[Federal Register Volume 80, Number 160 (Wednesday, August 19, 2015)]
[Proposed Rules]
[Pages 50250-50261]
[FR Doc No: 2015-20506]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 56

[EPA-HQ-OAR-2014-0616; FRL-9929-98-OAR]
RIN 2060-AS53

Amendments to Regional Consistency Regulations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The U.S. Environmental Protection Agency (EPA) is proposing to
revise its Regional Consistency regulations to ensure the EPA has the
flexibility necessary to implement Clean Air Act (CAA or Act) programs
on a national scale while addressing court rulings that concern certain
agency actions under the Act. In addition, the proposed revisions would
help to foster overall fairness and predictability regarding the scope
and impact of judicial decisions under the CAA.

DATES: Comments must be received on or before October 19, 2015.
    Public hearing. If requested by September 3, 2015, then we will
hold a public hearing. Additional information about the hearing, if
requested, will be published in a subsequent Federal Register document.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2014-0616, to the Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or withdrawn. The
EPA may publish any comment received to its public docket. Do not
submit electronically any information you consider to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. If you need to include CBI as part of your
comment, please visit http://www.epa.gov/dockets/comments.html for
instructions. Multimedia submissions (audio, video, etc.) must be
accompanied by a written comment. The written comment is considered the
official comment and should include discussion of all points you wish
to make. For additional submission methods, the full EPA public comment
policy, and general guidance on making effective comments, please visit
http://www.epa.gov/dockets/comments.html.

FOR FURTHER INFORMATION CONTACT: For technical information, contact
Greg Nizich, Air Quality Policy Division, Office of Air Quality
Planning and Standards (C504-03), Environmental Protection Agency,
Research Triangle Park, North Carolina 27711; telephone number (919)
541-3078; fax number<PHONE_NUMBER>; email address:
<EMAIL_ADDRESS>    To request a public hearing or information pertaining to a public
hearing on this document, contact Ms. Pamela Long, Air Quality Policy
Division, Office of Air Quality Planning and Standards (C504-01),
Environmental Protection Agency, Research Triangle Park, North Carolina
27711; telephone number<PHONE_NUMBER>; fax number<PHONE_NUMBER>;
email address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:
    Regulated entities. The Administrator determined that this action
is subject to the provisions of CAA section 307(d). See CAA section
307(d)(1)(V) (the provisions of CAA section 307(d) apply to ``such
other actions as the Administrator may determine). These are amendments
to existing regulations and could affect your facility if it is the
subject of a CAA-related ruling by a federal court.
    The information in this SUPPLEMENTARY INFORMATION section of this
preamble is organized as follows:

I. General Information
    A. Does this action apply to me?
    B. What should I consider as I prepare my comments for the EPA?
    C. Where can I get a copy of this document and other related
information?
    D. How can I find information about a possible public hearing?
    E. What acronyms, abbreviations and units are used in this
preamble?
II. Purpose
III. Background
    A. Purpose of the Regional Consistency Regulations
    B. Establishing the Regional Consistency Regulations
    C. Reasons for Revising the Regional Consistency Regulations
IV. Proposed Revisions to the Regional Consistency Rule

    A. What are the proposed revisions to the 40 CFR part 56
Regional Consistency Regulations?
    B. What is the basis for the EPA's approach?
V. Environmental Justice Considerations
VI. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory 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 That Significantly Affect
Energy Supply, Distribution or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
    K. Determination Under Section 307(d)
VII. Statutory Authority

I. General Information

A. Does this action apply to me?

    Entities potentially affected directly by this proposal include the
EPA and other governments that are delegated administrative authority
to assist the EPA with the implementation of air program federal
regulations. Entities potentially affected indirectly by this proposal
include owners and operators of sources of air emissions that are
subject to CAA regulations.

B. What should I consider as I prepare my comments for the EPA?

1. Submitting CBI
    Do not submit this information to the EPA through http://www.regulations.gov or email. Clearly mark the part or all of the
information that you claim to be CBI. For CBI information in a disk or
CD ROM that you mail to the EPA, mark the outside of the disk or CD ROM
as CBI and then identify electronically within the disk or CD ROM the
specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2. Send or deliver information
identified as CBI only to the following address: Tiffany Purifoy, OAQPS
Document Control Officer (C404-02), Environmental Protection Agency,
Research Triangle Park, NC 27711, Attention: Docket ID No. EPA-HQ-OAR-
2014-0616.
2. Tips for Preparing Your Comments
    When submitting comments, remember to:
     Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
     Follow directions--The agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree; suggest alternatives
and substitute language for your requested changes.
     Describe any assumptions and provide any technical
information and/or data that you used.
     If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
     Provide specific examples to illustrate your concerns, and
suggest alternatives.
     Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
     Make sure to submit your comments by the comment period
deadline identified.

C. Where can I get a copy of this document and other related
information?

    In addition to being available in the docket, an electronic copy of
this proposed rule will also be available on the World Wide Web.
Following signature by the EPA Administrator, a copy of this proposed
rule will be posted in the regulations and standards section of our New
Source Review (NSR) Web site, under Regulations & Standards, at http://www.epa.gov/nsr.

D. How can I find information about a possible public hearing?

    To request a public hearing or information pertaining to a public
hearing on this document, contact Ms. Pamela Long, Air Quality Policy
Division, Office of Air Quality Planning and Standards (C504-03),
Environmental Protection Agency, Research Triangle Park, North Carolina
27711; telephone number<PHONE_NUMBER>; fax number<PHONE_NUMBER>;
email address<EMAIL_ADDRESS>
E. What acronyms, abbreviations and units are used in this preamble?

    The following acronyms, abbreviations and units are used in this
preamble:

CAA or Act Clean Air Act
EPA U.S. Environmental Protection Agency
FIP Federal Implementation Plan
ICR Information Collection Request
NSR New Source Review
NTTAA National Technology Transfer and Advancement Act
OMB Office of Management and Budget
PSD Prevention of Significant Deterioration
RFA Regulatory Flexibility Act
SBA Small Business Administration
SIP State Implementation Plan
UMRA Unfunded Mandates Reform Act

II. Purpose

    The purpose of this rulemaking is to revise the EPA's Regional
Consistency regulations--40 CFR part 56. Specifically, we are proposing
to add a provision to the Regional Consistency regulations to
accommodate the implications of federal court decisions that result
from challenges to locally or regionally applicable actions. As
explained more fully below, revising the Regional Consistency
regulations to accommodate the implications of such federal court
decisions is consistent with general principles of common law, the
judicial review provisions of the CAA, and CAA section 301(a)(2).
Furthermore, the proposed revisions will help to foster overall
fairness and predictability regarding the scope and impact of judicial
decisions under the CAA.

III. Background

A. Purpose of the Regional Consistency Regulations

    The CAA calls for the EPA to implement the Act in partnership with
state, local and tribal governments. See Mountain States Legal Found.
v. Costle, 630 F.2d 754, 757 (10th Cir. 1980). While the roles of that
partnership vary depending on the nature of the air pollution problem,
generally the EPA issues national standards or federal requirements to
address air pollution, and state, local and tribal air agencies
(hereinafter referred to simply as ``air agencies'') assume primary
responsibility for implementing those standards and requirements. For
example, the Act requires the EPA to establish, review and revise
national ambient air quality standards (NAAQS) for certain common air
pollutants. The Act then assigns air agencies responsibility for
developing enforceable state implementation plans (SIPs) to meet those
standards. The EPA is required to review each SIP to

determine if it meets all of the applicable requirements of the CAA. If
the SIP is approved, the air agency will implement the SIP in order to
provide for attainment and maintenance of the NAAQS in areas under its
jurisdiction. The EPA will provide technical and policy assistance to
the air agency and also maintain an oversight role to ensure that the
program is adequately implemented and enforced. If the EPA finds that
an air agency has failed to submit a required SIP, or that an air
agency's SIP is incomplete, or if the EPA disapproves a SIP in whole or
in part, the CAA requires that the EPA promulgate a federal
implementation plan (FIP) to provide for attainment and maintenance of
the NAAQS in the corresponding area. The Act also requires
preconstruction permits for major new and modified stationary sources
of air pollution. In most areas, air agencies serve as the CAA
permitting authority under an approved SIP; some air agencies implement
the federal program under a delegation agreement; elsewhere, the EPA is
the permitting authority under a FIP.
    How the EPA carries out its role in this cooperative partnership
under the CAA is influenced by how the EPA is organized. The EPA is
composed of various headquarters offices, each of which is responsible
for nationwide execution of our programs, and ten regional offices,
each of which is responsible for the execution of our programs within
several states and territories. See 40 CFR part 1, subparts A and C
(for more information, see the EPA Organizational Chart located at
http://www2.epa.gov/aboutepa/epa-organization-chart). In carrying out
responsibilities under the CAA, the EPA Administrator relies on input
from various offices in headquarters, especially those within the
Office of Air and Radiation, and in the regional offices. In fact, the
CAA provides the EPA Administrator with the authority to delegate
powers and duties necessary to carry out the Act to EPA officials in
both the headquarters and regional offices (CAA section 301(a)(1)).
Returning to the NAAQS example, headquarters offices take the lead in
promulgating the NAAQS, while regional offices are primarily
responsible for working directly with air agencies to assist them in
their SIP submissions and approval or disapproval of such SIPs. In
certain circumstances, headquarters and regional offices consult in
developing a proposed and/or final decision regarding approval or
disapproval of the SIP.

B. Establishing the Regional Consistency Regulations

    In the 1977 CAA Amendments, Congress added section 301(a)(2) (42
U.S.C. 7601) in recognition of the role that staff from both
headquarters and regions played in carrying out the Act's programs. CAA
section 301(a)(2) required the EPA Administrator to promulgate
regulations ``establishing general applicable procedures and policies''
for the EPA regional officers and employees to follow when carrying out
activities delegated to them under the Act. Among other things, the CAA
stated that these regulations should ``assure fairness and uniformity
in the criteria, procedures, and policies applied'' by the EPA regional
offices in their CAA activities and ``provide a mechanism'' to identify
and standardize any inconsistent or varying criteria, procedures, and
policies used by the EPA employees.
    Thereafter, the EPA took a number of actions to promulgate the
Regional Consistency regulations required in CAA section 301(a)(2). In
1978, the EPA issued an Advanced Notice of Proposed Rulemaking seeking
comment on a number of consistency issues and inviting interested
persons to participate in a series of public workshops to discuss the
development of the Regional Consistency regulations (43 FR 4872). In
1979, after receiving those comments and listening to input provided at
the public workshops from representatives of industry, state, and
public interest groups, the EPA issued its Notice of Proposed
Rulemaking for the Regional Consistency regulations (44 FR 13043).
Finally, in 1980, the EPA promulgated its final Regional Consistency
regulations in 40 CFR part 56.
    As the EPA explained when it finalized the regulations, the
``intended effect'' of these regulations was ``to assure fair and
consistent application of rules, regulations and policy throughout the
country by assuring that the action of each individual EPA Regional
Office is consistent with one another and national policy'' (45 FR
85400). Generally, the Regional Consistency regulations: (1) State the
EPA policy of assuring ``fair and uniform'' application of the EPA
rules, procedures, and policies necessary to implement and enforce the
Act (see 56 CFR 56.3); (2) provide mechanisms for such application by
headquarters and regional office employees (see 56 CFR 56.4 and 56.5,
respectively); (3) require various headquarters offices to establish
systems to disseminate policy and guidance relating to air programs
(see 56 CFR 56.6); and (4) utilize the existing grants program for
yearly evaluations of state performance in implementing and enforcing
the Act (see 56 CFR 56.7).
    The EPA has been acting under these regulations for more than 30
years to address consistency issues regarding various CAA programs,
policy, and guidance. In this document, we are proposing to revise the
rules to address a very specific consistency issue--how to treat
Federal court decisions regarding locally or regionally applicable
actions that may affect consistent application of national programs,
policy, and guidance.

C. Reasons for Revising the Regional Consistency Regulations

    The EPA is undertaking this proposed revision to the Regional
Consistency regulations, in part, as a result of a recent decision of
the U.S. Court of Appeals for the District of Columbia Circuit (D.C.
Circuit Court) in National Environmental Development Association's
Clean Air Project v. EPA, No. 13-1035 (D.C. Cir., May 30, 2014). That
litigation involved a December 2012 memorandum from EPA headquarters to
the EPA regions regarding the limited scope of a court decision issued
by the Sixth Circuit Court of Appeals addressing the EPA's
interpretation of national permitting regulations as applied to a
specific, local permitting decision.\1\ See Memorandum from Stephen D.
Page, Director of the EPA's Office of Air Quality Planning and
Standards, to Regional Air Division Directors, titled Applicability of
the Summit Decision to the EPA Title V and NSR Source Determinations
(December 21, 2012; available at http://www.epa.gov/region7/air/title5/t5memos/inter2012.pdf) (hereinafter, ``December 2012 memorandum''). The
December 2012 memorandum reflected the EPA application of a widely
recognized legal doctrine referred to as intercircuit nonaquiescence, a
practice in which a decision by a federal circuit

court is binding only in those areas (in this case, specific states and
the associated EPA regions) subject to the direct jurisdiction of the
ruling circuit court. Intercircuit nonaquiescence is a practice that
the EPA has historically followed with regard to decisions issued by
both circuit and district courts and arising in local, non-nationwide
actions.\2\ Therefore, in the December 2012 memorandum, the EPA
continued that historic practice and noted that while the agency would
follow the Sixth Circuit's decision in those states under the
jurisdiction of the Sixth Circuit, the agency's longstanding
interpretation of the permitting regulations addressed by the Sixth
Circuit decision would continue to apply nationwide outside the Sixth
Circuit.
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    \1\ That decision, Summit Petroleum Corp. v. EPA et al.,
Consolidated Case Nos. 09-4348 and 10-4572 (6th Cir. Aug. 7, 2012),
addressed the scope of the term ``adjacent'' as used in the EPA's
source determination regulations in the title V permitting program,
which are similar to the source determination regulations used in
the new source review and prevention of significant deterioration
permitting programs, see 40 CFR 52.21(b)(6) and 71.2. The EPA is
currently planning a separate rulemaking to address the term
``adjacent'' in those permitting regulations, and we direct any
commenters wishing to address the Summit decision or those
regulations to do so in that separate action. See http://resources.regulations.gov/public/component/main?_dmfClientId=1434045425242&_dmfTzoff=240 for the EPA's Spring
2015 Regulatory Agenda item titled, Source Determination for Certain
Emissions Units in the Oil and Natural Gas Sector, RIN 2060-AS06.
    \2\ While intercircuit nonaquiescence is generally focused on
circuit court decisions, the general principle also applies to
decisions issued by district courts, which are by their very nature
limited in scope, as discussed later in this preamble. For ease of
discussion, this preamble will generally use ``intercircuit
nonaquiescence'' to address locally and regionally applicable
decisions issued by both circuit and district federal courts.
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    On February 19, 2013, the National Environmental Development
Association's Clean Air Project (NEDACAP) filed a petition for review
with the D.C. Circuit Court on the December 2012 memorandum. NEDACAP
alleged that the December 2012 memorandum violated both CAA section
301(a)(2) and the EPA's Regional Consistency regulations by
establishing inconsistent permit criteria in different parts of the
country.
    In May 2014, the D.C. Circuit Court issued a decision vacating the
December 2012 memorandum. The D.C. Circuit Court agreed with NEDACAP
that the memorandum was inconsistent with the EPA's Regional
Consistency regulations located at 40 CFR part 56.\3\ The court found
that the Regional Consistency regulations ``strongly articulate the
EPA's firm commitment to national uniformity in the applications of its
permitting rules'' without any indication that ``EPA intended to exempt
variance created by a judicial decision.'' Slip op. at 17. The D.C.
Circuit concluded that the EPA's current regulations ``preclude EPA's
intercircuit nonaquiescence in this instance. . . .'' Slip op. at 19.
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    \3\ The D.C. Circuit Court did not reach NEDACAP's argument that
the memorandum was also inconsistent with the CAA.
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    The D.C. Circuit Court presented three options that the EPA could
pursue in response to an adverse decision: Revise the underlying
regulation; appeal the decision; or revise the Regional Consistency
regulations. By making the revisions proposed in this rulemaking, the
EPA is following one of the options suggested by the court. Slip op. at
18.
    First, the court suggested that the EPA consider revising the
underlying regulations at issue in the Sixth Circuit decision. Id While
this approach may resolve the narrow issue that is the subject of the
Sixth Circuit decision, and the EPA is in fact in the process of
revising the permitting regulations that were the subject of the Sixth
Circuit Court decision and the December 2012 memorandum, this approach
generally would require a new rulemaking following each adverse court
decision regarding an issue of local applicability. Each national
rulemaking of this nature would likely take more than a year--and
possibly several years--to complete. By revising the EPA's Regional
Consistency regulations to fully allow for intercircuit nonaquiescence,
the agency can through one rulemaking save the considerable time and
resources potentially required by several narrow rulemakings.
    Second, the court suggested that the EPA could have appealed the
Sixth Circuit decision to the U.S. Supreme Court. Slip op. at 18.
However, because the U.S. Supreme Court grants only about one percent
of the petitions for certiorari (i.e., a petition requesting review of
a lower court's decision) filed each year, there is a strong likelihood
that the U.S. Supreme Court would decline to review a lower court's
decision.\4\ Were we to rely solely on this option, absent review by
the U.S. Supreme Court, a single federal court decision regarding an
action of local applicability could change the EPA's policy nationwide
unless and until the EPA undertook a rulemaking (see first option
above). As discussed further below, this outcome would be inconsistent
with the judicial review provisions of CAA section 307(b)(1).
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    \4\ See http://dailywrit.com/2013/01/likelihood-of-a-petition-being-granted/ which cites the following statistics: Petitions
granted overall in the 2011-2012 term: .862 percent, and in the
2012-2013 term: 1.03 percent.
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    Third, the court suggested that the EPA could revise the Regional
Consistency regulations ``to account for regional variances created by
judicial decisions or circuit splits.'' Slip op. at 18. This proposed
rulemaking follows this option because we believe it most effectively
addresses the issue presented by an adverse federal court decision
addressing an action of local or regional applicability. As discussed
further below, this proposed revision also would accommodate the EPA's
proper and longstanding application of the doctrine of intercircuit
nonaquiescence in future cases while eliminating the need for several
lengthy, narrow rulemakings or review of a lower court's decision by
the U.S. Supreme Court.

IV. Proposed Revisions to the Regional Consistency Rule

    This section discusses the proposed revisions to the Regional
Consistency regulations and our rationale for proposing those changes.
We solicit public comment on the changes being proposed and will
consider those comments in developing the final rule.

A. What are the proposed revisions to the 40 CFR part 56 Regional
Consistency Regulations?

    In this action, we propose three specific revisions to the general
consistency policy put forward in the existing Regional Consistency
regulations, 40 CFR part 56, to accommodate the implications of
judicial decisions addressing ``locally or regionally applicable''
actions. Specifically, we propose to revise 40 CFR 56.3 to add a
provision to acknowledge an exception to the ``policy'' of uniformity
to provide that a decision of a federal court that arises from a
challenge to ``locally or regionally applicable'' actions would not
apply uniformly nationwide, and that only decisions of the U.S. Supreme
Court and decisions of the D.C. Circuit Court that arise from
challenges to ``nationally applicable regulations . . . or final
action'' would apply uniformly nationwide. We also propose to revise 40
CFR 56.4 to add a provision to clarify that EPA headquarters offices'
employees would not need to issue mechanisms or revise existing
mechanisms developed under 40 CFR 56.4(a) to address federal court
decisions arising from challenges to ``locally or regionally
applicable'' actions. Lastly, we propose to revise 40 CFR 56.5(b) to
clarify that EPA regional offices' employees would not need to seek
headquarters office concurrence to act inconsistently with national
policy or interpretation if such action is required by a federal court
decision arising from challenges to ``locally or regionally
applicable'' actions. In other words, through this rulemaking, the
agency would be authorizing a region to act inconsistently with
nationwide policy or interpretation to the extent that the region must
do so in order to act consistently with a decision issued by a federal
court that has direct jurisdiction over the region's action.
    The manner in which the proposed revisions would affect the EPA's
operational consistency may be explained by way of example related to a
challenge to the title V applicability determination made by EPA Region
5

for Summit Petroleum's oil and gas operations on tribal land in
Michigan. This challenge led to the December 2012 memorandum reviewed
in the D.C. Circuit Court's NEDACAP decision. In the course of a
source-specific title V permitting action, EPA Region 5 had determined
that Summit Petroleum's oil and gas production wells and gas sweetening
plant should be considered adjacent, based on their proximity and
interrelatedness to one another, and thus emissions from these units
were aggregated into a single source for title V permitting purposes
(see 40 CFR 71.2). Summit Petroleum challenged that determination in
the Sixth Circuit, and the court ultimately issued a decision that
vacated and remanded Region 5's determination. Summit Petroleum Corp.
v. U.S. EPA, 690 F3d 733 (6th Cir. 2012). Although the EPA argued that
its longstanding interpretation of ``adjacent'' as used in the source
determination regulations included consideration of an activities'
functional interrelatedness, see id. at 744-75 (noting the EPA's
citation to nine such source determinations spanning more than 30
years), the Sixth Circuit found that the term ``adjacent'' as used in
the EPA's source determination regulations was unambiguous and related
only to physical proximity, and thus could not include consideration of
functional interrelatedness, see id. at 741-744. The EPA sought
rehearing of the Summit case, but the request was ultimately denied on
October 29, 2012.
    Thereafter, a number of EPA regional offices sought guidance from
headquarters offices regarding the impact of the Summit decision on
various permitting actions, sometimes in an effort to answer questions
they were receiving from state permitting authorities and permittees.
Accordingly, in December 2012, an official in EPA headquarters issued a
memorandum to the Air Division Directors at the EPA's regional offices
explaining the applicability of the Summit decision to other EPA title
V and NSR source determinations.\5\ The December 2012 memorandum
described briefly the determination at issue in the Summit case, and
the Sixth Circuit's decision. It explained that under the court's
decision, the EPA could no longer consider interrelatedness in
determining the adjacency of different emissions units in title V or
NSR permitting decisions within the Sixth Circuit's jurisdiction (i.e.,
Michigan, Ohio, Tennessee and Kentucky). The December 2012 memorandum
noted that the agency was ``still assessing how to implement this
decision in its permitting actions in the 6th Circuit,'' and explained
that outside the Sixth Circuit, the EPA intended to continue to apply
its longstanding approach of considering both the proximity and
interrelatedness of operations in determining whether emissions units
are ``adjacent'' for permitting purposes.
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    \5\ Memorandum from Stephen Page, Director of the EPA's Office
of Air Quality Planning and Standards to the Air Division Directors.
(Titled, Applicability of the Summit Decision to the EPA Title V and
NSR Source Determinations; available at http://www.epa.gov/region7/air/title5/t5memos/inter2012.pdf)
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    If the proposed revisions to the Regional Consistency regulations
had already been in place, this type of memorandum from EPA
headquarters would not have been necessary because regions, states, and
other potentially affected entities would have had certainty and
predictability regarding the application of such a judicial decision--
they would have known that this type of permit-specific, local and
regional decision would only apply in the areas under the jurisdiction
of the Sixth Circuit. Accordingly, with the changes proposed, it would
have been clear to everyone that EPA regions would not be bound to
apply the findings of the Summit decision in states outside the Sixth
Circuit, and could continue to apply the longstanding practice that had
not been successfully challenged in other federal circuit courts in
their regions or decided nationally by the D.C. Circuit Court or U.S.
Supreme Court.
    If the proposed revisions to the Regional Consistency regulations
are finalized, it will be clear that an adverse federal court decision
in a case regarding locally or regionally applicable actions does not
apply nationwide. As soon as these regulatory changes are effective,
the EPA regional offices that are outside of the jurisdiction of a
court will be able to apply the agency's nationwide practices in a
consistent manner in any actions they take going forward, and they will
not need to seek concurrence from headquarters offices for that
continued application. Likewise, under the revised regulations, it
would be clear that any such adverse decision that is or has been
issued would be applied to those areas or parties that are under the
issuing court's jurisdiction in any regional actions going forward.
Moreover, those regions would not need to seek concurrence from EPA
headquarters offices in order to follow the relevant decision, even if
doing so would mean they were acting inconsistently with other EPA
regional offices or national policy.
    Note that these proposed regulatory changes, if finalized, would
only apply to activities conducted at EPA offices (both regional and
headquarters) and also to states delegated to implement EPA rules. The
proposed revisions would not affect a state implementing its SIP-
approved program, as they are bound to follow their own regulations.

B. What is the basis for the EPA's approach?

    In this rulemaking action, we are proposing to revise 40 CFR part
56 to ``account for regional variances created by a judicial decision
or circuit splits'' by creating a specific accommodation to the general
policy of uniformity of EPA actions. As explained more fully below,
revising the Regional Consistency regulations to accommodate federal
circuit and district court decisions that result from challenges to
locally or regionally applicable actions, and thus providing for
intercircuit nonaquiescence, is consistent with general principles of
common law, CAA sections 301(a)(2) and 307(b)(1). It will also help to
foster overall fairness and predictability regarding the scope and
impact of judicial decisions under the CAA, and is a reasonable
extension of the EPA's existing part 56 regulations.
1. Accommodating Intercircuit Nonaquiescence in the Regional
Consistency Regulations Is Consistent With General Principles of Common
Law
    Federal courts are courts of limited jurisdiction; they have only
the authority to hear and decide cases granted to them by Congress. See
generally U.S. Constitution, Article II, Section 1 (``The judicial
Power of the United States, shall be vested in one supreme Court, and
in such inferior Courts as the Congress may from time to time ordain
and establish.''). Thus, Congress must grant a federal court subject
matter jurisdiction over the type of dispute in question.
    A court of appeals generally hears appeals from the district courts
located within its circuit, and the circuit is delineated by the states
it contains. See generally 28 U.S.C. 41 (establishing the number and
composition of the thirteen circuits; the composition is denoted by the
names of states in a circuit).\6\ As a general matter, while an opinion
from one circuit court of appeals may be persuasive precedent, it is
not binding on other courts of appeals. See Hart v. Massanari, 266 F.
3d 1155, 1172-73 (9th

Cir. 2001). As the Ninth Circuit explained, ``[T]here are also very
important differences between controlling and persuasive authority. As
noted, one of these is that, if a controlling precedent is determined
to be on point, it must be followed. Another important distinction
concerns the scope of controlling authority. Thus, an opinion of our
court is binding within our circuit, not elsewhere in the country. The
courts of appeals, and even the lower courts of other circuits, may
decline to follow the rule we announce--and often do. This ability to
develop different interpretations of the law among the circuits is
considered a strength of our system. It allows experimentation with
different approaches to the same legal problem, so that when the
Supreme Court eventually reviews the issue it has the benefit of
``percolation'' within the lower courts.'' Id. (emphasis added). This
last point is critical to an effective federal judiciary. By revising
the regulations in part 56 to fully accommodate intercircuit
nonaquiescence, the EPA is acting consistently with the purpose of the
federal judicial system by allowing the robust percolation of case law
through the circuit courts until such time as U.S. Supreme Court review
is appropriate. The vast majority of cases that the U.S. Supreme Court
hears arise from circuit splits.\7\ Thus, revising the Regional
Consistency regulations to accommodate intercircuit nonaquiescence
advances the federal judiciary's ability to experiment with different
approaches to similar legal problems, and the development of a circuit
split that could eventually lead to U.S. Supreme Court review of
important issues under the CAA.
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    \6\ The exception is the Federal Circuit, which hears certain
types of cases from anywhere in the country.
    \7\ See Ryan Stephenson, Federal Circuit Case Selection at the
U.S. Supreme Court: An Empirical Analysis, 102 Georgetown L.J. 272,
273 (2013) (``As many as 70% of the cases before the Court where
certiorari has been granted present clear conflicts between either
the federal courts of appeals or state courts of last resort.'').
---------------------------------------------------------------------------

    As the U.S. Supreme Court has explained, circuit splits are a
common and acknowledged aspect of the federal legal system. E. I. du
Pont de Nemours & Co. v. Train, 430 U.S. 112, 135 n.26 (1977) (there is
wisdom in ``allowing difficult issues to mature through full
consideration by the courts of appeals''). With regard to judicial
consideration of the actions and decisions of federal agencies, a judge
on the D.C. Circuit Court has noted that ``after one circuit has
disagreed with its position, an agency is entitled to maintain its
independent assessment of the dictates of the statutes and regulations
it is charged with administering, in the hope that other circuits, the
U.S. Supreme Court, or Congress will ultimately uphold the agency's
position.'' Indep. Petroleum Ass'n of Am. v. Babbitt, 92 F.3d 1248,
1261 (D.C. Cir. 1996) (J. Rogers, dissenting). Likewise, legal scholars
have explained that ``compel[ling] an agency to follow the adverse
ruling of a particular court of appeals would be to give that court
undue influence in the intercircuit dialogue by diminishing the
opportunity for other courts of proper venue to consider, and possibly
sustain, the agency's position.'' S. Estreicher & R. Revesz,
Nonaquiescence by Federal Administrative Agencies, 98 Yale L. J. 679,
764 (Feb.1989). As the U.S. Supreme Court has noted, preventing the
government from addressing an issue in more than one forum ``would
substantially thwart the development of important questions of law by
freezing the first final decision rendered on a particular legal
issue.'' United States v. Mendoza, 464 U.S. 154, 160 (1984). In light
of this important function, the U.S. Supreme Court has sought to
preserve government discretion to relitigate an issue across different
circuits. Id. at 163. Thus, though circuit conflict may undermine
national uniformity of federal law to some degree for some period of
time, it also advances the quality of decisions interpreting the law
over time. See generally Atchison, Topeka & Santa Fe Ry. Co. v. Pena,
44 F.3d 437, 446 (7th Cir. 1994) (J. Easterbrook, concurring) (agencies
and courts balance whether ``it is more important that the applicable
rule of law be settled'' or ``that it be settled right'') (internal
quotation and citation omitted).
2. Accommodating Intercircuit Nonaquiescence in the Regional
Consistency Regulations Is Consistent With the CAA's Judicial Review
Provisions
    We are also proposing these revisions to ensure that the Regional
Consistency regulations are in harmony with the CAA's judicial review
provisions. Congress specifically addressed in the CAA the ability of
the various courts of appeals to hear appeals of decisions of the EPA.
Congress created a very specific system of judicial review to address
how the CAA is implemented. Specifically, Congress granted the
authority to review agency actions of nationwide applicability under
the CAA only to the D.C. Circuit Court. In 1977, at the same time it
added the directive for the EPA to promulgate what would ultimately
become the Regional Consistency regulations, Congress amended the Act
to ensure that the D.C. Circuit Court, and no other circuit courts,
would review nationally applicable regulations. Specifically, CAA
section 307(b)(1) states that ``A petition for review of action of the
Administrator in promulgating any national primary or secondary ambient
air quality standard, any emission standard or requirement under
section 112, any standard of performance or requirement under section
111, any standard under section 202 (other than a standard required to
be prescribed under section 202(b)(1)), any determination under section
202(b)(5), any control or prohibition under section 211, any standard
under section 231, any rule issued under section 113, 119, or under
section 120, or any other nationally applicable regulations
promulgated, or final action taken, by the Administrator under this Act
may be filed only in the United States Court of Appeals for the
District of Columbia.'' CAA section 307(b)(1) (emphasis added).
Congress then declared that other final CAA actions of the
Administrator that are ``locally or regionally applicable may be filed
only in the United States Court of Appeals for the appropriate
circuit.'' Id. For example, under this system, challenges to the EPA's
regulations addressing prevention of significant deterioration (PSD)--
which are nationally applicable--would be heard in the D.C. Circuit
Court, while challenges to application of those PSD regulations to
specific permitting actions--which are locally applicable--would be
heard in the appropriate circuit court. See, e.g., Alabama Power v.
Costle, 636 F.2d 323 (D.C. Cir. 1979) (challenge to the EPA's PSD
rules) and Sierra Club v. EPA, 499 F.3d 653 (7th Cir. 2007) (challenge
to the application of those rules to a specific permitting action).
    The Committee Report accompanying the bill that ultimately became
the CAA Amendments of 1977 states that the amendments to section
307(b)(1) make ``it clear that any nationally applicable regulations
promulgated by the Administrator under the Clean Air Act could be
reviewed only in the U.S. Court of Appeal for the District of
Columbia.'' H.R.Rep. No. 95-294, p. 323 (1977). See also Harrison v.
PPG Industries, Inc. et al., 100 S.Ct. 1889, 1896 (1980) (noting that
the legislative history focused on the proper venue between the D.C.
Circuit Court and other federal courts). Only ``essentially locally,
statewide, or regionally applicable rules or orders are to be reviewed
in U.S. court of appeals for the circuit in which such locality, State
or region is located.'' H.R.Rep. No. 95-294,

at 323. The legislative history notes that in adopting this revision,
the committee was largely approving portions of recommendation 305.76-
4(A) of the Administrative Conference of the United States, which deals
with venue, as well as the separate statement of G. William Frick that
accompanied the Administrative Conference's views. Id. at 324. In his
statement, Mr. Frick stated that ``Congress intended review in the D.C.
Circuit of `matters on which national uniformity is desirable.' Among
the reasons for this are the D.C. Circuit's obvious expertise in
administrative law matters and its sensitivity to Congressional
mandates.'' 41 FR 56767, 56769 (1976). Mr. Frick went on to note that
the D.C. Circuit Court had become quite familiar with the CAA, while
other circuit courts lacked frequent exposure to the Act and its
legislative history.
    By placing review of nationally applicable decisions in the D.C.
Circuit Court alone, Congress struck the balance between the
countervailing values of improved development of the law on the one
hand and national uniformity on the other. By consolidating review of
nationally applicable final agency actions in the D.C. Circuit Court,
Congress advanced the objective of ``even and consistent national
application'' of certain EPA regulations (and other ``final'' actions)
that are national in scope. Oljato Chapter of Navajo Tribe v. Train,
515 F.2d 654, 660 (D.C. Cir. 1975) (quoting S. Rep. No. 91-1196, 91st
Cong., 2d Sess., 41(1970)). At the same time, Congress left the door
open to intercircuit conflicts by granting jurisdiction over locally or
regionally applicable ``final'' actions--like the applicability
determination discussed in the example below--to the regionally-based
courts of appeal. There is nothing in the legislative history to
suggest that at the same time, Congress intended for the Regional
Consistency provisions to somehow upset this careful balance and
require the EPA to apply a locally or regionally applicable decision in
all regions in order to maintain consistency.
    This proposal would firmly reestablish the balance that Congress
struck in CAA section 307(b)(1), to the extent the current Regional
Consistency regulations upset that balance. Thus, this proposal would
ensure that only the U.S. Supreme Court and the D.C. Circuit Court
would issue decisions with mandatory nationwide effect, which is
consistent with the clear statutory language of CAA section 307(b)(1),
as well as its legislative history. As explained below, there is
nothing in the language or intent of CAA section 301(a)(2) that trumps
the clear statutory directive of CAA section 307(b)(1) establishing
which courts have jurisdiction over which final agency actions.\8\
Therefore, we believe it is reasonable for the EPA to revise the
Regional Consistency regulations to provide a specific accommodation
for locally and regionally applicable court decisions.
---------------------------------------------------------------------------

    \8\ Moreover, to the extent there is a conflict, a canon of
statutory construction states that the specific--such as the
language in CAA section 307(b)(1) addressing which courts may rule
on issues of national applicability--trumps the general--such as the
language in section 301(a)(2) regarding regulations on fairness and
uniformity. See RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 132
S. Ct. 2065, 2070-71 (2012) (`` `[I]t is a commonplace of statutory
construction that the specific governs the general.''' quoting
Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384 (1992)).
---------------------------------------------------------------------------

3. Accommodating Intercircuit Nonaquiescence in the Regional
Consistency Regulations Is Consistent With CAA Section 301(a)(2)
    A specific accommodation for locally and regionally applicable
court decisions also is compatible with the statutory language and
Congressional intent of CAA section 301(a)(2). As described above,
those provisions require the EPA Administrator to develop regulations
to ``assure fairness and uniformity'' of agency actions. Notably, there
is nothing in the text of CAA section 301(a)(2) or in the limited
legislative history of that provision that would suggest Congress
intended for the requirement to promulgate fairness and uniformity
regulations under CAA section 301 to either upset the balance Congress
struck when establishing judicial review provisions in CAA section 307,
or disrupt the general principles of common law that have allowed for
the percolation of issues up through the various circuit courts, as
discussed above. Section 301(a)(2) of the Act does not specifically
discuss whether the fairness and uniformity objectives must be applied
to all court decisions; nor does it address how the agency should
respond to adverse court decisions. Congress also did not include
language in CAA section 301 that would expressly prohibit the EPA from
promulgating regulations that accommodate intercircuit nonaquiescence,
consistent with CAA section 307.
    In addition, the text of CAA section 301(a)(2)(A) necessitates a
balance between uniformity and fairness; however, one does not always
guarantee the other in all circumstances. These revisions would ensure
the EPA has the flexibility to maintain that balance, as appropriate.
    Fairness is defined by one source as ``agreeing with what is
thought to be right or acceptable; treating people in a way that does
not favor some over others'' (http://www.merriam-webster.com/dictionary/fairness). As we have already discussed, it is generally
acceptable to apply a Circuit Court decision only in those states over
which the circuit has jurisdiction. And, as explained using an example
below, there are circumstances under which applying the decision of a
lower court nationwide could favor sources located in the applicable
lower court's jurisdiction over those located in other circuits. As
such, a standard that would specifically allow for intercircuit
nonaquiescence for all CAA decisions other than those issued by the
D.C. Circuit Court in response to challenges of nationwide actions
would provide a uniform standard for the EPA's application of court
decisions that could be anticipated by those who implement the
regulations and the regulated community.
    It is not clear that the automatic, immediate nationwide
application of one court's decision based on the specific facts of a
locally-applicable decision would always be ``fair'' in the absence of
the type of accommodation proposed here. For example, consider widget
factories that have been diligently complying with the EPA's
longstanding interpretation that the Act supports permit limits of 1.00
ppm or lower (i.e., more stringent) at widget extrusion units at major
sources. However, in a challenge by a community group to a single
widget factory permit in New England containing a limit of 1.00 ppm for
the extrusion units, the First Circuit Court of Appeals issues a ruling
with a different interpretation of the Act than the EPA's that supports
a limit of 0.50 ppm or lower. A reasonable person might not find it
fair to require then that all widget factories nationwide get permit
revisions to establish limits of 0.50 ppm. Those factories would have
been relying on the 1.00 ppm limit for years when planning budgets and
making business decisions, and would likely find complying with the
lower limit costly and disruptive. Arguably, fairness might be better
served by limiting the impact of the First Circuit decision to the
source whose permit was before the First Circuit and any other widget
factories within the jurisdiction of the First Circuit, while the EPA
determines how best to proceed.
    While CAA section 301(a)(2) directed the EPA to create mechanisms
for identifying and standardizing various criteria, there is nothing to
suggest that

such standardization requires exact duplication by all EPA regions in
all circumstances, including regional responses to court decisions. CAA
section 301 generally relates to procedures to be followed by the EPA
employees in carrying out a delegation of authority from the
Administrator. Paragraph 301(a)(1) of the Act authorizes the
Administrator to delegate certain powers to other EPA officials, while
section 301(a)(2) of the Act requires the Administrator to establish
``general applicable procedures and policies for regional officers and
employees'' to follow in carrying out delegated authorities. CAA
section 301(a)(1)-(2). While the statute further directs that such
regulations shall be designed to, among other requirements, ``assure
fairness and uniformity in the criteria, procedures, and policies
applied by the various regions in implementing and enforcing the
chapter,'' on its face, CAA section 301(a)(2) does not impose a
standalone requirement to attain uniformity. Cf. Air Pollution Control
Dist. v. EPA, 739 F.2d 1071, 1085 (6th Cir. 1984) (rejecting claim that
CAA section 301(a)(2) establishes a substantive standard that requires
similar or uniform emission limitations for all sources). In addition,
the section does not direct the Administrator to revise an existing
regulation following an adverse court decision in a local or regional
case, or otherwise constrain the EPA's existing regulatory authority.
Instead, the provision requires the EPA to establish procedures that
apply to its regional officers and employees, but it does not address
whether or how the EPA should address judicial decisions in those
procedures. To the extent that Congress prioritized judicially-created
uniformity, this was expressed in CAA section 307(b)(1)--which, as
discussed above, allows for regional divergence among circuit courts--
not CAA section 301(a)(2)(A).
4. Accommodating Intercircuit Nonaquiescence in the Regional
Consistency Regulations Fosters Overall Fairness and Predictability
Regarding the Scope and Impact of Judicial Decisions Under the CAA
    Revising the Regional Consistency regulations to include a specific
accommodation for intercircuit nonaquiescence in appropriate
circumstances would also help to assure fairness and predictability in
the implementation of the CAA overall. Such an accommodation would
foster predictability by ensuring that, unless there is an affirmative
nationwide and deliberate change in the EPA's rules or policies, lower
court decisions would apply only in those states/areas within the
jurisdiction of the lower court, with the exception of the D.C. Circuit
Court reviewing final agency actions of national applicability,
consistent with CAA section 307(b)(1). Under the revised Regional
Consistency regulations, as proposed, a source subject to the CAA
would, as usual, need to know and follow the law in the circuit where
it is located, and the law of the D.C. Circuit Court and the U.S.
Supreme Court. It would not be required to follow every CAA case in
every court across the country to ensure compliance with the Act.
    By revising the regulations, the EPA also accommodates the
possibility that a split in the circuits could preclude the EPA from
complying with both court decisions at once. Consider the following
example: In a case involving a permit issued in New York, the Second
Circuit upholds the EPA's longstanding position and, in doing so,
confirms that the EPA's interpretation is compelled by the Act under
Step One of Chevron.\9\ As a result, the EPA continues to apply its
longstanding interpretation, consistent with the Second Circuit's
decision, in a permit issued in Alabama, an Eleventh Circuit state. In
an appeal of that permit, however, the Eleventh Circuit holds that not
only is the EPA's interpretation not compelled by the CAA, it is
prohibited by the CAA. There are now two court decisions with
conflicting Chevron Step One holdings--how could the EPA apply both of
those decisions uniformly across the country? While the U.S. Supreme
Court could review the issue, it might not. Further, even if the U.S.
Supreme Court eventually resolved the conflict, there could be a multi-
year period during which both decisions would remain applicable case
law. This proposed revisions would acknowledge and address those
instances in which the EPA may not be able to comply with two,
conflicting decisions at the same time.
---------------------------------------------------------------------------

    \9\ Chevron U.S.A. Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984) (Step one of Chevron refers to cases where
the intent of Congress is clear, and therefore a court, as well as
the agency, must give effect to the unambiguously expressed intent
of Congress).
---------------------------------------------------------------------------

    Moreover, sometimes court decisions reviewing a regulation or
statute are reversed on appeal. In other cases, a court decision may
contain a ruling that appears to invalidate a national rule in the
context of a source-specific action, which is inconsistent with CAA
section 307(b)(1), as explained above. When either outcome occurs,
intercircuit nonaquiescence allows the EPA to limit the impact of the
court's ruling while it undertakes other actions. For example, in
Environmental Defense v. Duke Energy Corp., 549 U.S. 561 (2007), the
U.S. Supreme Court reversed the Fourth Circuit's implicit invalidation
of the EPA's regulations in the context of an enforcement action. In
that case, the U.S. Supreme Court found that the court of appeals had
been too rigid in its insistence that the EPA interpret the term
``modification'' in its PSD regulations in the same way that the agency
interpreted that term under the New Source Performance Standards
program. Id. at 572-577. While it is true the U.S. Supreme Court
eventually reversed the lower court, there was a 2-year period during
which the Fourth Circuit's decision remained in place. Under the D.C.
Circuit Court's interpretation of the existing Regional Consistency
regulations, the EPA arguably would have been required to follow that
later-reversed Fourth Circuit interpretation of its regulations
nationwide during that 2 year period, even though that interpretation
``read those PSD regulations in a way that seems to [the Supreme Court]
too far a stretch for the language used.'' Id. at 577.
    As discussed earlier, since the U.S. Supreme Court only grants a
very limited number of petitions for certiorari, it is highly likely
that an adverse court of appeals decision could remain in place
indefinitely. This possibility is exacerbated if the EPA is prohibited
by its own regulations governing consistency from seeking to create a
circuit split on the issue by non-acquiescing to the first adverse
decision, and maintaining its national position before other courts.
Moreover, if the lower court decision is based on an interpretation of
the CAA statutory language, the EPA may not be able to ``fix'' the
problem by revising the underlying regulation because the agency could
arguably be required to follow the statutory construction set forth in
the lower court's decision. Such a result would be inconsistent with
the general structure of the federal judiciary, the specific structure
of the Act's judicial review provision, and the general directive to
assure both fairness and uniformity in CAA section 301(a)(2).
5. Accommodating Intercircuit Nonaquiescence in the Regional
Consistency Regulations is a Reasonable Extension of the EPA's Part 56
Regulations
    As noted above, because there is nothing in the statutory text of
CAA section 301(a)(2) that would prohibit the

EPA from revising the Regional Consistency regulations to specifically
accommodate intercircuit nonaquiescence, we wish to evaluate that
approach. Nothing in the preambles to the proposed and final Regional
Consistency regulations indicates that either commenters or the EPA
considered the question whether or how the rules would be applied
following judicial decisions (see generally 44 FR 13043-048 and 45 FR
85400-405, respectively). In addition, while the D.C. Circuit Court's
NEDACAP decision relied heavily on the general policy statements
contained in 40 CFR 56.3 of the existing regulations--which broadly
endorse the fair and uniform application of criteria, policy, and
procedures by EPA regional office employees--there is nothing in those
general statements or any other provisions of the regulations that
mandate that the EPA adopt nationwide the interpretation of the court
that first addresses a legal matter in all circumstances. The lack of
such a mandate shows that the focused revisions we are proposing in
this rulemaking are a natural extension of the agency's existing
regulations.
    The Regional Consistency regulations generally establish certain
mechanisms with the goal of ``identifying, preventing, and resolving
regional inconsistencies'' (45 FR 85400). For the EPA headquarters
office employees, the regulations do this by targeting particular
aspects of the Act that have the potential to present consistency
problems--any rule or regulation proposed or promulgated under part 51,
which sets forth requirements for the preparation, adoption and
submittal of state implementation plans, and part 58, which contains
requirements for measuring, monitoring, and reporting ambient air
quality. However, the consistency regulations do not state a
requirement for headquarters offices to apply these parts consistently
in all circumstances. Instead the regulations direct headquarters
office employees to develop mechanisms to assure that such rules or
regulations are implemented and enforced fairly and uniformly by the
regional offices. In so doing, the regulations do not state that
headquarters employees are required to assure that a decision of one
judicial circuit is always applied consistently in all EPA regions.
    Likewise, the provisions of the Regional Consistency regulations
that apply to the EPA regional office employees also do not contain a
requirement that all regional officials act the same way in all
circumstances, nor do they address judicial decisions. While the EPA
could change any such requirement if it did exist in our regulations,
we do not need to make such a change because the narrow revisions we
are proposing in this rulemaking are a natural extension of the
existing regulations, which state that regional officials must assure
that actions are ``carried out fairly and in a manner that is
consistent with the Act and Agency policy'' and are ``as consistent as
reasonably possible with the activities of other Regional Offices'' 40
CFR 56.5(a)(1)-(2) (emphasis added).
    As discussed above, Congress specifically addressed the role of and
allowed for regional office divergence among circuit courts in CAA
section 307(b)(1), and it would be both reasonable and fair to allow
for inconsistencies among the actions of regional officials to respect
those directives. Perhaps more importantly, the Regional Consistency
regulations already allow for some variation between the regional
offices. Specifically, 40 CFR 56.5(b) provides that regional officials
``seek concurrence'' from the EPA headquarters with respect to any
interpretations of the Act, rule, regulation, or guidance that ``may
result in inconsistent application among the regional Offices.'' Thus,
the EPA has already acknowledged that certain regions may in some
instances act inconsistently with others, and the revisions proposed in
this action would simply be identifying and authorizing such
inconsistency specifically when necessitated by a federal court
decision reviewing an action of local or regional applicability.
    In fact, the proposed revisions would further the overall goals of
the existing Regional Consistency regulations by specifically
identifying the possibility of potential inconsistent actions across
the EPA regions, especially where multiple courts have already
addressed an issue in different ways, and standardizing a response that
can be followed by all the regions, such that regions only have to
apply local and regional decisions issued by courts in those areas in
which the court has jurisdiction.
6. Accommodating District Court Decisions in the Regional Consistency
Regulations Is Also Appropriate
    As we have explained above, revising the Regional Consistency
regulations to specifically accommodate circuit court decisions via
intercircuit nonaquiescence is consistent with general principles of
common law, and CAA sections 307(b)(1) and 301(a)(2). In addition, it
will help to foster overall fairness and predictability regarding the
scope and impact of judicial decisions under the CAA, and is a
reasonable extension of the EPA's existing part 56 regulations. To the
extent one could read the NEDACAP decision to imply that the Regional
Consistency regulations would also require the EPA to apply district
court decisions uniformly across the nation, the revisions also
appropriately accommodate district court decisions, which are by their
very nature even more limited in scope.
    The federal district courts are the general trial courts of the
federal judiciary system. See generally 28 U.S.C. 81-131 (establishing
district courts for each of the 50 states and the District of
Columbia). The district courts only have the authority to hear cases in
a specific geographic area that raise specific claims for which
Congress has granted the court jurisdiction. See generally 28 U.S.C.
1390-1431 (discussing the venue of the district courts) and 1330-1369
(discussing the jurisdiction of the district courts). A district court
decision is based on the application of the law to the specific facts
of a case, involving the parties to the case. Thus, while a decision
from a circuit court is binding on those district courts located in the
circuit, as a general matter, a decision from a district court is
applicable only to those parties in the specific case in which it is
issued and has no binding precedential effect on any other parties,
courts or even other judges in the same district. See Hart v.
Massanari, 266 F.3d at 1174. Given this very limited scope of district
court decisions, it is reasonable to revise the Regional Consistency
regulations to clearly accommodate district court decisions that result
from specific locally or regionally cases in which the EPA is a party.
Without such a revision, a party may try to argue that, pursuant to the
Regional Consistency regulations, a single district court decision
based on the specific facts in one case forms the basis for a uniform
nationwide EPA position, elevating the impact of that district court
decision well beyond the scope that is usually provided to district
court decisions, and thus upsetting the general principles of U.S.
common law upon which our federal judiciary is based.
    Likewise, as noted above, Congress created a very specific system
of judicial review to address how the Act is implemented, and that
system is focused on challenges to specific final actions in the
circuit courts. There is nothing in CAA section 307(b)(1) or in the
statutory language requiring the EPA to promulgate regional consistency
rules that would suggest that Congress intended district court
decisions in

specific cases to have a potentially broad binding effect on the
agency. Not only would such an outcome elevate a district court
decision to the same level of a D.C. Circuit Court decision under CAA
section 307(b)(1), but it would be directly opposed to the idea of
``fairness'' put forward by Congress in CAA section 301(a)(2). If the
Regional Consistency regulations cannot accommodate various district
court decisions, a fundamental unfairness would arise when a district
court decision applying its interpretation of an agency rule to the
specific facts of one EPA case in Alaska could impact how the agency
would address the same rule but with very different facts in Florida.
Given the various reasons set forth above for limiting application of
circuit court decisions resulting from challenges to locally or
regionally applicable actions, and the fact that the scope of district
court decisions in the federal court system is even more narrowly
defined than that of circuit court decisions, it is only reasonable to
revise the Regional Consistency regulations to clearly limit the
application of district court decisions only to the specific parties
and facts addressed in the decision.
7. Accommodating Intercircuit Nonaquiescence in the Regional
Consistency Regulations Maintains EPA's Ability To Exercise Discretion
    Although the proposed rule revisions would make clear that the EPA
is not obligated to follow judicial decisions of a federal circuit
court addressing ``locally or regionally applicable'' actions in other
circuits (or district court decisions in instances that do not involve
parties to such decision), the proposal is not intended to preclude
anyone from advocating that the agency exercise its discretion to
follow such decisions in appropriate cases. The EPA recognizes that
national policy can be influenced by insights and reasoning from
judicial decisions and we do not mean to imply through this proposal
that the agency would ignore persuasive judicial opinions issued in
cases involving ``locally or regionally applicable'' actions. Such
opinions may address issues of nationwide importance and could, in
appropriate circumstances, lead the agency to adopt new national
policy.

V. Environmental Justice Considerations

    This document is proposing a rule revision to give the EPA
flexibility to implement court decisions of a limited scope (i.e.,
those having local or regional applicability) while also allowing us to
implement our national program under the CAA. The EPA did not conduct
an environmental analysis for this rule because this rule would not
directly affect the air emissions of particular sources. Because this
rule will not directly affect the air emissions of particular sources,
it does not affect the level of protection provided to human health or
the environment. Therefore, this action will not have potential
disproportionately high and adverse human health or environmental
effects on minority, low-income or indigenous populations.

VI. Statutory and Executive Order Reviews

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

    This action is not a ``significant regulatory action'' under the
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is
therefore not subject to review under Executive Orders 12866 and 13563
(76 FR 3821, January 21, 2011) because it does not result in an impact
greater than $100 million in any one year or raise novel legal or
policy issues arising out of legal mandates, the President's
priorities, or the principles set forth in this Executive Order.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden.
The proposed rule would not create any new requirements for regulated
entities, but rather provides flexibility to EPA in implementing
numerous programs on a national basis.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act generally requires an agency to
prepare a regulatory flexibility analysis of any rule subject to notice
and comment rulemaking requirements under the Administrative Procedures
Act or any other statute unless the agency certifies that the rule will
not have a significant economic impact on a substantial number of small
entities. Small entities include small businesses, small organizations
and small governmental jurisdictions.
    For purposes of assessing the impacts of this proposed action on
small entities, small entity is defined as: (1) A small business as
defined in the U.S. Small Business Administration size standards at 13
CFR 121.201; (2) a small governmental jurisdiction that is a government
of a city, county, town, school district or special district with a
population of less than 50,000; or (3) a small organization that is any
not-for-profit enterprise that is independently owned and operated and
is not dominant in its field.
    After considering the economic impacts of this proposed rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This
proposed rule will not impose any requirements directly on small
entities. Entities potentially affected directly by this proposal
include federal, state, local and tribal governments, none of which
qualify as small entities.
    We continue to be interested in the potential impacts of the
proposed rule on small entities and welcome comments on issues related
to such impacts.

D. Unfunded Mandates Reform Act

    This action contains no federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538 for state, local or tribal governments or the private sector.
The action imposes no enforceable duty on any state, local or tribal
governments or the private sector. Therefore, this action is not
subject to the requirements of sections 202 and 205 of the UMRA.
    This rule is also not subject to the requirements of section 203 of
UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments. As noted
previously, the effect of the proposed rule would be neutral or relieve
regulatory burden.

E. Executive Order 13132: Federalism

    This proposed 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. This proposed rule would revise
regulations that apply to the EPA, and any delegated state/local
governments, only, and would not, therefore, affect the relationship
between the national government and the states or the distribution of
power and responsibilities among the various levels of government.
    In the spirit of Executive Order 13132 and consistent with the EPA
policy to promote communications between the EPA and state and local
governments, the EPA specifically solicits comment on this proposed
rule from state and local officials.

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

    This proposed rule does not have tribal implications, as specified
in Executive Order 13175 (65 FR 67249, November 9, 2000). It will not
have substantial direct effects on tribal governments, on the
relationship between the federal government and Indian tribes or on the
distribution of power and responsibilities between the federal
government and Indian tribes, as specified in Executive Order 13175.
This proposed rule only affects our flexibility regarding judicial
decisions as they apply to implementing air programs on a national
basis. Thus, Executive Order 13175 does not apply to this rule.

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

    The EPA interprets Executive Order 13045 (62 FR 19885, April 23,
1997) as applying only to those regulatory actions that concern health
or safety risks, such that the analysis required under section 5-501 of
the Executive Order has the potential to influence the regulation. This
action is not subject to Executive Order 13045 because it does not
establish an environmental standard intended to mitigate health or
safety risks.

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

    This action is not subject to Executive Order 13211 (66 FR 28355,
May 22, 2001), because it is not a significant regulatory action under
Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs the EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures and business practices) that are developed or adopted by
voluntary consensus standards bodies. The NTTAA directs the EPA to
provide Congress, through the OMB, explanations when the agency decides
not to use available and applicable voluntary consensus standards.
    This proposed rulemaking does not involve technical standards.
Therefore, the EPA did not consider the use of any voluntary consensus
standards.

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

    Executive Order 12898 (59 FR 7629, February 16, 1994) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies and activities on minority populations and low-income
populations in the United States.
    The EPA has determined that this proposed rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
affect the level of protection provided to human health or the
environment. The proposed rule would provide flexibility to the EPA in
issuing guidance to implement its regulations with respect to judicial
decisions. The results of this evaluation are contained in section V of
the preamble titled ``Environmental Justice Considerations.''

K. Determination Under Section 307(d)

    Pursuant to section 307(d)(1)(V) of the CAA, the Administrator
determines that this action is subject to the provisions of section
307(d). Section 307(d)(1)(V) provides that the provisions of section
307(d) apply to ``such other actions as the Administrator may
determine.''

VII. Statutory Authority

    The statutory authority for this action is provided by section 301
of the CAA as amended (42 U.S.C. 7601).

List of Subjects in 40 CFR Part 56

    Environmental protection, Air pollution control.

    Dated: August 5, 2015.
Gina McCarthy,
Administrator.

    For the reasons stated in the preamble, title 40, chapter I of the
Code of Federal Regulations is proposed to be amended as follows:

PART 56--REGIONAL CONSISTENCY

0
1. The authority citation for part 56 continues to read as follows:

    Authority:  Sec. 301(a)(2) of the Clean Air Act as amended (42
U.S.C. 7601).

0
2. Section 56.3 is amended by adding paragraph (d) to read as follows:

Sec.  56.3  Policy.

* * * * *
    (d) Recognize that only the decisions of the U.S. Supreme Court and
decisions of the U.S. Court of Appeals for the D.C. Circuit Court that
arise from challenges to ``nationally applicable regulations . . . or
final action,'' as discussed in Clean Air Act section 307(b) (42 U.S.C.
7607(b)), shall apply uniformly, and to provide for exceptions to the
general policy stated in paragraphs (a) and (b) of this section with
regard to decisions of the Federal courts that arise from challenges to
``locally or regionally applicable'' actions, as provided in Clean Air
Act section 307(b) (42 U.S.C. 7607(b)).
0
3. Section 56.4 is amended by adding paragraph (c) to read as follows:

Sec.  56.4  Mechanisms for fairness and uniformity--Responsibilities of
Headquarters employees.

* * * * *
    (c) The Administrator shall not be required to issue new mechanisms
or revise existing mechanisms developed under paragraph (a) of this
section to address the inconsistent application of any rule,
regulation, or policy that may arise in response to the limited
jurisdiction of either a Federal circuit court decision arising from
challenges to ``locally or regionally applicable'' actions, as provided
in Clean Air Act section 307(b) (42 U.S.C. 7607(b)), or a Federal
district court decision.
0
4. Section 56.5 is amended by adding a sentence at the end of paragraph
(b) and paragraphs (b)(1) and (2) to read as follows:

Sec.  56.5  Mechanisms for fairness and uniformity--Responsibilities of
Regional Office employees.

* * * * *
    (b) * * * However, the responsible official in a regional office
will not be required to seek such concurrence from the appropriate EPA
headquarters office for actions that may result in inconsistent
application if such inconsistent application is required in order to
act in accordance with a Federal court decision:

    (1) Issued by a Circuit Court in challenges to ``locally or
regionally applicable'' actions, as provided in Clean Air Act section
307(b) (42 U.S.C. 7607(b)), if that Circuit Court has direct
jurisdiction over the geographic areas that the regional office
official is addressing, or
    (2) Issued by a District Court in a specific case if the party the
regional office official is addressing was also a party in the case
that resulted in the decision.
* * * * *
[FR Doc. 2015-20506 Filed 8-18-15; 8:45 am]
 BILLING CODE 6560-50-P


[Federal Register: June 18, 2007 (Volume 72, Number 116)]
[Notices]
[Page 33459-33460]
[DOCID:fr18jn07-40]

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

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. RP07-479-000]

Columbia Gas Transmission Corporation; Notice of Proposed Changes
in FERC Gas Tariff

June 8, 2007.
    Take notice that on June 5, 2007, Columbia Gas Transmission
Corporation (Columbia) tendered for filing as part of its FERC Gas
Tariff, Second Revised Volume No. 1, the following revised tariff
sheets with a proposed effective date of September 1, 2007:

Third Revised Sheet No. 228
Original Sheet No. 540A
Original Sheet No. 540B

Original Sheet No. 540C
Original Sheet No. 540D

    Any person desiring to intervene or to protest this filing must
file in accordance with Rules 211 and 214 of the Commission's Rules of
Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be
considered by the Commission in determining the appropriate action to
be taken, but will not serve to make protestants parties to the
proceeding. Any person wishing to become a party must file a notice of
intervention or motion to intervene, as appropriate. Such notices,
motions, or protests must be filed in accordance with the provisions of
Sec.  154.210 of the Commission's regulations (18 CFR 154.210). Anyone
filing an intervention or protest must serve a copy of that document on
the Applicant. Anyone filing an intervention or protest on or before
the intervention or protest date need not serve motions to intervene or
protests on persons other than the Applicant.
    The Commission encourages electronic submission of protests and
interventions in lieu of paper using the ``eFiling'' link at http://www.ferc.gov.
 Persons unable to file electronically should submit an

original and 14 copies of the protest or intervention to the Federal
Energy Regulatory Commission, 888 First Street, NE., Washington, DC
20426.
    This filing is accessible on-line at http://www.ferc.gov, using the

``eLibrary'' link and is available for review in the Commission's
Public Reference Room in Washington, DC. There is an ``eSubscription''
link on the Web site that enables subscribers to receive e-mail
notification when a document is added to a subscribed docket(s). For
assistance with any FERC Online service, please e-mail
<EMAIL_ADDRESS>or call<PHONE_NUMBER> (toll free). For

TTY, call<PHONE_NUMBER>.

Kimberly D. Bose,
Secretary.
[FR Doc. E7-11649 Filed 6-15-07; 8:45 am]

BILLING CODE 6717-01-P


UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

Issued by the Department of Transportation on January 31, 2006

NOTICE OF ACTION TAKEN -- DOCKET OST-2005-21699

________________________________________________________________________
________________________________________________________

This serves as notice to the public of the action described below, taken
by the Department official indicated (no additional confirming order
will be issued in this matter).

Joint Applicants:  AEROVIAS de MEXICO, S.A. de C.V.  (Aeromexico) &
Date Filed:  June 23, 2005

		    DELTA AIR LINES, INC. (Delta)

Relief requested:  Exemption from 49 USC & 41301 to permit Aeromexico to
conduct scheduled, combination services between Puerto Vallarta, Mexico,
and Salt Lake City, Utah, pursuant to its codeshare arrangement with
Delta.

Statement of authorization under 14 CFR Part 212 to permit Delta to
display the Aeromexico designator code (AM) on flights operated by Delta
between Puerto Vallarta, Mexico and Salt Lake City, Utah, for an
indefinite period.

If renewal, date and citation of last action:  New authority.

Applicant representatives:  William C. Evans,<PHONE_NUMBER> (Aeromexico)
&             DOT analyst:  Robert J. Finamore,<PHONE_NUMBER>

                                               Robert E. Cohn,
202-637-4999 (Delta)

Responsive pleadings:  None

	DISPOSITION

Action:  Approved. (See remarks below).						Action date:  January 31,
2006

Effective dates of authority granted:  Aeromexico’s Puerto Vallarta
– Salt Lake City exemption is effective from January 31, 2006, through
January 31, 2007.  Delta’s statement of authorization is granted for
an indefinite period.

Basis for approval (bilateral agreement/reciprocity): United
States-Mexico Air Transport Services Agreement.

Except to the extent exempted/waived, this authority is subject to the
terms, conditions, and limitations of our standard exemption and
codeshare conditions (attached).  In addition, Aeromexico shall adhere
to the otherwise applicable terms, conditions, and limitations of its
foreign air carrier permit (Order 91-5-25), and Delta shall adhere to
the otherwise applicable terms, conditions, and limitations of its
Certificate of Public Convenience and Necessity.

Action taken by:   Paul L. Gretch, Director, Office of International
Aviation

________________________________________________________________________
_________________

Under authority assigned by the Department in its regulations, 14 CFR
Part 385, we found that (1) our action was consistent with Department
policy; (2) Aeromexico was qualified to perform its proposed operations;
(3) grant of the authority was consistent with the public interest; and
(4) grant of the authority would not constitute a major regulatory
action under the Energy Policy and Conservation Act of 1975.  To the
extent not granted/deferred/dismissed, we denied all requests in the
referenced Docket.  We may amend, modify, or revoke the authority
granted in this Notice at any time without hearing at our discretion.

Persons entitled to petition the Department for review of the action set
forth in this Notice under the Department’s regulations, 14 CFR
§385.30, may file their petitions within seven (7) days after the date
of issuance of this Notice.  This action was effective when taken, and
the filing of a petition for review will not alter such effectiveness.

An electronic version of this document is available on the World Wide
Web at:

http://dms.dot.gov//reports/reports_aviation.asp

FOREIGN CARRIER EXEMPTION CONDITIONS
                               	ATTACHMENT

In the conduct of the operations authorized, the foreign carrier
applicant(s) shall:

1) Not conduct any operations unless it holds a currently effective
authorization from its homeland for such operations, and it has filed a
copy of such authorization with the Department;

2) Comply with all applicable requirements of the Federal Aviation
Administration, including, but not limited to, 14 CFR Parts 129, 91, and
36, and with all applicable U.S. Government requirements concerning
security, including, but not limited to, 49 CFR Part 1546 or 1550, as
applicable.  To assure compliance with all applicable U.S. Government
requirements concerning security, the holder shall, before commencing
any new service (including charter flights) from a foreign airport that
would be the holder’s last point of departure for the United States,
contact its International Principal Security Inspector (IPSI) to advise
the IPSI of its plans and to find out whether the Transportation
Security Administration has determined that security is adequate to
allow such airport(s) to be served;

3) Comply with the requirements for minimum insurance coverage contained
in 14 CFR Part 205, and, prior to the commencement of any operations
under this authority, file evidence of such coverage, in the form of a
completed OST Form 6411, with the Federal Aviation Administration’s
Program Management Branch (AFS-260), Flight Standards Service (any
changes to, or termination of, insurance also shall be filed with that
office);

4) Not operate aircraft under this authority unless it complies with
operational safety requirements at least equivalent to Annex 6 of the
Chicago Convention;

5) Conform to the airworthiness and airman competency requirements of
its Government for international air services;

6) Except as specifically exempted or otherwise provided for in a
Department Order, comply with the requirements of 14 CFR Part 203,
concerning waiver of Warsaw Convention liability limits and defenses;

7) Agree that operations under this authority constitute a waiver of
sovereign immunity, for the purposes of 28 U.S.C. 1605(a), but only with
respect to those actions or proceedings instituted against it in any
court or other tribunal in the United States that are: a) based on its
operations in international air transportation that, according to the
contract of carriage, include a point in the United States as a point of
origin, point of destination, or agreed stopping place, or for which the
contract of carriage was purchased in the United States; or b) based on
a claim under any international agreement or treaty cognizable in any
court or other tribunal of the United States.  In this condition, the
term “international air transportation” means “international
transportation” as defined by the Warsaw Convention, except that all
States shall be considered to be High Contracting Parties for the
purpose of this definition;

8) Except as specifically authorized by the Department, originate or
terminate all flights to/from the United States in its homeland;

9) Comply with the requirements of 14 CFR Part 217, concerning the
reporting of scheduled, nonscheduled, and charter data;

10) If charter operations are authorized, except as otherwise provided
in the applicable aviation agreement, comply with the Department’s
rules governing charters (including 14 CFR Parts 212 and 380); and

11) Comply with such other reasonable terms, conditions, and limitations
required by the public interest as may be prescribed by the Department,
with all applicable orders or regulations of other U.S. agencies and
courts, and with all applicable laws of the United States.

This authority shall not be effective during any period when the holder
is not in compliance with the conditions imposed above.  Moreover, this
authority cannot be sold or otherwise transferred without explicit
Department approval under Title 49 of the U.S. Code.

												05/2005

Aeromexico/Delta Code-Share Conditions (OST-2005-21699)

The codeshare operations authorized here are subject to the following
conditions:

(a)  The statement of authorization will remain in effect only as long
as (i) Aeromexico and Delta continue to hold the necessary underlying
authority to operate the codeshare services at issue, and (ii) the
codeshare agreement providing for the codeshare operations remains in
effect.

(b) Aeromexico and/or Delta must promptly notify the Department if the
codeshare agreement providing for the codeshare operations is no longer
effective or the carriers decide to cease operating any or all of the
approved codeshare services.   We expect this notification to be
received within 10 days of such non-effectiveness or of such decision.
Such notices should be filed in docket OST-2005-21699.

(c)  The codesharing operations conducted under this authority must
comply with 14 C.F.R. Part 257 and with any amendments to the
Department’s regulations concerning codeshare arrangements that may be
adopted.  Notwithstanding any provisions in the contract between the
carriers, our approval here is expressly conditioned upon the
requirements that the subject foreign air transportation be sold in the
name of the carrier holding out such service in computer reservation
systems and elsewhere; that the carrier selling such transportation
(i.e., the carrier shown on the ticket) accept responsibility for the
entirety of the codeshare journey for all obligations established in its
contract of carriage with the passenger; and that the passenger
liability of the operating carrier be unaffected.

(d)  The authority granted here is specifically conditioned so that
neither Aeromexico or Delta shall give any force or effect to any
contractual provisions between themselves that are contrary to these
conditions.

We may amend, modify, or revoke this authority at any time without
hearing, at our discretion.