Rules and Regulations. Direct final rule

Agency: Environmental Protection Agency (EPA)
Action: Direct final rule
Citation: FR Doc. 06-8657 · EPA-R04-OAR-2006-0531-200618(a); FRL-8233-8 · 40 CFR 52

Summary

EPA is approving a revision to the Tennessee State Implementation Plan (SIP) submitted in final form on May 17, 2006. The SIP revision provides the second 10-year maintenance plan for the Memphis/Shelby County Carbon Monoxide (CO) Maintenance Area. The second 10-year maintenance plan includes a new motor vehicle emission budget (MVEB) for CO for the year 2017. EPA is approving this SIP revision, including the new 2017 MVEB for CO, because it satisfies the requirement of the Clean Air Act (CAA) for the second 10-year maintenance plan for the Memphis/Shelby County Area. In addition, in this rulemaking, EPA is providing information on its transportation conformity adequacy determination for the new MVEB for the year 2017 that is contained in the second 10-year CO maintenance plan for the Memphis/Shelby County Area.

Dates

This rule is effective on December 26, 2006 without further notice, unless EPA receives adverse comments by November 24, 2006. If we receive such comments, we will publish a timely withdrawal in the Federal Register to notify the public that this direct final rule will not take effect.

Supplementary Information

Table of Contents I. What Is the Background for This Action? II. What Is EPA's Analysis of the Memphis/Shelby County Area's Second 10-Year Maintenance Plan? III. What Is EPA's Action on the Memphis/Shelby County Area's Second 10-Year Maintenance Plan? IV. What Is an Adequacy Determination and What Is EPA's Adequacy Determination for the Memphis/Shelby County Area's New MVEBs for the Year 2017? V. Final Action VI. Statutory and Executive Order Reviews I. What Is the Background for This Action? In 1992, based on measured air quality data, the Memphis/Shelby County Area was able to demonstrate attainment with the CO National Ambient Air Quality Standard (NAAQS) due to numerous control measures implemented in the Memphis/Shelby County Area. As a result of the measured air quality data, Tennessee petitioned EPA for redesignation of this Area to attainment for CO. EPA redesignated the Memphis/Shelby County Area to attainment based on the measured air quality data and a 10-year maintenance plan submitted for the Memphis/Shelby County Area on July 26, 1994 (59 FR 37939). The air quality maintenance plan is a requirement of the 1990 CAA amendments for nonattainment areas that come into compliance with the NAAQS and request redesignation, to assure their continued maintenance of that standard. Eight years after redesignation to attainment, section 175A(b) of the CAA requires the state to submit a revised maintenance plan which demonstrates that attainment will continue to be maintained for the 10 years following the initial 10-year period (this is known as the second 10-year maintenance plan). The second 10-year maintenance plan updates the original 10-year CO maintenance plan for the next 10-year period. Thus, pursuant to the CAA section 175A(b), Tennessee was required to submit the second 10-year maintenance plan for the Memphis/Shelby County Area demonstrating that it would continue to attain the CO NAAQS in this area through at least 2014. II. What Is EPA's Analysis of the Memphis/Shelby County Area's Second 10-Year Maintenance Plan? On May 17, 2006, the State of Tennessee, through the Tennessee Department of Environment and Conservation (TDEC), Air Pollution Control Division, submitted a SIP revision to EPA that provided for the second 10-year maintenance plan for the Memphis/Shelby County Area as required by section 175A(b) of the CAA. This second 10-year maintenance plan for the Memphis/Shelby County Area includes a new CO emission inventory for 1990 which reflects emission controls applicable for the Memphis/Shelby County Area, and actual and projected emissions for 1990, 2002, 2007, and 2017. The SIP revision also establishes a new MVEB for CO for 2017 for the Memphis/Shelby County Area. The emission reduction measures for CO emissions implemented in the Memphis/Shelby County Area from 1990 to 2002, and control measures that are projected to occur between 2007 and 2017 are accounted for in the 1990 emission inventory and projected emissions estimates. Tables 1 and 2 provide emissions data and projections for CO with and without the use of an inspection and maintenance (I&M) program, respectively. The on-road mobile portion of the data was calculated with MOBILE6.2. The difference between the 1990 mobile source base year emissions for this maintenance plan and the initial maintenance plan are primarily a result of a change in the mobile emissions factor model (e.g., MOBILE6.2) that was used to develop these emissions. Table 1.—Memphis/Shelby Carbon Monoxide Area—Emission Inventory and Projected CO Emissions (1990-2017)—With I&M Plan [Tons per day] Year Area Non-road mobile On-road mobile with I&M Point Total 1990 10.14 100.83 893.76 22.77 1027.50 2002 7.03 115.67 615.98 14.53 753.21 2007 7.42 125.85 441.15 15.35 589.77 2017 8.08 138.84 327.88 16.56 491.36 Table 2.—Memphis/Shelby County Carbon Monoxide Area—Emission Inventory and Projected CO Emissions (1990-2017)—Without I&M Plan [Tons per day] Year Area Non-road mobile On-road mobile without I&M Point Total Safety margin based on 1990 emissions 1990 10.14 100.83 893.76 22.77 1027.50 n/a 2002 7.03 115.67 654.37 14.53 791.60 235.90 2007 7.42 125.85 492.13 15.35 640.75 386.75 2017 8.08 138.84 383.33 16.56 546.81 480.69 The attainment level of emissions is the level of emissions during one of the years in which the area met the NAAQS. Since 1990, the Memphis/Shelby County Area has not violated the CO standard for the 8-hour average concentration as shown by monitoring data in Table 3. The data also show a consistent downward trend in CO levels as a result in part of the Federal Motor Vehicle Control Program. In this SIP revision, the emissions from the year 1990 are used to calculate a new attainment emissions level for the Memphis/Shelby County Area. The emissions from point, area, non-road, and mobile sources in 1990 equal 1027.50 tons per day (tpd) of CO. These emission calculations were made using the MOBILE6.2 model and the most recent version of the nonroad model. The projected emissions, with and without I&M, are lower than the attainment level of emissions, thus demonstrating continued maintenance of the CO NAAQS. Table 3.—Summary of Memphis/Shelby County Area Carbon Monoxide Monitoring Data [In parts per million] Year CO 8-hr NAAQS Second highest CO 8-hr average value 1 1990 9.0 8.8 1991 9.0 6.4 1992 9.0 8.2 1993 9.0 8.5 1994 9.0 8.0 1995 9.0 6.2 1996 9.0 6.3 1997 9.0 5.2 1998 9.0 5.4 1999 9.0 4.9 2000 9.0 4.4 2001 9.0 4.3 2002 9.0 3.5 2003 9.0 2.9 The safety margin is the difference between the attainment level of emissions (from all sources) and the projected level of emissions (from all sources) in the maintenance plan. The safety margin credit, or a portion thereof, can be allocated to the transportation sector, however, the total emission level must stay below the attainment level. The safety margin for CO was calculated as the difference between these amounts or, in this case, 480.69 tpd for 2017. The emissions are projected to maintain the Memphis/Shelby County Area's air quality consistent with the CO NAAQS. Maintenance plans and other control strategy SIPs create MVEBs for criteria pollutants and/or their precursors to address pollution from cars and trucks. The MVEB is the portion of the total allowable emissions that is allocated to highway and transit vehicle use and emissions. The MVEB serves as a ceiling on emissions from an area's planned transportation system. The MVEB concept is further explained in the preamble to the November 24, 1993, Transportation Conformity Rule (58 FR 62188). The preamble also describes how to establish and revise MVEBs in a SIP. In this SIP revision, the Memphis/Shelby County Area used MOBILE6.2 to establish a MVEB for CO for the year 2017. The State of Tennessee has chosen to allocate 95% of the safety margin (i.e., 456.66 tpd) to the transportation section. This MVEB is listed in Table 4. Table 4.—Memphis/Shelby County Carbon Monoxide Maintenance Area MVEB With Safety Margin Included 2017 Projected on-road emissions (tons per day) Allocated safety margin 2017 MVEB with safety margin CO 383.33 456.66 839.99 The MVEB presented in Table 4 is directly reflective of the combined on-road (or “highway”) emissions for the Memphis/Shelby County Area for CO, plus an allocation from the available safety margin (95%). After allocation of the safety margin to the MVEB, the remaining safety margin for future allocation is 24.03 tpd. In summary, the new CO MVEB for the year 2017 is 839.99 tpd. III. What Is EPA's Action on the Memphis/Shelby County Area's Second 10-Year Maintenance Plan? EPA is approving Tennessee's SIP revision pertaining to the Memphis/Shelby County Area's second 10-year maintenance plan for CO. Approval of the maintenance plan for Memphis/Shelby County Area is appropriate, because the State of Tennessee has demonstrated that the plan meets the requirements of section 175A as described fully in this rulemaking. Additionally, EPA is finding adequate and approving the new 2017 MVEB, submitted by Tennessee for Memphis/Shelby County, in conjunction with its maintenance plan update. Within 24 months from the effective date of this action, the transportation partners will need to demonstrate conformity to this new MVEB pursuant to 40 CFR 93.104(e). IV. What Is an Adequacy Determination and What Is EPA's Adequacy Determination for the Memphis/Shelby County Area's New MVEB for the Year 2017? Under Section 176(c) of the CAA, new transportation projects, such as the construction of new highways, must “conform” to (i.e., be consistent with) the part of the State's air quality plan that addresses pollution from cars and trucks. “Conformity” to the SIP means that transportation activities will not cause new air quality violations, worsen existing violations, or delay timely attainment of the NAAQS. Under the transportation conformity rule, at 40 CFR part 93, projected emissions from transportation plans and programs must be equal to or less than MVEBs for the area. If a transportation plan does not “conform,” most new projects that would expand the capacity of roadways cannot go forward. Regulations at 40 CFR part 93 set forth EPA policy, criteria and procedures for demonstrating and assuring conformity of such transportation activities to a SIP. Until MVEBs in a SIP submittal are approved by EPA, they cannot be used for transportation conformity purposes unless EPA makes an affirmative finding that the MVEBs contained therein are “adequate.” Once EPA affirmatively finds the submitted MVEBs adequate for transportation conformity purposes, those MVEBs can be used by the State and Federal agencies in determining whether proposed transportation projects “conform” to the SIP even though the approval of the SIP revision containing those MVEBs has not yet been finalized. EPA's substantive criteria for determining “adequacy” of MVEBs in submitted SIPs are set out in EPA's Transportation Conformity Rule at 40 CFR 93.118(e)(4). EPA's process for determining “adequacy” consists of three basic steps: public notification of a SIP submission, a public comment period, and EPA's adequacy finding. This process for determining the adequacy of submitted SIP MVEBs was initially outlined in EPA's May 14, 1999 guidance, “Conformity Guidance on Implementation of March 2, 1999, Conformity Court Decision.” This guidance was finalized in the Transportation Conformity Rule Amendments for the “New 8-Hour Ozone and PM2.5 National Ambient Air Quality Standards and Miscellaneous Revisions for Existing Areas; Transportation Conformity Rule Amendments—Response to Court Decision and Additional Rule Change” on July 1, 2004 (69 FR 40004). EPA follows this guidance and rulemaking in making its adequacy determinations. Memphis/Shelby County Area's second 10-year maintenance plan submission contained a new MVEB for the year 2017. The availability of the SIP submission with the 2017 MVEB was announced for public comment on EPA's adequacy Web page on June 6, 2006, at: http://www.epa.gov/otaq/stateresources/transconf/currsips.htm . The adequacy comment period for this MVEB closed on July 6, 2006. No requests for the submittal or adverse comments were received during EPA's Adequacy Public Comment Period. Through this rulemaking, EPA is finding adequate this 2017 MVEB for use to determine transportation conformity because this MVEB meets the adequacy criteria contained in the Transportation Conformity Rule. The 2017 MVEB for CO for the Memphis/Shelby County Area is 839.99 tpd. V. Final Action EPA is approving the aforementioned changes to the SIP. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. This rule will be effective December 26, 2006 without further notice unless the Agency receives adverse comments by November 24, 2006. If EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on December 26, 2006 and no further action will be taken on the proposed rule. VI. Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it 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). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, 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 by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have federalism implications because it does 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 (64 FR 43255, August 10, 1999). This action merely affects the status of a geographical area, does not impose any new requirements on sources or allow a state to avoid adopting or implementing other requirements, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). 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 December 26, 2006. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).) List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Carbon monoxide, Intergovernmental relations, Ozone, Reporting and recordkeeping requirements. Dated: October 6, 2006. A. Stanley Meiburg, Acting Regional Administrator, Region 4. 40 CFR part 52, is amended as follows: PART 52—[AMENDED] 1. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401 et seq. Subpart RR—Tennessee 2. Section 52.2220(e) is amended by adding a new entry at the end of the table for “Carbon Monoxide Second 10-Year Maintenance Plan for the Memphis/Shelby County Area” to read as follows: § 52.2220 Identification of plan. (e) * * * EPA-Approved Tennessee Non-Regulatory Provisions Name of nonregulatory SIP provision Applicable geographic or nonattainment area State effective date EPA approval date Explanation * * * * * * * Carbon Monoxide Second 10-Year Maintenance Plan for the Memphis/Shelby County Area Memphis/Shelby 5/10/2006 10/25/2006 [Insert first page of publication]. [FR Doc. E6-17854 Filed 10-24-06; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 63 [EPA-HQ-OAR-2004-0022; FRL-8233-9] RIN 2050-AG33 NESHAP: National Emission Standards for Hazardous Air Pollutants: Standards for Hazardous Waste Combustors (Amendment) AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: The EPA is amending the effective date of the standard for particulate matter for new cement kilns that burn hazardous waste. EPA promulgated this standard as part of the national emission standards for hazardous air pollutants (NESHAP) for hazardous waste combustors that were issued on October 12, 2005, under section 112 of the Clean Air Act. EPA agreed to reconsider the standard and proposed to change it on March 23, 2006 (71 FR 14665). This amendment suspends the obligation of new cement kilns to comply with the particulate matter standard until EPA takes final action on this proposal. This amendment does not affect other standards applicable to new or existing hazardous waste burning cement kilns. DATES: The final rule is effective on October 25, 2006. ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2004-0022. All documents in the docket are listed on http://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g. , confidential business information or other information the disclosure of which is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at the HQ EPA Docket Center, Docket ID No. EPA-HQ-OAR-2004-0022, EPA West Building, Room B-102, 1301 Constitution Ave., NW., Washington, DC 20004 (See note below). This Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The HQ EPA Docket Center telephone number is (202) 566-1742. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744. A reasonable fee may be charged for copying docket materials. Note: The EPA Docket Center suffered damage due to flooding during the last week of June 2006. The Docket Center is continuing to operate. However, during the cleanup, there will be temporary changes to Docket Center telephone numbers, addresses, and hours of operation for people who wish to visit the Public Reading Room to view documents. Consult EPA's Federal Register notice at 71 FR 38147 (July 5, 2006) or the EPA Web site at http://www.epa.gov/epahome/dockets.htm for current information on docket status, locations and telephone numbers. FOR FURTHER INFORMATION CONTACT: For more information on this rulemaking, contact Frank Behan at (703) 308-8476, or behan.frank@epa.gov , Office of Solid Waste (MC: 5302P), U.S. Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC. 20460. SUPPLEMENTARY INFORMATION: Regulated Entities. The regulated categories and entities affected by the NESHAP include: Category NAICS code SIC code Examples of regulated entities Industry 327310 3241 Cement manufacturing, clinker production. Federal government Not affected. State/local/tribal government Not affected. This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be impacted by this action. This table lists examples of the types of entities EPA is now aware could potentially be regulated by this action. Other types of entities not listed could also be affected. To determine whether your facility, company, business, organization, etc., is affected by this action, you should examine the applicability criteria in 40 CFR 63.1200. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section. Worldwide Web (www). In addition to being available in the docket, an electronic copy of today's final rule will also be available on the www at http://www.epa.gov/hwcmact . Judicial Review. Under section 307(b)(1) of the Clean Air Act (CAA), judicial review of today's amendment to the NESHAP for hazardous waste combustors is available only on the filing of a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit within 60 days of today's publication of this final rule. Under section 307(b)(2) of the CAA, the requirements that are subject to today's notice may not be challenged later in civil or criminal proceedings brought by the EPA to enforce these requirements. Organization of This Document. The information presented in this preamble is organized as follows: I. Summary of Final Rule II. Background III. Basis for Amended Effective Date IV. Good Cause Findings V. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act of 1995 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 Risks and Safety Risks H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act J. Congressional Review I. Summary of Final Rule EPA is issuing a final rule to amend the effective date of the standard for particulate matter for new cement kilns that burn hazardous waste. The effect of this action is to suspend the obligation of new cement kilns to comply with the particulate matter standard that was issued on October 12, 2005 (70 FR 59402), under section 112 of the CAA, and set forth in § 63.1220(b)(7)(i). EPA is codifying this amendment by amending §§ 63.1206(a)(1)(ii)(B) and 63.1220(b)(7)(i). Under this amended rule, cement kilns that were constructed or reconstructed after April 20, 2004, are temporarily relieved of the obligation to comply with the replacement particulate matter standard of 0.0023 gr/dscf, corrected to 7 percent oxygen, under § 63.1220(b)(7)(i). 1 However, such sources instead must comply with a particulate matter standard of 0.15 kg/Mg dry feed, which was the standard applicable to new cement kilns prior to the promulgation of the replacement standard ( i.e. , the standard set forth in § 63.1220(b)(7)(i) as promulgated in the October, 2005 rule). This action does not affect any other standards applicable to new (or existing) cement kilns. It also does not affect the standards for other hazardous waste combustor source categories. 1 In this notice all concentration-based standards with units of gr/dscf are corrected to 7% oxygen. This amendment of the effective date shall take effect immediately upon publication in the Federal Register , and will remain in effect until EPA takes final action on the proposal to revise the particulate matter standard under § 63.1220(b)(7)(i). After EPA takes final action on the particulate matter standard, a cement kiln constructed or reconstructed after April 20, 2004, will be subject to the particulate matter standard set forth in § 63.1220(b)(7)(i). II. Background The final maximum achievable control technology (MACT) standards for hazardous waste combustors, implementing section 112(d) of the Clean Air Act, were published on October 12, 2005 (70 FR 59402). They are codified at 40 CFR part 63, subpart EEE. These standards include limits for particulate matter, which is a surrogate for certain hazardous air pollutant (HAP) metals. The particulate matter standard for new hazardous waste burning cement kilns is 0.0023 gr/dscf. 2 2 The particulate matter standard is used as a surrogate to control five HAP metals including antimony, cobalt, manganese, nickel, and selenium. In addition, the particulate matter standard is a surrogate control for all non-mercury HAP metals in the raw materials and auxiliary fuels. 69 FR at 21221. Following promulgation of the hazardous waste combustor final rule, the Administrator received petitions for reconsideration of this standard pursuant to section 307(d)(7)(B) of the CAA from Ash Grove Cement Company (AGCC) and the Cement Kiln Recycling Coalition (CKRC). 3 Under this section of the CAA, the Administrator shall initiate reconsideration proceedings if the petitioner can show that it was impracticable to raise an objection to a rule within the public comment period or that the grounds for the objection arose after the public comment period. 3 AGCC's petition for reconsideration is docket item EPA-HQ-OAR-2004-0022-0516 and the petition of CKRC is docket item EPA-HQ-OAR-2004-0022-0520. Petitioners AGCC and CKRC requested that EPA reconsider the particulate matter standard for new cement kilns. They stated that the final standard of 0.0023 gr/dscf was not properly noticed and was derived using unrepresentative test data from the Ash Grove Cement Chanute (AGCC Chanute) plant, resulting in an unachievable standard. To support their position, the petitioners provided additional performance data from the AGCC Chanute plant, the cement kiln whose performance was the basis for the standard. On March 23, 2006, we published a proposed rule granting reconsideration of the particulate matter standard for new cement kilns and proposed a revised standard. See 71 FR 14665. In the proposal we agreed that there was legitimate confusion regarding whether we would base the new source standard on emissions data from the Ash Grove Cement Chanute plant, and that also, there was no practical opportunity for commenters to address this issue during the public comment period. We also stated that “it appears that the promulgated new source standard for particulate matter for cement kilns is overly stringent in that it does not fully reflect the variability of the best performing source over time (the “emission control that is achieved in practice,” using the language of section 112(d)(3))”. 71 FR at 14668. Therefore, we proposed a revised particulate matter standard for new cement kilns of 0.0069 gr/dscf. Eleven public comment letters were submitted in response to the proposal, including a request to extend the comment period by two weeks that was granted in a subsequent notice on April 13, 2006 (71 FR 19155). Pursuant to section 307(d)(7)(B) of the CAA, EPA also issued an administrative stay of the 0.0023 gr/dscf standard on March 23, 2006 (71 FR 14655). The administrative stay was in effect for three months, the maximum allowable under this section of the CAA, from March 23, 2006 to June 23, 2006. The administrative stay was based on our initial determination that the petitions for reconsideration (for the particulate matter standard for new cement kilns) appear to have merit and that there is a potential environmental detriment associated with requiring immediate compliance with the current standard of 0.0023 gr/dscf (71 FR at 14655). III. Basis for Amended Effective Date Although we proposed to revise the particulate matter standard for new cement kilns to 0.0069 gr/dscf from 0.0023 gr/dscf in response to the petitions for reconsideration, the October 12, 2005 final rule provides that the promulgated particulate matter standard of 0.0023 gr/dscf takes effect upon publication. Without today's amendment of this provision, all cement kilns that were constructed or reconstructed after April 20, 2004, would have been required to comply immediately with the 0.0023 gr/dscf emission standard. While there are no cement kilns operating that were constructed or reconstructed after April 20, 2004 (and thus already complying with the 0.0023 gr/dscf standard) currently, there are a number of cement plants that are in various stages of constructing new, lower emitting and more energy-efficient kilns to replace older cement kilns. Comments submitted by these cement companies affirm that the promulgated particulate matter standard of 0.0023 gr/dscf, if left in effect during the reconsideration proceedings, could adversely affect the construction of these new kilns. As discussed in Section IV below, we have found that such delays, if they were to occur, would result in adverse environmental and energy impacts ( e.g. , increased emissions of particulate matter and increased consumption of fossil fuels such as coal). Therefore, we conclude it is appropriate to amend the effective date of the particulate matter standard for new cement kilns until we conclude the reconsideration proceedings. We are mindful that there would be no need to amend the effective date of the new source particulate matter standard for cement kilns if it seemed likely that we would affirm the promulgated standard of 0.0023 gr/dscf at the conclusion of the reconsideration process. Based on a preliminary, non-cursory evaluation of public comments submitted in response to the proposed rule to revise the particulate matter standard, we continue to believe that a MACT floor level of 0.0023 gr/dscf is not representative of the performance of any single best performing cement kiln source in our emissions data base, properly taking normal operating variability into account. Therefore, while not a final determination, our preliminary review of public comments provided during the reconsideration proceedings has not persuaded us that a revision of the particulate matter standard for new cement kilns is unnecessary. We will, of course, consider objectively all information submitted during the reconsideration process and make a final determination in the near future as to the need to revise this standard. Our preliminary view is that an emissions standard of 0.0023 gr/dscf for particulate matter is not an appropriate standard for new cement kilns either as a MACT floor or as a beyond-the-floor standard. 4 First, a level of 0.0023 gr/dscf does not appear to be an achievable MACT floor level based on available particulate matter emissions data from the AGCC Chanute plant, the cement kiln on whose performance that standard was based. Available performance data for AGCC Chanute include emissions data from 2001-2002 (the basis of the promulgated MACT floor of 0.0023 gr/dscf) and additional emissions data from 2003-2005 submitted by petitioner AGCC during reconsideration proceedings (the basis for identifying another cement plant as the single best performing source in the reconsideration proposed rule that led EPA to propose a MACT floor of 0.0069 gr/dscf). As discussed below, it is our view that these emissions data show that the AGCC Chanute source does not routinely achieve a standard of 0.0023 gr/dscf. In fact, our review of the AGCC Chanute data led us to identify another cement plant as the single best performing source in the March 23, 2006 reconsideration proposed rule. 4 See the notice of proposed rulemaking for a discussion of how we selected representative data for each source so that the single best performing source could be identified and how we calculated the MACT floor levels for particulate matter. 69 FR at 21223-233 (April 20, 2004). The proposed rule also describes how emissions variability was accounted for, including the use of a “universal variability factor” that was used only for the particulate matter standard to address long-term variability in particulate matter emissions of sources using fabric filters. See also 70 FR at 59436-450. In developing MACT standards, we must also consider beyond-the-floor control options that are more stringent than the floor level taking into consideration not only emission performance but also the cost of achieving the emission reductions, any health and environmental impacts, and energy requirements. CAA section 112(d)(2). One commenter to the March 23, 2006 proposed rule stated that the emissions data of AGCC Chanute from 2003-2005 reflect unnecessary bag leakage and ineffective maintenance, and, therefore, the test data submitted during reconsideration proceedings for AGCC Chanute should not be accepted as representative of routine performance. The commenter also states that a standard of 0.0023 gr/dscf would be readily achievable by AGCC Chanute (and other cement kilns) through, among other things, an effective preventative maintenance program that includes the use of bag leak detection systems to identify and correct bag leaks when they first occur. 5 However, the commenter provides no evidence that an ineffective preventative maintenance program is responsible for the variability seen in the additional emissions data from 2003-2005 as compared to the 2001-2002 data. Without a basis to exclude the data, we tentatively believe these additional data must not be excluded from the MACT floor analysis because they reflect the normal variability of the source over time. As discussed in the reconsideration proposed rule, if these data are considered, then AGCC Chanute's performance clearly shows that an emission level of 0.0023 gr/dscf is not an appropriate MACT floor for new cement kilns because it does not fully reflect the source's emission variability (71 FR at 14669). We also tentatively reject the commenter's argument that AGCC Chanute could routinely achieve a MACT floor of 0.0023 gr/dscf if its baghouse (fabric filter) were better maintained by monitoring emissions with a bag leak detection system. The argument suggests that AGCC Chanute could have maintained the performance achieved in 2001-2002 through improved monitoring and a better preventative maintenance program. We disagree that the commenter's argument is even relevant when identifying a MACT floor because whether AGCC Chanute could operate better (achieve lower emissions over time) with different equipment, such as a bag leak detection system, is a beyond-the-floor issue. As the commenter acknowledges, AGCC Chanute is not equipped with a bag leak detection system. For purposes of a MACT floor, we must identify the single best performing source and identify an emission level that reflects “the emission control that is achieved in practice by the best controlled source.” Section 112(d)(3). Therefore, a MACT floor of 0.0023 gr/dscf for particulate matter would not be justifiable based on theoretical performance of a differently-equipped AGCC Chanute plant. 5 See docket item EPA-HQ-OAR-2004-0022-0542.01, page 2. Second, a level of 0.0023 gr/dscf does not appear to be an achievable MACT floor level based on available particulate matter emissions data from any other cement kiln source in our emissions data base. As presented in the support document to the reconsideration proposed rule, we are not in possession of any emissions data from a cement kiln achieving this level, accounting for normal performance variability. 6 6 USEPA, “Draft Technical Support Document for HWC MACT Standards, Reconsideration of the New Source Particulate Matter Standards for Cement Kilns,” March 2006, Table 4. Finally, an emissions standard of 0.0023 gr/dscf for particulate matter is not likely an appropriate beyond-the-floor standard for new cement kilns. In the reconsideration proposal, we evaluated a beyond-the-floor standard of 0.0035 gr/dscf and proposed that such a standard would not be justified. 7 This analysis was based on improved baghouse performance that evaluates improved bag material and a lower gas to cloth ratio. We also reached that conclusion in the final rule whereby we rejected adopting a beyond-the-floor standard of 0.0012 gr/dscf. 8 While we are not able to quantify the costs here (because the MACT floor level has yet to be determined), the previous analyses indicate that a beyond-the-floor standard of 0.0023 gr/dscf is not likely to be warranted. We will, of course, make a final determination as to the appropriateness of a beyond-the-floor standard for new cement kilns during the reconsideration process in the near future. 7 USEPA, “Draft Technical Support Document for HWC MACT Standards, Reconsideration of the New Source Particulate Matter Standards for Cement Kilns,” March 2006, Section 4.1.2. 8 USEPA, “Technical Support Document for HWC MACT Standards, Volume III: Selection of MACT Standards,” September 2005, Section 11.3.4. IV. Good Cause Findings Section 553(b) of the Administrative Procedure Act (APA) (which applies to this action pursuant to the final sentence of CAA section 307(d)(1)) provides that, when any agency for good cause finds that notice and public procedure are impracticable, unnecessary, or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. Similarly, under section 553(d) of the APA, an agency may find that there is good cause to make the rule effective upon publication in the Federal Register . We have determined that there is good cause for making today's amendment final without prior proposal and opportunity for public comment for several reasons. First, this amendment removes potential impediments to significant environmental and energy savings by allowing continued construction of new cement kilns that burn hazardous waste. As noted in the petitions for reconsideration of AGCC and CKRC, at least three companies are in various stages of constructing new, lower emitting and more energy-efficient kilns to replace older cement kilns. 9 Declarations made by representatives of these companies are that the companies could choose not to burn hazardous waste at these kilns and instead comply with the more lenient standards for particulate matter applicable to non-waste burning kilns, should the current particulate matter standard of 0.0023 gr/dscf be included in a permit. 10 Using the AGCC's Foreman plant as an example, we estimate that emissions of particulate matter would increase by approximately 77 tons per year at the Foreman plant should AGCC decide to abandon plans to burn hazardous waste at the new preheater/precalciner kiln. 11 Continental Cement Company and Keystone Cement Company also are planning to construct new cement kilns. If all three companies abandoned plans to build the new lower-emitting cement kilns, then particulate matter emissions would potentially increase by over 200 tons per year. 9 For example, AGCC is replacing its three older wet process cement kilns at its Foreman, Arkansas plant with a new preheater/precalciner kiln. See docket item EPA-HQ-OAR-2004-0022-0523, page 3. Information related to plans of Continental Cement Company and Keystone Cement Company to build new cement kilns can be found in docket item EPA-HQ-OAR-2004-0022-0521, Appendices F and G, respectively. 10 Declarations made by representatives of AGCC, Continental Cement Company, and Keystone Cement Company are available in the docket. See docket item EPA-HQ-OAR-2004-0022-0521, Appendices F, G, and H. 11 For purposes of this estimate, it was assumed that the new preheater/precalciner kiln would be designed to 0.0034 gr/dscf, which is the design level for the standard that we proposed for new hazardous waste burning cement kilns on March 23, 2006 (71 FR 14665). The particulate matter standard for new cement kilns that do not burn hazardous waste is 0.15 kg/Mg dry feed, which equates to approximately 0.04 gr/dscf, corrected to 7% oxygen, for a preheater/precalciner kiln. Section 63.1343(b)(1). There also may be environmental detriment if the amendment is not issued because the companies building new cement kilns could experience construction and permitting delays. This detriment would result because the existing higher-emitting and less efficient cement kilns would (assuming delay) continue to operate for a longer period of time (i.e., operation of the new cement kilns replacing the older kilns would be postponed). We estimate that emissions of particulate matter would increase by approximately 60 tons at the Foreman plant should AGCC experience a 1-year delay in initiating operation of their new preheater/precalciner kiln. 12 Delays at Continental Cement Company and Keystone Cement Company would result in annual increases in particulate matter emissions of 27 tons and 30 tons, respectively. Thus, if all three companies experienced a one-year delay in building the new lower-emitting cement kilns, then particulate matter emissions would increase by approximately 117 tons. 12 We estimate emissions of particulate matter from Ash Grove Cement's three wet process kilns at 85 tons per year. See USEPA, “Technical Support Document for HWC MACT Replacement Standards, Volume V: Emissions Estimates and Engineering Costs,” September 2005, Appendix C. For purposes of this estimation, we assumed that the new preheater/precalciner kiln would be designed to 0.0034 gr/dscf, which is the design level for the standard that we proposed for new hazardous waste burning cement kilns on March 23, 2006. We also find that amending the rule's effective date yields substantial energy savings. A typical wet process cement kiln requires approximately 5-6 million Btu of energy to make one ton of clinker product, while the more thermally-efficient preheater/precalciner kilns require 3 million Btu of energy. One wet process cement kiln annually producing 500,000 tons of clinker would consume approximately 105,000 tons of coal (assumes that all energy is derived from coal). However, a more thermally-efficient preheater/precalciner kiln would require 57,000 tons of coal per year, which equates to an annual energy savings of nearly 50,000 tons of coal per kiln as compared to a wet process kiln. Thus, a delay in the start-up of the new kilns or outright abandonment of its construction would result in the increased use of several hundred thousand tons of coal per year. It is also important to note that while this amendment temporarily relieves newly constructed or reconstructed cement kilns of the obligation to comply with the replacement standard of 0.0023 gr/dscf, there are no cement kilns currently in operation that are subject to the replacement standard. That is, there are no new cement kilns that are currently complying with the replacement standard of 0.0023 gr/dscf for particulate matter, and thus no kilns that will actually emit particulate matter at higher levels. Thus, although the less stringent particulate matter standard that was applicable to new cement kilns prior to the promulgation of the replacement standards will be in effect as a result of today's amendment, this will not lead to an actual increase in particulate matter emissions. We also note that the issue of the rule's effective date has essentially already been subject to robust public comment through the grant of reconsideration and proposal to amend the rule. Thus, this is not a situation where the public is presented with a final rule without having opportunity to address the issues involved in the action. Finally, we note that we expect this amendment to be in effect for only a short time. We estimate that the amendment will remain in effect for less than 1-year while the rulemaking to revise the particulate matter standard for new cement kilns is concluded. We intend to take final action on reconsideration of the particulate matter standard for new cement kilns as expeditiously as possible. When that work is completed, the kilns currently under construction will be responsible for meeting the standard in the revised rule prior to commencing operation. We do not anticipate that any of those new kilns will ever operate subject to the previous replacement standard. Given the possibility of environmental detriment, the lack of environmental prejudice, the previous opportunity for public comment on the issues involved, and the likely short duration of this amendment, we find that there is good cause to amend the rule's effective date under 5 U.S.C. 553(b)(B) without prior notice or opportunity to comment. We also find, for the same reasons, that good cause exists under APA section 553(d)(3) to make this amendment effective upon publication in the Federal Register rather than 30 days later. V. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review This action is not a “significant regulatory action” under the terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the EO. Consequently, this action was not submitted to the Office of Management and Budget for review under EO 12866. B. Paperwork Reduction Act The information collection requirements in the final rule (70 FR 59402, October 12, 2005) were submitted to and approved by OMB under the Paperwork Reduction Act, 44 U.S.C. 3501, et seq. , and assigned OMB control number 2050-0171. An Information Collection Request (ICR) document was prepared by EPA (ICR No. 1773.08) and a copy may be obtained from Susan Auby by mail at Office of Environmental Information Collection Strategies Division (ME-2822T), 1200 Pennsylvania Avenue, NW., Washington, DC 20460, by e-mail at auby.susan@epa.gov , or by calling (202) 566-1672. A copy may also be downloaded from the Internet at http://www.epa.gov/icr. Today's action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Because there is no additional burden on the industry as a result of the final rule amendments, the ICR has not been revised. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9. C. Regulatory Flexibility Act The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of today's final rule on small entities, small entity is defined as: (1) A small business that is primarily engaged in cement manufacturing as defined by NAIC code 327310 with less than 750 employees (for the entire corporation); (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in the field. After considering the economic impacts of today's final rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This final rule will not impose any new, more stringent requirements on new source, small cement manufacturing entities. D. Unfunded Mandates Reform Act of 1995 Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. L. 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. EPA has determined that the final rule amendments do not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, or tribal governments, in the aggregate, or to the private sector in any one year. Furthermore, section 202 does not apply to rules for which EPA invokes an exemption under section 553(b)(1)(B) of the Administrative Procedure Act, as is being done in this action. Thus, today's action is not subject to sections 202 and 205 of the UMRA. EPA has also determined that the final rule amendments contain no regulatory requirements that might significantly or uniquely affect small governments. Thus, the final rule amendments are not subject to the requirements of section 203 of the UMRA no new enforceable duty on any State, local or tribal governments or the private sector. E. Executive Order 13132: Federalism Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final 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. Thus, Executive Order 13132 does not apply to this rule. F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This final rule does not have tribal implications, as specified in Executive Order 13175. This action contains no requirements that are more stringent than in the October 2005 final rule. Thus, Executive Order 13175 does not apply to this rule. G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is determined to be “economically significant” as defined under E.O. 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. Today's final rule is not subject to E.O. 13045 because it does not meet either of these criteria. The rule simply amends the effective date of a standard while EPA takes final action on the proposed rule (71 FR 14665 (March 23, 2006)). H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not an economically significant regulatory action under Executive Order 12866. I. National Technology Transfer and Advancement Act As noted in the proposed rule (69 FR 21198), Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Pub. L. 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This action does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards. J. Congressional Review 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. Section 808 allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary or contrary to the public interest. This determination must be supported by a brief statement. 5 U.S.C. 808(2). As discussed in Section IV above, EPA has made such a good cause finding, including the reasons therefore, and established an effective date of October 25, 2006. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). List of Subject in 40 CFR Part 63 Environmental protection, Air pollution control, Hazardous substances, Reporting and recordkeeping requirements. Dated: October 19, 2006. Stephen L. Johnson, Administrator. For the reasons set out in the preamble, title 40, chapter I of the Code of Federal Regulations is amended as follows: PART 63—NATIONAL EMISSIONS STANDARDS FOR HAZARDOUS AIR POLLUTANTS FOR SOURCE CATEGORIES 1. The authority citation for part 63 continues to read as follows: Authority: 42 U.S.C. 7401 et seq. 2. Section 63.1206 is amended by revising paragraph (a)(1)(ii)(B)( 1 ) and adding new paragraph (a)(1)(ii)(B)( 3 ) to read as follows: § 63.1206 When and how must you comply with the standards and operating requirements? (a) * * * (1) * * * (ii) * * * (B) * * * ( 1 ) If you commenced construction or reconstruction of your hazardous waste combustor after April 20, 2004, you must comply with the new source emission standards under §§ 63.1219, 63.1220, and 63.1221 and the other requirements of this subpart by the later of October 12, 2005 or the date the source starts operations, except as provided by paragraphs (a)(1)(ii)(B)( 2 ) and (a)(1)(ii)(B)( 3 ) of this section. The costs of retrofitting and replacement of equipment that is installed specifically to comply with this subpart, between April 20, 2004, and a source's compliance date, are not considered to be reconstruction costs. (3) * Temporary particulate matter standard under § 63.1220 for new cement kilns. * You are not required to comply with the particulate matter standard specified under § 63.1220(b)(7)(i) until EPA takes final action with regard to the particulate matter standard pursuant to reconsideration proceedings. If you start up a new or reconstructed hazardous waste burning cement kiln as defined by this subpart, you must not emit particulate matter in excess of 0.15 kg/Mg dry feed, as determined according to the requirements under § 63.1204(b)(7)(i) through (iii). 3. Section 63.1220 is amended by revising paragraph (b)(7)(i) to read as follows: § 63.1220 What are the replacement standards for hazardous waste burning cement kilns? (b) * * * (7) * * * (i) Except as provided by § 63.1206(a)(1)(ii)(B)( 3 ) and paragraph (b)(7)(iii) of this section, particulate matter emissions in excess of 0.0023 gr/dscf corrected to 7 percent oxygen. [FR Doc. E6-17897 Filed 10-24-06; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF TRANSPORTATION Office of the Secretary 49 CFR Part 29 [Docket No. OST-2005-22602] RIN 2105-AD46 Debarment and Suspension (Nonprocurement) Requirements AGENCY: Office of the Secretary (OST), DOT. ACTION: Final rule. SUMMARY: This rule amends the Department of Transportation's regulations implementing the governmentwide nonprocurement debarment and suspension requirements. Specifically, this rule adopts the optional lower tier coverage prohibiting excluded persons from participating in subcontracts at tiers lower than the first tier below a covered nonprocurement transaction. DATES: Effective Date: This final rule is in effect November 24, 2006. FOR FURTHER INFORMATION CONTACT: Ellen Shields, Office of the Senior Procurement Executive, Office of Administration (M-61), (202) 366-4268, 400 Seventh Street, SW., Washington, DC 20590-0001. Office hours are from 7:45 a.m. to 4:15 p.m. e.t., Monday through Friday, except Federal holidays. SUPPLEMENTARY INFORMATION: Electronic Access You may retrieve previously filed comments online through the Document Management System (DMS) at http://dmses.dot.gov. The DMS is available 24 hours each day, 365 days each year. Electronic retrieval help and guidelines are available under the help section of the Web site. An electronic copy of this document may be downloaded by using a computer, modem and suitable communications software from the Government Printing Office's Electronic Bulletin Board Service at (202) 512-1661. Internet users may also reach the Office of the Federal Register's home page at http://www.nara.gov/fedreg and the Government Printing Office's Web page at: http://www.access.gpo.gov/nara. Background On November 26, 2003, the Department of Transportation (DOT), along with twenty-nine other agencies, published its final rule implementing changes to the governmentwide debarment and suspension common rule (68 FR 66533). These regulations were intended to resolve unnecessary technical differences between the procurement and nonprocurement systems, revise the existing governmentwide debarment and suspension regulations in a plain language style and format, and make other improvements consistent with the purpose of the debarment and suspension system. One of the changes made to the regulations included limiting the mandatory down-tier application of an exclusion to only the first procurement level. Under the previous governmentwide regulations, all executive agencies applied suspensions and debarments to all procurement levels. However, in the revised governmentwide regulations, each agency was given the option of applying an exclusion to levels below the first procurement level. This final rule adopts the optional lower tier coverage to make the debarment and suspension regulations applicable to levels below the first procurement level. Many of the DOT programs involve billions of dollars in grants that are obligated to construction projects by States, localities and other recipients. For instance, on August 10, 2005, the President signed into law the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), Public Law 109-59. This Act authorizes funding for highways, highway safety, and public transportation totaling $244.1 billion over five years (2005-2009) and is the largest surface transportation investment in our Nation's history. Of this $244.1 billion, a substantial portion of these funds will be used by States and other grantees to procure construction contracts. These construction contracts could involve multiple subcontracts that would be vulnerable to misconduct and poor performance if suspended or debarred contractors are allowed to participate in these transactions. Discussion of Comments On October 5, 2005, the Office of the Secretary (OST) in the DOT published a notice of proposed rulemaking (NRPM) and requested comment on whether the DOT should adopt the lower tier coverage. In response to the NPRM, OST received two comments. These comments were submitted by the American Road and Transportation Builders Association (ARTBA) and the Wisconsin Department of Transportation (WisDOT). ARTBA commented that the transportation construction industry has a well-deserved reputation of being comprised of highly ethical firms. However, despite this reputation, some firms betray the integrity of the whole. In these situations, ARTBA acknowledged that suspension or debarment may be appropriate. Additionally, ARTBA commented on the importance of maintaining the contractor's due process rights. ARTBA stated that the basis of due process is that everyone is deemed innocent until proven guilty and that due process is not served if contractors are suspended or debarred before being afforded an opportunity to be heard. ARTBA noted that debarment and suspension cannot be taken lightly because of the interruption in the firm's ability to work and, as such, the DOT needs to ensure that the debarment and suspension process is fair. The DOT agrees with ARTBA that the transportation construction industry does indeed have a well-deserved reputation of being comprised of highly ethical firms. However, as ARTBA acknowledges, there are some firms within the industry that betray this reputation. The participation of these irresponsible firms and individuals in the transportation program could result in millions of dollars being wasted due to fraud. These are funds that could be used on construct more transportation projects. Also, the DOT agrees with ARTBA on the importance of maintaining the contractor's due process rights. The debarment and suspension regulations promulgated in 2003 set out detailed procedures that must be followed whenever the Department initiates a suspension or debarment action. These procedures include both notice and an opportunity to be heard. WisDOT commented that the language was not user friendly and suggested that the DOT adopt a definition of procurement as well as revise the proposed language by essentially substituting the word “nonprocurement” with “procurement.” The current regulations are based on a governmentwide common rule that was adopted by numerous agencies and were drafted to be more consistent with the debarment and suspension rules in the Federal Acquisition Regulation (FAR). Thus, the DOT is hesitant to make any changes that may deviate from the consistency these rules are intended to create among Executive Branch agencies as well as the FAR. However, the DOT notes this suggestion and will work with the Office of Management and Budget, which is the lead agency on the governmentwide common rule, in this endeavor. The DOT feels that the language should be adopted as proposed in the NPRM. First, the alternate language proposed by WisDOT would apply to procurement transactions at the first procurement level. These types of transactions have unique rules already established in section 29.220(b) of 49 CFR. Second, the language proposed by the NPRM makes it clear that the provision applies to contracts awarded by contractors under a nonprocurement transaction. Thus, the DOT is adopting the language proposed in the NPRM. Rulemaking Analyses and Notices Executive Order 12866 (Regulatory Planning and Review) and DOT Regulatory Policies and Procedures The DOT has determined preliminarily that this action is not a significant regulatory action within the meaning of Executive Order 12866 and is not significant within the meaning of Department of Transportation regulatory policies and procedures. It is anticipated that the economic impact of this rulemaking would be minimal, since it would bring the DOT's regulations concerning the effect of a debarment and suspension back in line with the regulations that were in effect prior to November 26, 2003. These changes would not adversely affect, in a material way, any sector of the economy. In addition, these changes would not interfere with any action taken or planned by another agency and would not materially alter the budgetary impact of any entitlements, grants, user fees, or loan programs. Consequently, a full regulatory evaluation is not required. Regulatory Flexibility Act In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 5 U.S.C. 601-612) the DOT has evaluated the effects of this action on small entities and has determined that the action would not have a significant economic impact on a substantial number of small entities. This action brings the DOT's regulations concerning the effect of a debarment and suspension back in line with the regulations that were in effect prior to November 26, 2003 by excluding persons who have been debarred or suspended from participating in transactions beneath the first procurement level under a non-procurement transaction. For these reasons, the DOT certifies that this action does not have a significant economic impact on a substantial number of small entities. Unfunded Mandates Reform Act of 1995 This rule does not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22, 1995, 109 Stat. 48). This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year (2 U.S.C. 1532). This final rule provides for the exclusion of debarred or suspended persons from participating in transactions beneath the first procurement level under a non-procurement transaction, therefore, this action is not considered an unfunded mandate. Executive Order 13132 (Federalism Assessment) This action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132, and the DOT has determined that this action does not have sufficient federalism implications to warrant the preparation of a Federalism assessment. The DOT has also determined that this action does not preempt any State law or State regulation or affect the States' ability to discharge traditional State governmental functions. Executive Order 13175 This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”). Because this final rule does not significantly or uniquely affect the communities of the Indian tribal governments and does not impose substantial direct compliance costs, the funding and consultation requirements of Executive Order 13175 do not apply. Paperwork Reduction Act Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et seq. ), Federal agencies must obtain approval from the Office of Management and Budget for each collection of information they conduct, sponsor, or require through regulations. The DOT has determined that this rule does not contain collection of information requirements for the purposes of the PRA. National Environmental Policy Act The agency has analyzed this action for the purpose of the National Environmental Policy Act of 1969 (42 U.S.C. 4321) and has determined that this action does not have any effect on the quality of the environment. Regulation Identification Number A regulation identification number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the United Agenda in April and October of each year. The RIN contained in the heading of this document can be used to cross reference this action with the Unified Agenda. List of Subjects in 49 CFR Part 29 Administrative practice and procedure, Government contracts, Grant programs, Loan programs, Reporting and recordkeeping requirements. Issued on: October 6, 2006. Maria Cino, Acting Secretary of Transportation. In consideration of the foregoing, the DOT proposes to amend, title 49, Code of Federal Regulations, part 29, as set forth below: PART 29—GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT) 1. The authority citation for part 29 continues to read as follows: Authority: Sec. 2455, Pub. L. 103-355, 108 Stat. 3327 31 U.S.C. 6101 note); E.O. 11738 3 CFR, 173 Comp., p. 799); E.O. 12549 (3 CFR, 1986 Comp., p. 189); E.O. 12689 (3 CFR 1989 Comp., p. 235). 2. In § 29.220, add paragraph (c) to read as follows: § 29.220 Are any procurement transactions included as covered transactions? (c) The contract is awarded by any contractor, subcontractor, supplier, consultant or its agent or representative in any transaction, regardless of tier, to be funded or provided by the DOT under a nonprocurement transaction that is expected to equal or exceed $25,000. [See optional lower tier coverage shown in the diagram in the appendix to this part.] § 29.520 [Amended] 3. In § 29.520, in paragraph (d), remove the references: “United States Coast Guard [DOT-USCG]” and “Research and Special Programs [DOT-RSPA]” and insert the references “Research and Innovative Technology Administration [RITA]” and “Pipeline and Hazardous Materials Safety Administration [DOT-PHMSA]” in their place, respectively. [FR Doc. 06-8657 Filed 10-24-06; 8:45 am]