[Federal Register Volume 79, Number 85 (Friday, May 2, 2014)]
[Rules and Regulations]
[Pages 25010-25014]
[FR Doc No: 2014-09878]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R10-OAR-2008-0122; FRL 9910-02-Region 10]

Approval and Promulgation of State Implementation Plans;
Washington: Puget Sound Ozone Maintenance Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking a direct
final action to approve a maintenance plan for the Central Puget Sound
area to maintain the 8-hour ozone National Ambient Air Quality Standard
(NAAQS) through 2015. This plan was submitted by the Washington
Department of Ecology (Ecology or ``the State'') as a revision to its
State Implementation Plan (SIP) on January 10, 2008. This action finds
that the maintenance plan for this area meets all relevant Clean Air
Act (CAA) requirements for approval, and demonstrates that the Central
Puget Sound area will remain in attainment with the 1997 and 2008 ozone
NAAQS through 2015.

DATES: This rule is effective on July 1, 2014, without further notice,
unless the EPA receives adverse comment by June 2, 2014. If the EPA
receives adverse comment, we will publish a timely withdrawal in the
Federal Register informing the public that the rule will not take
effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
OAR-2008-0122, by any of the following methods:
     www.regulations.gov: Follow the on-line instructions for
submitting comments.
     Email<EMAIL_ADDRESS>     Mail: Keith Rose, U.S. EPA Region 10, Office of Air, Waste
and Toxics (AWT-107), 1200 Sixth Avenue, Suite 900, Seattle, WA 98101.
     Hand Delivery/Courier: U.S. EPA Region 10, 1200 Sixth
Avenue, Suite 900, Seattle, WA 98101. Attention: Keith Rose, Office of
Air, Waste and Toxics, AWT-107. Such deliveries are

only accepted during normal hours of operation, and special
arrangements should be made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R10-OAR-
2008-0122. 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 www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through www.regulations.gov
or email. The www.regulations.gov Web site is an ``anonymous access''
system, which means the EPA will not know your identity or contact
information unless you provide it in the body of your comment. If you
send an email comment directly to the EPA without going through
www.regulations.gov your email address will be automatically captured
and included as part of the comment that is placed in the public docket
and made available on the Internet. If you submit an electronic
comment, the 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 the EPA cannot read your comment due to technical
difficulties and cannot contact you for clarification, the 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
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy. Publicly available docket
materials are available either electronically in www.regulations.gov or
in hard copy during normal business hours at the Office of Air, Waste
and Toxics, U.S. EPA Region 10, 1200 Sixth Avenue, Seattle, WA 98101.

FOR FURTHER INFORMATION CONTACT: Keith Rose at telephone number: (206)
553-1949, email address<EMAIL_ADDRESS>or the above EPA, Region
10 address.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean the EPA. Information is organized
as follows:

Table of Contents

I. Background
    A. Regulatory Context
    B. Requirements of CAA Section 110(a)(1) Maintenance Plans
    C. How have the Tribal Governments been involved in this
process?
II. Summary of SIP Revision and the EPA's Evaluation
III. Final Action
IV. Statutory and Executive Order Reviews

I. Background

A. Regulatory Context

    On November 15, 1990, the CAA Amendments of 1990 were enacted.
Under section 107(d)(1) of the CAA, the EPA designated the Central
Puget Sound area, also called the Seattle-Tacoma area (which includes
all of Pierce County, almost all of King County except the northeast
corner, and part of Snohomish County), as nonattainment because the
area violated the 1-hour ozone standard during the years 1989-1991. As
a result, the EPA classified the Central Puget Sound area as
``marginal'' under section 181(a)(1) of the CAA (56 FR 56847, November
6, 1991). On January 28, 1993, the State of Washington submitted a SIP
demonstrating compliance with the 1-hour ozone NAAQS. On August 21,
1995, the State submitted a revision to the Washington Vehicle
Inspection and Maintenance (I/M) Program to satisfy the requirements of
sections 182(b)(4) and 182(c)(3) of the CAA and 40 CFR part 51, subpart
S. This SIP revision requires vehicle owners in the Central Puget Sound
area to comply with the Washington I/M program. The EPA approved this
I/M program revision on September 25, 1996 (61 FR 50235). On March 4,
1996, the State submitted to the EPA a request to redesignate the
Central Puget Sound area to attainment for the 1-hour ozone standard,
and a maintenance plan demonstrating maintenance of the ozone standard
through 2010. On September 26, 1996, the EPA determined that the Puget
Sound area had attained the ozone NAAQS, redesignated the Central Puget
Sound area to attainment for the 1-hour ozone NAAQS, and approved the
associated maintenance plan (61 FR 50438). On December 17, 2003,
Ecology submitted a second 10-year maintenance plan demonstrating that
the Central Puget Sound area would maintain air quality standards for
ozone through the year 2016. The EPA approved the second 10-year
maintenance plan on August 5, 2004 (69 FR 47365).
    In 2008, the EPA revised the level of the 8-hour ozone standard to
0.075 ppm (73 FR 16436, March 27, 2008). The Central Puget Sound area
was subsequently designated attainment/unclassifiable for the new 8-
hour standard (77 FR 30088, May 21, 2012).

B. Requirements of CAA Section 110(a)(1) Maintenance Plans

    Section 110(a)(1) of the CAA requires, in part, that states submit
to the EPA plans to maintain any NAAQS promulgated by the EPA. Areas
like the Central Puget Sound area that were maintenance areas for the
1-hour ozone NAAQS, but unclassifiable/attainment for the 8-hour ozone
NAAQS, are required to submit a plan to demonstrate the continued
maintenance of the 8-hour ozone NAAQS. The EPA established a deadline
of three years after the effective date of the 1997 8-hour ozone
designations as the deadline for submission of these plans.
    On May 20, 2005, the EPA issued guidance for States in preparing
maintenance plans under section 110(a)(1) of the CAA for areas that are
required to do so under 40 CFR 51.905.\1\ At a minimum, the maintenance
plan should include the following five components:
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    \1\ Memorandum titled ``Maintenance Plan Guidance Document for
Certain 8-hour Ozone Areas Under Section 110(a)(l) of Clean Air
Act'' by Lydia Wegman, Director, EPA Air Quality Strategies and
Standards Division, May 20, 2005.
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    1. An attainment inventory, which is based on actual typical summer
day emissions of volatile organic compounds (VOCs) and oxides of
nitrogen (NOX) from a base year chosen by the State;
    2. A maintenance demonstration which shows how the area will remain
in compliance with the 8-hour ozone standard for 10 years after the
effective date of the designation;
    3. A commitment to continue to operate ambient air quality monitors
to verify maintenance of the 8-hour ozone standard;
    4. A contingency plan that will ensure that any violation of the 8-
hour ozone NAAQS will be promptly corrected; and
    5. An explanation of how the State will verify continued attainment
of the standard under the maintenance plan.
    On January 10, 2008, the EPA received a SIP submittal from Ecology
to approve a maintenance plan submitted under section 110(a)(1) of the
CAA to maintain the 8-hour NAAQS for ozone for the Central Puget Sound
area. The EPA prepared a Technical Support Document (TSD) with more
detailed information about this SIP submittal,

which is available for review as part of the docket for this action.

C. How have the Tribal Governments been involved in this process?

    Consistent with the EPA's tribal policy, the EPA offered
government-to-government consultations to the Tulalip Tribes, the
Puyallup Tribe of Indians, the Muckleshoot Indian Tribe, the
Stillaguamish Tribe, and the Nisqually Indian Tribe, regarding the
action in this notice, because these tribes are located in the Central
Puget Sound ozone area and may be affected by this action.

II. Summary of SIP Revision and the EPA's Evaluation

    Ecology's 8-hour 110(a)(1) ozone maintenance plan for the Central
Puget Sound area addresses all five maintenance plan components
outlined in the EPA's guidance of May 20, 2005. All of the 1-hour ozone
control measures previously approved into the SIP for the Central Puget
Sound area remain in place in this 8-hour 110(a)(1) maintenance plan
and are used in the maintenance demonstration. The five components of
the maintenance plan and how they meet the EPA's criteria, are
described below.

1. Attainment Inventory

    An emissions inventory is an itemized list of emission estimates
for sources of air pollution in a given area for a specified time
period. An attainment inventory is a projection of an emission
inventory in a base year, when an area was in attainment with the 8-
hour ozone NAAQS, to an appropriate attainment year. Ecology provided a
comprehensive base year emissions inventory for NOX and VOCs
for the Central Puget Sound area with the SIP submittal. Ecology chose
to use 2002 as the base year from which it projected emissions. The SIP
submittal also includes an explanation of the methodology used for
determining the anthropogenic (point, area and mobile sources)
emissions of NOX and VOCs. On-road vehicle emission controls
required by the State I/M program were included in the attainment
inventory. The inventory is based on emissions on a ``typical summer
day.'' The term ``typical summer day'' refers to a typical weekday
during the months when ozone concentrations are typically the highest.
Based on our review of the documentation submitted, the EPA concludes
that the attainment inventory has been developed for the appropriate
season of an acceptable attainment year, is based on appropriate
factors and methods, and is thus acceptable for the purposes of a
Section 110(a)(1) ozone maintenance plan.

2. Maintenance Demonstration

    The key element of a Section 110(a)(1) ozone maintenance plan is a
demonstration of how an area will remain in compliance with the 8-hour
ozone standard for the 10-year period following the effective date of
designation as unclassifiable/attainment. The end projection year is 10
years from the effective date of the 8-hour attainment designation,
which for the Central Puget Sound area was June 15, 2004 (69 FR 23858).
Therefore, this plan must demonstrate attainment through year 2014.
Ecology has projected emissions for the year 2015, which is more than
10 years from the effective date of initial designations. With regard
to demonstrating continued maintenance of the 8-hour ozone standard,
Ecology projected that the total emissions of ozone precursors in the
Central Puget Sound area will significantly decrease from 2002 (the
base year) through 2015. In 2002, the total anthropogenic emissions of
VOCs in the Central Puget Sound area were 474 tons/day, and 446 tons/
day for NOX. The 2015 anthropogenic emissions from the
Central Puget Sound area are projected to be 346 tons/day for VOCs, and
411 tons/day for NOX. Thus, the total emissions of VOCs in
2015 are projected to be about 27% lower than the 2002 level, and total
NOX emissions in 2015 are projected to be about 8% lower
than the 2002 level.
    The formation of ozone is dependent on a number of variables which
cannot be estimated only through emissions growth and reduction
calculations. These variables include weather and the transport of
ozone precursors from outside the maintenance area. In order to
demonstrate continued maintenance of the standards, a state may utilize
more sophisticated tools such as air quality dispersion modeling to
support their analysis. In the SIP submittal, Ecology used air quality
dispersion modeling to assess the comprehensive impacts of growth
through 2015 on ozone levels in the area. The results of this modeling
demonstrate that the highest predicted design value (the 3-year average
of the fourth highest daily maximum 8-hour average ozone value) for the
Central Puget Sound area in 2015 would be 0.068 ppm, which is below
both the 1997 and the 2008 ozone NAAQS, and would therefore be in
compliance with both ozone NAAQS.
    Based on the estimated emissions of VOCs and NOX
submitted with this maintenance plan, the EPA concludes that this
maintenance plan would not cause an increase of direct emissions or
precursor emissions that would interfere with the maintenance of any
criteria pollutant NAAQS in the Central Puget Sound area. Therefore,
the EPA concludes that the maintenance demonstration submitted by the
State meets the requirement of a section 110(a)(1) ozone maintenance
plan.

3. Ambient Air Quality Monitoring

    With regard to the ambient air monitoring component of the
maintenance plan, Ecology commits to continue operating the current
Puget Sound ozone monitoring network in accordance with all of the
applicable requirements of 40 CFR part 58 throughout the maintenance
period to verify maintenance of the 8-hour ozone standard. Ecology will
also submit quality-assured ozone data to the EPA's Air Quality System
within 90 days of the end of each quarter. The State of Washington's
ambient air monitoring network meets all applicable EPA air monitoring
regulations, and was most recently approved by the EPA on March 10,
2014. The EPA therefore finds that the State's ambient air monitoring
network satisfies the requirements of CAA section 110(a).

4. Contingency Plan

    Section 110(a)(1) of the CAA requires the State to develop a
contingency plan that will ensure that any violation of a NAAQS is
promptly corrected. The purpose of the contingency plan is to provide a
range of response actions that may be selected for implementation in
the event of any violation of the 8-hour ozone NAAQS.
    There are two regulations adopted by the Puget Sound Clean Air
Agency, the local air agency with jurisdiction in the Central Puget
Sound area, on December 19, 2002, that are identified as contingency
measures in this maintenance plan. These regulations were included as
contingency measures in the ozone second 10-year maintenance plan for
the Central Puget Sound area that was approved by the EPA on August 5,
2004 (69 FR 47364 and 69 FR 47365). These contingency measures are: (1)
Regulation I, Section 8.06, Outdoor Burning Ozone Contingency Measure,
and (2) Regulation II, Section 2.10, Gasoline Station Ozone Contingency
Measure. Both the outdoor burning and the gasoline station contingency
regulations would be triggered by a written finding from the EPA of a
quality-assured violation of the ozone NAAQS and a determination that
future violations can reasonably be addressed through implementing
these regulations. The

EPA finds that these contingency measures satisfy the requirements of
CAA section 110(a).

5. Verification of Continued Attainment

    Since 1991, there have been no violations of either the 1997 or
2008 8-hour ozone standards at any ozone monitoring site in the Central
Puget Sound ozone area. Ecology will continue to monitor ambient air
quality ozone levels in the Central Puget Sound area and verify
attainment of the ozone NAAQS as described in the maintenance plan. The
State commits to preparing summer day emission inventories for the
interim years of 2008, 2011 and 2014, and will compare these emission
inventory results with the modeling emission inventories to ensure
continued compliance with the 8-hour ozone NAAQS. The EPA finds that
these methods to verify continued attainment of the ozone NAAQS satisfy
the requirements of CAA section 110(a).
    The EPA finds that the maintenance plan for the Central Puget Sound
ozone area adequately addresses all five components outlined in the
EPA's guidance of May 20, 2005, for developing maintenance plans under
110(a)(1) of the CAA.

III. Final Action

    The EPA is approving a maintenance plan to maintain the 8-hour
ozone NAAQS in the Central Puget Sound ozone area that was submitted by
the State of Washington as a revision to its SIP on January 10, 2008.
The maintenance plan for this area meets all CAA 110(a)(1) requirements
and demonstrates that the Central Puget Sound ozone area will remain in
attainment with the 1997 and 2008 ozone NAAQS through 2015. This
decision was reached after offering consultation to the Tulalip Tribes,
the Puyallup Tribe of Indians, the Muckleshoot Indian Tribe, the
Stillaguamish Tribe, and the Nisqually Indian Tribe. The EPA did not
receive any requests for consultation from these tribes.

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, the EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting Federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA ; and
     Does not provide the EPA with the discretionary authority
to address, as appropriate, disproportionate human health or
environmental effects, using practicable and legally permissible
methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because it will not impose substantial direct costs on tribal
governments or preempt tribal law. The SIP is not approved to apply in
Indian country located in the State, except for non-trust land within
the exterior boundaries of the Puyallup Indian Reservation, also known
as the 1873 Survey Area. Under the Puyallup Tribe of Indians Settlement
Act of 1989, 25 U.S.C. 1773, Congress explicitly provided state and
local agencies in Washington authority over activities on non-trust
lands within the 1873 Survey Area and the EPA is therefore approving
this SIP on such lands. Consistent with EPA policy, the EPA provided a
consultation opportunity to the Tulalip Tribes, the Puyallup Tribe of
Indians, the Muckleshoot Indian Tribe, the Stillaguamish Tribe, and the
Nisqually Indian Tribe in letters dated December 24, 2013. The EPA did
not receive a request for consultation from these tribes.
    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. The EPA will submit a report containing
this action 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).
    Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by July 1, 2014. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action 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. Parties with objections to this direct final rule are
encouraged to file a comment in response to the parallel notice of
proposed rulemaking for this action published in the proposed rules
section of today's Federal Register, rather than file an immediate
petition for judicial review of this direct final rule, so that the EPA
can withdraw this direct final rule and address the comment in the
proposed rulemaking. This action may not be challenged later in
proceedings to enforce its requirements (See CAA section 307(b)(2).).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Incorporation by reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements,
Volatile organic compounds.

    Dated: April 10, 2014.
Michelle L. Pirzadeh,
Acting Regional Administrator, Region 10.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart WW--Washington

0
2. Section 52.2470 is amended in table 2 of paragraph (e) by adding an
entry ``8-Hour Ozone 110(a)(1) Maintenance Plan'' at the end of the
section with the heading ``Attainment and Maintenance Planning--
Ozone.'' to read as follows:

Sec.  52.2470  Identification of plan.

* * * * *
    (e) * * *

                                Table 2--Attainment, Maintenance, and Other Plans
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                                        Applicable           State
      Name of SIP provision           geographic or        submittal     EPA approval date         Comments
                                    nonattainment area       date
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                                                  * * * * * * *
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                                   Attainment and Maintenance Planning--Ozone
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                                                  * * * * * * *
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8-Hour Ozone 110(a)(1)             Seattle-Tacoma.....          2/5/08  5/2/14 [Insert page
 Maintenance Plan.                                                       number where the
                                                                         document begins].

                                                  * * * * * * *
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[FR Doc. 2014-09878 Filed 5-1-14; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register: March 17, 2008 (Volume 73, Number 52)]
[Rules and Regulations]
[Page 14173-14177]
[DOCID:fr17mr08-4]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Parts 141 and 385

[Docket No. RM07-18-000; Order No. 709]

Elimination of FERC Form No. 423

Issued: March 11, 2008.
AGENCY: Federal Energy Regulatory Commission, DOE.

ACTION: Final rule.

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SUMMARY: The Federal Energy Regulatory Commission (Commission) is
amending its regulations to eliminate the collection of the FERC Form
No. 423, Monthly Report of Cost and Quality of Fuels for Electric
Plants. The Commission is eliminating collection of the FERC Form No.
423 following the December 2007 report, which was due February 15,
2008.

DATES: Effective Date: This rule will become effective April 16, 2008.

FOR FURTHER INFORMATION CONTACT:
Lawrence Greenfield (Legal Information), Office of General Counsel,
Energy Markets, Federal Energy Regulatory Commission, 888 First Street,
NE., Washington, DC 20426,<PHONE_NUMBER>,
<EMAIL_ADDRESS>James M. Krug (Technical Information), Division of Administration, Case
Management and Strategic Planning, Office of Energy Market Regulation,
Federal Energy Regulatory Commission, 888 First Street, NE.,
Washington, DC 20426,<PHONE_NUMBER><EMAIL_ADDRESS>Patricia Morris (Technical Information), Division of Administration,
Case Management and Strategic Planning, Office of Energy Market
Regulation, Federal Energy Regulatory Commission, 888 First Street,
NE., Washington, DC 20426,<PHONE_NUMBER><EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Before Commissioners: Joseph T. Kelliher,
Chairman; Suedeen G. Kelly, Marc Spitzer, Philip D. Moeller, and Jon
Wellinghoff.

Table of Contents

                                                               Paragraph
                                                                 Nos.

I. Background...............................................           3
II. Discussion..............................................           7
III. Information Collection Statement.......................          30
IV. Environmental Analysis..................................          31
V. Regulatory Flexibility Act...............................          32
VI. Document Availability...................................          33
VII. Effective Date and Congressional Notification..........          36

    1. The Federal Energy Regulatory Commission (Commission) is
amending its regulations, 18 CFR 141.61, to eliminate the collection of
the FERC Form No. 423, Monthly Report of Cost and Quality of Fuels for
Electric Plants (Form 423). The Commission is eliminating collection of
the Form 423 following the submission of the December 2007 report,
which was due February 15, 2008.
    2. As a separate matter, we note that Energy Information
Administration (EIA) has expressed a need for the

information previously collected on Form 423 and intends to collect
such information starting January 1, 2008, as part of its newly
authorized EIA-923.\1\ As discussed below, however, to ensure the
continuity of data collection, the Commission will, by separate notice,
indicate that it will continue to collect such information if EIA is
not prepared to begin its collection, but not beyond the December 2008
Form 423, due in February 2009.
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    \1\ Energy Information Administration Electric Power Survey, OMB
Control No. 1905-0129, Supporting Statement A (submitted to the
Office of Management and Budget for review on October 4, 2007),
available at: http://www.reginfo.gov/public/do/PRAViewDocument?ref--
nbr=200709-1905-003.
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I. Background

    3. Form 423 gathers information on the cost and quality of fuels
delivered to steam electric generating plants of 50 MW or greater. This
information had been used over the years for a variety of purposes,
including: (1) To conduct fuel reviews under Federal Power Act (FPA)
sections 205(a) and (e); \2\ (2) to address fuel costs and fuel
purchase practices affecting public utility rates under FPA sections
205 and 206; \3\ and (3) to detect abnormally high fuel costs in public
utility fuel purchases indicative of affiliate preference under FPA
sections 205 and 206.\4\
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    \2\ 16 U.S.C. 824d(a), (e).
    \3\ 16 U.S.C. 824d, 824e.
    \4\ Id.
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    4. Form 423 is submitted electronically on a monthly basis by
approximately 190 utilities for their 569 steam electric generating
plants.
    5. On November 2, 2007, the Commission issued a Notice of Proposed
Rulemaking (NOPR) amending its regulations to eliminate the collection
of the Form 423.\5\ In the NOPR, the Commission stated that the
Commission's infrequent use of the information collected in the Form
423 no longer justified the burden and cost of collecting it.
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    \5\ Elimination of FERC Form No. 423, 72 FR 65246 (Nov. 20,
2007), FERC Stats. & Regs. ] 32,624 (2007).
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    6. In response to the NOPR, comments were filed by: American
Electric Power Service Corporation (AEP); the American Public Power
Association and the National Rural Electric Cooperative Association
(jointly APPA and NRECA); Arch Coal, Inc. (Arch Coal); City of Santa
Clara, California, City of Redding, California and M-S-R Public Power
Agency (jointly Cities/M-S-R); the Edison Electric Institute (EEI); FPL
Group, Inc. (FPL Group); the National Association of Regulatory Utility
Commissioners (NARUC); the National Mining Association (NMA); the
Oklahoma Corporation Commission (OCC); the South Carolina Office of
Regulatory Staff (ORS); and the Public Utilities Commission of Ohio
(PUCO). The commenters responded to the Commission's invitation for
comments both on its proposal to eliminate the Form 423, and on the
proposed date to eliminate Form 423.

II. Discussion

    7. The issuance of Order No. 888 \6\ and the electric industry's
increasing reliance on market-based rates have created a diminished
need for the Form 423 information. Greater use of market-based rates
has resulted in less reliance on cost-based rates and less need to
evaluate rates by reference to a utility's costs; market-based rates
are not tied to the cost of providing service but instead reflect
market conditions. In short, there are fewer public utilities with
cost-based rates \7\ and particularly with fuel adjustment clauses as
part of their rates. This, in turn, has resulted in fewer rate cases
and fewer complaints filed with the Commission, and less need for Form
423's fuel cost and quality data. Accordingly, the Commission will no
longer collect the Form 423; the reduced need for Form 423's data no
longer justifies continued collection of Form 423. Moreover, should the
Commission have a need for information concerning fuel costs and
purchases in the future, it can obtain such information on a case-by-
case basis through special reports, investigations, data requests or
formal proceedings.\8\
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    \6\ Promoting Wholesale Competition Through Open Access Non-
discriminatory Transmission Services by Public Utilities; Recovery
of Stranded Costs by Public Utilities and Transmitting Utilities,
Order No. 888, 61 FR 21540 (May 10, 1996), FERC Stats. & Regs. ]
31,036 (1996), order on reh'g, Order No. 888-A, 62 FR 12274 (Mar.
14, 1997), FERC Stats. & Regs. ] 31,048 (1997), order on reh'g,
Order No. 888-B, 81 FERC ] 61,248 (1997), order on reh'g, Order No.
888-C, 82 FERC ] 61,046 (1998), aff'd in relevant part sub nom.
Transmission Access Policy Study Group v. FERC, 225 F.3d 667 (D.C.
Cir. 2000), aff'd sub nom. New York v. FERC, 535 U.S. 1 (2002).
    \7\ A review of data from the Electric Quarterly Reports for
calendar year 2006 indicates that market-based power sales
constituted 90 percent of jurisdictional power sales (reported as
energy sales and booked out transactions).
    \8\ See, e.g., 16 U.S.C. 825e, 825f.
---------------------------------------------------------------------------

    8. In contrast to the Commission's lack of need for the
information, EIA, in its collection statement to the Office of
Management and Budget (OMB), stated that ``EIA has multiple uses for
the data and requests approval to collect it.'' Presently, EIA collects
similar information from non-utility generators and, as explained in
EIA's collection statement to OMB, adding to it information from
Commission-jurisdictional public utilities would, for the first time,
capture all such data on one form for the entire industry. EIA further
proposed to merge the combined Form 423 data collection with
information from three other existing EIA data collections (EIA-906,
EIA-920, and EIA-767), in an effort to improve data quality,
consistency and reporting efficiency. The result, EIA stated, would be
a new survey, the EIA-923.\9\ EIA received OMB approval to collect the
EIA-923 on December 21, 2007.\10\
---------------------------------------------------------------------------

    \9\ Energy Information Administration Electric Power Survey, OMB
Control No. 1905-0129, Supporting Statement A (submitted to the
Office of Management and Budget for review on October 4, 2007),
available from: http://www.reginfo.gov/public/do/
PRAViewDocument?ref--nbr=200709-1905-003.
    \10\ EIA received final approval from OMB to collect the
information through EIA-923 in a Notice of Office of Management and
Budget Action dated December 21, 2007.
---------------------------------------------------------------------------

    9. The Commission's decision to stop collecting the Form 423 data
is not tied to EIA's decision to collect this data. However, to ensure
continuity of the data collection, the Commission will coordinate with
EIA. EIA anticipates beginning the collection of its EIA-923 starting
with the January 2008 report, and so the Commission will end its
collection of the Form 423 information with the December 2007 report,
which was due February 15, 2008. However, if EIA is not prepared to
collect the information, to prevent a gap in data collection, the
Commission will continue to collect the data until EIA begins its
collection, but not beyond the December 2008 report, due in February
2009.
    10. Should EIA begin its collection of EIA-923 data effective
January 2008, the Commission will issue a separate notice announcing
that it has ceased collection of the Form 423 effective after the
December 2007 report. Should EIA not begin its collection at that time,
the Commission will issue a separate notice announcing that it will
continue collection of the Form 423.

A. Elimination of the Form 423

Comments
    11. Three commenters, EEI, FPL Group, and the OCC, support the
Commission's proposal to discontinue collecting the Form 423. All three
claim that the Form 423 imposes a substantial burden on the regulated
community.
    12. Eight commenters opposed the Commission's proposal to eliminate
the Form 423. State commissions and regulatory offices \11\ argue that
they need the Form 423 information in a timely manner to do their work.
NARUC argues

that the Form 423 information helps to facilitate state commission
efforts to assure efficient use and pricing of fuels. PUCO states that
it has an essential need for timely receipt of Form 423 data and that
the timeliness of the Commission's data collection and posting allows
it to efficiently conduct electric fuel cost reviews, address electric
utility fuel costs and fuel purchase practices, detect abnormally high
fuel costs, calculate electric rates based on fuel costs, and properly
respond to any energy emergency. PUCO believes the Commission's
discontinuation of collecting Form 423 information would hinder PUCO's
ability to effectively perform its duties. PUCO asserts that getting
the Form 423 data only from EIA, as proposed, will result in a six-
month delay between the time the data is collected and when the data is
published. Such a delay, PUCO believes, compromises its ability to
conduct fuel cost reviews. The ORS states that the timeliness of the
Form 423 information is important to the annual review of fuel costs
and purchasing practices in South Carolina.
---------------------------------------------------------------------------

    \11\ NARUC, PUCO, and ORS.
---------------------------------------------------------------------------

    13. Arch Coal is concerned that the elimination of the Form 423
will result in a significant loss of market data used by coal
producers, transportation companies and other entities that service the
electric industry. Arch Coal believes only power generators currently
required to file EIA-906 and EIA-920 will be required to file the new
EIA-923, resulting in a reduction of the sample size by 24 percent, and
significantly degrading both the quality and value of the data. Arch
Coal argues that data collected on EIA-923 will not be available at the
plant level for 18 months for non-jurisdictional generators, and only
for those plants that currently file EIA-906 and EIA-920. It believes
this means there will be an additional time lag of more than one year,
making it extremely difficult to use this data for business decisions.
Arch Coal urges greater transparency in the electric power generation
sector, which it believes promotes market competitiveness. Reducing
data reliability and timeliness hinders market efficiency.
    14. NMA feels the Commission may be dropping collection of vital
information at a time when the need for this data is escalating. NMA
further contends that, should EIA subsequently discontinue its EIA-923
due to budget constraints, the Commission will need to reestablish
collection of the Form 423 data. NMA adds that the data EIA will
collect in EIA-923 will be sample data, rather than the more inclusive
plant data the Commission currently collects. NMA believes this
methodology will result in a material reduction in the number of
reporting plants. Further, there are no guarantees that EIA will make
plant-level information available to the public as in the past. NMA
argues that without public access to this information, complaints
against generators cannot be filed.
    15. AEP suggests that, should responsibility for the data
collection be transferred, EIA should use the same or similar filing
procedures for its EIA-923 as those employed by the Commission for its
Form 423 data. AEP is concerned that the technological advances made by
the Commission with respect to the collection of the data may not be
maintained by EIA.
    16. APPA and NRECA state that the Commission has an obligation to
ensure that cost-based rates are just and reasonable, and that the
Commission's reliance on other means to gather data under specific
circumstances or on a case-by-case basis is not sufficient to protect
customers. APPA and NRECA also assert the Commission itself needs the
information for its ongoing market oversight. Customers also need
access to the data on an ongoing basis in order to have sufficient
information to protect their own interests through filing a complaint
with the Commission. Furthermore, APPA and NRECA are concerned that the
Commission has not gone far enough in its commitment to maintain the
availability of the data. They note that EIA has made changes to its
data collection programs in the past after EIA has cited budget
constraints and that these changes were detrimental to the quality and
availability of industry data. Further, APPA and NRECA claim the
Commission must take an active role in ensuring that EIA receives
sufficient funding to continue its collection of the data that is
currently in Form 423. If EIA decides to stop collecting the Form 423
data in its EIA-923, APPA and NRECA assert the Commission must step in
and resume its collection of the information. Cities/M-S-R state that
the Commission should continue to collect Form 423 data.
Commission Response
    17. As explained above, the Commission's infrequent use of the Form
423 data no longer justifies the burden and cost of the Commission
collecting the data. While others may have their own particular
proprietary reasons for this data,\12\ the Commission's collection of
information is driven by the Commission's needs and the Commission no
longer needs Form 423's fuel cost and quality data.\13\ The arguments
put forth by the eight commenters opposing the Commission's proposal
thus do not provide sufficient reasons for the Commission to continue
collecting the data; the Commission does not need this data on an
ongoing basis.
---------------------------------------------------------------------------

    \12\ E.g., state commission review of retail rates, state
commission review of fuel purchasing practices, and coal industry
analysis of coal markets.
    \13\ We are not aware of any reason why a state commission that
needs such data from utilities it regulates, or associated
companies, cannot obtain such data from them. 16 U.S.C. 824(g); 42
U.S.C. 16453.
---------------------------------------------------------------------------

    18. Despite our elimination of the Form 423, the public will still
have access to this data. EIA has taken the initiative to continue
collection and has received OMB authorization to do so. The generator
data to be collected by EIA on Schedules 1 and 2 of its new EIA-923 is
the same as the generator data collected in the Form 423 (with the
exception of one item--the coal district number--which was eliminated).
Furthermore, EIA will be making EIA-923 data available on its Web site
for both Commission-jurisdictional and non-jurisdictional companies
under a planned EIA data-collection-and-release cycle that will be
shorter than the Form 423 data collection-and-release cycle utilized by
the Commission.\14\ The Commission thus finds no basis for commenter
concerns that only sample data will be collected, or about the loss of
data or a smaller number of respondents who must file.
---------------------------------------------------------------------------

    \14\ Currently, the Form 423 is due 45 days after the end of the
month. The data is then posted to the Commission's Web site 45 days
after the due date. The EIA-923 will be due the last day of the
month following the reporting month and the data will be posted to
EIA's Web site approximately 45 days after the due date, when EIA
publishes its Electric Power Monthly for that month.
---------------------------------------------------------------------------

    19. The Commission's ability to carry out its market and rate
oversight functions will not be hindered by the elimination of the Form
423. Current users of the Form 423 data will be readily able to
download the same data by accessing the new EIA-923 data from EIA's Web
site. In addition, there are other sources of data which can be
utilized, such as Form Nos. 1 and 3-Q, which will give them access to
information they may need to protect their interests should they wish
to file a complaint with the Commission. As a result, elimination of
Form 423 should not hinder the Commission's ability to carry out its
market and rate oversight functions. AEP's suggestion that EIA consider
Commission methodologies in its EIA-923 software should be addressed to
EIA.

    20. Commenter concerns about future EIA funding levels and their
impact on EIA data collections are speculative and, in any event, are
beyond the scope of this rulemaking.

B. Date of Elimination of the Form 423

Comments
    21. EEI, NARUC, OCC, and Cities/M-S-R argue that the Commission
should continue to collect the information contained in Form 423 until
EIA is prepared to take over these duties, so there is no gap in
information collection. NARUC and Cities/M-S-R both add that, if
necessary, this data collection should continue beyond the Commission
deadline of December 2008.
Commission Response
    22. As noted above, the Commission intends to coordinate its
elimination of Form 423 with EIA's collection of EIA-923. The
Commission will continue collection of Form 423 should EIA not be able
to begin its collection program as proposed, but not beyond December
2008; the Commission is currently authorized by OMB to collect Form 423
data only through December 2008. Moreover, EIA has received OMB
authorization to begin collecting EIA-923.\15\ Therefore, the
Commission disagrees with EEI, NARUC, OCC, and Cities/M-S-R that there
is a need to extend its collection of, and to obtain additional OMB
authorization to collect, Form 423 beyond December 2008.
---------------------------------------------------------------------------

    \15\ Notice of Office of Management and Budget Action (December
21, 2007) (OMB Control No. 1905-0129).
---------------------------------------------------------------------------

C. Other Issues

Comment
    23. Commenters raise various issues largely related to the type and
timing of information to be collected by EIA.
    24. PUCO claims Form 423 data should be updated to include
renewable and intermittent resources.\16\ The OCC, while it supports
the Commission in its suggestion not to require additional reporting,
proposes that ``state commissions [be] notified of additional reviews
or requests about individual public utilities' information that are in
the respective state commission's jurisdiction.''
---------------------------------------------------------------------------

    \16\ If the Commission determines that it has additional data
needs related to renewable and intermittent resources, those data
needs will be addressed in a separate proceeding.
---------------------------------------------------------------------------

    25. FPL Group does not support EIA's proposal to institute a
mandatory collection of this information in its EIA-923. FPL Group
argues that, absent a greater showing of need for this information by
the EIA, providing such information should be voluntary.
    26. EEI encourages the Commission to recognize that the fuel cost,
quantity, and other information reported in the Form 423 is
commercially sensitive, and asks that EIA treat this same information
as confidential and not release it in a disaggregated form that
discloses company and plant level information or even state or regional
information because that can compromise negotiations and prices in
particular markets.
    27. NARUC urges the Commission to join it in requesting that EIA
preserve the existing reporting schedule to ensure the usefulness of
the information collected. NARUC is concerned that EIA proposes to
collect the same data using a six month rather than a two month lag
period. NARUC contends a six month delay would significantly reduce the
usefulness of the information and would undermine the ability of state
commissions to effectively use this information in conducting fuel cost
reviews.
    28. AEP states the proposed submission deadline for EIA-923 should
be lengthened. AEP is concerned about the shorter submission time that
is proposed by the EIA, noting that the Commission allowed forty-five
days after the close of the previous month to submit the data requested
in Form 423 whereas under EIA-923 the time is shortened to thirty days
after the last day of the prior month. AEP argues it is a large, multi-
state utility operating in eleven states, and shortening the time for
submission of data by fifteen days will not allow AEP enough time to
gather all of the information from various resources and submit the
data in a timely fashion. AEP claims this situation will be exacerbated
if the efficiencies in the filing methods employed by the Commission
are not adopted by the EIA. AEP also states a testing period should be
established in order to ensure both utility and EIA preparedness.
Commission Response
    29. The Commission is eliminating the collection of the Form 423
data. The concerns raised by PUCO, OCC, FPL Group, EEI, NARUC, and AEP
are concerns that instead should be brought to the attention of EIA.
Thus, issues about EIA's mandatory collection of fuel cost and quality
data, whether to include renewable and intermittent resource data, the
confidentiality of data, the timing of the submission of data, and the
need for a testing period are issues that should be brought to the
attention of EIA. The OCC's request that state commissions be notified
of ``additional reviews or requests'' is beyond the scope of this
rulemaking.

III. Information Collection Statement

    30. The Office of Management and Budget (OMB) regulations require
that OMB approve certain reporting and record keeping (information
collections) imposed by an agency. Here, the Commission is proposing to
cease collecting certain information. Nevertheless, OMB has been
notified of the Commission's proposed actions in this case. The
Commission will submit a copy of the Final Rule to inform OMB of its
actions to discontinue the collection of this information and the
resulting alleviation of burden imposed on the public.

IV. Environmental Analysis

    31. Commission regulations require that an environmental assessment
or an environmental impact statement be prepared for any Commission
action that may have a significant adverse effect on the human
environment.\17\ No environmental consideration is necessary for the
promulgation of a rule that involves information gathering, analysis,
and dissemination.\18\ This Final Rule eliminates a data collection.
Consequently, neither an environmental impact statement nor an
environmental assessment is required.
---------------------------------------------------------------------------

    \17\ Regulations Implementing National Environmental Policy Act,
52 FR 47897 (Dec. 17, 1987), FERC Stats. & Regs. ] 30,783 (1987).
    \18\ 18 CFR 380.4(a)(5).
---------------------------------------------------------------------------

V. Regulatory Flexibility Act

    32. The Regulatory Flexibility Act of 1980 (RFA) \19\ generally
requires either a description and analysis of a rule that will have a
significant economic impact on a substantial number of small entities
or a certification that the rule will not have a significant economic
impact on a substantial number of small entities. Most utilities to
which this Final Rule applies would not fall within the RFA's
definition of small entity.\20\ Moreover, elimination of the Form 423
will reduce the burden on all entities, including small entities.
Consequently, the

Commission certifies that this Final Rule will not have a significant
economic impact on a substantial number of small entities.
---------------------------------------------------------------------------

    \19\ 5 U.S.C. 601-12.
    \20\ 5 U.S.C. 601(3), citing to section 3 of the Small Business
Act, 15 U.S.C. 632. Section 3 of the Small Business Act defines a
``small business concern'' as a business that is independently owned
and operated and that is not dominant in its field of operation. The
Small Business Size Standards component of the North American
Industry Classification System (NAICS) defines a small electric
utility as one that, including its affiliates, is primarily engaged
in the generation, transmission, and/or distribution of electric
energy for sale and whose total electric output for the preceding
fiscal year did not exceed four million MWh. 13 CFR 121.201.
---------------------------------------------------------------------------

VI. Document Availability

    33. In addition to publishing the full text of this document in the
Federal Register, the Commission provides all interested persons an
opportunity to obtain this document via the Internet through the
Commission's Home Page (http://www.ferc.gov) and from its Public
Reference Room during normal business hours (8:30 a.m. to 5 p.m.
Eastern time) at 888 First Street, NE., Room 2A, Washington, DC 20426.
    34. From the Commission's Home Page on the Internet, the full text
of this document is available in the Commission's document management
system, eLibrary, in PDF and Microsoft Word format for viewing,
printing, and downloading. To access this document in eLibrary, type
the docket number (excluding the last three digits of the docket
number), in the Docket Number field.
    35. User assistance is available for eLibrary and the Commission's
Web site during normal business hours. For assistance, please contact
FERC Online Support at<PHONE_NUMBER> (toll-free at 1-866-208-3676), e-
mail<EMAIL_ADDRESS>or contact the Public Reference Room
at<PHONE_NUMBER>, TTY<PHONE_NUMBER>, e-mail:
<EMAIL_ADDRESS>
VII. Effective Date and Congressional Notification

    36. These changes in the regulations are effective April 16, 2008.
The Commission has determined, with the concurrence of the
Administrator of the Office of Information and Regulatory Affairs of
OMB that this rule is not a ``major rule'' as defined in section 351 of
the Small Business Regulatory Enforcement Fairness Act of 1996.\21\
---------------------------------------------------------------------------

    \21\ 5 U.S.C. 804(2).
---------------------------------------------------------------------------

List of Subjects

18 CFR Part 141

    Electric power, Reporting and recordkeeping requirements.

18 CFR Part 385

    Administrative practice and procedure, Electric power, Penalties,
Pipelines, Reporting and recordkeeping requirements.

By the Commission.
Kimberly D. Bose,
Secretary.

0
In consideration of the foregoing, the Commission amends parts 141 and
385, Chapter I, Title 18, Code of Federal Regulations, as follows:

PART 141--STATEMENTS AND REPORTS (SCHEDULES)

0
1. The authority citation for part 141 continues to read as follows:

    Authority: 15 U.S.C. 79; 16 U.S.C. 791a-828c, 2601-2645; 31
U.S.C. 9701; 42 U.S.C. 7101-7352.

Sec.  141.61  [Removed and Reserved]

0
2. Section 141.61 is removed and reserved:

PART 385--RULES OF PRACTICE AND PROCEDURE

0
3. The authority citation for part 385 continues to read as follows:

    Authority: 5 U.S.C. 551-557; 15 U.S.C. 717-717z, 3301-3432; 16
U.S.C. 791a-825v, 2601-2645; 28 U.S.C. 2461; 31 U.S.C. 3701, 9701;
42 U.S.C. 7101-7352, 16441, 16451-16463; 49 U.S.C. 60502; 49 App.
U.S.C. 1-85 (1988).

Sec.  385.2011  [Amended]

0
4. Section 385.2011, paragraph (a)(8) is removed and reserved.

 [FR Doc. E8-5251 Filed 3-14-08; 8:45 am]

BILLING CODE 6717-01-P