

[Federal Register: April 5, 2006 (Volume 71, Number 65)]
[Proposed Rules]               
[Page 17047-17050]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05ap06-29]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51 and 93

[EPA-HQ-OAR-2004-0491; FRL-8055-4]
RIN 2060-AN60

 
PM2.5 De Minimis Emission Levels for General Conformity 
Applicability

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA is proposing to amend its regulations relating to the 
Clean Air Act (CAA) requirement that Federal actions conform to the 
appropriate State, Tribal or Federal implementation plan for attaining 
clean air (``general conformity'') to add de minimis emissions levels 
for particulate matter with an aerodynamic diameter equal to or less 
than 2.5 microns (PM2.5) National Ambient Air Quality 
Standards (NAAQS) and its precursors.

DATES: Comments must be received by May 5, 2006.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2004-0491, by one of the following methods:
     http://www.regulations.gov: Follow the on-line 

instructions for submitting comments.
     E-mail: A-and-R-Docket@epa.gov, attention Docket No. EPA-
HQ-OAR-2004-0491.
     Fax: 202-566-1741.
     Mail: PM2.5 De Minimis Emission Levels for 
General Conformity Applicability, Docket ID No. EPA-HQ-OAR-2004-0491, 
Environmental Protection Agency Docket Center, Mail Code: 6102T, 1200 
Pennsylvania Avenue, NW., Washington, DC 20460. Please include a total 
of two copies, if possible. In addition, please mail a copy of your 
comments on the information collection provisions to the Office of 
Information and Regulatory Affairs, Office of Management and Budget 
(OMB), Attn: Desk Officer for EPA, 725 17th St., NW., Washington, DC 
20503.
     Hand Delivery: PM2.5 De Minimis Emission Levels 
for General Conformity Applicability, Docket ID No. EPA-HQ-OAR-2004-
0491, Environmental Protection Agency Docket Center, EPA West, Room B-
102, 1301 Constitution Avenue, NW., 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 comments to Docket ID No. EPA-HQ-OAR-2004-
0491. The EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, 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 http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 

is an ``anonymous access'' system, 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 http://www.regulations.gov, your e-mail 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 the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm
.

    Docket: All documents in the docket are listed in the http://www.regulations.gov
 index. Although listed in the index, some 

information is not publicly available, e.g., CBI 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 
in http://www.regulations.gov or in hard copy at the 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) 566-1744, and the telephone number for the Air 
Docket is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: Mr. Thomas Coda, Office of Air Quality 
Planning and Standards, U.S. Environmental Protection Agency, Mail

[[Page 17048]]

Code C539-02, Research Triangle Park, NC 27711, phone number (919) 541-
3037 or by e-mail at coda.tom@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does This Action Apply to Me?

    Today's action applies to all Federal agencies and Federal 
activities.

B. What Should I Consider as I Prepare My Comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through 
http://www.regulations.gov or e-mail. 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 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.
    2. Tips for Preparing Your Comments. When submitting comments 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     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.
     Explain why you agree or disagree; suggest alternatives 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.

II. Today's Rule

    This proposed rule and the accompanying direct final rule are 
available electronically on the day of publication from EPA's Federal 
Register Web site http://www.epa.gov/docs/fedrgstr/EPA-AIR/. For 

further information, including the rationale, administrative 
requirements, statutory authority, and regulatory text for these 
amendments, please see the information provided in the direct final 
action that is located in the ``Rules and Regulations'' section of this 
Federal Register publication.

III. 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 
regulation 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, it has been 
determined that these revisions to the regulations are considered a 
``significant regulatory action'' because they may interfere with 
actions taken or planned by other Federal agencies. As such, this 
action was submitted to OMB for review. Changes made in response to OMB 
suggestions or recommendations can be found in the public docket.

B. Paperwork Reduction Act

    This action does not directly impose an information collection 
burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 
3501 et seq., on non-Federal entities. The General Conformity 
Regulations require Federal agencies to determine that their actions 
conform to the SIPs or TIPs. However, depending upon how Federal 
agencies implement the regulations, non-Federal entities seeking 
funding or approval from those Federal agencies may be required to 
submit information to that agency.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose 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 regulation 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 revisions 
to the regulations 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 121.201);
    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-for-profit enterprise which 
is independently owned and operated and is not dominant in its field.
    Today's proposed revisions to the regulations, if promulgated will 
not impose any requirements on small entities and therefore, will not 
have a significant economic impact on a substantial number of small 
entities. The General Conformity Regulations

[[Page 17049]]

require Federal agencies to conform to the appropriate State, Tribal or 
Federal implementation plan for attaining clean air. We continue to be 
interested in the potential impacts of the regulations 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 regulations with ``Federal mandates'' 
that may result in expenditures to State, local, and Tribal 
governments, in the aggregate, or to the private sector, of $100 
million or more in any 1 year. Before promulgating an EPA regulation 
for which a written statement is needed, section 205 of the UMRA 
generally requires EPA to identify and consider a reasonable number of 
regulatory alternatives and to adopt the least costly, most cost-
effective or least burdensome alternative that achieves the objectives 
of the regulation. The provisions of section 205 do not apply when they 
are inconsistent with applicable law. Moreover, section 205 allows EPA 
to adopt an alternative other than the least costly, most cost-
effective or least burdensome alternative if the Administrator 
publishes with the final regulations an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including Tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    The EPA has determined that these revisions to the regulations do 
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. Thus, today's proposed 
regulation revisions are not subject to the requirements of sections 
202 and 205 of the UMRA.
    The EPA has determined that these proposed regulation revisions 
contain no regulatory requirements that may significantly or uniquely 
affect small governments, including Tribal governments.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255; August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have Federalism implications.'' 
``Policies that have Federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This action does not have Federalism implications. The regulations 
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. Previously, EPA 
determined the costs to States to implement the General Conformity 
Regulations to be less than $100,000 per year. Thus, Executive Order 
13132 does not apply to these proposed regulation revisions.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by Tribal officials in the development of regulatory 
policies that have Tribal implications.'' This determination is stated 
below.
    These proposed regulation revisions do not have Tribal implications 
as defined by Executive Order 13175. They do not have a substantial 
direct effect on one or more Indian Tribes, since no Tribe has to 
demonstrate conformity for their actions. Furthermore, these proposed 
regulation revisions do 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 these revisions to the regulations do nothing to modify that 
relationship. Because these proposed regulation revisions do not have 
Tribal implications, Executive Order 13175 does not apply.
    Although Executive Order 13175 does not apply to these regulations, 
EPA encourages Tribal input and specifically solicits comment on this 
regulation from Tribal officials.

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 
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.
    These proposed revisions to the regulations are not subject to 
Executive Order 13045 because they are not economically significant as 
defined in Executive Order 12866 and because EPA does not have reason 
to believe the environmental health or safety risk addressed by the 
General Conformity Regulations present a disproportionate risk to 
children. The General Conformity Regulations ensure that Federal 
agencies comply with the SIP, TIP or FIP for attaining and maintaining 
the NAAQS. The NAAQS are promulgated to protect the health and welfare 
of sensitive populations, including children.

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

    These revisions to the regulations are not considered a 
``significant energy action'' as defined in Executive Order 13211, 
``Actions That Significantly Affect Energy Supply, Distribution, or 
Use,'' (66 FR 28355, May 22, 2001) because it is not likely to have a 
significant adverse effect on the supply, distribution, or use of 
energy.

I. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer Advancement Act 
of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus

[[Page 17050]]

standards (VCS) in its regulatory activities unless to do so would be 
inconsistent with applicable law or otherwise impractical. The VCS are 
technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by VCS bodies. The NTTAA directs EPA to provide Congress, 
through OMB, explanations when the Agency decides not to use available 
and applicable VCS.
    This revision to the regulations does not involve technical 
standards. Therefore, EPA is not considering the use of any VCS.
    However, EPA will encourage the Federal agencies to consider the 
use of such standards, where appropriate, in the implementation of the 
General Conformity Regulations.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 requires that each Federal agency make 
achieving environmental justice part of its mission by identifying and 
addressing, as appropriate, disproportionately high and adverse human 
health environmental effects of its programs, policies, and activities 
on minorities and low-income populations.
    The EPA believes that these proposed revisions to the regulations 
should not raise any environmental justice issues. The proposed 
revisions to the regulations would, if promulgated, revise procedures 
for other Federal agencies to follow. They do not disproportionately 
affect the health or safety of minority or low income populations. The 
EPA encourages other agencies to carefully consider and address 
environmental justice in their implementation of their evaluations and 
conformity determinations.

List of Subjects

40 CFR Part 51

    Environmental protection, Administrative practice and procedures, 
Air pollution control, Carbon monoxide, Intergovernmental relations, 
Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur dioxide, Volatile organic compounds.

40 CFR Part 93

    Environmental protection, Administrative practice and procedures, 
Air pollution control, Carbon monoxide, Intergovernmental relations, 
Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur dioxide, Volatile organic compounds.

    Authority: 42 U.S.C. 7401-7671q.

    Dated: March 31, 2006.
Stephen L. Johnson,
Administrator.
[FR Doc. 06-3310 Filed 4-4-06; 8:45 am]

BILLING CODE 6560-50-P
