ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 97

[EPA-HQ-OAR-2009-0491; FRL- ]

[RIN ]

Inclusion of Iowa, Kansas, Michigan, Missouri, Oklahoma, and Wisconsin
in the Federal Implementation Plans to Reduce Interstate Transport of
Ozone

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

SUMMARY: In this supplemental notice of proposed rulemaking (SNPR), EPA
is providing an opportunity for public comment on our conclusion that
Iowa, Kansas, Michigan, Missouri, Oklahoma, and Wisconsin significantly
contribute to downwind nonattainment or interfere with maintenance of
the 1997 ozone National Ambient Air Quality Standards (NAAQS)in other
states, and the related conclusion that these six states should be
covered by the ozone season NOx program created in the Transport Rule
(Federal Implementation Plans to Reduce Interstate Transport of Fine
Particulate Matter and Ozone).  In addition, this notice identifies the
ozone season NOx budgets, associated variability limits, and allowance
allocations that would be used for each state if EPA takes final action
to include the named states in the Transport Rule ozone season NOx
program.

DATES: Comments must be received on or before August 8, 2011.

 A public hearing, if requested, will be held in Washington, D.C. on
July 21, 2011, beginning at 9:00 a.m.  If a public hearing is requested,
the comment period will remain open until August 22, 2011.

ADDRESSES: Submit your comments, identified by Docket ID

No. OAR-EPA–HQ–OAR–2009–0491, by one of the following methods:

• Federal eRulemaking Portal:

http://www.regulations.gov. Follow the on-line instructions for
submitting comments.

• Agency Website: http://www.epa.gov/edocket.

EDOCKET, EPA’s electronic public docket and comment system, is EPA’s
preferred method for receiving comments. Follow the on-line instructions
for submitting comments.

• E-mail<EMAIL_ADDRESS>
• Fax:<PHONE_NUMBER>.

• Mail: Air Docket, Environmental Protection Agency, Mailcode: 6102T,
1200 Pennsylvania Ave., NW, Washington, DC 20460. Please include a total
of two copies.

• Hand Delivery: EPA Docket Center (Air Docket),

U.S. Environmental Protection Agency, 1301

Constitution Avenue, NW, Room B102, Washington,

DC 20004. Such deliveries are only accepted during the Docket’s normal
hours of operation, and special arrangements should be made for
deliveries of boxed information.

Instructions: Direct your comments to Docket ID No.
EPA–HQ–OAR–2009–0491. The EPA's policy is that all comments
received will be included in the public docket without change and may be
made available online at  HYPERLINK "http://www.epa.gov/edocket"
http://www.epa.gov/edocket , including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through EDOCKET,
regulations.gov, or e-mail. The EPA EDOCKET and the Federal
regulations.gov websites are “anonymous access” systems, which means
EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an e-mail comment
directly to EPA without going through EDOCKET or regulations.gov, your
e-mail address will be automatically captured and included as part of
the comment that is placed in the public docket and made available on
the Internet. If you submit an electronic comment, EPA recommends that
you include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If

EPA cannot read your comment due to technical difficulties and cannot
contact you for clarification, EPA may not be able to consider your
comment. Electronic files should avoid the use of special characters,
any form of encryption, and be free of any defects or viruses.

Docket: All documents in the docket are listed in the EDOCKET index at
http://www.epa.gov/edocket. (Docket ID
No.OAR-EPA–HQ–OAR–2009–0491 in its entirety is incorporated by
reference into this SNPR.) Although listed in the index, some
information is not publicly available, i.e., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in EDOCKET or in hard copy
at the Air Docket,EPA/DC, EPA West, Room B102, 1301 Constitution Ave.,
NW, Washington, DC. The Public Reading Room is open from 8:30 a.m. to
4:30 p.m., Monday through Friday, excluding legal holidays. The
telephone number for the Public Reading Room is<PHONE_NUMBER>, and the
telephone number for the Air Docket is<PHONE_NUMBER>. This Docket
Facility is open from 8:00 a.m. to 5:30 p.m., Monday through Friday,
excluding legal holidays. The Docket telephone number is<PHONE_NUMBER>,
fax<PHONE_NUMBER>.

FOR FURTHER INFORMATION CONTACT: Questions concerning today's action
should be addressed to Ms. Doris Price, Clean Air Markets Division,
Office of Atmospheric Programs, Mail Code 6204J, Environmental
Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460;
telephone number:<PHONE_NUMBER>; fax number:<PHONE_NUMBER>; e-mail
address<EMAIL_ADDRESS>

SUPPLEMENTARY INFORMATION:

PUBLIC HEARING

A public hearing, if requested, will be held in

Washington D.C. on July 21, 2011, beginning at 9:00 a.m.

If you wish to request a hearing and present testimony or attend the
hearing, you should notify, on or before

July 14, 2011, Ms. Doris Price, Clean Air Markets Division, Office of
Atmospheric Programs, Mail Code 6204J, Environmental Protection Agency,
1200 Pennsylvania Avenue, NW., Washington, DC 20460; telephone number:
(202) 343-9067; fax number:<PHONE_NUMBER>; e-mail address:
<EMAIL_ADDRESS>Oral testimony will be limited to 5 minutes each.
The hearing will be strictly limited to the subject matter of the
proposal, the scope of which is discussed below. Any member of the
public may file a written statement by the close of the comment period.

Written statements (duplicate copies preferred) should be submitted to
Docket ID No. EPA–HQ–OAR–2009–0491, at the address listed above
for submitted comments. The hearing location and schedule, including
lists of speakers, will be posted on EPA's webpage at
http://www.epa.gov/airtransport.

A verbatim transcript of the hearing and written statements will be made
available for copying during normal working hours at the Office of Air
and Radiation Docket and

Information Center at the address listed for inspection for

documents.

If no requests for a public hearing are received by

close of business on July 14, 2011, a hearing will not be held and this
announcement will be made on the webpage at the address shown above.

Glossary of Terms and Abbreviations

The following are abbreviations of terms used in this SNPR:

CFR Code of Federal Regulations

EGU Electric Generating Unit

FIP Federal Implementation Plan

FR Federal Register

EPA U.S. Environmental Protection Agency

ICR Information Collection Request

NAAQS National Ambient Air Quality Standards

NODA  Notice of Data Availability

NOX Nitrogen Oxides

SIP State Implementation Plan

OMB Office of Management and Budget

PM2.5 Fine Particulate Matter, Less Than 2.5 Micrometers

PM Particulate Matter

RIA Regulatory Impact Analysis

SNPR Supplemental Notice of Proposed Rulemaking

SO2 Sulfur Dioxide

TSD Technical Support Document

Outline

  Today’s Proposal

Application of Methodologies to Identify Nonattainment and Maintenance
Receptors and to Determine Significant Contribution and Interference
with Maintenance

Ozone Season NOx Emission Budgets for Six States

Allowance Allocations to Covered Units in Each of the Six States

Implementation

Expected Effects of the Proposed Action

Statutory and Executive Order Reviews

Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review

Paperwork Reduction Act

Regulatory Flexibility Act

Unfunded Mandates Reform Act

Executive Order 13132: Federalism

Executive Order 13175: Consultation and Coordination

with Indian Tribal Governments

Executive Order 13045: Protection of Children from

Environmental Health and Safety Risks

Executive Order 13211: Actions That Significantly

Affect Energy Supply, Distribution or Use

National Technology Transfer Advancement Act

Executive Order 12898: Federal Actions to Address

Environmental Justice in Minority Populations and Low-Income Populations

Appendix A: Proposed Unit-Level Ozone Season NOx Allowance Allocations
to Existing Units in Six States

I. Today’s Proposal

In this supplemental notice of proposed rulemaking (SNPR), EPA is
providing an opportunity for public comment on  its conclusion that
Iowa, Kansas, Michigan, Missouri, Oklahoma, and Wisconsin significantly
contribute to nonattainment or interfere with maintenance of the 1997
ozone National Ambient Air Quality Standards (NAAQS) in other states,
and the related conclusion that these six states should be covered by
the Transport Rule ozone season NOX  program.  In addition, this notice
identifies the ozone season NOX budgets, associated variability limits,
and allowance allocations that would be used for each state if EPA takes
final action to include the named states in the Transport Rule ozone
season NOX program.  Note that EPA is not taking comment on or reopening
any aspect of the final Transport Rule through this notice.

EPA is taking action, simultaneously with this proposal, to finalize
ozone season NOX emission reduction requirements for 20 covered states
in a final rule entitled Federal Implementation Plans to Reduce
Interstate Transport of Fine Particulate Matter and Ozone, which was
proposed on July 6, 2010.  In that final rule, EPA is also finalizing
annual NOx and annual SO2 state emission reduction requirements to
eliminate significant contribution to nonattainment and interference
with maintenance for the annual (1997) fine particulate NAAQS and the
2006 24-hour fine particulate NAAQS.

This action proposes the inclusion of six additional states (Iowa,
Kansas, Michigan, Missouri, Oklahoma, and Wisconsin) in the Transport
Rule ozone season NOX program.  Analyses conducted by EPA for the final
Transport Rule demonstrate that these six states significantly
contribute to nonattainment or interfere with maintenance of the 1997
ozone NAAQS in another state.

The modeling for the final Transport Rule identifies two maintenance
areas for the 1997 ozone NAAQS that were not identified in the proposal:
Allegan County, MI and Harford County (near Baltimore), MD.  Five of the
states covered in this SNPR are linked only to these newly identified
ozone maintenance receptors. Consequently, if EPA had not identified
these receptors as ozone maintenance receptors, the states would not be
covered by the Transport Rule ozone season NOX program.  These five
states are Iowa, Kansas, Oklahoma, and Wisconsin (all linked only to
Allegan County) and Michigan (linked only to Harford County). The sixth
state, Missouri, is linked to Harris County, TX, Brazoria County, TX,
and Allegan County, MI.

Three of these states (Iowa, Missouri, and Wisconsin) were not included
in the proposed Transport Rule ozone season NOx program.  The modeling
for the final Transport Rule demonstrates that these three states
significantly contribute to nonattainment or interfere with maintenance
for the 1997 ozone NAAQS in another state. EPA is taking comment on
whether the final methodologies for determining if a state significantly
contributes to nonattainment or interferes with maintenance has been
correctly applied to Iowa, Kansas, Michigan, Missouri, Oklahoma, and
Wisconsin with respect to the 1997 ozone NAAQS.

 In this notice, EPA is proposing to include the six states identified
above in the Transport Rule ozone season NOX program.   Five of the six
states covered by this proposal -- Iowa, Kansas, Michigan, Missouri, and
Wisconsin -- are included in the final Transport Rule for PM2.5 but not
for ozone. The sixth state, Oklahoma, is not currently included in any
part of the final Transport Rule. In this notice, EPA is taking comment
only on its conclusions with respect to the inclusion of these
individual states in the ozone season NOx program as specifically
described below.

In this notice, EPA is not taking comment on any aspect of the final
Transport Rule, including any aspect of the methodology used to identify
receptors for nonattainment; the methodology used to identify receptors
for maintenance; the methodology used to identify any specific state’s
significant contribution and interference with maintenance; the
methodologies used to establish state budgets, variability limits, and
state assurance levels; or the methodologies used to allocate allowances
to existing units, to establish new unit set-asides and Indian country
new unit set-asides, or to allocate allowances in these set-asides. EPA
provided an adequate opportunity for public comment on all of these
issues during the comment period for the proposed Transport Rule and
during the comment periods for the associated Notices of Data
Availability (NODAs). EPA received numerous comments on the proposed
Transport Rule and on the associated NODAs and considered all comments
received during the comment periods for these actions before finalizing
the Transport Rule.

EPA is also not taking comment on the emissions inventories used for the
final Transport Rule modeling, including the emissions inventories for
the six states identified above.  EPA provided ample opportunity for
comment on these inventories during the comment period for the proposed
Transport Rule and the comment periods for the NODAs associated with
that proposal.  Inventories for all states included in the modeling
domain were made available for public comment during that process.  EPA
made numerous changes to these inventories in response to public
comments.  Furthermore, the public had an incentive to comment on the
inventories for these six states, not only because these inventories
affect the modeling for all states in the modeling domain, but also
because EPA was proposing to include all six states in at least one of
the Transport Rule trading programs and the inventories were used for
allocating the existing-unit portion of state emissions budgets to
covered units.  The three states covered by this SNPR that were not
included in the ozone season program in the proposed Transport Rule
(Iowa, Missouri, and Wisconsin) were covered for the annual PM2.5
program and therefore had reason to look closely at the unit and NOx
emissions data EPA made available in the proposal and the NODAs.

A. Application of Methodologies to Identify Nonattainment and
Maintenance Receptors and to Determine Significant Contribution and
Interference with Maintenance

	In this SNPR, EPA is providing an opportunity for public comment on our
conclusion that Iowa, Kansas, Michigan, Missouri, Oklahoma, and
Wisconsin significantly contribute to nonattainment or interfere with
maintenance of the 1997 ozone NAAQS in another state.  As noted above,
EPA is not taking comment on the methodologies to identify nonattainment
and maintenance receptors and to determine significant contribution and
interference with maintenance, which were finalized in the Transport
Rule.  Rather, we are accepting comment on the conclusion that
application of these methodologies demonstrates that these six states
should be included in the Transport Rule ozone season NOX program.  As
described in detail in the preamble to the final Transport Rule,
sections V.C, “Air Quality Modeling to Identify Downwind Nonattainment
and Maintenance Receptors,” and V.D, “Pollution Transport from
Upwind States,” and in the Technical Support Document “Air Quality
Modeling” for the final Transport Rule, application of the Transport
Rule methodologies identifies Allegan County, MI, and Harford County,
MD, as ozone maintenance receptors.  In addition, application of the
Transport Rule methodologies shows that Iowa, Kansas, Michigan,
Missouri, Oklahoma, and Wisconsin all significantly contribute to
nonattainment or interfere with maintenance of the 1997 ozone NAAQS in
another state.  EPA requests comment on whether there are errors in the
Agency’s application of the Transport Rule methodologies with respect
to the two receptors and the six states identified above.

B. Ozone Season NOx Emission Budgets for Six States

In this SNPR, EPA is also proposing state ozone season NOx emissions
budgets for covered units (generally large electric generating units) in
Iowa, Kansas, Michigan, Missouri, Oklahoma, and Wisconsin.  The
applicability provisions for determining covered units in the named six
states for the Transport Rule ozone season NOx program are the same as
those described in section VII.B, “Applicability,” of the preamble
to the final Transport Rule.  As noted above, EPA is not taking comment
on the methodologies used to establish state budgets, variability
limits, or state assurance levels.  Rather, in this section, we are
requesting comment on the state ozone season NOX emissions budgets
calculated using these methodologies.  These budgets are presented in
Table I.B-1.  The associated variability limits and state assurance
levels are presented in Table I.B-2.

Table I.B-1: Ozone Season NOx State Emissions Budgets for Electric
Generating Units before Accounting for Variability* (tons)

Note - These state emissions budgets apply to emissions from electric
generating units greater than 25 MW and covered by the Transport Rule
Program.

* The impact of variability on budgets is discussed in Federal
Implementation Plans to Reduce Interstate Transport of Fine Particulate
Matter and Ozone: Final Rule, section VI.E.

Table I.B-2: Variability Limits and State Assurance Levels for Ozone
Season NOx Emissions

(tons)

Note: Variability limits and assurance levels apply to each state’s
emissions from covered sources, as defined by Federal Implementation
Plans to Reduce Interstate Transport of Fine Particulate Matter and
Ozone: Final Rule.

C. 	Allocation of Allowances to Covered Units in Each of the Six States

	EPA is proposing to allocate ozone season NOx allowances to covered
units in Iowa, Kansas, Michigan, Missouri, Oklahoma, and Wisconsin using
the methodology and procedures used for allocations to units covered by
the Transport Rule ozone season NOx program.  These are specified in
section VII.D, ”Allocation of Emission Allowances,” of the preamble
to the final Transport Rule. Appendix A to this proposal presents the
proposed unit-level allocations of ozone season NOx allowances to
existing covered units in each of the six states and the supporting
data.  EPA is taking comment only on the data inputs (e.g., corrections
to the heat input value used for any particular unit) used in applying
the allowance allocation methodology for existing units and on the
resulting existing-unit allocations that we are proposing for the six
states involved. EPA provided ample opportunity for comment on the
methodologies used for allowance allocation and for establishing the
set-asides both in the public comment period following the rule proposal
and through the January 7, 2011 NODA. As discussed in section VII.D.1,
“Allocations to Existing Units” of the preamble to the final
Transport Rule, EPA has carefully evaluated and responded to numerous
comments on this issue.  These public comments were taken into account
when finalizing the Transport Rule.

	EPA is proposing that new unit set-asides for allowance allocations to
new units be created and implemented for each of these six states in the
same manner as for the other 20 states covered in the Transport Rule
ozone season NOx program.  This approach is described in section
VII.D.2, “Allocations to New Units,” of the preamble to the final
Transport Rule.  Table I.C-1 shows the proposed new allocation
percentages for ozone season NOX allowances for these states.  As noted
above, EPA is taking comment only on the application of the new unit
set-aside methodology to these states and on the resulting set-asides
that we are proposing (i.e., whether the percentages for the set-asides
are calculated properly). EPA provided ample opportunity for comment on
the new unit set-aside methodology in the public comment period
following the rule proposal.

Table I.C-1:  State New Unit Set-Asides as a Percent of State Ozone
Season NOx Emission Budgets

As described in section VII.D.2, “Allocations to New Units,” of the
preamble to the final Transport Rule, EPA is providing a mechanism to
make allowances available in the future for new units built in Indian
country.  Table I.C-2 shows the new unit set-asides EPA is proposing for
states which have areas of Indian country within their boundaries. Under
the final transport Rule, EPA will administer these Indian country new
unit set-asides regardless of whether a state replaces its Transport
Rule FIP with an approved SIP.  EPA is proposing to use the same
mechanism for the states covered in this SNPR. EPA is taking comment
only on the application of the Indian country new unit set-aside
methodology to these states and on the resulting set-asides that we are
proposing.  EPA provided ample opportunity for comment on the
methodologies for Indian country new unit set-asides through the January
7, 2011 NODA.

Table I.C-2: New Unit Set-Aside Allowances for

Indian Country (tons)

D. Implementation

	EPA is proposing that implementation of emission requirements for the
six states addressed in this SNPR be identical to those for the other
states covered by the Transport Rule ozone season NOX program. Refer to
section IV.C-2, “FIP Authority for Each State and NAAQS Covered,” in
the preamble to the final Transport Rule for a general discussion of
EPA’s legal responsibility and authority to impose Federal
Implementation Plans (FIPs) in certain circumstances where State
Implementation Plans (SIPs) are deficient. The TSD “Status of
110(a)(2)(D)(i)(I) SIPs for Iowa, Kansas, Michigan, Missouri, Oklahoma,
Wisconsin with Respect to the 1997 Ozone NAAQS” identifies each action
taken by EPA with respect to the 110(a)(2)(D)(i)(I) SIP requirements for
the named states with respect to the 1997 ozone NAAQS.  This TSD
demonstrates that EPA has authority and a legal obligation to promulgate
each FIP proposed in this SNPR.

To be consistent and synchronize with the other states covered by the
Transport Rule ozone season NOx program, EPA has not adjusted the timing
for compliance with the ozone FIPS for these states. EPA expects to
finalize this rulemaking on or before November 1, 2011; the ozone season
for 2012 does not begin until May 1, 2012.  This will allow an
approximately six-month lead time before the start of the 2012 ozone
season.

The vast majority of covered sources already have combustion controls
installed; therefore, EPA expects that only a small number of sources
will need to install combustion controls to comply, and the total number
of installations is practical to achieve within the time period for
additional construction. Individual sources may comply through other
measures (such as purchasing additional allowances) in the event that it
takes a particular source more than six months for installation of a
given combustion control. EPA’s rationale for determining that this
lead time is sufficient is described in detail in section VII.C
“Compliance Deadlines” of the preamble to the final Transport Rule.

EPA is also not proposing to alter the compliance deadlines or deadlines
for submission of SIPs to replace the ozone FIPs for these six states.
The submission deadlines and process for the six states covered by this
SNPR, as well as the rationale behind them, can be found in section X
“Transport Rule State Implementation Plans” of the preamble to the
final Transport Rule.

E. Expected Effects of the Proposed Action

This proposal is projected to limit ozone season NOX emissions in Iowa,
Kansas, Michigan, Missouri, Oklahoma, and Kansas beginning in 2012.  The
impacts of the Transport Rule inclusive of this proposal are discussed
in section VIII of the preamble to the final Transport Rule.  Table
VIII-A.5 shows the state-by-state ozone season NOX emissions reductions
(compared to the base case) expected in both 2012 and 2014.  Overall
ozone improvements, including these states and others, are displayed in
Table VIII-B-2 and are discussed in greater detail in the Air Quality
Modeling TSD.  Overall benefits of the Transport Rule are discussed in
section VIII of the preamble to the final Transport Rule and in the
Regulatory Impact Analysis to the final Transport Rule.

Statutory and Executive Order Reviews

Executive Order 12866: Regulatory Planning and Review and  Executive
Order 13563: Improving Regulation and Regulatory Review

Under Executive Order 12866 (58 FR 51735, October 4,

1993), the Agency must determine whether a regulatory action is
"significant" and therefore subject to Office of

Management and Budget (OMB) review and the requirements of the Executive
Order. The Order defines "significant

Regulatory action" as one that is likely to result in a rule

that may:

Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local, or Tribal governments or communities;

Create a serious inconsistency or otherwise interfere with an action
taken or planned by another agency;

Materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs or the rights and obligations of recipients
thereof; or

Raise novel legal or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in the Executive
Order.

In view of its important policy implications and potential effect on the
economy of over $100 million, the

Transport Rule program inclusive of this proposal has been judged to be
an economically “significant regulatory action” within the meaning
of the Executive Order. Accordingly, EPA submitted the final Transport
Rule and this SNPR to OMB for review under EO 12866 and EO 13563 (76 FR
3821, January 21, 2011).

In addition, EPA prepared an analysis of the potential costs and
benefits for the Transport Rule program inclusive of this proposal.
This analysis is contained in the Regulatory Impact Analysis (RIA) for
the Transport Rule.

The RIA available in the docket describes in detail the empirical basis
for EPA’s assumptions and characterizes the various sources of
uncertainties affecting the estimates below.  In doing this, EPA adheres
to EO 13563, “Improving Regulation and Regulatory Review,” (76 FR
3,821, January 21, 2011), which is a supplement to EO 12866. For
additional information on how EPA’s benefit-cost analyses conform to
the requirements of EO 13563, please see section XII.A of the preamble
to the final Transport Rule. EPA believes that there is no impact to the
economy beyond that which is reported in the final Transport Rule.

What Economic Analyses Were Conducted for the Rulemaking?

The analyses conducted for the Transport Rule program inclusive of this
proposal provide several important analyses of impacts on public
welfare. These include an analysis of the social benefits, social costs,
and net benefits of the regulatory scenario. The economic analyses also
address issues involving small business impacts, unfunded mandates
(including impacts for Tribal governments), and energy impacts.

2. What Are the Benefits and Costs of the Transport Rule Program?

The benefit-cost analysis shows that substantial net economic benefits
to society are likely to be achieved due

to reduction in emissions and improvements in ozone and PM2.5 ambient
concentrations resulting from the Transport Rule program inclusive of
this proposal. For more information on the costs and benefits for the
Transport Rule program inclusive of this proposal, please refer to Table
VIII.C-4 of the preamble to the final Transport Rule.

B. Paperwork Reduction Act

EPA is required to document the information collection burden imposed by
the Transport Rule program on industry, States, and EPA in an
information collection request (ICR).  The ICR describes the information
collection requirements associated with the final Transport Rule program
inclusive of this proposal and estimates the incremental costs of
compliance with all such requirements, such as the requirement for
industry to monitor, record, and report emissions data to EPA.

The ICR for the final Transport Rule Program inclusive of this proposal
has been submitted for approval to OMB under the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq., and the information collection requirements
it documents are not enforceable until such approval has been granted.
An ICR was also submitted to OMB in support of the proposed Transport
Rule; no adverse comment was received by EPA on either the information
collection requirements or their associated cost estimates as described
in that document.

EPA believes that there are no information collection requirements or
burden beyond those reported in the Transport Rule program inclusive of
this proposal.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency to
prepare a regulatory flexibility analysis of any rule subject to notice
and comment rulemaking requirements under the Administrative Procedure
Act or any other statute unless the agency certifies that the rule will
not have a significant economic impact on a substantial number of small
entities.  Small entities include small businesses, small organizations,
and small governmental jurisdictions.

After considering the economic impacts of the Transport Rule program
inclusive of this proposal on small entities, as described in section
XII.C of the preamble to the final Transport Rule, EPA certifies that
this action will not have a significant economic impact on a substantial
number of small entities (No SISNOSE). This certification is based on
the economic impact of the final Transport Rule and this proposal if
finalized on all affected small entities across all industries affected.
EPA believes that the provisions of the Regulatory Flexibility Act are
covered by and reported in section XII.C of the preamble to the final
Transport Rule.

D. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538, requires federal agencies, unless otherwise prohibited by
law, to assess the effects of their regulatory actions on state, local,
and tribal governments and the private sector.  The Transport Rule
program inclusive of this proposal contains 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 one
year.  Accordingly, EPA has prepared under section 202 of the UMRA a
written statement that is summarized in section XII.D of the preamble to
the final Transport Rule.

Consistent with the intergovernmental consultation provisions of section
204 of the UMRA, EPA held consultations with the governmental entities
affected by the final Transport Rule and this proposal if finalized. As
detailed in section XII.D of the preamble to the final Transport Rule,
EPA participated in informational calls with the Environmental Council
of the States (ECOS) and the National Governors Association to provide
information about the January 7, 2011 NODA directly to state and local
officials and conducted consultations with federally recognized tribes
prior to finalizing the final Transport Rule and issuing this SNPR for
inclusion of six additional states (of which five—-Iowa, Kansas,
Michigan, Oklahoma, and Wisconsin—-have Indian country within their
boundaries).

EPA believes that no unfunded mandates have been created by the
Transport Rule program inclusive of this proposal. Neither the final
Transport Rule nor the provisions in this SNPR have regulatory
requirements that might significantly or uniquely affect small
governments.

E. Executive Order 13132: Federalism

As described in section XII.E of the preamble to the final Transport
Rule, EPA has concluded that the Transport Rule program inclusive of
this proposal does not have federalism implications.  Thus, Executive
Order 13132 does not apply to the final Transport Rule or to this SNPR.

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

Under 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. As
described in section XII.F of the preamble to the final Transport Rule,
EPA believes that there has been proper consultation and coordination
with Indian tribal governments for the Transport Rule program inclusive
of this proposal.

As required by section 7(a) of the Executive Order, 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 the final Transport
Rule.

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

Executive Order 13045 (62 FR 19,885, April 23, 1997) applies to any rule
that:  1) is determined to be “economically significant” as defined
under EO 12866, and 2) concerns an environmental health or safety risk
that EPA has reason to believe may have a disproportionate effect on
children.  If the regulatory action meets both criteria, the Agency must
evaluate the environmental health or safety effects of this planned rule
on children, and explain why this planned regulation is preferable to
other potentially effective and reasonably feasible alternatives
considered by the Agency.

As described in section XII.G of the preamble to the finale Transport
Rule, the Transport Rule program inclusive of this proposal is not
subject to Executive Order 13045 because it does not involve decisions
that increase environmental health or safety risks that may
disproportionately affect children.  The EPA believes that the emissions
reductions from the strategies in the Transport Rule program inclusive
of this proposal will further improve air quality and will further
improve children’s health.

H. Executive Order 13211: Actions that Significantly Affect

Energy Supply, Distribution, or Use

Executive Order 13211 (66 FR 28355, May 22, 2001) provides that agencies
shall prepare and submit to the Administrator of the Office of
Regulatory Affairs, OMB, a Statement of Energy Effects for certain
actions identified as “significant energy actions.”  Section 4(b) of
Executive Order 13211 defines “significant energy action” as “any
action by an agency (normally published in the Federal Register) that
promulgates or is expected to lead to the promulgation of a final rule
or regulation, including notices of inquiry, advance notices of proposed
rulemaking, and notices of proposed rulemaking:  (1) (i) that is a
significant regulatory action under Executive Order 12866 or any
successor order, and (ii) is likely to have a significant adverse effect
on the supply, distribution, or use of energy; or (2) that is designated
by the Administrator of the Office of Information and Regulatory Affairs
as a significant energy action.”  This rule is a significant
regulatory action under Executive Order 12866, and this rule is likely
to have a significant adverse effect on the supply, distribution, or use
of energy.  EPA prepared a Statement of Energy Effects for the transport
Rule program inclusive of this proposal which appears in section XII.H
of the preamble to the final Transport Rule.

EPA believes that there is no impact to the energy supply beyond that
which is reported for the Transport Rule program inclusive of this
proposal in the final Transport Rule.

I. National Technology Transfer Advancement Act

	 Section 12(d) of the National Technology Transfer and Advancement Act
of 1995 (‘‘NTTAA’’), Public Law 104–113, 12(d) (15 U.S.C. 272
note) directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards. As described in
section XII.I of the preamble to the final Transport Rule, the Transport
Rule program inclusive of this proposal will require all sources to meet
the applicable monitoring requirements of 40 CFR part 75. Part 75
already incorporates a number of voluntary consensus standards.

J. Executive Order 12898: Federal Actions to Address

Environmental Justice in Minority Populations and Low-Income

Populations

Executive Order (EO) 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, low-income, and Tribal populations
in the United States. During development of this Transport Rule program
inclusive of this proposal, EPA considered its impacts on low-income,
minority, and tribal communities in several ways and provided multiple
opportunities for these communities to meaningfully participate in the
rulemaking process.  As described in section XII.J of the preamble to
the final transport Rule, EPA believes that the final remedy in the
Transport Rule program inclusive of this proposal addresses potential
environmental justice concerns about localized hot spots and reduces
ambient concentrations of pollution where they are most needed by
sensitive and vulnerable populations.

EPA believes that the vast majority of communities and individuals in
areas covered by the Transport Rule program inclusive of this proposal,
including numerous low-income, minority, and tribal individuals and
communities in both rural areas and inner cities in the eastern and
central U.S., will see significant improvements in air quality and
resulting improvements in health. EPA’s assessment of the effects of
the final Transport Rule program inclusive of this proposal on these
communities is detailed in section XII.J of the preamble to the final
Transport Rule. Based on this assessment, EPA concludes that we do not
expect disproportionately high and adverse human health or environmental
effects on minority, low-income, or tribal populations in the United
States as a result of implementing the Transport Rule program inclusive
of this proposal.

Inclusion of Iowa, Kansas, Michigan, Missouri, Oklahoma, and Wisconsin
in the Federal Implementation Plans to Reduce Interstate Transport of
Ozone—Page 29 of 29

List of Subjects in 40 CFR Part 52

Administrative practice and procedure, Air pollution control,
Intergovernmental relations, Nitrogen oxides, Ozone, Particulate matter,
Regional haze, Reporting and recordkeeping requirements, Sulfur dioxide.

List of Subjects in 40 CFR Part 97

Administrative practice and procedure, Air pollution control, Electric
utilities, Nitrogen oxides, Reporting and recordkeeping requirements,
Sulfur dioxide.

___________________________________

Dated:

___________________________________

Lisa P. Jackson,

Administrator

 Federal Implementation Plans to Reduce Interstate Transport of Fine
Particulate Matter and Ozone: Final Rule. Available on the Web at
HYPERLINK "http://www.epa.gov/airtransport"
http://www.epa.gov/airtransport .

 75 FR 45210 (August 2, 2010).

   States covered by the Transport Rule for PM2.5 are required to limit
their annual emissions of NOx.

  Notice of Data Availability   Supporting Federal Implementation Plans
to Reduce Interstate Transport of Fine Particulate Matter and Ozone (75
FR 53613; September 1, 2010).  This NODA provided additional information
on an updated version of the power sector modeling platform and data
inputs EPA proposed to use to support the final Transport Rule.

Notice of Data Availability   Supporting Federal Implementation Plans to
Reduce Interstate Transport of Fine Particulate Matter and Ozone:
Revisions to Emission Inventories (75 FR 66055; October 27, 2010).

Notice of Data Availability for Federal Implementation Plans to Reduce
Interstate Transport of Fine Particulate Matter and Ozone:  Request for
Comment on Alternative Allocations, Calculation of Assurance Provision
Allowance Surrender Requirements, New-Unit Allocations in Indian
Country, and Allocations by States (76 FR 1109; January 7, 2011).

  EPA made some corrections to heat input data based on comments
received from sources correcting such data.

   As explained in the TSD, EPA proposed a SIP call requiring Kansas to
address its deficiency for the 1997 Ozone NAAQS 110(a)(2)(D)(i)(I)
requirements (76 FR 763). EPA intends to finalize the SIP call
concurrent with the finalization of this action.  This will enable
Kansas to use the same remedy as the other states covered by the final
Transport Rule ozone season NOx program. (Specifically, Kansas may
request--through a letter submitted to EPA within three weeks of the
final SIP call--that the Kansas ozone FIP be implemented at the same
time as the other states.)

  The TSD for Federal Implementation Plans to Reduce Interstate
Transport of Fine Particulate Matter and Ozone: Final Rule is
incorporated in its entirety by reference into this SNPR.

   76 FR 1109 (January 7, 2011).

*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release
During Review***

 PAGE

Page   PAGE  1  of   NUMPAGES   29


[Federal Register: February 10, 2006 (Volume 71, Number 28)]
[Rules and Regulations]
[Page 6978-6984]
[DOCID:fr10fe06-5]

=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 122 and 412

[EPA-HQ-OW-2005-0036; FRL-8031-3]
RIN 2040-AE80

Revised Compliance Dates for National Pollutant Discharge
Elimination System Permit Regulation and Effluent Limitation Guidelines
for Concentrated Animal Feeding Operations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: Today's rule extends certain compliance dates in the National
Pollutant Discharge Elimination System (NPDES) permitting requirements
and Effluent Limitations Guidelines and Standards (ELGs) for
concentrated animal feeding operations (CAFOs) in conjunction with
EPA's efforts to respond to the order issued by the Second Circuit
Court of Appeals in Waterkeeper Alliance et al. v. EPA, 399 F.3d 486
(2nd Cir. 2005). The purpose of today's rule is to address timing
issues associated with the Agency's response to the Waterkeeper
decision.
    This final rule revises dates established in the 2003 CAFO rule,
issued on February 12, 2003, by which facilities newly defined as CAFOs
were required to seek permit coverage and by which all CAFOs were
required to have nutrient management plans (NMPs) developed and
implemented. EPA is extending the date by which operations defined as
CAFOs as of April 14, 2003, who were not defined as CAFOs prior to that
date, must seek NPDES permit coverage, from February 13, 2006, to July
31, 2007. EPA is also amending the date by which operations that become
defined as CAFOs after April 14, 2003, due to operational changes that
would not have made them a CAFO prior to April 14, 2003, and that are
not new sources, must seek NPDES permit coverage, from April 13, 2006,
to July 31, 2007. Finally, EPA is extending the deadline by which CAFOs
are required to develop and implement NMPs, from December 31, 2006, to
July 31, 2007. This rule revises all references to the date by which
NMPs must be developed and implemented currently in the 2003 CAFO rule.

DATES: This rule is effective as of February 10, 2006.

ADDRESSES: EPA established a docket for this action under Docket ID No.
EPA-OW-2005-0036. This is where you can obtain a copy of all materials
related to this rulemaking, including the

comment response document and the rule. All documents in the docket are
listed on the http://www.regulations.gov Web site. Although listed in

the index, some information is not publicly available, e.g., CBI or
other information whose disclosure is restricted by statute. Certain
other material, such as copyrighted material, is not placed on the
Internet and will be publicly available only in hard copy form.
Publicly available docket materials are available either electronically
through http://www.regulations.gov or in hard copy at the Water Docket

in the EPA Docket Center, EPA West, Room B102, 1301 Constitution Ave.,
NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to
4:30 p.m., Monday through Friday, excluding legal holidays. The
telephone number for the Public Reading Room is<PHONE_NUMBER>, and the
telephone number for the Water Docket is<PHONE_NUMBER>.

FOR FURTHER INFORMATION CONTACT: Kawana Cohen, Water Permits Division,
Office of Wastewater Management (4203M), Environmental Protection
Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone
number:<PHONE_NUMBER>, e-mail address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:
I. General Information
    A. Does this Action Apply to Me?
II. Background
    A. The Clean Water Act
    B. History of Actions To Address CAFOs Under the NPDES
Permitting Program
    C. Status of EPA's Response to the Waterkeeper Decision
    D. Proposed Rule
III. Today's Final Rule
    A. Today's Final Action
    1. Application Deadline for Newly Defined CAFOs
    2. Deadline for Nutrient Management Plans
    B. Rationale for Today's Action
IV. Effective Date of These Actions
V. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From
Environmental
    Health and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Congressional Review Act

I. General Information

A. Does This Action Apply to Me?

    This action applies to concentrated animal feeding operations
(CAFOs) as defined in section 502(14) of the Clean Water Act and in the
NPDES regulations at 40 CFR 122.23. The following table provides a list
of standard industrial codes and analogous North American industry
codes for operations covered under this revised rule:

                              Table 1.--Entities Potentially Regulated by This Rule
----------------------------------------------------------------------------------------------------------------
                                                                                Standard
                                                 Examples of regulated        North American       industrial
                  Category                              entities              industry code      classification
                                                                                (NAIC)              code
----------------------------------------------------------------------------------------------------------------
Federal, State, and Local Government:
    Industry...............................  Operators of animal
                                              production operations that
                                              meet the definition of a
                                              CAFO.
                                             Beef cattle feedlots                      112112               0211
                                              (including veal).
                                             Beef cattle ranching and                  112111               0212
                                              farming.
                                             Hogs.........................              11221               0213
                                             Sheep........................       11241, 11242               0214
                                             General livestock except                   11299               0219
                                              dairy and poultry.
                                             Dairy farms..................              11212               0241
                                             Broilers, fryers, and roaster              11232               0251
                                              chickens.
                                             Chicken eggs.................              11231               0252
                                             Turkey and turkey eggs.......              11233               0253
                                             Poultry hatcheries...........              11234               0254
                                             Poultry and eggs.............              11239               0259
                                             Ducks........................             112390               0259
                                             Horses and other equines.....              11292               0272
----------------------------------------------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. This table lists the types of entities that EPA is now aware
could potentially be regulated by this action. Other types of entities
not listed in the table could also be regulated. To determine whether
your facility is regulated under this rulemaking, you should carefully
examine the applicability criteria in 40 CFR 122.23. If you have
questions regarding the applicability of this action to a particular
entity, consult the person listed in the preceding FOR FURTHER
INFORMATION CONTACT section.

II. Background

A. The Clean Water Act

    Congress passed the Federal Water Pollution Control Act (1972),
also known as the Clean Water Act (CWA), to ``restore and maintain the
chemical, physical, and biological integrity of the nation's waters''
(33 U.S.C. 1251(a)). Among the core provisions, the CWA establishes the
NPDES permit program to authorize and regulate the discharge of
pollutants from point sources to waters of the U.S. 33 U.S.C. 1342.
Section 502(14) of the CWA specifically includes CAFOs in the
definition of the term ``point source.'' Section 502(12) defines the
term ``discharge of a pollutant'' to mean ``any addition of any
pollutant to navigable waters from any point source.'' EPA has issued
comprehensive regulations that implement the NPDES program at 40 CFR
part 122. The Act also provides for the development of technology-based
and water quality-based effluent limitations that are imposed through
NPDES permits to control the discharge of pollutants from point
sources. CWA section 301(a) and (b).

B. History of Actions To Address CAFOs Under the NPDES Permitting
Program

    EPA's regulation of wastewater and manure from CAFOs dates to the
1970s. EPA initially issued national effluent

limitations guidelines and standards for feedlots on February 14, 1974
(39 FR 5704), and NPDES CAFO regulations on March 18, 1976 (41 FR
11458).
    In February 2003, EPA issued revisions to these regulations that
focused on the 5% of the nation's animal feeding operations (AFOs) that
presented the highest risk of impairing water quality and public health
(68 FR 7176) (the ``2003 CAFO rule''). The 2003 CAFO rule required the
owner or operators of all CAFOs \1\ to seek coverage under an NPDES
permit. CAFO industry organizations (American Farm Bureau Federation,
National Pork Producers Council, National Chicken Council, and National
Turkey Federation (NTF), although NTF later withdrew its petition) and
environmental groups (Waterkeeper Alliance, Natural Resources Defense
Council, Sierra Club, and American Littoral Society) filed petitions
for judicial review of certain aspects of the 2003 CAFO rule. This case
was brought before the U.S. Court of Appeals for the Second Circuit. On
February 28, 2005, the court ruled on these petitions and upheld most
provisions of the 2003 rule but vacated and remanded others.
Waterkeeper Alliance et al. v. EPA, 399 F.3d 486 (2nd Cir. 2005)
(hereafter referred to as Waterkeeper).
---------------------------------------------------------------------------

    \1\ The Clean Water Act regulates the conduct of persons, which
includes the owners and operators of CAFOs, rather than the
facilities or their discharges. To improve readability in this
preamble, reference is made to ``CAFOs'' as well as ``owners and
operators of CAFOs.'' No change in meaning is intended.
---------------------------------------------------------------------------

C. Status of EPA's Response to the Waterkeeper Decision

    EPA is developing a rulemaking to respond to the vacatures and
remands in the Waterkeeper decision. EPA plans to issue a proposed
rulemaking for public comment in mid 2006 and a final rulemaking as
expeditiously as possible. Among other revisions related to the court's
decision the Agency plans to address in the forthcoming rulemaking are
those that establish which CAFOs must seek permit coverage and
procedures for development and implementation of nutrient management
plans (NMPs).

D. Proposed Rule

    On December 21, 2005, EPA proposed to revise each of the compliance
dates in the 2003 CAFO rule that were affected by the Agency's need to
respond to the Waterkeeper decision. 70 FR 75771 (December 21, 2005).
The 2003 CAFO rule required all newly defined CAFOs, as of the date of
the final rule, and some new dischargers to seek permit coverage by
February 13, 2006, or April 13, 2006, respectively. The rule also
required all CAFOs to develop and implement an NMP by December 31,
2006. EPA proposed to revise these dates in a separate, limited
rulemaking, prior to the Agency's response to the Waterkeeper decision,
in order: (1) To provide the Agency sufficient time to take final
action on the regulatory revisions it plans to propose in the near
future with respect to the Second Circuit's decision; and (2) to
require NMPs to be submitted at the time of the permit application,
consistent with the court's decision.

III. Today's Final Rule

A. Today's Final Action

    Today's final rule extends certain dates for compliance specified
in the 2003 CAFO rule. EPA is extending the dates for newly defined
CAFOs to seek NPDES permit coverage and the date by which all CAFOs
must develop and implement NMPs. Because EPA will not have completed
the rulemaking responding to the Waterkeeper decision prior to the
dates by which newly defined CAFOs must seek permit coverage, the
Agency is revising these dates to a time that is subsequent to the
forthcoming CAFO rule revision.
    Today's rule is simply a means of avoiding conflict with existing
deadlines that precede EPA's upcoming revisions to the 2003 rules.
Today's rule does not, for example, address issues associated with the
court's vacature of the requirement that all CAFOs seek coverage under
an NPDES permit. That issue and other related issues, such as those
associated with the development and implementation of nutrient
management plans (NMPs) will be addressed in the separate forthcoming
rulemaking.
1. Application Deadline for Newly Defined CAFOs
    EPA is extending the date by which operations defined as CAFOs as
of April 14, 2003, that were not defined as CAFOs prior to that date,
must seek NPDES permit coverage, from February 13, 2006, to July 31,
2007. EPA is also proposing to amend the date by which operations that
become defined as CAFOs after April 14, 2003, due to operational
changes that would not have made them a CAFO prior to April 14, 2003,
and that are not new sources, must seek NPDES permit coverage, from
April 13, 2006, to July 31, 2007.
    Today's rule does not affect the applicable time for seeking permit
coverage for new source CAFOs that discharge or propose to discharge,
even those in categories that were added to the definition of a CAFO in
the 2003 CAFO rule. New source CAFOs that discharge or propose to
discharge are required by the 2003 CAFO rule to seek NPDES permit
coverage at least 180 days prior to the time that they commence
operating.
    Nor does today's rule affect requirements for newly defined CAFOs
to obtain permit coverage in States that do not revise the deadlines in
their current regulations. States may choose to require CAFOs to obtain
NPDES permits in advance of the dates set in the federal NPDES
regulations, pursuant to the authority reserved to States under Section
510 of the Clean Water Act to adopt requirements more stringent than
those that apply under federal law. Furthermore, many CAFOs are already
permitted and the extension of the deadline for requesting NPDES permit
coverage does not apply to CAFOs that existed prior to the effective
date of the 2003 CAFO rule and as such were required to seek NPDES
permit coverage even before EPA issued the 2003 CAFO rule.
2. Deadline for Nutrient Management Plans
    EPA is extending the deadline by which permitted CAFOs are required
to develop and implement NMPs, from December 31, 2006, to July 31,
2007. This revises all references to the date by which NMPs must be
developed and implemented currently in the 2003 CAFO rule. Thus the
deadlines established in 40 CFR 122.21(i)(1)(x), 122.42(e)(1),
412.31(b)(3), and 412.43(b)(2) are all revised accordingly.
    Today's rule extending deadlines for nutrient management plans
would not affect CAFOs operating under existing permits so long as
those permits remain in effect. If their existing permits require
development and implementation of an NMP, currently permitted CAFOs
must develop and implement their NMPs in accordance with the terms of
their current permit.

B. Rationale for Today's Action

    In December 2005, EPA proposed to extend the dates that EPA is
today revising for certain CAFOs to seek NPDES permit coverage and for
CAFOs to develop and implement NMPs to March 30, 2007. At the time of
the proposed rule, EPA believed that setting the revised dates to March
30, 2007, would allow sufficient time for the Agency to complete the
forthcoming rule to address the Waterkeeper decision. In proposing
these date changes, EPA also reasoned that the rationales for these
revised dates were

generally consistent with the rationales that the Agency had originally
relied upon in setting the compliance dates in the 2003 CAFO rule and
that these dates would ensure compliance with the NPDES regulations
applicable to CAFO owners and operators within a reasonable timeframe
consistent with the dates established in the 2003 rule.
    EPA received a number of comments on the proposed rule, including
comments from States, industry, agricultural trade associations, and
environmental groups. Some commenters asserted that the proposed rule
is not consistent with the part of the court's decision that vacated
the ``duty to apply'' provision of the 2003 regulations. The ``duty to
apply'' provision required all CAFOs to apply for a permit, including
those with only a potential to discharge. Commenters maintained that
the language of the proposed rule was not appropriate because it
continued to follow the approach in the 2003 CAFO regulations, under
which all CAFOs must have or seek a permit.
    In response, EPA reiterates that it will address the various
aspects of the court's Waterkeeper decision, including the court's
ruling on the ``duty to apply'' issue, in a forthcoming rulemaking.
That rulemaking will address the regulations on who must apply for a
permit in order to conform those regulations to the court's ruling.
Nothing in today's rule affects or otherwise addresses the issue of who
must apply for a permit. Today's rule only shifts the deadline for when
a permit application must be submitted by those CAFOs that are required
to apply. As a sequence of events, EPA expects that its upcoming
rulemaking to respond to Waterkeeper will change the universe of who
must apply for a permit and that those regulations will be finalized
and effective before the new deadline of July 31, 2007, promulgated in
today's rule for permit applications. As a result, only those CAFOs
that are required to apply for a permit--as redefined in the upcoming
rulemaking--will be subject to the permit application deadlines in
today's rule. EPA notes in particular that today's rule is not intended
to, and does not, have the effect of requiring all CAFOs to apply for a
permit by the new deadlines in today's rule.
    Some commenters asserted that the proposed deadlines would not
offer CAFOs sufficient time to submit permit applications that will
comply with the regulatory revisions the Agency is planning to address
in its response to the Waterkeeper decision. These commenters noted
that the proposed March 30, 2007, permit application deadline will not
provide EPA sufficient time to propose and take final action on such
regulatory revisions in time for CAFOs to apply for permits by that
date.
    EPA is revising its proposal to extend the date from March 30,
2007, to July 31, 2007, to provide sufficient time for the Agency to
promulgate regulations addressing the Waterkeeper decision. EPA intends
to propose such regulations in mid 2006 and to take final action on
that proposal as soon as possible thereafter, so that affected CAFOs
will have sufficient time to comply with revised regulations after they
take effect. In addition, EPA notes that most of the technical
provisions of the 2003 CAFO rule (e.g., the substantive NMP
requirements) were unaffected by the Waterkeeper decision, and
therefore CAFOs do have some information at this time to assess the
actions they will need to take. Should the Agency decide that a further
extension of time is necessary to allow CAFOs an adequate opportunity
to meet the requirements of the revised regulations, EPA could allow a
further extension in the final rule.
    Commenters also raised issues about the way in which the proposed
rule failed to separate the date by which an NMP needs to be developed
from the date when the CAFO must implement the NMP. Commenters
expressed the view that keeping the dates together was inconsistent
with the Waterkeeper court's decision to require NMPs to be publicly
reviewed and the terms of the NMP to be included as conditions in a
CAFO's permit before they could be implemented, as such. As discussed
above, EPA is developing a rule to address the court's decision
regarding public and permitting authority review and the inclusion of
NMPs in permits and will issue the proposed rule in mid 2006 and the
final rule as soon as possible thereafter. That rule will address
issues raised by the commenters in that rulemaking and it is premature
to resolve them now. Should further revisions to the deadlines for
development and implementation be necessary to address these concerns,
the Agency could further modify the dates in the final rule.
    Several commenters expressed the view that EPA needed to take into
consideration the time necessary for States to make conforming
revisions to State programs following EPA's regulatory revisions. While
EPA agrees that States need additional time to modify their programs
once EPA has finalized its regulatory revisions in response to the
Waterkeeper decision, the Agency does not believe that these concerns
justify further extension of the compliance dates in today's rule. EPA
is committed to work with States and other interested parties to work
through the procedural challenges and resolve any difficulties that may
arise in the implementation of the regulatory revisions.

IV. Effective Date of These Actions

    EPA is making this rule immediately effective upon the date of
publication. The immediate effective date for this action is authorized
under both 5 U.S.C. 553(d)(1), which provides that rulemaking actions
may become effective less than 30 days after publication if the rule
``grants or recognizes an exemption or relieves a restriction'' and
section 553(d)(3) which allows an effective date less than 30 days
after publication ``as otherwise provided by the agency for good cause
found and published with the rule.'' EPA finds that there is good cause
to make the rule effective immediately. The 2003 CAFO rule requires
some CAFOs to seek NPDES permit coverage and prepare and implement
nutrient management plans in 2006 well before EPA regulations will be
in place to respond to the Waterkeeper's decision. Making this rule
immediately effective is consistent with the purpose of the good cause
exemption which is to provide reasonable time for affected parties to
comply. A delayed effective date is not necessary because affected
parties do not have to take any action to comply with this rule which
simply extends deadlines for seeking NPDES permit coverage and
preparing and implementing nutrient management plans. In addition,
consistent with section 553(d)(3), an immediate effective date is
justified because this rule relieves certain CAFOs of obligations which
would otherwise apply to them, to seek NPDES permit coverage and
develop and implement nutrient management plans in 2006.

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866, (58 FR 51735; October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to Office of Management and Budget (OMB) review
and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
    (1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the

economy, a sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or tribal
governments or communities;
    (2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
    (4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
    It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and,
therefore, is not subject to OMB review.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
As discussed above, the purpose of today's rule is solely to address
timing issues associated with the Agency's response to the Waterkeeper
court ruling based on litigation ensuing from the 2003 CAFO rule.
However, the Office of Management and Budget (OMB) has previously
approved the information collection requirements contained in the
existing regulations at 40 CFR parts 9, 122, 123, and 412 under the
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and
has assigned OMB control number 2040-0250. The EPA ICR number for the
original set of regulations is 1989.02. A copy of the OMB approved
Information Collection Request (ICR) may be obtained from Susan Auby,
Collection Strategies Division; U.S. Environmental Protection Agency
(2822T); 1200 Pennsylvania Ave., NW., Washington, DC 20460 or by
calling<PHONE_NUMBER>.
    Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small
entities, small entity is defined as: (1) A small business based on
Small Business Administration (SBA) size standards; (2) a small
governmental jurisdiction that is a government of a city, county, town,
school district or special district with a population of less than
50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field.
    This action will not have a significant economic impact on a
substantial number of small entities since the effect of the rule is
solely to extend certain deadlines related to NPDES CAFO permitting.
Additionally, this rule would not affect small governments, as the
permitting authorities are State or Federal agencies.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of UMRA generally requires EPA to identify and
consider a reasonable number of regulatory alternatives and to adopt
the least costly, most cost-effective, or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
    EPA determined that 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 one year. As discussed above, the purpose of today's rule is
solely to address timing issues associated with the Agency's response
to the Waterkeeper court ruling based on litigation ensuing from the
2003 CAFO rule.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
    Under section 6(b) of Executive Order 13132, EPA may not issue a
regulation that has federalism 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 State and local governments, or EPA
consults with State and local officials early in the process of
developing the proposed

regulation. Under section 6(c) of Executive Order 13132, EPA may not
issue a regulation that has federalism implications and that preempts
State law, unless the Agency consults with State and local officials
early in the process of developing the proposed regulation.
    EPA has concluded that this rule does not have federalism
implications. It will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132.
EPA does not consider an annual impact of $2 million on States to be a
substantial effect. In addition, EPA does not expect this rule to have
any impact on local governments.
    Further, the revised regulations do not alter the basic State-
Federal scheme established in the Clean Water Act under which EPA
authorizes States to carry out the NPDES permitting program. EPA
expects the revised regulations to have little effect on the
relationship between, or the distribution of power and responsibilities
among, the Federal and State governments. Thus, Executive Order 13132
does not apply to this rule.

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

    Executive Order 13175, entitled, ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249; November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.''
    This regulation does not have tribal implications. It will not have
substantial direct effects on tribal governments, on the relationship
between the Federal government and Indian tribes, or on the
distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
Thus, Executive Order 13175 does not apply to this rule.
    In the spirit of Executive Order 13175, and consistent with EPA
policy to promote communications between EPA and tribal governments,
EPA specifically solicited additional comment on this proposed rule
from tribal officials.

G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks

    Executive Order 13045: ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) Is determined to be ``economically significant''
as defined under E.O. 12866, and (2) concerns an environmental health
or safety risk that EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the environmental health or
safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
    This final rule is not subject to Executive Order 13045 because it
is not economically significant as defined under E.O. 12866, and
because the Agency does not have reason to believe the environmental
health and safety risks addressed by this action present a
disproportionate risk to children. The benefits analysis performed for
the 2003 CAFO rule determined that the rule would result in certain
significant benefits to children's health. (Please refer to the
Benefits Analysis in the record for the 2003 CAFO final rule.) Since
today's action would not affect the environmental benefits of the rule,
these benefits are retained.

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

    This final rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it is not a
significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Pub. L. 104-113, Section 12(d) (15 U.S.C. 272
note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standard 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 final rule does not involve technical standards. Therefore,
EPA did not consider the use of any voluntary consensus standards.

J. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective February 10, 2006.

List of Subjects

40 CFR Part 122

    Administrative practice and procedure, Confidential business
information, Hazardous substances, Reporting and recordkeeping
requirements, Water pollution control.

40 CFR Part 412

    Environmental protection, Feedlots, Livestock, Waste treatment and
disposal, Water pollution control.

    Dated: February 7, 2006.
Stephen L. Johnson,
Administrator.

0
40 CFR part 122 and 412 are amended as follows:

PART 122--EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT
DISCHARGE ELIMINATION SYSTEM

0
1. The authority citation for part 122 continues to read as follows:

    Authority: The Clean Water Act, 33 U.S.C. 1251 et seq.

0
2. Amend Sec.  122.21 by revising paragraph (i)(1)(x) to read as
follows:

Sec.  122.21  Application for a permit (applicable to State programs,
see Sec.  123.25).

* * * * *
    (i) * * *
    (1) * * *

    (x) For CAFOs that must seek coverage under a permit after July 31,
2007, certification that a nutrient management plan has been completed
and will be implemented upon the date of permit coverage.
* * * * *

0
3. Amend Sec.  122.23 by revising paragraphs (g)(1) and (g)(3)(iii) to
read as follows:

Sec.  122.23  Concentrated animal feeding operations (applicable to
State NPDES programs, see Sec.  123.25).

* * * * *
    (g) * * *
    (1) Operations defined as CAFOs as of April 14, 2003, who were not
defined as CAFOs prior to that date. For all CAFOs, the owner or
operator of the CAFO must seek to obtain coverage under an NPDES permit
by a date specified by the Director, but no later than July 31, 2007.
    (3) * * *
    (iii) If an operational change that makes the operation a CAFO
would not have made it a CAFO prior to April 14, 2003, the operation
has until July 31, 2007, or 90 days after becoming defined as a CAFO,
whichever is later.
* * * * *

0
4. Amend Sec.  122.42 by revising the third and fourth sentences in
paragraph (e)(1) introductory text to read as follows:

Sec.  122.42  Additional conditions applicable to specified categories
of NPDES permits (applicable to State NPDES programs, see Sec.
123.25).

* * * * *
    (e) * * *
    (1) * * * Permitted CAFOs must have their nutrient management plans
developed and implemented by July 31, 2007. CAFOs that seek to obtain
coverage under a permit after July 31, 2007, must have a nutrient
management plan developed and implemented upon the date of permit
coverage. * * *
* * * * *

PART 412--CONCENTRATED ANIMAL FEEDING OPERATIONS (CAFO) POINT
SOURCE CATEGORY

0
5. The authority citation for part 412 continues to read as follows:

    Authority: 33 U.S.C. 1311, 1314, 1316, 1317, 1318, 1342, 1361.

0
6. Amend Sec.  412.31 by revising paragraph (b)(3) to read as follows:

Sec.  412.31  Effluent limitations attainable by the application of the
best practicable control technology currently available (BPT).

* * * * *
    (b) * * *
    (3) The CAFO shall attain the limitations and requirements of this
paragraph by July 31, 2007.

0
7. Amend Sec.  412.43 by revising paragraph (b)(2) to read as follows:

Sec.  412.43  Effluent limitations attainable by the application of the
best practicable control technology currently available (BPT).

* * * * *
    (b) * * *
    (2) The CAFO shall attain the limitations and requirements of this
paragraph by July 31, 2007.

[FR Doc. 06-1240 Filed 2-9-06; 8:45 am]

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