliance account. 

The amount of 2009 CAIR NOX

allowances deducted will be equal to 

the amount originally recorded as the 

allocation for 2009 for the source. As is 

stated explicitly in the text of this final 

rule, EPA will not deduct, pursuant to 

the final rule, any other allowances. 

Any source in Minnesota holding any 

allowances in addition to 2009 CAIR 

NOX allowances in the amount of its 

2009 CAIR NOX allocation will retain 

such additional allowances and may 

hold them or transfer them at any time, 

as the source prefers. 

Although the proposed rule set June 

30, 2009, as the date on which 

Minnesota sources must hold these 

allowances for deduction, that date has 

passed. Instead, EPA is adopting in this 

final rule midnight of the date 30 days 

after the Federal Register publication 

date for this final rule (which EPA is 

also setting as the final rule’s effective 

date) as the earliest, reasonable time and 

date on which to require the holding of 

such allowances. EPA believes that the 

requirement to hold such allowances as 

of midnight of December 3, 2009 will 

provide sufficient time for Minnesota 

sources to obtain the proper amount of 

CAIR NOX allowances, particularly in 

light of the few trades of Minnesotasource-allocated allowances that have 

occurred. Moreover, EPA’s preferred 

approach, as explained in the proposed 

rule, is removing these allowances from 

the trading program as quickly as 

possible. None of the commenters 

opposed that general approach. 

III. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

This action is not a ‘‘significant 

regulatory action’’ under the terms of 

Executive Order 12866 (58 FR 51735, 

October 4, 1993) and is therefore not 

subject to review under the EO. 

B. Paperwork Reduction Act 

This action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

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

defined at 5 CFR 1320(b). This action 

does not impose any information 

collection burden on any state, local, or 

tribal governments or the private sector 

and instead temporarily relieves 

Minnesota sources of any information 

collection burden under the CAIR 

trading programs. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of this rule on small entities, small 

entity is defined as: (1) A small business 

as defined by the Small Business 

Administration’s (SBA) regulations at 13 

CFR 121.201; (2) a small governmental 

jurisdiction that is a government of a 

city, county, town, school district or 

special district with a population of less 

than 50,000; and (3) a small 

organization that is any not-for-profit 

enterprise that is independently owned 

and operated and is not dominant in its 

field. 

After considering the economic 

impacts of this final rule on small 

entities, I certify that this action will not 

have a significant economic impact on 

a substantial number of small entities. 

This final rule does not impose any 

requirements on small entities and 

instead temporarily relieves Minnesota 

sources (including any small entities in 

Minnesota) of the allowance-holding 

and other requirements under the CAIR 

trading programs, except for the onetime requirement to hold allowances 

equal to the sources’ 2009 CAIR NOX

allowance allocations. 

D. Unfunded Mandates Reform Act 

This action contains no federal 

mandates under the provisions of Title 

II of the Unfunded Mandates Reform 

Act of 1995 (URMA), 2 U.S.C. 1531– 

1538 for state, local, or tribal 

governments or the private sector. This 

action does not impose any new 

obligations or enforceable duties on any 

state, local, or tribal governments or the 

private sector and instead temporarily 

relieves Minnesota sources of the 

allowance-holding and other 

requirements under the CAIR trading 

programs, except for the one-time 

requirement to hold allowances equal to 

the sources’ 2009 CAIR NOX allowance 

allocations. Therefore, this action is not 

subject to the requirements of sections 

202 and 205 of the UMRA. 

This action is also not subject to the 

requirements of section 203 of URMA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. This 

action does not impose any new 

obligations or enforceable duties on any 

small governments. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the states, on the 

relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. This rule does 

not impose any new obligations or 

enforceable duties on any state, local, or 

tribal governments and instead 

temporarily relieves Minnesota sources 

of the allowance-holding and other 

requirements under the CAIR trading 

programs, except for the one-time 

requirement to hold allowances equal to 

the sources’ 2009 CAIR NOX allowance 

allocations. Thus, Executive Order 

13132 does not apply to this rule. 

In the spirit of Executive Order 13132, 

and consistent with EPA policy to 

promote communications between EPA 

and state and local governments, EPA 

specifically solicited comments on the 

proposed action from state and local 

officials. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000). It will not have substantial direct 

effects on tribal governments, on the 


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Federal Register / Vol. 74, No. 211 / Tuesday, November 3, 2009 / Rules and Regulations 56725 

relationship between the federal 

government and Indian Tribes, or on the 

distribution of power and 

responsibilities between the federal 

government and Indian Tribes, as 

specified in Executive Order 13175. 

This action does not significantly or 

uniquely affect the communities of 

Indian Tribal governments. As 

discussed above, this action imposes no 

new requirements that would impose 

compliance burdens and instead 

temporarily relieves Minnesota sources 

of the allowance-holding and other 

requirements under the CAIR trading 

programs, except for the one-time 

requirement to hold allowances equal to 

the sources’ 2009 CAIR NOX allowance 

allocations. Thus, Executive Order 

13175 does not apply to this action. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

EPA interprets Executive Order 13045 

(62 FR 19885, April 23, 1997) as 

applying only to those regulatory 

actions that concern health or safety 

risks, such that the analysis required 

under section 5–501 of the Executive 

Order has the potential to influence the 

regulation. This action is not subject to 

Executive Order 13045 because it 

imposes no new requirements and 

instead temporarily relieves Minnesota 

sources of the allowance-holding and 

other requirements under the CAIR 

trading programs, except for the onetime requirement to hold allowances 

equal to the sources’ 2009 CAIR NOX

allowance allocations. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not subject to Executive 

Order 13211 (66 FR 28355, May 22, 

2001), because it is not a significant 

regulatory action under Executive Order 

12866. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (NTTAA), Public Law 104– 

113, 12(d) (15 U.S.C. 272 note) directs 

EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. NTTAA directs EPA to provide 

Congress, through the Office of 

Management and Budget, explanations 

when the Agency decides not to use 

available and applicable voluntary 

consensus standards. 

This action does not involve technical 

standards. Therefore, EPA did not 

consider the use of any voluntary 

consensus standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629, 

February 16, 1994) establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of its programs, 

policies, and activities on minorities 

and low-income populations in the 

United States. 

EPA has determined that this final 

rule will not have disproportionately 

high and adverse human health or 

environmental effects on minority or 

low-income populations because it does 

not impose any new requirements and 

only temporarily relieves Minnesota 

sources of the allowance-holding and 

other requirements under the CAIR 

trading programs, except for the onetime requirement to hold allowances 

equal to the sources’ 2009 CAIR NOX

allowance allocations. 

K. Congressional Review Act 

The Congressional Review Act, 5 

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

Small Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This final rule is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). This rule 

will be effective on December 3, 2009. 

L. Judicial Review 

Section 307(b)(1) of the CAA indicates 

which U.S. Courts of Appeal have venue 

for petitions of review of final actions by 

EPA. This section provides, in part, that 

petitions for review must be filed in the 

U.S. Court of Appeals for the District of 

Columbia Circuit if (i) the agency action 

consists of ‘‘nationally applicable 

regulations promulgated, or final action 

taken, by the Administrator,’’ or (ii) 

such action is locally or regionally 

applicable, if ‘‘such action is based on 

a determination of nationwide scope or 

effect and if in taking such action the 

Administrator finds and publishes that 

such action is based on such a 

determination.’’ 

Any final action related to CAIR is 

‘‘nationally applicable’’ within the 

meaning of section 307(b)(1). Through 

CAIR and the CAIR FIPs, EPA interprets 

section 110 of the CAA, a provision that 

has nationwide applicability. In 

addition, the determination of whether 

a state (here, Minnesota) is covered by 

CAIR is based on a common core of 

factual findings and analyses 

concerning the transport of pollutants 

between different states. Finally, EPA 

has established uniform approvability 

criteria that would be applied to the SIP 

revisions submitted by all states subject 

to CAIR. For these reasons, the 

Administrator also is determining that 

any final action regarding CAIR is of 

nationwide scope and effect for 

purposes of section 307(b)(1). Thus, any 

petitions for review of this final rule 

must be filed in the Court of Appeals for 

the District of Columbia Circuit within 

60 days from the date the final rule is 

published in the Federal Register. 

List of Subjects 

40 CFR Part 51 

Administrative practice and 

procedure, Air pollution control, 

Environmental protection, 

Intergovernmental relations, Nitrogen 

oxides, Ozone, Particulate matter, 

Reporting and recordkeeping 

requirements, Sulfur dioxide. 

40 CFR Part 52 

Administrative practice and 

procedure, Air pollution control, 

Environmental protection, 

Intergovernmental relations, Nitrogen 

oxides, Ozone, Particulate matter, 

Reporting and recordkeeping 

requirements, Sulfur dioxide. 

Dated: October 15, 2009. 

Lisa P. Jackson, 

Administrator. 

■ For the reasons set forth in the 

preamble, parts 51 and 52 of chapter I 

of title 40 of the Code of Federal 

Regulations are amended as follows: 


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56726 Federal Register / Vol. 74, No. 211 / Tuesday, November 3, 2009 / Rules and Regulations 

PART 51—REQUIREMENTS FOR 

PREPARATION, ADOPTION, AND 

SUBMITTAL OF IMPLEMENTATION 

PLANS 

■ 1. The authority citation for part 51 

continues to read as follows: 

Authority: 23 U.S.C. 101; 42 U.S.C. 7401– 

7671q. 

■ 2. Section 51.123 is amended by 

adding a new paragraph (a)(3) to read as 

follows: 

§ 51.123 Findings and requirements for 

submission of State implementation plan 

revisions relating to emissions of oxides of 

nitrogen pursuant to the Clean Air Interstate 

Rule. 

(a) * * * 

(3) Notwithstanding the other 

provisions of this section, such 

provisions are not applicable as they 

relate to the State of Minnesota as of 

December 3, 2009. 

* * * * * 

■ 3. Section 51.124 is amended by 

redesignating paragraph (a) as paragraph 

(a)(1) and adding a new paragraph (a)(2) 

to read as follows: 

§ 51.124 Findings and requirements for 

submission of State implementation plan 

revisions relating to emissions of sulfur 

dioxide pursuant to the Clean Air Interstate 

Rule. 

(a) * * * 

(2) Notwithstanding the other 

provisions of this section, such 

provisions are not applicable as they 

relate to the State of Minnesota as of 

December 3, 2009. 

* * * * * 

■ 4. Section 51.125 is amended by 

adding a new paragraph (a)(3) to read as 

follows: 

§ 51.125 Emissions reporting 

requirements for SIP revisions relating to 

budgets for SO2 and NOX emissions. 

(a) * * * 

(3) Notwithstanding the other 

provisions of this section, such 

provisions are not applicable as they 

relate to the State of Minnesota as of 

December 3, 2009. 

* * * * * 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 5. The authority citation for part 52 

continues to read as follows: 

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

■ 6. Section 52.35 is amended by adding 

a new paragraph (e) to read as follows: 

§ 52.35 What are the requirements of the 

Federal Implementation Plans (FIPs) for the 

Clean Air Interstate Rule (CAIR) relating to 

emissions of nitrogen oxides? 

* * * * * 

(e) Notwithstanding paragraphs (a) 

and (b) of this section, such paragraphs 

are not applicable as they relate to 

sources in the State of Minnesota as of 

December 3, 2009, except as provided in 

§ 52.1240(b). 

■ 7. Section 52.36 is amended by adding 

a new paragraph (d) to read as follows: 

§ 52.36 What are the requirements of the 

Federal Implementation Plans (FIPs) for the 

Clean Air Interstate Rule (CAIR) relating to 

emissions of sulfur dioxide? 

* * * * * 

(d) Notwithstanding paragraph (a) of 

this section, such paragraph is not 

applicable as it relates to sources in the 

State of Minnesota as of December 3, 

2009. 

■ 8. Section 52.1240 is amended by 

adding a new paragraph (b) to read as 

follows: 

§ 52.1240 Interstate pollutant transport 

provisions; What are the FIP requirements 

for decreases in emissions of nitrogen 

oxides? 

* * * * * 

(b) Notwithstanding paragraph (a) of 

this section, such paragraph is not 

applicable as it relates to sources in the 

State of Minnesota as of December 3, 

2009, except that: 

(1) The owner and operator of each 

source referenced in such paragraph in 

whose compliance account any 

allocation of CAIR NOX allowances was 

recorded under the Federal CAIR NOX

Annual Trading Program in part 97 of 

this chapter shall hold in that 

compliance account, as of midnight of 

December 3, 2009 and with regard to 

each such recorded allocation, CAIR 

NOX allowances that are usable in such 

trading program, issued for the same 

year as the recorded allocation, and in 

the same amount as the recorded 

allocation. The owner and operator shall 

hold such allowances for the purpose of 

deduction by the Administrator under 

paragraph (b)(2) of this section. 

(2) After December 3, 2009, the 

Administrator will deduct from the 

compliance account of each source in 

the State of Minnesota any CAIR NOX

allowances required to be held in that 

compliance account under paragraph 

(b)(1) of this section. The Administrator 

will not deduct, for purposes of 

implementing the stay, any other CAIR 

NOX allowances held in that 

compliance account and, starting no 

later than December 3, 2009, will not 

record any allocation of CAIR NOX

allowances included in the State trading 

budget for Minnesota for any year. 

■ 9. Section 52.1241 is amended by 

redesignating the existing text as 

paragraph (a) and adding a new 

paragraph (b) to read as follows: 

§ 52.1241 Interstate pollutant transport 

provisions; What are the FIP requirements 

for decreases in emissions of sulfur 

dioxide? 

* * * * * 

(b) Notwithstanding paragraph (a) of 

this section, such paragraph is not 

applicable as it relates to sources in the 

State of Minnesota as of December 3, 

2009. 

[FR Doc. E9–25596 Filed 11–2–09; 8:45 am] 

BILLING CODE 6560–50–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 73 

[DA 09–2264; MB Docket No. 09–50; RM– 

11515] 

FM Table of Allotments: Cut Bank, MT 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule. 

SUMMARY: This document grants a 

petition filed by College Creek Media, 

LLC, permitee of Station KEAU(FM), 

Channel 274C1, Fairfield, Montana, 

requesting the substitution of Channel 

265C1 for vacant Channel 274C1 at Cut 

Bank to eliminate the short-spacing 

between Station KEAU’s authorized 

transmitter site and the vacant Channel 

274C1 at Cut Bank. Channel 265C1 can 

be allotted to Cut Bank consistent with 

the minimum distance separation 

requirements of the Commission’s 

Rules, with the imposition of a site 

restriction located 39.4 kilometers (24.5 

miles) east of Cut Bank. The reference 

coordinates are 48–39–28 NL and 111– 

47–29 WL. The allotment of Channel 

265C1 at Cut Bank is located 320 

kilometers (199 miles) from the 

Canadian border. Therefore, Canadian 

concurrence has been requested and 

approved by the Canadian government. 

DATES: Effective December 7, 2009. 

ADDRESSES: Federal Communications 

Commission, 445 12th Street, SW, 

Washington, DC 20554. 

FOR FURTHER INFORMATION CONTACT: 

Rolanda F. Smith, Media Bureau, (202) 

418–2180. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s Report 

and Order, MB Docket No. 09–50, 

adopted October 21, 2009, and released 


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