[Federal Register: October 27, 2009 (Volume 74, Number 206)]
[Notices]
[Page 55283-55284]
[DOCID:fr27oc09-121]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

[Summary Notice No. PE-2009-50]

Petition for Exemption; Summary of Petition Received

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of petition for exemption received.

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SUMMARY: This notice contains a summary of a petition seeking relief
from specified requirements of 14 CFR. The purpose of this notice is to
improve the public's awareness of, and participation in, this aspect of
FAA's regulatory activities. Neither publication of this notice nor the
inclusion or omission of information in the summary is intended to
affect the legal status of the petition or its final disposition.

DATES: Comments on this petition must identify the petition docket
number involved and must be received on or before November 16, 2009.

ADDRESSES: You may send comments identified by Docket Number FAA-2009-
0933 using any of the following methods:
     Government-wide rulemaking Web site: Go to http://
www.regulations.gov and follow the instructions for sending your
comments electronically.
     Mail: Send comments to the Docket Management Facility;
U.S. Department of Transportation, 1200 New Jersey Avenue, SE., West
Building Ground Floor, Room W12-140, Washington, DC 20590.
     Fax: Fax comments to the Docket Management Facility at
202-493-2251.
     Hand Delivery: Bring comments to the Docket Management
Facility in Room W12-140 of the West Building Ground Floor at 1200 New
Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
    Privacy: We will post all comments we receive, without change, to
http://www.regulations.gov, including any personal information you
provide. Using the search function of our docket Web site, anyone can
find and read the comments received into any of our dockets, including
the name of the individual sending the comment (or signing the comment
for an association, business, labor union, etc.). You may

review DOT's complete Privacy Act Statement in the Federal Register
published on April 11, 2000 (65 FR 19477-78).
    Docket: To read background documents or comments received, go to
http://www.regulations.gov at any time or to the Docket Management
Facility in Room W12-140 of the West Building Ground Floor at 1200 New
Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Katherine Haley, Office of Rulemaking,
Federal Aviation Administration, 800 Independence Avenue, SW.,
Washington, DC 20591; telephone<PHONE_NUMBER>, facsimile (202) 267-
5075; e-mail<EMAIL_ADDRESS>    This notice is published pursuant to 14 CFR 11.85.

    Issued in Washington, DC, on October 21, 2009.
Pamela Hamilton-Powell,
Director, Office of Rulemaking.

Petition for Exemption

    Docket No.: FAA-2009-0933.
    Petitioner: Gulfstream Aerospace Corporation.
    Section of 14 CFR Affected: Sections 25.1457(a)(6) and (d)(5);
91.609(i)(1) and (j); 129.24; 135.151(g)(1) and (h); Part 91 Appendix
E, footnote 5 and Part 135 Appendix E, footnote 18.
    Description of Relief Sought: Gulfstream Aerospace Corporation
seeks relief on behalf of itself and other U.S.-registered operators
taking delivery of Gulfstream Model GIV-X (G350/G450) and Model GV-SP
(G500/G550) airplanes manufactured between April 7, 2010 and April 7,
2012. The relief sought would enable these airplanes to be operated for
a specific time without the (1) Datalink recording requirements, (2)
increased sampling rates of certain flight data recorder parameters,
and (3) cockpit voice recorder (CVR) independent power source required
by the sections listed above.

[FR Doc. E9-25747 Filed 10-26-09; 8:45 am]

BILLING CODE 4910-13-P


U. S. Shore Miles ( shoremi. sd2)

Number of river and ocean shore miles by state.

Data Element Definitions STATE  State name STATE_ AB  State two letter abbreviation STATE_ CO  Two digit state fips code POPULATI  State population ( not used) HOUSEHOL  State household size ( not used) TOTAL_ RI  Total river miles in state TOTAL_ ES  Total estuary size in square miles TOTAL_ OC  Total ocean size in square miles


excluded in these first two steps of the phase-in plan of this action
comprise only 11 percent of total stationary source GHG emissions, while
67 percent remain subject to regulation.  Furthermore, we expect the
emissions differences due to BACT controls for such sources to be
relatively small due to the lack of available capture and control
technologies for GHG at such sources that are akin to those that exist
for conventional pollutants and sources, as well as the likelihood that
even in the absence of BACT such sources would already be installing
relatively efficient GHG technologies to save on fuel costs.  Thus,
while potential benefits would be foregone by excluding smaller sources
from the permitting programs, these benefits are likely to be small.
Under the Tailoring Rule, we will be working during the 6-year period to
greatly improve our understanding of both the administrative costs of
regulating and the social costs of not regulating smaller sources under
PSD and title V, and we will be relying on that information to support
our future threshold analyses called for under the action.

In reaching the decisions for this GHG Tailoring Rule, the EPA
recognizes that GHG emissions can remain in the atmosphere for decades
to centuries, meaning that their concentrations become well-mixed
throughout the global atmosphere regardless of emission origin, and
their effects on climate are long lasting and significant.  A detailed
explanation of climate change and its impact on health, society, and the
environment is included in EPA's TSDtechnical support document for the
endangerment finding action (Docket ID No. EPA-HQ-OAR-2009-0171).  The
EPA recognizes the importance of reducing climate change emissions for
all sources of GHG emissions including those sources afforded regulatory
relief in this rule and plans to address potential emission reductions
from these small sources using voluntary and energy efficiency
approaches.  Elsewhere, we have discussed EPA's interest in continuing
to use regulatory and/or non-regulatory tools for reducing emissions
from smaller GHG sources because we believe that these tools will likely
result in more efficient and cost-effective regulation than would
case-by-case permitting.

E.  What are the net benefits of this final rule?

The net benefits of this GHG tailoring rule represent the difference
between the benefits and costs of this rule to society.  As discussed in
this preamble, this rule is one of regulatory relief and the benefits to
society are estimates the regulatory relief (avoided permit burden
costs) to sources and permitting authorities for Steps 1 and 2 of the
phase-in period.  The social costs of the rule are the foregone
environmental benefits in the form of potential GHG emission reductions
that could occur during the phase-in period and are discussed
qualitatively.

	This rulemaking provides regulatory relief for a phase-in period to
smaller sources of GHG by phasing in the statutory permitting threshold
at levels above statutory requirements.  This final rule establishes
thresholds and PSD significance levels for Steps 1 and 2 of the phase-in
period (the 2.5 year period between January 2, 2011 and July 1, 2013),
commits to considering a further Step 3, and indicates floor title V and
PSD threshold levels from July 1, 2013 through April 30, 2016.  The net
benefits of the final rule for Steps 1 and 2 are $193,598+B-C million
for the 2 and one-half year period where B denotes the unquantified
benefits and C the quantified costs of this final rule.  These
unquantified benefits of this rule include the avoided PSD BACT costs
for new and modifying sources.  The unquantified costs previously
discussed relate to the foregone environment benefits or GHG emission
reductions that might be possible during the 2.5 year Step 1 and 2
phase-in period.  These estimates are subject to significant
uncertainties that are discussed at length in the Regulatory Impact
Analysis for the Prevention of Significant Deterioration and Title V GHG
Tailoring Rule contained in the docket to this final rule.  All dollar
estimates shown are based upon 2007$.

Table VI-4.  Net Benefits of the Rule for Steps 1 and 2 of the Phase-in
Period

 	Final Rule Amounts

(millions of 2007$)

Benefits - Regulatory Relief

	Sources

	   Title V1	$123,624

   PSD2	$13,567

Total Source Regulatory Relief	$137,190

Permitting Authority

   Title V1	$52,684

   PSD2	$3,724

Total Permitting Authority 	$56,407

Total Regulatory Relief	$193,598+B

Costs - Foregone GHG Emission Reductions

   Title V & PSD	C

Net Benefits3	$193,598+B-C

Benefits represent regulatory relief for sources with the annual
potential to emit below the thresholds shown.

B - unquantified benefits of the rule include regulatory relief from
BACT requirements for PSD sources

C - unquantified social costs of tailoring rule represents economic
value of foregone environmental benefits (potential GHG emission
reductions) during Step 1 and 2 of the phase in period.  Foregone GHG
emission reductions are not known at this time.

1Reflects estimates of regulatory relief or avoided permit burden costs
for title V GHG sources and permitting authorities.

2 Shows estimates of regulatory relief or avoided permit burden costs
for GHG PSD sources and permitting authorities.

3 Includes one-half year of Step 1 (anyway threshold), 2 years  of Step
2 (100,000 threshold),

VII.   Comments on Statutory and Executive Orders Reviews

In this section, we provide responses to comments we received for
various Executive Orders (EOs).

A.  Comments on Executive Order 12866 - Regulatory Planning and Review

At proposal, EPA prepared an analysis of the potential costs and
benefits associated with EPA’s Tailoring Rule proposal in an RIA.
Several commenters state that EPA’s failure to estimate the full costs
of the effects of its interpretation of PSD applicability in the
proposed Tailoring Rule violates Executive OrderEO 12866.  Some of these
commenters maintain that Executive OrderEO 12866 directs EPA to submit
to the Office of Management and Budget (OMB) new significant regulations
under consideration by the EPA.  These commenters assert that, in the
section 202 rule, EPA failed to analyze the effect on stationary sources
in the cost benefit analysis and there is no indication that EPA
included these impacts in its submission to OMB.  According to the
commenters, in EPA’s proposal for this rulemaking, EPA has similarly
failed to analyze the costs and benefits of triggering PSD for
stationary sources.  The commenters assert that without this key
information, OMB could not fully review the impacts of the proposed
rule.  The commenters believe that EPA’s failure to account for known
costs that will occur as a direct result of the promulgation of the
proposed rule in conjunction with the section 202 rule violates several
applicable requirements of Executive OrderEO 12866, including sections
6(B)(ii) and 6(C)(iii), which require assessments of the potential costs
and benefits of the regulatory action and “reasonably feasible
alternatives to the planned regulation, identified by the Agencies or
the public . . .” thereby violating both the APA and CAA section
307(d) because they deprive businesses and permitting authorities alike
of a meaningful opportunity to comment on the rule.

	The EPA has prepared a revised RIA assessing the benefits and costs of
the final Tailoring Rule to support this rulemaking in accordance with
Executive OrderEO 12866, as was done with the proposal for this
rulemaking.  Similarly, the RIA completed for this action is subject to
review by an Inter-agency review panel that includes OMB,the
President’s Office of Management and Budget as was the case with the
proposal RIA.  Further, the RIA completed for this final rule fully
assesses the known benefits and costs associated with the Tailoring
Rulemaking.  This final rule is one of regulatory relief from statutory
requirements in which a large number of sources of GHGs will be relieved
of the burden of title V and PSD permitting for a period of at least 6
years.  This final rule will provide relief from title V permitting to
over 6 million sources of GHG in this country.  Likewise tens of
thousands of sources potentially subject to PSD permitting requirements
for GHGs will have regulation postponed for a period of at least 6
years.  While larger sources of GHG may still be required to obtain
title V permits or modify existing permits and to comply with PSD
requirements, these burdens result from existing statutory requirements,
not from this final Tailoring Rule.

B.  Comments on the Paperwork Reduction Act

At proposal, we stated in the preamble that we did not believe that the
proposal would impose any new information collection burden.  We
concluded that the proposed action would reduce costs incurred by
sources and permitting authorities relative to the costs that would be
incurred if EPA did not revise the rule and provided estimates of those
reduced costs.  Further, we stated that, despite our estimated burden
reductions, it was unnecessary for us to submit a new information
collection request (ICR) to the OMB because the ICR contained in the
existing regulations for PSD (see, e.g., 40 CFR 52.21) and title V (see
40 CFR parts 70 and 71) had already been approved under the provisions
of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and washas
assigned OMB control number 2060–0003 and OMB control number
2060–0336, respectively.

However, several commenters disagree that it was unnecessary for us to
submit a new ICR for the proposed action.  These commenters believe that
(1) prior approval of an ICR for the PSD and title V programs ignores
the fact that there would be an increase in the paperwork burden as a
result of applying PSD and title V permitting requirements; and (2)
unless EPA resubmits the information collection approval request to OMB
with a proper and fully-inclusive analysis, EPA will lack authority to
collect information from stationary sources for PSD and title V GHG
emissions permitting.

As we stated in the proposal, this is a burden relief rule and as such
it does not impose any new requirements for the NSR or title V programs
that are not currently required.  For that reason, we concluded that for
purposes of this rule it was unnecessary for us to submit a new ICR to
the OMB and that the ICR contained in the existing regulations for PSD
(see, e.g., 40 CFR 52.21) and title V (see 40 CFR parts 70 and 71) that
had already been approved under the provisions of the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq. and was assigned OMB control
number 2060–0003 and OMB control number 2060–0336, respectively,
still applies.

Nevertheless, we understand that once GHGs are regulated under the PSD
and title V programs, there might be an increase in the overall
paperwork burden for these programs.  EPA will have to assess this
possible burden during the normal course of 3-year renewal ICR process.

C.  Comments on the RFARegulatory Flexibility Act

At proposal, EPA certified that the proposed rule would not have a
significant impact on a substantial number of small entities and
therefore we are not obligated to convene a formal Small Business
Advocacy Review (SBAR) panel.  This certification was based upon the
fact that the proposed action would relieve the regulatory burden
associated with the major PSD and title V operating permits programs for
new or modified major sources that emit GHGs, including small
businesses.  Nevertheless, EPA was aware at proposal that many small
entities would be interested in the various GHG rulemakings currently
under development and might have concerns about the potential impacts of
the statutory imposition of PSD requirements that may occur as a result
of the group of EPA actions, notwithstanding the relief provided to
small businesses by the Tailoring Rule.  For these reasons, and in
collaboration with the SBA, EPA conducted an outreach meeting designed
to exchange information with small entities that may be interested in
these regulations.  The outreach effort was organized and led by
representatives from EPA’s Office of Air Quality Planning and
Standards within the Office of Air and Radiation, EPA’s Office of
Policy Economics and Innovation, the Office of Information and
Regulatory Affairs within OMB, and the Office of Advocacy of the
SBA.Small Business Administration.  This meeting was conducted on
November 17, 2009 in Arlington, VA, and documentation of this meeting,
which includes a summary of the advice and recommendations received from
the small entity representatives identified for the purposes of this
process, can be obtained in the docket for this rulemaking.  (See Docket
No. EPA-HQ-OAR-2009-0517-19130.)).

During the comment period, several commenters alleged that EPA
inappropriately limited its RIA and RFARegulatory Flexibility Act/SBREFA
analysis, and that had we done a comprehensive analysis, we would not
have been able to certify that any of the proposed rules will not have a
significant economic impact on a “substantial number of small
entities.”  Thus they conclude that EPA failed to prepare and
publicize an initial regulatory flexibility analysis (IRFA).  Additional
commenters stated that EPA’s failure to conduct an IRFA to assess the
full costs of the effects of its interpretation of PSD applicability in
the proposedProposed Tailoring Rule violates a host of statutes and
Executive Orders requiring analysis and public review of regulatory
burdens.  These commenters conclude that EPA should have convened one or
more SBAR Panels.

	We are not persuaded that we should have taken into account effects
beyond those caused by the Tailoring Rule when we made our certification
of no significant economic impact on a substantial number of small
entities for this rule.  No permitting requirements are imposed by this
final Tailoring Rule.  Instead, this final Tailoring Rule offers
regulatory relief to over an estimated six million sources of GHG
emissions that would otherwise be required to obtain a title V permit
and tens of thousands of sources of GHG emissions subject to PSD
permitting requirements that would otherwise be required statutorily to
obtain permit.  The RFA does not require that an agency complete a
regulatory flexibility analysis or conduct an SBAR panel where the rule
does not have any negative impact on small entities.  For more
discussion of RFA issues, please see the RTC document.

D.  Comments on the Unfunded Mandates Reform Act

At proposal, EPA asserted that the Tailoring Rule does not impose
unfunded mandates on any entities including sources and permitting
authorities.  Since the proposed Tailoring Rule is one of regulatory
relief, it alleviates the burden of adhering to statutorily required
permitting thresholds and does not impose regulatory requirements.

Some commenters on the proposed rule assert that EPA has failed to
comply with the requirements of the Unfunded Mandates Reform Act (URMA),
pursuant to which EPA must assess the effects of the proposed
ruleProposed Rule on state, local, and tribal governments and the
private sector.  Specifically, these commenters state that section 202
of the UMRA requires EPA to prepare a written statement, including a
cost-benefit analysis, for proposed rules 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.  According to the commenters, in concluding that “the
revisions would ultimately reduce the PSD and title V program
administrative burden that would otherwise occur in the absence of this
rulemaking,” EPA did not account for the billions of dollars that
permitting authorities and stationary sources will soon be required to
spend once PSD is triggered for GHGs.  Additionally, a few commenters
contend that the EPA underestimated the impacts to public utilities
which are owned/operated by local governments and also to state
regulatory agencies.

The EPA has carefully considered the comments on unfunded mandates
expressed by commenters to the proposed rule.  The EPA did complete a
RIA for the final rule assessing the benefits and costs of the Tailoring
Rule, including any unfunded mandates.  As previously discussed, the
Tailoring Rule is one of regulatory relief because it increases the GHG
emissions threshold for NSR and title V permitting substantially above
otherwise statutory requirements.  As such, the EPA has determined that
this Tailoring Rule does not impose unfunded mandates on any entities.
This RIA of the final rule incorporates the extensive changes made in
this final rule, including increased threshold levels for title V and
PSD above those contained in the proposed rule.  While we also
incorporated improved estimates of the costs for sources to obtain
permits and for permitting authorities to process permits, they do not
change our conclusion that this final rule does not impose unfunded
mandates on any entities.

E.  Comments on Executive Order 13132 – Federalism

Some comments received on the proposed rule assert that federalism
concerns were ignored, in violation of Executive Order No. 13132.
According to the commenters, EPA cannot maintain that the Tailoring Rule
"will not have a substantial direct effect on the states, on the
relationship between the national government and the states, or on the
distribution of power and responsibilities between various levels of
government," such that Executive Order No. 13132 does not apply.  Some
of these commenters assert that the proposed rulemaking would require
radical changes in state laws, interjects GHGs into permit programs
never once conceived for that purpose (any more than was EPA's),
requires massive staff hiring at state agencies, and rewrites SIPs in
place for years or even decades.

As we stated previously, this is a burden relief rule and as such it
does not impose any requirements for the NSR or title V programs that
are not currently required.  In addition, this action does not interject
GHGs into the permit programs, nor does it change state laws or SIPs to
impose any new permitting requirements.  Instead, this action will
significantly reduce the burden and costs incurred by sources and
permitting authorities relative to the burden and costs that would be
incurred if EPA did not revise the permitting provisions to account for
higher applicability thresholds for GHG emissions.

However, since this rule finalizes burden reducing thresholds that will
not otherwise apply to the PSD and title V programs, we are aware that a
few states may have to amend their SIPs to incorporate these new
thresholds if they do not incorporate federal rules by reference and
cannot adopt our approach through interpretation.  Executive Order 13132
is still not implicated by this rule because it finalizes burden
reducing thresholds that would not otherwise apply to the PSD and title
V programs.

F.  Comments on Executive Order 13175 - Consultation and Coordination
with Indian Tribal Governments

The National Tribal Air Association (NTAA) supports EPA’s proposed
rule but requests that tribal air grant funding be increased to reflect
the air quality-related needs of tribes across the nation, and to allow
these tribes the opportunity to implement the CAA’s PSD and title V
programs.  The NTAA states that, not only are tribesTribes eligible for
section 103 grant funding to conduct air quality monitoring, emissions
inventories, and other studies and assessments, but they may also obtain
section 105 grant funding to implement CAA regulatory programs.
According to the NTAA, tribesTribes are facing many of the same
air-related issues that neighboring state and local jurisdictions are
facing, but are significantly underfunded to address such issues.

	The Agency is aware and concerned about the resource needs for the
tribal Tribal air program and we are working to see how grant funding
might be increased in the future.  Nevertheless and for the purpose of
the permitting programs, we want to clarify that tribes that develop
Tribal Implementation Plans (TIPs) can charge for permits and
tribesTribes with delegation or authorization would develop permit fee
programs under their authority (e.g., Navajo’s permit fee program for
their delegated title V permit program) to fund both the NSR and title V
programs.  For these reasons, there are a number of ways we would like
to work with tribes to address the funding concern, including
encouraging delegation or authorization of permitting programs and
having model codes available for tribesTribes that want to do TIPs for
NSR and title V permitting.

G.  Comments on Executive Order 13211 - Actions That Significantly
Affect Energy Supply, Distribution, or Use

Other commenters assert that EPA’s analysis under Executive Order
13211 is insufficient because it addresses only smaller sources.  These
commenters contend that EPA has not meaningfully examined the energy
implications of its proposed actions and interpretations of the CAA.
The commenters disagree with EPA’s conclusion that the imposition of
costly PSD obligations on power plants would have no impact on power
supply, distribution, or use, when those plants will have had no time to
prepare for compliance and no idea what BACT may be for GHG emissions.
Other commenters opine that the adoption of BACT for some industries
newly-subject to PSD permitting requirements for GHGs could involve
fuel-switching, and increased energy costs (due to the need for a source
to convert from coal to natural gas to meet BACT).

Again, this action is a burden relief rule and as such it does not
create any new requirements for sources in the energy supply,
distribution, or use sectors.  For the purpose of the BACT
determinations for GHGs, the long-standing top-down BACT selection
process still applies.  Under the CAA and EPA’s implementing
regulations, BACT is still an emission limitation based on the maximum
degree of emission reduction achievable through application of
production processes and available methods, systems, and techniques that
considers energy, environmental, and economic impacts.  In other words,
BACT determinations for GHGs will still have to consider energy,
environmental and economic feasibility for the various control
technologies under consideration before selecting a particular
technology as BACT for a specific source.  For that reason, what BACT
may be for GHG emissions will vary by source, and the technology that is
ultimately selected has to be one that is feasible based on the current
energy, environmental and economic impacts that the planned technology
might have.  Thus, we do not believe that this action is likely to have
a significant adverse effect on the supply, distribution, or use of
energy.

VIII.   Statutory and Executive Orders Reviews

A.  Executive Order 12866 - Regulatory Planning and Review

	Under section 3(f)(1) of Executive OrderEO 12866 (58 FR 51735, October
4, 1993), this action is an "economically a "significant regulatory
action”" because it is likely to have an annual effect on the economy
of $100 millionraises novel legal or more.policy issues.  Accordingly,
EPA submitted this action to the OMB for review under Executive OrderEO
12866 and any changes made in response to OMB recommendations have been
documented in the docket for this action.

	In addition, EPA prepared an analysis of the potential costs and
benefits associated with this action.  This analysis is contained in the
RIA for this final rule.  A copy of the analysis is available in the
docket for this action and the analysis is briefly summarized in section
VIIVIII of this preamble.

	This rule uses a phased-in approach for requiring larger sources of GHG
emissions to comply with title V operating permit and PSD statutory
requirements, essentially lifting this burden for a period of at least 6
years for a large number of sources of GHG.  Thus, this rule provides
regulatory relief rather than regulatory requirements for these GHG
sources.  For sources of GHG that will be required to obtain title V
permits and/or comply with PSD requirements, there are no direct
economic burdens or costs as a result of this final rule, because these
requirements are not imposed as a result of this rulemaking.  Statutory
requirements to obtain a title V operating permit or to adhere to PSD
requirements are already mandated by the CAA and by existing rules, not
by this rule.  As a result, this Tailoring Rule annual effect on the
economy will be positive because it will result in billions of dollars
of regulatory relief during the phase-in period.

B.  Paperwork Reduction Act

	This action does not impose any new information collection burden.
Instead, this action will significantly reduce costs incurred by sources
and permitting authorities relative to the costs that would be incurred
if EPA did not revise the rule.  Based on our revised GHG threshold data
analysis, we estimate that over 80,000 new and modified facilities per
year would be subject to PSD review based on applying a GHG emissions
threshold of 100/250 tpy using a CO2e metric.  This is compared to 280
PSD permits currently issued per year, which is an increase of more than
280-fold.  Similarly, for title V, we estimate that over six million new
sources would be affected at the 100-tpy threshold for GHGs using the
CO2e metric.  By increasing the volume of permits by over 400 times, the
administrative burden would be unmanageable without this rule.

	However, OMB has previously approved the information collection
requirements contained in the existing regulations for PSD (see, e.g.,
40 CFR 52.21) and title V (see 40 CFR parts 70 and 71) under the
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and
has assigned OMB control number 2060-0003 and OMB control number
2060-0336.  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 (RFA) generally requires an agency to
prepare a regulatory flexibility analysis of any rule subject to notice
and comment rulemaking requirements under the APA 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 final action on small
entities, small entity is defined as: (1) a small business that is a
small industrial entity as defined in the U.S. SBA size standards (see
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; or (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 final action will not have a significant
economic impact on a substantial number of small entities.  In
determining whether a rule has a significant economic impact on a
substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the primary
purpose of the regulatory flexibility analyses is to identify and
address regulatory alternatives “which minimize any significant
economic impact of the rule on small entities.”  5 U.S.C.SC 603 and
604.  Thus, an agency may certify that a rule will not have a
significant economic impact on a substantial number of small entities if
the rule relieves regulatory burden, or otherwise has a positive
economic effect on all of the small entities subject to the rule.

We have therefore concluded that this final rule will relieve the
regulatory burden for most affected small entities associated with the
major PSD and title V operating permits programs for new or modified
major sources that emit GHGs, including small businesses.  This is
because this rule raises the major source applicability thresholds for
these programs for the sources that emit GHGs.  As a result, the program
changes provided in this rule are not expected to result in a
significant economic impact on a substantial number of small entities.

D.  Unfunded Mandates Reform Act

This rule 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.
Only those few states whose permitting authorities do not implement the
federal PSD and title V rules by reference in their SIPs will have a
small increase in burden.  These states will have to amend their
corresponding SIPs to incorporate the new applicability thresholds,
since the burden reducing thresholds that we are finalizing with this
rule will not otherwise apply to the PSD and title V programs.  Thus,
this rule is not subject to the requirements of sections 202 or 205 of
UMRA.

	This rule is also not subject to the requirements of section 203 of
UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments.  As discussed
earlier, this rule is expected to result in cost savings and an
administrative burden reduction for all permitting authorities and
permittees, including 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.  These final amendments will
ultimately simplify and reduce the burden on state and local agencies
associated with implementing the PSD and title V operating permits
programs, by providing that a source whose GHG emissions are below the
proposed levels will not have to obtain a PSD permit or title V permit.
Thus, Executive Order 13132 does not apply to this action.

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 comment on the proposed rule from state and
local officials.

F.  Executive Order 13175 - Consultation and Coordination with Indian
Tribal Governments

Subject to the Executive Order 13175 (65 FR 67249, November 9, 2000) EPA
may not issue a regulation that has tribal implications, that imposes
substantial direct compliance costs, and that is not required by
statute, unless the federal government provides the funds necessary to
pay the direct compliance costs incurred by tribal governments, or EPA
consults with tribal officials early in the process of developing the
proposed regulation and develops a tribal summary impact statement.

EPA has concluded that this action may have tribal implications.
However, it will neither impose substantial direct compliance costs on
tribal governments, nor preempt tribalTribal law.  There are no tribal
authorities, currently issuing major NSR permits; however, this may
change in the future.

EPA consulted with tribal officials early in the process of developing
this regulation to allow them to have meaningful and timely input into
its development by publishing an ANPR that included GHG tailoring
options for regulating GHGs under the CAA.  (73 FR 44354, July 30, 2008)
 As a result of the ANPR, EPA received several comments from tribal
officials on differing GHG tailoring options presented in the ANPR which
were considered in the proposal and this final rule.  Additionally, we
also specifically solicited comment from tribal officials on the
proposed rule (74 FR 55292, October 27, 2009).

As required by section 7(a) of Executive Order 13175, EPA’s Tribal
Consultation Official has certified that the requirements of the
Executive Order have been met in a meaningful and timely manner.  A copy
of the certification is included in the docket for this action.

G.  Executive Order 13045 - Protection of Children from Environmental
Health and Safety Risks

	EPA interprets Executive OrderEO 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 OrderEO has the potential to influence the regulation.  This
action is not subject to Executive OrderEO 13045 because it does not
establish an environmental standard intended to mitigate health or
safety risks.

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

This action is not a “significant energy action” as defined in
Executive Order 13211 (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.  Further, we have concluded that this rule is not
likely to have any adverse energy effects because this action would not
create any new requirements for sources in the energy supply,
distribution, or use sectors.

I.  National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement Act of
1995 ("NTTAA"), Public Law No. 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.  The NTTAA directs EPA to provide
Congress, through OMB, 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 (Feb. 16, 1994)) establishes federal
executive policy on environmental justice.  Its main provision directs
federal agencies, to the greatest extent practicable and permitted by
law, to make environmental justice part of their mission by identifying
and addressing, as appropriate, disproportionately high and adverse
human health or environmental effects of their programs, policies, and
activities on minority populations and low-income populations in the
United States.

		EPA has concludeddetermined that it is not practicable to determine
whether there would be this final rule will not have disproportionately
high and adverse human health or environmental effects on minority
and/or low -income populations from this rule.  This rule is necessary
in order to allow for because it increases the continued implementation
of permitting requirements established in the statute.  Specifically,
without this rule, the CAA permitting programs (PSD and title V) would
become overwhelmed and unmanageable by the millions of GHG sources that
would become newly subject to them.  This would result in severe
impairment of the functioning of these programs with potentially adverse
human health and environmental effects nationwide.  Under this rule and
the legal doctrines of “absurd results,” administrative necessity,
and one-step-at-a-time, EPA is ensuring that the CAA permitting programs
continue to operate by limiting their applicability to the maximum
number of sources the programs can possibly handle.  This approach is
consistent with congressional intent as it allows PSD applicability to
at least the largest sources initially, at least to as many more sources
as possible, and as promptly as possible over time.  By doing so, this
rule allows for the maximum degreelevel of environmental protection
possible while providing regulatory relief for the unmanageable burden
that would otherwise exist.  Therefore, we believe it is not practicable
to identify and addressfor all affected populations without having any
disproportionately high and adverse human health or environmental
effects on any population, including any minority populations andor low
-income populations in the United States under this final rule. Any
impact that this final rule will have will be global in nature and will
increase the level of protection provided to all human health and the
environment.

K.  Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by
SBREFAthe 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 majorMajor
rule cannot take effect until 60 days after it is published in the
Federal Register.  This action is a “major rule” as defined by 5
U.S.C. 804(2).  This rule will be effective [INSERT DATE 60 DAYS FROM
DATE OF PUBLICATION IN THE FEDERAL REGISTER].

L.  Judicial Review

Under section 307(b)(1) of the Act, petitions for judicial review of
this action must be filed in the United States Court of Appeals for the
District of Columbia Circuit by [INSERT DATE 60 DAYS FROM DATE OF
PUBLICATION IN THE FEDERAL REGISTER].  Any such judicial review is
limited to only those objections that are raised with reasonable
specificity in timely comments.  Filing a petition for reconsideration
by the Administrator of this final rule does not affect the finality of
this rule for the purposes of judicial review nor does it extend the
time within which a petition for judicial review may be filed, and shall
not postpone the effectiveness of such rule or action.  Under section
307(b)(2) of the Act, the requirements of this final action may not be
challenged later in civil or criminal proceedings brought by us to
enforce these requirements. Pursuant to section 307(d)(1)(V) of the Act,
the Administrator determines that this action is subject to the
provisions of section 307(d).  Section 307(d)(1)(V) provides that the
provisions of section 307(d) apply to “such other actions as the
Administrator may determine.”  This action finalizes some, but not
all, elements of a previous proposed action – the Prevention of
Significant Deterioration and Title V Greenhouse Gas Tailoring Rule
Proposed Rule (74 FR 55292, October 27, 2009).

IX. Statutory Authority

The statutory authority for this action is provided by sections
307(d)(7)(B), 101, 111, 114, 116, and 301 of the CAA as amended (42
U.S.C. 7401, 7411, 7414, 7416, and 7601).  This action is also subject
to section 307(d) of the CAA (42 U.S.C. 7407(d)).

List of Subjects

40 CFR Part 51

Environmental protection, Administrative practice and procedure, Air
pollution control, Carbon dioxide, Carbon dioxide equivalents,
Environmental protection, Greenhouse gases, Hydrofluorocarbons,
Intergovernmental relations, Methane, Nitrous oxide, Perfluorocarbons,
Reporting and recordkeeping requirements, Sulfur hexafluoride.

40 CFR Part 52

Environmental protection, Administrative practice and procedure, Air
pollution control, Carbon dioxide, Carbon dioxide equivalents,
Environmental protection, Greenhouse gases, Hydrofluorocarbons,
Intergovernmental relations, Methane, Nitrous oxide, Perfluorocarbons,
Reporting and recordkeeping requirements, Sulfur hexafluoride.

40 CFR Part 70

Environmental protection, Administrative practice and procedure, Air
pollution control, Carbon dioxide, Carbon dioxide equivalents,
Environmental protection, Greenhouse gases, Hydrofluorocarbons,
Intergovernmental relations, Methane, Nitrous oxide, Perfluorocarbons,
Reporting and recordkeeping requirements, Sulfur hexafluoride.Page
478481 of 495498 - Prevention of Significant Deterioration and Title V
Greenhouse Gas Tailoring Rule

40 CFR Part 71

Environmental protection, Administrative practice and procedure, Air
pollution control, Carbon dioxide, Carbon dioxide equivalents,
Environmental protection, Greenhouse gases, Hydrofluorocarbons, Methane,
Nitrous oxide, Perfluorocarbons, Reporting and recordkeeping
requirements, Sulfur hexafluoride.

___________________________________________

Dated:

___________________________________________

Lisa P. Jackson,

Administrator.

For reasons stated in the preamble, title 40, chapter I of the Code of
Federal Regulations is amended as set forth below.

PART 51 – [AMENDED]

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

Authority:  23 U.S.C. 101; 42 U.S.C. 7401–7671q, et seq.

Subpart I - [Amended]

2.  Section 51.166 is amended:

a.  By adding paragraph (b)(48)

b.  By revising paragraph (b)(49)(iv); and

c.  By adding paragraph (b)(49)(v).

The revisions and additions read as follows:);

§51.166  Prevention of significant deterioration of air quality.

* * * * *

	(b)  *  *  *

	(48)  Subject to regulation means, for any air pollutant, that the
pollutant is subject to either a provision in the Clean Air Act, or a
nationally-applicable regulation codified by the Administrator in
subchapterSubchapter C of this chapterTitle 40 of the Code of Federal
Regulations, that requires actual control of the quantity of emissions
of that pollutant, and that such a control requirement has taken effect
and is operative to control, limit or restrict the quantity of emissions
of that pollutant released from the regulated activity.  Except that:

	(i)  Greenhouse gases (GHGs), the air pollutant defined in §40 CFR
86.1818-12(a) of this chapter as the aggregate group of six greenhouse
gases: carbon dioxide, nitrous oxide, methane, hydrofluorocarbons,
perfluorocarbons, and sulfur hexafluoride, shall not be subject to
regulation except as provided in paragraphs (b)(48)(iv) through (v) of
this section.

	(ii) For purposes of paragraphs (b)(48)(iii) through (v) of this
section, the term tpy CO2 equivalent emissions (CO2e) shall represent an
amount of GHGs emitted, and shall be computed as follows:

	(a)  Multiplying the mass amount of emissions (tpy), for each of the
six greenhouse gases in the pollutant GHGs, by the gas’s associated
global warming potential published at 40 CFR Part 98, Table A-1 to
subpart A of part 98 of this chapter – Global Warming Potentials.

	(b)  Sum the resultant value from paragraph (b)(48)(ii)(a) of this
section for each gas to compute a tpy CO2e.

	(iii)  The term emissions increase as used in paragraphs (b)(48)(iv)
through (v) of this section shall mean that both a significant emissions
increase (as calculated using the procedures in (a)(7)(iv) of this
section) and a significant net emissions increase (as defined in
paragraphs (b)(3) and (b)(23) of this section) occur.  For the pollutant
GHGs, an emissions increase shall be based on tpy CO2e, and shall be
calculated assuming the pollutant GHGs is a regulated NSR pollutant, and
“significant” is defined as 75,000 tpy CO2e instead of applying the
value in paragraph (b)(23)(ii) of this section.

	(iv)  Beginning January 2, 2011, the pollutant GHGs is subject to
regulation if:

	(a)  The stationary source is a new major stationary source for a
regulated NSR pollutant that is not GHGs, and also will emit or will
have the potential to emit 75,000 tpy CO2e or more; or

	(b)  The stationary source is an existing major stationary source for a
regulated NSR pollutant that is not GHGs, and also will have an
emissions increase of  a regulated NSR pollutant, and an emissions
increase of 75,000 tpy CO2e or more; and,

	(v)  Beginning July 1, 2011, in addition to the provisions in paragraph
(b)(48)(iv) of this section, the pollutant GHGs shall also be subject to
regulation:

	(a)  At a new stationary source that will emit or have the potential to
emit 100,000 tpy CO2e; or

	(b)  At an existing stationary source that emits or has the potential
to emit 100,000 tpy CO2e, when such stationary source undertakes a
physical change or change in the method of operation that will result in
an emissions increase of 75,000 tpy CO2e or more.

	(49)  * * *

	(i)* * *

(iv)  Any pollutant that otherwise is subject to regulation under the
Act as defined in paragraph (b)(48) of this section.

	(v)  Notwithstanding paragraphs (b)(49)(i) through (iv) of this
section, the term regulated NSR pollutant shall not include any or all
hazardous air pollutants either listed in section 112 of the Act, or
added to the list pursuant to section 112(b)(2) of the Act, and which
have not been delisted pursuant to section 112(b)(3) of the Act, unless
the listed hazardous air pollutant is also regulated as a constituent or
precursor of a general pollutant listed under section 108 of the Act.

PART 52 – [AMENDED]

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

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

Subpart A - [Amended]

4.2.  Section 52.21 is amended:

a. By adding paragraph (b)(49);

b. By revising paragraph (b)(50)(iv); and

c. By adding paragraph (b)(50)(v).

The revisions and additions read as follows:);

§52.21  Prevention of significant deterioration of air quality.

* * * * *

	(b)  * * *

	(49)  Subject to regulation means, for any air pollutant, that the
pollutant is subject to either a provision in the Clean Air Act, or a
nationally-applicable regulation codified by the Administrator in
subchapterSubchapter C of this chapterTitle 40 of the Code of Federal
Regulations, that requires actual control of the quantity of emissions
of that pollutant, and that such a control requirement has taken effect
and is operative to control, limit or restrict the quantity of emissions
of that pollutant released from the regulated activity.  Except that:

	(i)  Greenhouse gases (GHGs), the air pollutant defined in §40 CFR
86.1818-12(a) of this chapter as the aggregate group of six greenhouse
gases: carbon dioxide, nitrous oxide, methane, hydrofluorocarbons,
perfluorocarbons, and sulfur hexafluoride, shall not be subject to
regulation except as provided in paragraphs (b)(49)(iv) through (v) of
this section .

	(ii)  For purposes of paragraphs (b)(49)(iii) through (v) of this
section, the term tpy CO2 equivalent emissions (CO2e) shall represent an
amount of GHGs emitted, and shall be computed as follows:

	(a) Multiplying the mass amount of emissions (tpy), for each of the six
greenhouse gases in the pollutant GHGs, by the gas’s associated global
warming potential  published at 40 CFR Part 98, Table A-1 to subpart A
of part 98 of this chapter – Global Warming Potentials.

	(b)  Sum the resultant value from paragraph (b)(49)(ii)(a) of this
section for each gas to compute a tpy CO2e.,

	(iii)  The term emissions increase as used in paragraphs (b)(49)(iv)
through (v) of this section shall mean that both a significant emissions
increase (as calculated using the procedures in paragraph(a)(2)(iv) of
this section) and a significant net emissions increase (as defined in
paragraphs (b)(3) and (b)(23) of this section) occur.  For the pollutant
GHGs, an emissions increase shall be based on tpy CO2e, and shall be
calculated assuming the pollutant GHGs is a regulated NSR pollutant, and
“significant” is defined as 75,000 tpy CO2e instead of applying the
value in paragraph (b)(23)(ii) of this section.

	(iv)  Beginning January 2, 2011, the pollutant GHGs is subject to
regulation if:

	(a)  The stationary source is a new major stationary source for a
regulated NSR pollutant that is not GHGs, and also will emit or will
have the potential to emit 75,000 tpy CO2e or more; or

	(b)  The stationary source is an existing major stationary source for a
regulated NSR pollutant that is not GHGs, and also will have an
emissions increase of a regulated NSR pollutant, and an emissions
increase of 75,000 tpy CO2e or more; and,

	(v)  Beginning July 1, 2011, in addition to the provisions in paragraph
(b)(49)(iv) of this section, the pollutant GHGs shall also be subject to
regulation

	(a)  At a new stationary source that will emit or have the potential to
emit 100,000 tpy CO2e; or

	(b)  At an existing stationary source that emits or has the potential
to emit 100,000 tpy CO2e, when such stationary source undertakes a
physical change or change in the method of operation that will result in
an emissions increase of 75,000 tpy CO2e or more.

	(50) * * *

	(i)* * *

(iv)  Any pollutant that otherwise is subject to regulation under the
Act as defined in paragraph (b)(49) of this section.

	(v)  Notwithstanding paragraphs (b)(50)(i) through (iv) of this
section, the term regulated NSR pollutant shall not include any or all
hazardous air pollutants either listed in section 112 of the Act, or
added to the list pursuant to section 112(b)(2) of the Act, and which
have not been delisted pursuant to section 112(b)(3) of the Act, unless
the listed hazardous air pollutant is also regulated as a constituent or
precursor of a general pollutant listed under section 108 of the Act.

* * * * *

5.*   *   *   *   *

PART 52 – [AMENDED]

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

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

Subpart A – [AMENDED]

2.  A new §52.22 is added to read as follows:

§52.22  Enforceable Commitments for Further Actions Addressing the
Pollutant Greenhouse Gases (GHGs).

	(a)  Definitions.

	(1)  Greenhouse Gases (GHGs) means the air pollutant as defined in §40
CFR 86.1818-12(a) of this chapter as the aggregate group of six
greenhouse gases: carbon dioxide, nitrous oxide, methane,
hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride.

	(2)  All other terms used in this section shall have the meaning given
in §52.21 of this chapter.

	(b)  Further action to regulate GHGs under the PSD program.

	(1)  Near term Action on GHGs.  The Administrator shall solicit
comment, under section 307(b) of the Act, on promulgating lower GHGs
thresholds for PSD applicability.  Such action shall be finalized by
July 1, 2012 and become effective July 1, 2013.

	(2)  Further Study and Action on GHGs.

	(i)  No later than April 30, 2015 the Administrator shall complete a
study projecting the administrative burdens that remain with respect to
stationary sources for which GHGs do not constitute a regulated NSR
pollutant.  Such study shall account, among other things, for permitting
authorities ability to secure resources, hire and train staff;
experiences associated with GHG permitting for new types of sources and
technologies; and, the success of streamlining measures developed by EPA
(and adopted by the states) for reducing the permitting burden
associated with such stationary sources.

	(ii)  Based on the results of the study described in paragraph
(b)(2)(i) of this section, the Administrator shall propose a rule
addressing the permitting obligations of such stationary sources under
§§52.21 and §51.166 of this chapter.  The Administrator shall take
final action on such a rule no later than April 30, 2016.

	(iii)  Before completing the rule described in paragraph (b)(2)(ii) of
this section, the Administrator shall take no action to make the
pollutant GHGs subject to regulation at stationary sources that emit or
have the potential to emit less than 50,000 tpy CO2e, or for physical
changes or changes in the method of operations at stationary sources
that result in an emissions increase of less than 50,000 tpy CO2e (as
determined using the methodology described in §52.21(b)(49)(ii)) of
this chapter.)

PART 70 - [AMENDED]

6.1.  The authority citation for part 70 continues to read as follows:

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

7 2  Section 70.2 is amended to read as follows:

	a.  By revising the introductory text of paragraph (2) of the
definition for “major source”; and

b. By adding a definition for “subject to regulation” in
alphabetical order.

The revision and addition read as follows:

§70.2  Definitions.

* * * * *

Major source * * *

(2)  A major stationary source of air pollutants, as defined in section
302 of the Act, that directly emits, or has the potential to emit, 100
tpy or more of any air pollutant subject to regulation (including any
major source of fugitive emissions of any such pollutant, as determined
by rule by the Administrator).  The fugitive emissions of a stationary
source shall not be considered in determining whether it is a major
stationary source for the purposes of section 302(j) of the Act, unless
the source belongs to one of the following categories of stationary
source:

* * *

Subject to regulation  means, for any air pollutant, that the pollutant
is subject to either a provision in the Clean Air Act, or a
nationally-applicable regulation codified by the Administrator in
Subchapter C of Title 40 of the Code of Federal Regulations, that
requires actual control of the quantity of emissions of that pollutant,
and that such a control requirement has taken effect and is operative to
control, limit or restrict the quantity of emissions of that pollutant
released from the regulated activity.  Except that:

(1) Greenhouse gases (GHGs), the air pollutant defined in 40 CFR
86.1818-12(a) as the aggregate group of six greenhouse gases: carbon
dioxide, nitrous oxide, methane, hydrofluorocarbons, perfluorocarbons,
and sulfur hexafluoride, shall not be subject to regulation unless, as
of July 1, 2011, the GHG emissions are at a stationary source emitting
or having the potential to emit 100,000 tpy CO2 equivalent emissions.

(2) The term tpy CO2 equivalent emissions (CO2e) shall represent an
amount of GHGs emitted, and shall be computed by multiplying the mass
amount of emissions (tpy), for each of the six greenhouse gases in the
pollutant GHGs, by the gas’s associated global warming potential
published at 40 CFR Part 98, Table A-1– Global Warming Potentials, and
summing the resultant value for each to compute a tpy CO2e.

* * * * *

Part 70 – [AMENDED]

	1. The authority citation for part 70 continues to read as follows:

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

2. A new section 70.12 is added to read as follows:

70.12 Enforceable Commitments for Further Actions Addressing Greenhouse
Gases (GHGs)

(a) Definitions.

(1) Greenhouse Gases (GHGs) means the air pollutant as defined in 40 CFR
86.1818-12(a) as the aggregate group of six greenhouse gases: carbon
dioxide, nitrous oxide, methane, hydrofluorocarbons, perfluorocarbons,
and sulfur hexafluoride.

(2) All other terms used in this section shall have the meaning given in
§70.2 of this chapter.

(b) Further action to regulate GHGs under the Title V program.

(1) Near term Action on GHGs. The Administrator shall solicit comment,
under 307(b) of the Act, on promulgating lower GHGs thresholds for
applicability under §70.2 of this chapter.  Such action shall be
finalized by July 1, 2012 and become effective July 1, 2013.

(2) Further Study and Action on GHGs.

(i) No later than April 30, 2015 the Administrator shall complete a
study projecting the administrative burdens that remain with respect to
stationary sources for which GHGs do not constitute a pollutant subject
to regulation.  Such study shall account, among other things, for
permitting authorities ability to secure resources, hire and train
staff; experiences associated with GHG permitting for new types of
sources and technologies; and, the success of streamlining measures
developed by EPA (and adopted by the states) for reducing the permitting
burden associated with such stationary sources.

(ii) Based on the results of the study described in paragraph (b)(2)(i)
of this section, the Administrator shall propose a rule addressing the
permitting obligations of such stationary sources under §70.2 of this
chapter.  The Administrator shall take final action on such a rule no
later than April 30, 2016.

(iii) Before completing the rule described in paragraph (b)(2)(ii) of
this section, the Administrator shall take no action to make the
pollutant GHGs subject to regulation at stationary sources that emit or
have the potential to emit less than 50,000 tpy CO2e (as determined
using the methodology described in §70.2 of this chapter.)

* * * * *

	Subject to regulation  means, for any air pollutant, that the pollutant
is subject to either a provision in the Clean Air Act, or a
nationally-applicable regulation codified by the Administrator in
subchapter C of this chapter, that requires actual control of the
quantity of emissions of that pollutant, and that such a control
requirement has taken effect and is operative to control, limit or
restrict the quantity of emissions of that pollutant released from the
regulated activity.  Except that:

	(1)  Greenhouse gases (GHGs), the air pollutant defined in
§86.1818-12(a) of this chapter as the aggregate group of six greenhouse
gases: carbon dioxide, nitrous oxide, methane, hydrofluorocarbons,
perfluorocarbons, and sulfur hexafluoride, shall not be subject to
regulation unless, as of July 1, 2011, the GHG emissions are at a
stationary source emitting or having the potential to emit 100,000 tpy
CO2 equivalent emissions.

	(2)  The term tpy CO2 equivalent emissions (CO2e) shall represent an
amount of GHGs emitted, and shall be computed by multiplying the mass
amount of emissions (tpy), for each of the six greenhouse gases in the
pollutant GHGs, by the gas’s associated global warming potential
published at Table A-1 to subpart A of part 98 of this chapter –
Global Warming Potentials, and summing the resultant value for each to
compute a tpy CO2e.

* * * * *

8.  A new section 70.12 is added to read as follows:

§70.12 Enforceable Commitments for Further Actions Addressing
Greenhouse Gases (GHGs).

	(a)  Definitions.

	(1)  Greenhouse Gases (GHGs) means the air pollutant as defined in
§86.1818-12(a) of this chapter as the aggregate group of six greenhouse
gases: carbon dioxide, nitrous oxide, methane, hydrofluorocarbons,
perfluorocarbons, and sulfur hexafluoride.

	(2)  All other terms used in this section shall have the meaning given
in §70.2.

	(b)  Further action to regulate GHGs under the title V program.

	(1)  Near term Action on GHGs. The Administrator shall solicit comment,
under section 307(b) of the Act, on promulgating lower GHGs thresholds
for applicability under §70.2.  Such action shall be finalized by July
1, 2012 and become effective July 1, 2013.

	(2)  Further Study and Action on GHGs.

	(i)  No later than April 30, 2015 the Administrator shall complete a
study projecting the administrative burdens that remain with respect to
stationary sources for which GHGs do not constitute a pollutant subject
to regulation.  Such study shall account, among other things, for
permitting authorities ability to secure resources, hire and train
staff; experiences associated with GHG permitting for new types of
sources and technologies; and, the success of streamlining measures
developed by EPA (and adopted by the states) for reducing the permitting
burden associated with such stationary sources.

	(ii)  Based on the results of the study described in paragraph
(b)(2)(i) of this section, the Administrator shall propose a rule
addressing the permitting obligations of such stationary sources under
§70.2.  The Administrator shall take final action on such a rule no
later than April 30, 2016.

	(iii)  Before completing the rule described in paragraph (b)(2)(ii) of
this section, the Administrator shall take no action to make the
pollutant GHGs subject to regulation at stationary sources that emit or
have the potential to emit less than 50,000 tpy CO2e (as determined
using the methodology described in §70.2.)

PART 71 - [AMENDED]

	9.1.  The authority citation for part 71 continues to read as follows:

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

Subpart A – [AMENDED]

10.  Section 2.  §71.2 is amended as follows:

	a.  By revising the introductory text of paragraph (2) of the
definition for “major source”; and

b.  By adding a definition for “subject to regulation” in
alphabetical order.;

The revision and addition read as follows:

§71.2  Definitions.

* * * * *

Major source * * *

(2)  A major stationary source of air pollutants, as defined in section
302 of the Act, that directly emits or has the potential to emit, 100
tpy or more of any air pollutant subject to regulation (including any
major source of fugitive emissions of any such pollutant, as determined
by rule by the Administrator).  The fugitive emissions of a stationary
source shall not be considered in determining whether it is a major
stationary source for the purposes of section 302(j) of the Act, unless
the source belongs to one of the following categories of stationary
source:

* * * * *

	Subject to regulation means, for any air pollutant, that the pollutant
is subject to either a provision in the Clean Air Act, or a
nationally-applicable regulation codified by the Administrator in
subchapterSubchapter C of this chapterTitle 40 of the Code of Federal
Regulations, that requires actual control of the quantity of emissions
of that pollutant, and that such a control requirement has taken effect
and is operative to control, limit or restrict the quantity of emissions
of that pollutant released from the regulated activity.  Except that:

	(1)  Greenhouse gases (GHGs), the air pollutant defined in §40 CFR
86.1818-12(a) of this chapter as the aggregate group of six greenhouse
gases: carbon dioxide, nitrous oxide, methane, hydrofluorocarbons,
perfluorocarbons, and sulfur hexafluoride, shall not be subject to
regulation unless, as of July 1, 2011, the GHG emissions are at a
stationary source emitting or having the potential to emit 100,000 tpy
CO2 equivalent emissions.

	(2)  The term tpy CO2 equivalent emissions (CO2e) shall represent an
amount of GHGs emitted, and shall be computed by multiplying the mass
amount of emissions (tpy), for each of the six greenhouse gases in the
pollutant GHGs, by the gas’s associated global warming potential
published at 40 CFR Part 98, Table A-1 to subpart A of part 98 of this
chapter – Global Warming Potentials, and summing the resultant value
for each to compute a tpy CO2e.

	11. * * * * *

PART 71 – [AMENDED]

1. The authority citation for part 71 continues to read as follows:

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

Subpart A – [AMENDED]

	2. A new §section 71.13 is added as follows:

§71.13 Enforceable commitments for further actions
addressingCommitments for Further Actions Addressing Greenhouse Gases
(GHGs)

	(a)  Definitions.

	(1)  Greenhouse Gases (GHGs) means the air pollutant as defined in §40
CFR 86.1818-12(a) of this chapter as the aggregate group of six
greenhouse gases: carbon dioxide, nitrous oxide, methane,
hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride.

	(2)  All other terms used in this section shall have the meaning given
in §71.2 of this part.

	(b)  Further action to regulate GHGs under the titleTitle V program.

	(1)  Near term Action on GHGs. The Administrator shall solicit comment,
under 307(b) of the Act, on promulgating lower GHGs thresholds for
applicability under §71.2 of this part.  Such action shall be finalized
by July 1, 2012 and become effective July 1, 2013.

	(2) Further Study and Action on GHGs.

	(i) No later than April 30, 2015, the Administrator shall complete a
study projecting the administrative burdens that remain with respect to
stationary sources for which GHGs do not constitute a pollutant subject
to regulation.  Such study shall account, among other things, for
permitting authorities ability to secure resources, hire and train
staff; experiences associated with GHG permitting for new types of
sources and technologies; and, the success of streamlining measures
developed by EPA (and adopted by the states) for reducing the permitting
burden associated with such stationary sources.

	(ii) Based on the results of the study described in paragraph (b)(2)(i)
of this section, the Administrator shall propose a rule addressing the
permitting obligations of such stationary sources under §71.2 of this
chapter.  The Administrator shall take final action on such a rule no
later than April 30, 2016.

 Unless otherwise indicated, references in this preamble to “title
V,” “title V requirements,” the “title V program,” and similar
references are to the operating permit provisions in CAA sections
501-506, and not the “small business stationary source technical and
environmental compliance assistance program” under CAA section 507.

 Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984).

   Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 842-43 (1984).

 In this preamble and the response to comments document we fully address
arguments that commenters and others have presented about congressional
intent and coverage of GHGs.  We do so to be fully responsive, even
though we believe that this is a settled matter for which the time for
judicial review has past.

 The term “greenhouse gases” is commonly used to refer generally to
gases that have heat-trapping properties.  However, in this notice,
unless noted otherwise, we use it to refer to specifically to the
pollutant regulated in the LDVR.

 The relevant thresholds are 100 tpy for title V, and 250 tpy for PSD,
except for 28 categories listed in EPA regulations for which the PSD
threshold is 100 tpy.

 This rule has not yet been published in the Federal Register.  The
signed version of the rule is available at   HYPERLINK
"http://epa.gov/otaq/climate/regulations.htm"
http://epa.gov/otaq/climate/regulations.htm . [update when published]

 We note that the PSD program has historically operated in this fashion
for all pollutants – when new sources or modifications are
“major,” PSD applies to all pollutants that are emitted in
significant quantities from the source or project.  This rule does not
alter that for sources or modifications that are major due to their GHG
emissions.

 We note that the PSD program has historically operated in this fashion
for all pollutants – when new sources or modifications are
“major”, PSD applies to all pollutants that are emitted in
significant quantities from the source or project.  This rule does not
alter that for sources or modifications that are major due to their GHG
emissions.

 See 74 FR 66496, 66499, 66536-7.  December 15, 2009.

 See 74 FR 66496, 66499, 66536-7.  December 15, 2009.

 40 CFR 86.1818-12 (a) (“Applicability.  This section contains
standards and other regulations applicable to the emission of the air
pollutant defined as the aggregate group of six greenhouse gases:
carbon dioxide, nitrous oxide, methane, hydrofluorocarbons,
perfluorocarbons, and sulfur hexafluoride”).

 Table A-1 to subpartSubpart A of 40 CFR partPart 98 – Global Warming
Potentials, FR, Vol.74 FR, No. 209, p. 56395.

 Although we commit to propose or solicit comment on lower thresholds
and to take final action on that proposal by July 1, 2012, we cannot, at
present, commit to promulgate lower thresholds.  It will not be until
the Step 3 rulemaking itself that we will gather and analyze data and
receive comments that determine whether we have basis for promulgating
lower thresholds.

 EPA notes, however, that many sources subject to title V under
Stepssteps 1 and 2 will also be subject to the GHG mandatory reporting
rule.  For these sources, the emissions description requirements in the
title V regulations will generally be satisfied by referencing
information provided under the reporting rule.

 In the alternative, we also proposed to use our 110(k)(6) error
correction authority to revise SIP-approved PSD programs.

  By the same token, CAA section 165(a)(4) requires that a source
subject to PSD impose best available control technology for “each
pollutant subject to regulation under this chapter” that the source
emits.

 The applicability provision of the LDVR is found in 40 CFR
§86.1818-12(a), which provides as follows:

Greenhouse gas emission standards for light-duty vehicles, light-duty
trucks, and medium-duty passenger vehicles.  Applicability.  This
section contains standards and other regulations applicable to the
emission of the air pollutant defined as the aggregate group of six
greenhouse gases: carbon dioxide, nitrous oxide, methane,
hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride.

 We note that our approach does not entirely avoid the possibility that
a GWP change can occur while a permit is in progress although it will
ensure advance notice of such a change.  In the event that we plan to
propose a change to GWP values, we will work with permitting authorities
as necessary to provide guidance to sources on transitional issues.

 “Summary of Methodology and Data Used to Estimate Burden Relief and
Evaluate Resource Requirements at Alternative Greenhouse Gas (GHG)
Permitting Thresholds;” Prepared by EPA Staff; March 2010.

 “Summary of Methodology and Data Used to Estimate Burden Relief and
Evaluate Resource Requirements at Alternative Greenhouse Gas (GHG)
Permitting Thresholds;” Prepared by EPA Staff; March 2010.

 “Summary of Methodology and Data Used to Estimate Burden Relief and
Evaluate Resource Requirements at Alternative Greenhouse Gas (GHG)
Permitting Thresholds;” Prepared by EPA Staff; March 2010.

 “Summary of Methodology and Data Used to Estimate Burden Relief and
Evaluate Resource Requirements at Alternative Greenhouse Gas (GHG)
Permitting Thresholds;” Prepared by EPA Staff; March 2010.

 “NACAA Summary on Permitting GHGs Under the Clean Air Act”;
Memorandum from Mary Stewart Douglas, National Association of Clean Air
Agencies to Juan Santiago, EPA/OAQPS, September 3, 2009.

 “Summary of Methodology and Data Used to Estimate Burden Relief and
Evaluate Resource Requirements at Alternative Greenhouse Gas (GHG)
Permitting Thresholds;” Prepared by EPA Staff; March 2010.

 “Summary of Methodology and Data Used to Estimate Burden Relief and
Evaluate Resource Requirements at Alternative Greenhouse Gas (GHG)
Permitting Thresholds;” Prepared by EPA Staff; March 2010.

 Although we set out an analysis of how the three doctrines fit into the
Chevron framework, we note that even if the doctrines are viewed
independently of the Chevron framework, they support this action.

 For early cases in which the U.S. Supreme Court applied the “absurd
results” doctrine, see Holy Trinity Church v. U.S., 143 U.S. 457,
516-17  TA \s "Rector of Holy Trinity Church v. U.S., 143 U.S. 457
(1892)"   (1892)   TA \l "Rector of Holy Trinity Church v. U.S., 143
U.S. 457 (1892)" \s "Rector of Holy Trinity Church v. U.S., 143 U.S. 457
(1892)" \c 1  (“any alien” does not include a foreign pastor; Court
stated, “It is a familiar rule, that a thing may be within the letter
of the statute and yet not within the statute, because not within its
spirit, nor within the intention of its makers….  If a literal
construction of the words be absurd, the Act must be construed as to
avoid the absurdity”); Chew Heong v. United States, 112 U.S. 536, 555
(1884) (rejecting a literal interpretation of treaty that would have
prevented the re-entry of a person into the U.S. upon the ground that he
did not possess a certificate which did not exist prior to his
departure, and which could not possibly have been issued); Heyenfeldt v.
Daney Gold Mining Co., 93 U.S. 634, 638 (1877) (statutory language
expressly referred to past land sales and dispositions, “but evidently
they were not employed in this sense, for no lands in Nevada had been
sold or disposed of by any act of Congress,” and the language of the
statute “could not …. . . apply to past sales or dispositions, and,
to have any effect at all, must be held to apply to the future”).

  For other U.S. Supreme Court cases, see  HYPERLINK
"http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType
=Y&ReferencePositionType=S&SerialNum=1946115791&ReferencePosition=892"
Utah Junk Co. v. Porter,  HYPERLINK
"http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType
=Y&ReferencePositionType=S&SerialNum=1946115791&ReferencePosition=892"
328 U.S. 39, 44 (1946)  (“literalness may strangle meaning”);
HYPERLINK
"http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType
=Y&ReferencePositionType=S&SerialNum=1945117466&ReferencePosition=195"
Markham v. Cabell,  HYPERLINK
"http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType
=Y&ReferencePositionType=S&SerialNum=1945117466&ReferencePosition=195"
326 U.S. 404, 409  (1945) (“The policy as well as the letter of the
law is a guide to decision.”); United States v. American Trucking
Associations, Inc. 310 U.S. 534 (1940) (the term “employees” in the
Federal Motor Carrier Act, is limited to employees whose activities
affect safety)  TA \l "United States v. American Trucking Associations,
Inc. 310 U.S. 534 (1940)" \s "United States v. American Trucking
Associations, Inc. 310 U.S. 534 (1940)" \c 1  ; C.V. Sorrels v. U.S.,
287 U.S. 435, 446-49 (1932) (provisions of National Prohibition Act that
criminalize possessing and selling liquor do not apply if defendant is
entrapped; Court declines to apply the “letter of the statute”
because doing so “in the circumstances under consideration is foreign
to its purpose”); United States v. Katz, 271 U.S. 354, 362 (1926)
(holding that the statutory words “no person” refer only to persons
authorized under other provisions of the Act to traffic alcohol, thus
rejecting a literal application of general terms descriptive of a class
of persons made subject to a criminal statute); Hawaii v. Mankichi, 190
U.S. 197, 212-14 (1903) (refusing to adopt a literal application of the
“Newlands resolution” which would have entitled every criminal in
the State of Hawaii convicted of an offense between 1898 – 1900 to be
set at large, as “surely such a result could not have been within the
contemplation of Congress”).

 For other cases, see Arizona Public Service Co. v. EPA, 562 F.3d 1116,
1125-26 (10th Cir. 2009); General American Transp. Corp. v. ICC, 872
F.2d 1048, 1058 (D.C. Cir. 1989PLACEHOLDER); Hazardous Waste Treatment
Council v. EPA, 861 F.2d 277, 287 (D.C. Cir. 1988);  Western Union
International, Inc. v. FCC, 725 Fl2d 732, 754 (D.C. Cir. 1984).

  We recognize that we described the relationship between the Chevron
framework and the “administrative necessity” doctrine somewhat
differently in the proposal, 74 FR 5531,312/1-2, and that, after further
analysis, we are refining our view of that relationship as described
previously.

  As discussed later, EPA may, in future rulemaking, make a final
determination that under the “absurd results” doctrine, Congress did
not intend for EPA to apply PSD to very small sources, that is, those,
with emissions at or near the 100/250 tpy statutory levels.

 A physical or operational change is treated as a “modification”
that is subject to PSD if it either “increases the amount of any air
pollutant emitted” by the source or “results in the emission of any
air pollutant not previously emitted.”  For convenience, unless
otherwise indicated, when we refer to changes that “increase[] the
amount of any air pollutant emitted,” we mean both to those types of
changes and changes that “result[] in the emission of any air
pollutant not previously emitted.”

  We do not believe that this term is ambiguous with respect to the need
to cover GHG sources under either the PSD or title V program, only with
respect to what sources of GHG should be covered under the circumstances
presented here.

 In this preamble and the response to comments document we fully address
arguments that commenters and others have presented about congressional
intent and coverage of GHGs.  We do so to be fully responsive, even
though we believe that this is a settled matter for which the time for
judicial review has past.

  Coverage of modifications by the PSD program was addressed by a
technical amendment which added a cross reference in section 169 to
section 111.  The legislative history of this provision is scant and
there is no suggestion that Congress would have contemplated sweeping in
large number of changes from smaller sources through the addition of
this provision.

 Beginning in 1974, EPA implemented a program that required sources of
certain NAAQS pollutants seeking to construct in attainment or
unclassifiable areas to implement emission controls for the purpose of
preventing deterioration in the ambient air quality in those areas.
This program was the precursor to the PSD program Congress enacted in
1977.

 Note that although Congress specifically authorized the states to
exempt "nonprofit health or education institutions" from the definition
of "major emitting facility," this statement by the D.C. Circuit should
be taken as the Court's view that Congress did not design PSD to cover
sources of the small size described.

 As noted elsewhere in this notice, in Alabama Power, the D.C. Circuit
noted that the definition of “major emitting facility” under CAA
section 169(1) could apply to air pollutants not regulated under other
provisions of the Act, and discussed the contrast of this broad
definition to the narrower application of the BACT provisions.  636 F.2d
at 352-53 & n. 60.  In its rulemaking notices responding to Alabama
Power, EPA discussed at length certain issues, such as the applicability
of NSR to pollutants emitted below the “major” thresholds, that are
based on the reference in “major emitting facility” to “any air
pollutant.”  However, throughout its discussion, EPA interpreted that
reference as “any regulated air pollutant,” again without
specifically acknowledging the difference or without acknowledging the
above-noted statements in Alabama Power.  See 45 FR 52710 – 52711.at
52,710 – 52,711.  EPA did not indicate that it had received comments
on this issue.

 The House Committee on Energy and Commerce acknowledged that it was
“uncertain about the magnitude of permit applications likely to be
submitted under the bill initially and thereafter in each State or to
EPA,” H. Rep. 101-490 p. 346.

  Title V can apply to certain small businesses in some circumstances.
Under CAA sections 502(a) and 501(2)(A), title V applies to major
sources of hazardous air pollutants (HAPs), which includes sources that
may emit as little as 10 tpy of a single HAPs, and which may includes
some dry cleaners and other small businesses.  In addition, under CAA
section 502(a), title V applies to area sources subject to standards
under CAA sections 111 or 112 (or required to have a PSD or
nonattainment NSR permit), unless the Administrator exempts those
sources from title V because compliance would be impracticable,
infeasible, or unnecessarily burdensome.

 Specifically, of the 28 source categories under CAA section 169(1),
information available to EPA indicates that all of the sources in the
following categories emit at least 100 tpy of CO2 annually:  fossil-fuel
fired steam electric plants of more than 250 million Btu per hour heat
input, Portland Cement plants, primary zinc smelters, iron and steel
mill plants, primary aluminum ore reduction plants, municipal
incinerators capable of charging more than 50 tons of refuse per day,
nitric acid plants, petroleum refineries, lime plants, primary lead
smelters, fossil-fuel boilers of more than 250 Btus per hour heat input.
 In addition, all but a few kraft pulp mills and glass fiber processing
plants emit at least 100 tpy CO2 annually.  Our information is
incomplete with respect to the remaining source categories, but with the
possible exception of petroleum storage and transfer facilities with a
capacity exceeding three hundred thousand barrels, we suspect that
virtually all sources emit at least 100 tpy CO2 annually.  See
“"Technical Support Document for Greenhouse Gas Emissions Thresholds
Evaluation”;"; Office of Air Quality Planning and Standards; March 29,
2010.

 EPA did receive a smaller number of comments that asserted in
conclusory fashion that permitting authorities could administer the
100/250 tpy levels.

  Reconciling the applicability provisions with the statements in the
legislative history in this manner is also consistent with the U.S.
Supreme Court’s view that the Clean Air Act has inherent flexibility,
as it stated in Massachusetts v. EPA, 549547 U.S. 497, 532.__, ___
(2007):

While the Congresses that drafted §202(a)(1) might not have appreciated
the possibility that burning fossil fuels could lead to global warming,
they did understand that without regulatory flexibility, changing
circumstances and scientific developments would soon render the Clean
Air Act obsolete.  The broad language of §202(a)(1) reflects an
intentional effort to confer the flexibility necessary to forestall such
obsolescence.  See Pennsylvania Dept. of Corrections v. Yeskey,
HYPERLINK "http://supreme.justia.com/us/524/206/case.html"  524 U. S.
206 , 212 (1998) (“[T]he fact that a statute can be applied in
situations not expressly anticipated by Congress does not demonstrate
ambiguity.  It demonstrates breadth” (internal quotation marks
omitted)).

  For the reasons discussed above, we believe that Stepstep 2 of the
Chevron framework, which authorizes the exercise of agency discretion as
long as the agency remains consistent with a reasonable construction of
the statute, does not require a literal construction of the statute in a
case such as this one, in which the “absurd results” doctrine
applies so that the statutory requirements cannot be read literally.

 It should be noted that strictly speaking, we do not, in our drafting
of the regulatory revisions that are part of this rulemaking, establish
a significance level for GHG emissions based on CO2e.  Rather, we
establish an applicability criteria for determining whether GHGs are
subject to regulation with respect to the particular source.  We explain
our approach in more detail in the Response to Comments document.
Throughout this preamble, we refer to this action, for convenience, as a
significance level.

 We find no support for the proposition raised by some commenters that
this provision is limited to “NAAQSNAAQs” pollutants.  To the
contrary, “under this chapter” unambiguously signals an intent to
cover any pollutant regulated under the Act.  Had Congress intended a
narrower focus, they would have specified “any NAAQSNAAQs pollutant”
or any pollutant subject to regulation under this Part (PSD).

  In the 1990 CAA Amendments, Congress added section 112(b)(6), which
provides that PSD “shall not apply to pollutants listed under this
section,” that is, HAPs.hazardous air pollutants.

  As noted previously, the fact that some small sources are subject to
title V because they are “major sources” of HAPs or certain area
sources and therefore are covered under CAA sections 502(a) and
501(2)(A) does not alter the conclusion from the legislative history
that Congress did not expect large numbers of small sources to become
subject to title V.  The fact that Congress authorized the Administrator
to exempt area sources from the title V program where compliance with
title V would be “impracticable, infeasible, or unnecessarily
burdensome” reinforces the conclusion that Congress did not intend the
program to be “impracticable, infeasible or unnecessarily
burdensome” for small sources.

  As with PSD, this way of reconciling the PSD applicability provisions
with Congress’s expectations for a narrower PSD program is consistent
with the U.S. Supreme Court’s view that the CAA should be read to
include “regulatory flexibility, [without which] changing
circumstances and scientific developments would soon render the Clean
Air Act obsolete.”  Massachusetts v. EPA, 549547 U.S. 532.at ___
(2007).

 EPA does have pending before it ten petitions to reconsider the
endangerment and cause or contribute findings.  EPA is carefully
evaluating those petitions and expects to issue its decision(s) on or
about July 30, 2010.

 Note, that at least one petition for reconsideration on the
endangerment/contribution findings raises the same arguments related to
the timing of decisions and absurd results.  As noted before, EPA is
carefully evaluating all the pending petitions for reconsideration.

 In addition, we base our reliance on the “administrative necessity”
doctrine on the administrative burdens to the permitting authorities of
permitting smaller GHG sources, but not on the relatively small amount
of GHG emissions associated with the smaller sources.  See  Alabama
Power v. Costle, 636 F.2d 323, 357 (D.C. Cir. 1980) (establishing the
“administrative necessity” doctrine as “inherent in the
administrative process” and presumptively available under the
statutory scheme, absent clear congressional intent to the contrary; but
adding that in contrast, “there exists no general administrative power
to create exemptions to statutory requirements based upon the agency’s
perceptions of costs and benefits”).

  We recognize that in a few states, we are the permitting authority.
We do not think that this changes the calculation of administrative
burdens.  We do not believe that we could reasonably be expected to
adjust our budget to accommodate the large new permitting burdens, and
even if we could, the administrative burdens would remain in most of the
rest of the nation where it is the state or local agencies that bear
permitting responsibility.

 For reasons explained elsewhere, our reference to the literal terms of
the applicability provisions means the literal terms of the definition
of “major emitting facility” for PSD and “major source” for
title V, as EPA has narrowed those definitions to refer to “any
pollutant” that is subject to regulation under the CAA.

  In the alternative, we also proposed to use our section 110(k)(6)
error correction authority to revise SIP-approved PSD program.  We are
also delaying action on this proposal.

    We also think that this approach better clarifies our long standing
practice of interpreting open-ended SIP regulations to automatically
adjust for changes in the regulatory status of an air pollutant, because
it appropriately assures that the Tailoring Rule applies to both the
definition of “major stationary source” and “regulated NSR
pollutant.”

 The fee provisions are set forth in CAA sectionSection 502(b)(3) and in
our regulations at 40 CFR 70.9 and 71.9.

 We do not attempt to address or resolve the various opinions about what
legal or policy direction we must take regarding any of these
streamlining options.  The proper forum for doing that will be in the
action(s) where we apply a given option.  Nonetheless, our RTC response
to comments document provides additional detail about the options we
described and what commenters said about our proposed options.  In
addition, the comments themselves can be accessed in the docket for this
action.

 The CAAAC is a senior-level policy committee established in 1990 to
advise the U.S. EPA on issues related to implementing the CAA Amendments
of 1990.  The committee is chartered under the Federal Advisory
Committee Act and has been renewed every 2 years since its creation.
The membership is approximately 40 members and experts representing
state and local government, environmental and public interest groups,
academic institutions, unions, trade associations, utilities, industry,
and other experts.  The CAAAC meets three3 times a year, normally in
Washington, D.C.  It provides advice and counsel to EPA on a variety of
important air quality policy issues.  The committee has formed several
subcommittees to provide more detailed discussion and advice on many
technical issues.

 On June 24, 2005, the United States Court of Appeals for the District
of Columbia Circuit vacated the portions of the 2002 and 1992 NSR rules
that pertained to pollution control projects, among other provisions.
In response to this Court action, on June 5, 2007, EPA removed these
provisions from the NSR regulations.  (See 72 FR 32526).  These
provisions were added as part of EPA’s NSR improvement rule that was
issued on December 31, 2002.

 On June 24, 2005, the United States Court of Appeals for the District
of Columbia Circuit vacated the portions of the 2002 and 1992 NSR rules
that pertained to PCP, among other provisions.  In response to this
Court action, on June 5, 2007, EPA removed these provisions from the NSR
regulations.  (See 72 FR 32526).  These provisions were added as part
of EPA’s NSR improvement rule that was issued on December 31, 2002.

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