The regulations in 9 CFR parts 93, 94, 95, and 96 (referred to below as the regulations) govern the importation of certain animals, birds, poultry, meat, other animal products and byproducts, hay, and straw into the United States in order to prevent the introduction of various animal diseases, including bovine spongiform encephalopathy (BSE).

BSE is a neurological disease of bovine animals and other ruminants and is not known to exist in the United States. It appears that BSE is primarily spread through the use of ruminant feed containing protein and other products from ruminants infected with BSE. Therefore, BSE could become established in the United States if materials carrying the BSE agent, such as certain meat, animal products, and animal byproducts from ruminants, are imported into the United States and are fed to ruminants in the United States. BSE could also become established in the United States if ruminants with BSE are imported into the United States.

Sections 94.18, 95.4, and 96.2 of the regulations prohibit or restrict the importation of certain meat and other animal products and byproducts from ruminants that have been in regions in which BSE exists or in which there is an undue risk of introducing BSE into the United States. In § 94.18, paragraph (a)(1) lists the regions in which BSE exists. Paragraph (a)(2) lists the regions that present an undue risk of introducing BSE into the United States because their import requirements are less restrictive than those that would be acceptable for import into the United States and/or because the regions have inadequate surveillance. Paragraph (b) of § 94.18 prohibits the importation of fresh, frozen, and chilled meat, meat products, and most other edible products of ruminants that have been in any region listed in paragraphs (a)(1) or (a)(2). Paragraph (c) of § 94.18 restricts the importation of gelatin derived from ruminants that have been in any of these regions. Section 95.4 prohibits or restricts the importation of certain byproducts from ruminants that have been in any of those regions, and § 96.2 prohibits the importation of casings, except stomach casings, from ruminants that have been in any of these regions. Additionally, the regulations in 9 CFR part 93 pertaining to the importation of live animals provide that the Animal and Plant Health Inspection Service may deny the importation of ruminants from regions where a communicable disease such as BSE exists and from regions that present risks of introducing communicable diseases into the United States (see § 93.404(a)(3)).

On September 10, 2001, Japan reported a suspected case of BSE in a native-born animal, and on September 22, 2001, Japan confirmed their diagnosis in a report to the Office International des Epizooties. Therefore, in order to reduce the risk of introducing BSE into the United States, we are amending § 94.18 (a)(1) by adding Japan to the list of regions where BSE is known to exist. The effect of this action is a restriction on the importation of ruminants that have been in Japan and on the importation of meat, meat products, and certain other products and byproducts of ruminants that have been in Japan. We are making this amendment effective retroactively to September 10, 2001, which is the date that BSE was reported in a native-born animal in that region.

This rulemaking is necessary on an emergency basis to prevent the introduction of BSE into the United States. Under these circumstances, the Administrator has determined that prior notice and opportunity for public comment are contrary to the public interest and that there is good cause under 5 U.S.C. 553 for making this rule effective less than 30 days after publication in the Federal Register .

We will consider comments that are received within 60 days of publication of this rule in the Federal Register . After the comment period closes, we will publish another document in the Federal Register that will include a discussion of any comments we receive and any amendments we are making to the rule as a result of the comments.

This rule has been reviewed under Executive Order 12866. For this action, the Office of Management and Budget has waived its review process required under Executive Order 12866.

This emergency situation makes timely compliance with section 604 of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) impracticable. We are currently assessing the potential economic effects of this action on small entities. Based on that assessment, we will either certify that the rule will not have a significant economic impact on a substantial number of small entities or publish a final regulatory flexibility analysis.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has retroactive effect to September 10, 2001; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

This interim rule contains no information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

On May 30, 2000, FSIS published the final rule “Elimination of Requirements for Partial Quality Control Programs” (65 FR 34381). The final rule, which became effective August 28, 2000, removed from the Federal meat and poultry products inspection regulations the remaining requirements pertaining to partial quality control (PQC) programs. A PQC program, as distinguished from a total quality control (TQC) system, controls a single product, operation, or part of an operation in a meat or poultry establishment. A TQC system controls all products and processes in an establishment. The final rule removed the design requirements for PQC programs and the requirements for establishments to have PQC programs for certain products or processes. The final rule was intended to make the regulations more consistent with the Pathogen Reduction (PR)/Hazard Analysis and Critical Control Points (HACCP) regulations and to give federally inspected establishments greater flexibility to adopt new technologies and methods that will improve food safety and other consumer protections.

After publication of the final rule, some establishments asked the Agency whether they could continue to use their PQC programs, including PQC programs for net weight. Some persons who contacted the Agency asked specifically about the status of PQC programs that control net weight. Some establishments believed that, if such programs were rescinded, their products would be subject to lot inspection by FSIS. FSIS answered that the final rule does not rescind PQC programs for net weight. Establishments can continue to use PQC programs for net weight, and the Agency will verify their compliance with net weight requirements based on data from such programs.

Others asked whether the Agency would recognize TQC system data or PQC net weight program data regarding the testing of scales. They referred to the fact that the final rule removes the requirement for an establishment to have a total quality control (TQC) system provision for net weight or a partial quality control (PQC) program for net weight control in lieu of displaying, on or near its scales, a valid certification from a State or local weights and measures authority or from a State-registered or -licensed scale repair firm or person (9 CFR 317.21(b), 381.121d(b), as amended).

With respect to the amended regulations on the testing of scales (9 CFR 317.21(b), 381.121d(b)), the May 30 final rule required that there be a certification of accuracy from State or local authorities or from a State-registered or -licensed repair firm or person. The preamble to the final rule also stated that establishments could continue to maintain the scale-checking provisions in their QC programs and systems (65 FR 34385). The final rule did not say whether the Agency, in the course of its verification activities, would accept the scale checking data generated by TQC systems or PQC programs. The inference that could be made from the May 30 final rule was that the only documentation of the accuracy of scales that FSIS would accept is a certification of accuracy by State or local authorities or by a State-registered or licensed repair firm or person.

FSIS notes that the other regulations on accuracy and testing of scales (9 CFR 317.20, 317.21(a), 381.121c, 381.121d(a)) continue in force. FSIS also notes that, when evaluating TQC and PQC net weight program provisions for testing scales, FSIS has always expected the systems and programs to ensure compliance with the regulations and the requirements of National Institute of Standards and Technology (NIST) Handbook 44. When evaluating data and information from TQC systems, PQC programs, or other documented procedures relating to the accuracy of scales, the Agency will continue to expect the data to reflect compliance or non-compliance with the Handbook 44 requirements.

On September 18, 2000, FSIS therefore proposed to amend the May 30 final rule to clarify that establishments could provide alternative documentation that scales meet the requirements of NIST Handbook 44 and the other regulatory requirements for accuracy and testing of scales, in lieu of State or local certification of scales (65 FR 56262). Such documentation could be data or information generated by a TQC system or PQC program or records of tests conducted in accordance with NIST Handbook 44 requirements or other requirements of the regulations.

FSIS received comments on the proposal from a trade association representing food processors, two officials of the union representing FSIS food inspectors, and an engineer employed by a food equipment manufacturer. The trade association supported the proposal because it would give official establishments the flexibility to use data from TQC systems or PQC programs to ensure compliance with net weight regulations.

Two officials of the union that represents FSIS food inspectors opposed the proposal on the grounds that: (1) it would remove scale certification requirements; (2) it would result in product adulteration by chemicals and food ingredients in amounts greater than regulations permit; (3) the proposal falsely claimed that “HACCP programs” could control scale certification; and (4) Handbook 44 is an unenforceable guideline.

The Agency responds to these points as follows: (1) Under the proposal, scale certification requirements would be essentially the same as they were from the time when the current net weight regulations were promulgated until the May 30, 2000, final rule. Before the final rule, which became effective August 28, 2000, establishments were able to use data from PQC programs or TQC systems to ensure compliance of scales with net weight regulations. This meant that the scales had to be in compliance with Handbook 44 specifications.

(2) The scale certification provisions addressed by the proposal are intended to help ensure the compliance of meat and poultry products with net weight requirements. The accuracy of scales helps to ensure the accuracy of product net weight statements. The chemical and food ingredient example does not support the commenters' point because food ingredient or chemical restrictions are typically expressed as percentages of products or product formulations. That means that if the same scale were used to weigh the meat and other ingredients of a product, there would still be compliance with the restricted ingredient regulations.

(3) The proposal didn't discuss the use of HACCP plans to control scale accuracy. It did state that establishments could implement PQC programs that were “not in conflict” with HACCP plans (65 FR 56262).

(4) Handbook 44, “Specifications, Tolerances, and Other Technical Requirements for Weighing and Measuring Devices,” is incorporated by reference in the net weight regulations. The requirement for scales to be tested at least once a year in accordance with Handbook 44 (9 CFR 317.21(a), 381.121d(a)) has been in effect since 1991 and is not a subject of this rulemaking.

The equipment company engineer also objected to the use of NIST Handbook 44 criteria as inappropriate for determining the accuracy of scales used in official establishments. This commenter stated that the Handbook 44 criteria conflict with NIST Handbook 130 requirements regarding variations from net quantity declarations on packaged commodities.

FSIS notes that Handbook 130, “Uniform Laws and Regulations in the Areas of Legal Metrology and Fuel Engine Quality,” is not directly applicable to net weight determinations for meat and poultry products and is not incorporated by reference into the FSIS regulations. NIST Handbook 133, “Checking the Net Contents of Packaged Goods,” including the provisions for maximum allowable variation in net weight, applies specifically to FSIS-regulated products and is incorporated by reference in the FSIS regulations governing procedures for determining net weight compliance (9 CFR 317.19, 381.121b) for those products. No changes respecting these requirements were envisioned in the proposal. Further, the comment was not relevant to the proposal because the proposal was not intended to address the criteria for determining the accuracy of scales, but only the form of documentation of that accuracy.

This final rule has been determined to be not “significant” within the meaning of Executive Order 12866. This rulemaking is not expected to impose any new costs on the regulated industry or on other sectors of the economy.

The Administrator has determined that this final rule will not have a significant economic impact on a substantial number of small entities. Most of the entities that will be affected by this final rule are small business establishments, under Small Business Administration criteria (500 or fewer employees). This final rule will permit establishments to use data from documented procedures to demonstrate that their scales comply with the requirements of NIST Handbook 44, in lieu of certification by State or local authorities or State-licensed repair services or persons. The documented procedures may include TQC systems or PQC programs for net weight. Approximately 240 establishments that operate TQC systems and several hundred establishments that have PQC programs for net weight can continue to use those systems and programs that control the accuracy of scales. In other words, establishments will not have to change their practices for ensuring the accuracy of their scales to comply with this rule. The effect of this final rule on the affected establishments will therefore not be significant.

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. States and local jurisdictions are preempted by the Federal Meat Inspection Act (FMIA) and the Poultry Products Inspection Act (PPIA) from imposing any marking or packaging requirements on federally inspected meat and meat products or poultry products that are in addition to, or different than, those imposed under the FMIA and PPIA. States and local jurisdictions may, however, exercise concurrent jurisdiction over meat and poultry products that are outside official establishments for the purpose of preventing the distribution of meat or poultry products that are misbranded or adulterated under the FMIA or PPIA. States and local jurisdictions also may exercise concurrent jurisdiction, for the same purpose, over imported meat and poultry products that are not at an official establishment after the entry of such imported articles into the United States.

This final rule is not intended to have retroactive effect.

There are no applicable administrative procedures that must be exhausted prior to any judicial challenge to the provisions of this final rule. However, the administrative procedures specified in 9 CFR 306.5 and 381.35 must be exhausted prior to any judicial challenge of the application of the provisions of this final rule, if the challenge involves any decision of an FSIS employee relating to inspection services provided under the FMIA or PPIA.

Public awareness of all stages of rulemaking and policy development is important. Consequently, in an effort to better ensure that minorities, women, and persons with disabilities are aware of this final rule, FSIS will announce it and provide copies of this Federal Register publication in the weekly FSIS Constituent Update. FSIS communicates the Constituent Update by fax to over 300 organizations and individuals and makes it available on line through the FSIS web page located at http://www.fsis.usda.gov . The update provides information on FSIS policies, procedures, regulations, Federal Register notices, FSIS public meetings, recalls, and other information that could affect or would be of interest to the Agency's constituents/stakeholders. The constituent fax list consists of industry, trade, and farm groups, consumer interest groups, allied health professionals, scientific professionals, and other individuals who have requested to be included. Through these various channels, FSIS is able to provide information to a much broader, more diverse audience. For more information and to be added to the constituent fax list, readers of this document may fax their requests to the Congressional and Public Affairs Office, at (202) 720-5704.

Section 218(a) of the Nuclear Waste Policy Act of 1982, as amended (NWPA), requires that “[t]he Secretary [of the Department of Energy (DOE)] shall establish a demonstration program, in cooperation with the private sector, for the dry storage of spent nuclear fuel at civilian nuclear power reactor sites, with the objective of establishing one or more technologies that the [Nuclear Regulatory] Commission may, by rule, approve for use at the sites of civilian nuclear power reactors without, to the maximum extent practicable, the need for additional site-specific approvals by the Commission.” Section 133 of the NWPA states, in part, that “[t]he Commission shall, by rule, establish procedures for the licensing of any technology approved by the Commission under Section 218(a) for use at the site of any civilian nuclear power reactor.”

To implement this mandate, the NRC approved dry storage of spent nuclear fuel in NRC-approved casks under a general license by publishing a final rule in 10 CFR Part 72 entitled, “General License for Storage of Spent Fuel at Power Reactor Sites” (55 FR 29181; July 18, 1990). This rule also established a new Subpart L within 10 CFR Part 72, entitled “Approval of Spent Fuel Storage Casks” containing procedures and criteria for obtaining NRC approval of spent fuel storage cask designs. The NRC subsequently issued a final rule on October 19, 2000 (65 FR 62581) that approved the NAC-UMS cask design by adding it to the list of NRC-approved cask designs in § 72.214 as Certificate of Compliance Number (CoC No.) 1015.

On October 17, 2000, and as supplemented on December 7, 2000, April 27, 2001, July 5, 2001, July 18, 2001, July 19, 2001, July 26, 2001, and August 1, 2001, the applicant (NAC International, Inc.) submitted an application and associated Safety Analysis Report to the NRC to amend CoC No.1015 to add miscellaneous spent fuel related components to the approved contents list for the NAC-UMS Universal Storage System and to change the required actions in response to a failure of the cask heat removal system. The applicant requested changes to the authorized contents to include components associated with the spent fuel assemblies, as follows:

(1) A segment of an In-Core Instrumentation (ICI) string located within a fuel assembly.

(2) Three plutonium-beryllium (Pu-Be) startup sources located within the fuel assemblies.

(3) Two antimony-beryllium (Sb-Be) sources located within the fuel assemblies.

(4) Control Element Assembly (CEA) Finger Tip located within a fuel assembly.

The applicant also requested deletion of the technical specification requirement to place the canister in the transfer cask if the vertical concrete cask's vents cannot be unblocked within the required completion time because the risk associated with the concrete cask not performing its thermal function is minimal. Other minor administrative changes were also requested. These minor changes are discussed in Section 12 of the SER.

CoC Condition 1b will be changed to allow storage of pressurized water reactor (PWR) fuel assemblies that may include components associated with the assemblies. Also, CoC Condition 6 will be changed to more clearly allow storage of the fuel related components.

The NRC staff performed a detailed safety evaluation of the proposed CoC amendment request and found that the requested changes do not reduce the safety margin. In addition, the NRC staff has determined that the changes do not pose any increased risk to public health and safety.

This direct final rule revises the NAC-UMS cask design listing in § 72.214 by adding Amendment No. 2 to CoC No. 1015. The amendment consists of adding miscellaneous spent fuel related components to the approved contents list for the NAC-UMS Universal Storage System and changing the required actions in response to a failure of the cask heat removal system. Also, other administrative changes will be made. Specific changes will be made to TS SR 3.1.2.1, SR 3.1.3.1, LCO 3.1.6, SR 3.2.1.1, A 5.3, A 5.7, B2.1, B 2.1.3, and Tables B2-2, B2-6, and B2-7 to permit the storage of these components and the other requested changes. Other Technical Specification sections will be changed for correction of typographical, spelling, and other minor editorial errors.

The amended NAC-UMS cask system, when used under the conditions specified in the CoC, the TS, and NRC regulations, will meet the requirements of Part 72; thus, adequate protection of public health and safety will continue to be ensured.

Certificate No. 1015 is revised by adding the effective date of Amendment Number 2.

This rule is limited to the changes contained in Amendment 2 to CoC No. 1015 and does not include other aspects of the NAC-UMS cask system design. The NRC is using the “direct final rule procedure” to issue this amendment because it represents a limited and routine change to an existing CoC that is expected to be noncontroversial. Adequate protection of public health and safety continues to be ensured. The amendment to the rule will become effective on December 31, 2001. However, if the NRC receives significant adverse comments by November 15, 2001, then the NRC will publish a document that withdraws this action and will address the comments received in response to the proposed amendments published elsewhere in this issue of the Federal Register . A significant adverse comment is a comment where the commenter explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or would be ineffective or unacceptable without a change. A comment is adverse and significant if:

(1) The comment opposes the rule and provides a reason sufficient to require a substantive response in a notice-and-comment process. For example, in a substantive response:

(a) The comment causes the NRC staff to reevaluate (or reconsider) its position or conduct additional analysis;

(b) The comment raises an issue serious enough to warrant a substantive response to clarify or complete the record; or

(c) The comment raises a relevant issue that was not previously addressed or considered by the staff.

(2) The comment proposes a change or an addition to the rule, and it is apparent that the rule would be ineffective or unacceptable without incorporation of the change or addition.

(3) The comment causes the NRC staff to make a change to the CoC or TS.

Any comments that are received by the NRC will be addressed in a subsequent final rule. The NRC will not initiate a second comment period on this action.

The National Technology Transfer Act of 1995 (Pub. L. 104-113) requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless the use of such a standard is inconsistent with applicable law or otherwise impractical. In this direct final rule, the NRC would revise the NAC-UMS cask system design listed in § 72.214 (List of approved spent fuel storage cask designs). This action does not constitute the establishment of a standard that establishes generally applicable requirements.

Under the “Policy Statement on Adequacy and Compatibility of Agreement State Programs” approved by the Commission on June 30, 1997, and published in the Federal Register on September 3, 1997 (62 FR 46517), this rule is classified as compatibility Category “NRC.” Compatibility is not required for Category “NRC” regulations. The NRC program elements in this category are those that relate directly to areas of regulation reserved to the NRC by the Atomic Energy Act of 1954, as amended (AEA) or the provisions of Title 10 of the Code of Federal Regulations. Although an Agreement State may not adopt program elements reserved to NRC, it may wish to inform its licensees of certain requirements via a mechanism that is consistent with the particular State's administrative procedure laws, but does not confer regulatory authority on the State.

The Presidential Memorandum dated June 1, 1998, entitled “Plain Language in Government Writing” directed that the Government's writing be in plain language. The NRC requests comments on this direct final rule specifically with respect to the clarity and effectiveness of the language used. Comments should be sent to the address listed under the heading ADDRESSES , above.

Under the National Environmental Policy Act of 1969, as amended, and the NRC regulations in Subpart A of 10 CFR Part 51, the NRC has determined that this rule, is not a major Federal action significantly affecting the quality of the human environment and, therefore, an environmental impact statement is not required. The rule amends the CoC for the NAC-UMS cask system within the list of approved spent fuel storage casks that power reactor licensees can use to store spent fuel at reactor sites under a general license. The amendment modifies the present cask system design to add miscellaneous spent fuel related components to the approved contents list for the NAC-UMS Universal Storage System and changes the required actions in response to a failure of the cask heat removal system. Other minor administrative changes are also made. The environmental assessment and finding of no significant impact on which this determination is based are available for inspection at the NRC Public Document Room, 11555 Rockville Pike, Rockville, MD. Single copies of the environmental assessment and finding of no significant impact are available from Jayne M. McCausland, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone (301) 415-6219, email jmm2@nrc.gov.

This direct final rule does not contain a new or amended information collection requirement subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). Existing requirements were approved by the Office of Management and Budget, Approval Number 3150-0132.

If a means used to impose an information collection does not display a currently valid OMB control number, the NRC may not conduct or sponsor, and a person is not required to respond to, the information collection.

On July 18, 1990 (55 FR 29181), the NRC issued an amendment to 10 CFR Part 72 to provide for the storage of spent nuclear fuel under a general license in cask designs approved by the NRC. Any nuclear power reactor licensee can use NRC-approved cask designs to store spent nuclear fuel if it notifies the NRC in advance, spent fuel is stored under the conditions specified in the cask's CoC, and the conditions of the general license are met. A list of NRC-approved cask designs is contained in § 72.214. On October 19, 2000 (65 FR 62581), the NRC issued an amendment to Part 72 that approved the NAC-UMS cask design by adding it to the list of NRC-approved cask designs in § 72.214. On October 17, 2000, and as supplemented on April 27, 2001, July 5, 2001, July 18, 2001, July 19, 2001, July 26, 2001, and August 1, 2001, NAC International, Inc., submitted an application to the NRC to amend CoC No. 1015 to add miscellaneous spent fuel related components to the approved contents list for the NAC-UMS Universal Storage System and to change the required actions in response to a failure of the cask heat removal system. Other minor administrative changes were also requested.

This direct final rule revises the NAC-UMS cask design listing in § 72.214 by adding Amendment No. 2 to CoC No. 1015. The amendment consists of adding miscellaneous spent fuel related components to the approved contents list for the NAC-UMS Universal Storage System and changing the required actions in response to a failure of the cask heat removal system. Also, other administrative changes will be made. Specific changes will be made to TS SR 3.1.2.1, SR 3.1.3.1, LCO 3.1.6, SR 3.2.1.1, A 5.3, A 5.7, B2.1, B 2.1.3, and Tables B2-2, B2-6, and B2-7 to permit the storage of these components and the other requested changes. Other Technical Specification sections will be changed for correction of typographical, spelling, and other minor editorial errors. Changes will also be made to Conditions 1b and 6 of the CoC. The alternative to this action is to withhold approval of this amended cask system design and issue an exemption to each general license. This alternative would cost both the NRC and the utilities more time and money because each utility would have to pursue an exemption.

The direct final rule eliminates the described problem and is consistent with previous NRC actions. Further, the direct final rule has no adverse effect on public health and safety. This direct final rule has no significant identifiable impact or benefit on other Government agencies. Based on the above discussion of the benefits and impacts of the alternatives, the NRC concludes that the requirements of the direct final rule are commensurate with the NRC's responsibilities for public health and safety and the common defense and security. No other available alternative is believed to be as satisfactory, and thus, this action is recommended.

In accordance with the Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)), the NRC certifies that this rule does not have a significant economic impact on a substantial number of small entities. This direct final rule affects only the licensing and operation of nuclear power plants, independent spent fuel storage facilities, and NAC International, Inc. The companies that own these plants do not fall within the scope of the definition of “small entities” set forth in the Regulatory Flexibility Act or the Small Business Size Standards set out in regulations issued by the Small Business Administration at 13 CFR Part 121.

The NRC has determined that the backfit rule (10 CFR 50.109 or 10 CFR 72.62) does not apply to this direct final rule because this amendment does not involve any provisions that would impose backfits as defined. Therefore, a backfit analysis is not required.

In accordance with the Small Business Regulatory Enforcement Fairness Act of 1996, the NRC has determined that this action is not a major rule and has verified this determination with the Office of Information and Regulatory Affairs, Office of Management and Budget.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Boeing Model 737 series airplanes was published as a supplemental notice of proposed rulemaking (NPRM) in the Federal Register on June 5, 2001 (66 FR 30114). That action proposed to require inspection of wire bundles in four junction boxes in the main wheel well to detect chafing or damage, and follow-on actions.

Interested persons have been afforded an opportunity to participate in the making of this amendment. Due consideration has been given to the comments received.

One commenter concurs with the proposed rule; another commenter indicates that it is already accomplishing the proposed inspections and has no further comments.

One commenter asks that we extend the compliance time for the proposed requirements from 12 to 18 months after the effective date of the AD. The commenter states that the 12-month compliance time is not a sufficient amount of time to perform the inspection (check) during its 737 fleet ‘C-check’ cycle. The assessment was based on the amount of operational testing that would have to be performed on the systems that would be disturbed by the proposed inspections and modifications. The commenter recommends the compliance time be extended to 18 months to ensure the inspection may be accomplished during a scheduled maintenance visit.

The FAA agrees to extend the compliance time for the inspection to 18 months. In developing an appropriate compliance time for the inspection required by the final rule, we considered not only the degree of urgency associated with addressing the unsafe condition, but the practical aspect of accomplishing the inspection of the wire bundles on the Model 737 fleet in a timely manner. It is our intent in this final rule to allow the inspections to be done within the time frame of a regular maintenance interval. We took the commenter's recommendations into account, as well as the time necessary to do the specified actions, and we find that an 18-month compliance time should correspond with the regular maintenance schedules of the majority of affected operators. An extension of the compliance time to 18 months will not adversely affect safety. Paragraph (a) of the final rule has been changed accordingly.

Two commenters ask that the proposed compliance time be extended to 24 months. One commenter, the airplane manufacturer, states that, based on input from the airlines and an internal Boeing review, the compliance time should be extended. The commenter notes that this extension will provide adequate time for compliance to operators with large fleets because they will be able to accomplish the inspection during routine maintenance, rather than scheduling an inspection specifically to address the proposed rule. The second commenter states that a 24-month compliance time would allow it to accomplish the inspections during regularly scheduled maintenance.

We do not agree to extend the compliance time for the inspection to 24 months. We have already considered factors such as operators' maintenance schedules in setting a compliance time for the required modification, and have determined that 18 months is an appropriate compliance time in which the inspection may be accomplished during scheduled airplane maintenance for the majority of affected operators. Since maintenance schedules vary from operator to operator, it would not be possible to guarantee that all affected airplanes could be modified during scheduled maintenance, even with a compliance time of 24 months. In any event, we find that 18 months represents the maximum time wherein the affected airplanes may continue to operate prior to inspection without compromising safety. No further change to the final rule is necessary in this regard.

One commenter asks that Boeing Service Letter 737-SL-24-138, dated May 24, 1999, be added to the proposed rule as another source of service information for accomplishment of certain actions related to those specified in the proposed rule. The service letter was referenced in a Civil Airworthiness Authorities' Additional Airworthiness Directive.

On July 2, 2001, the FAA issued AD 2001-14-06, amendment 39-12316 (66 FR 36445, July 12, 2001), which references that service letter as the appropriate source of service information for accomplishment of the inspections of the circuit connectors of the fuel shutoff valve in the main wheel well. As the service letter has been addressed in another AD, no change to the final rule is necessary in this regard.

One commenter asks that the proposed requirement of wire protection features, as specified in paragraph (a)(1) of the proposed rule, be changed to agree verbatim with the procedures specified in Boeing Service Letter 737-SL-24-111, dated February 27, 1996. The commenter states that the proposed requirement implies that the protective methods need to be incorporated regardless of the condition of the wire bundles, whereas the service letter does not specify incorporation of wire protection features unless contact between the wiring and junction box is found. The commenter adds that such action would require re-inspection of the fleet, in addition to added work that may be unjustified. The commenter also adds that installation of wire protection would not be necessary in that the affected wire bundles are short in length and, due to the relatively rigid nature of the installation at the pressure seal, if a wire bundle was found to have adequate clearance from the cover, this condition probably would not change.

The FAA does not agree. Although there may be no damage to the wiring found during the inspection, the chafing condition that prompted this rulemaking action could still develop eventually, due to airplane vibration. Incorporation of the wire protection features will ensure that this condition does not develop. No change to the final rule is necessary in this regard.

One commenter asks that the estimate of 8 work hours per airplane for doing the proposed actions, as specified in the Cost Impact section of the proposed rule, be changed. The commenter states that the estimate is not accurate based on the amount of operational checks required after disturbing the affected connectors/systems in the junction boxes to repair damage to wiring. The commenter recommends that the estimate be changed to 35 work hours per aircraft and adds that this labor estimate is based on its experience with accomplishment of the original release of the referenced service letter.

The FAA does not agree with the commenter's request to include the work hours necessary for repairs of the wiring and subsequent operational checks in the Cost Impact section of the proposed AD. The Cost Impact section only includes the “direct” costs of the specific actions required, which include inspecting the wire bundles and protecting the wires from chafing. The AD does not include the cost of “on-condition” actions, such as repair of the wiring if chafing is detected during the required inspection (“repair, if necessary”). Such on-condition repair actions would be required to be accomplished, regardless of AD direction, to correct an unsafe condition identified in an airplane and to ensure the airworthiness of that airplane, as required by the Federal Aviation Regulations. No change to the work hour estimate in the final rule is necessary.

After careful review of the available data, including the comments noted above, the FAA has determined that air safety and the public interest require the adoption of the rule with the change previously described. The FAA has determined that this change will neither increase the economic burden on any operator nor increase the scope of the AD.

There are approximately 3,719 airplanes of the affected design in the worldwide fleet. The FAA estimates that 1,467 airplanes of U.S. registry will be affected by this AD, that it will take approximately 8 work hours per airplane to accomplish the required actions, and that the average labor rate is $60 per work hour. The cost of required parts will be negligible. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $704,160, or $480 per airplane.

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption ADDRESSES .

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Boeing Model 757 series airplanes was published in the Federal Register on January 29, 1999 (64 FR 4367). That action proposed to require revising Section 9 of the Airworthiness Limitations Section of the maintenance manual (757 Airworthiness Limitations Instructions (ALI)). The revision would incorporate certain inspections and compliance times to detect fatigue cracking of principal structural elements (PSE).

Interested persons have been afforded an opportunity to participate in the making of this amendment. Due consideration has been given to the comments received.

One commenter supports the NPRM.

The manufacturer requests that a newer revision, dated November 1998 of Boeing 757 Maintenance Planning Data, Boeing Document D622N001-9, be specified in the final rule. The manufacturer notes that the November 1998 revision contains qualifying statements that, for some affected airplanes, would reduce the scope of some of the actions required by the May 1997 revision, which was cited in the NPRM as the appropriate source of service information. Another commenter states that it opposes the NPRM, but if the FAA issues the final rule, the operator requests that the identical task content and interval of implementation specified in Revision November 1998 of Boeing Document D622N001-9 be followed in the final rule.

The FAA concurs that the final rule should specify more recent service information than the May 1997 revision. Since the issuance of the NPRM, Boeing Document D622N001-9 (Section 9), dated November 1998, has been issued by the manufacturer and approved by the FAA. We have, therefore, included the November 1998 revision as an option to accomplish in lieu of the May 1997 revision specified in paragraph (a) of this final rule. We consider the requirements of this final rule to be interim action until such time that a new NPRM may be developed to require accomplishment of the November 1998 revision of Boeing Document D622N001-9.

One commenter requests that the reporting period (as specified in Section 9) be extended from the proposed 10 days to 20 days. The commenter notes that 20 days would allow enough time to collate all inspection findings and transmit a single data package for each airplane.

The FAA agrees with the commenter. However, since Section 9 is not specifically identified in the NPRM (it is embodied in the reference to Subsection B of Boeing Document D622N001-9), we have incorporated the reference to the reporting requirement that was specified in Note 2 of the NPRM into a new paragraph (b) of the final rule. Paragraph (b) of the final rule clarifies that the reporting requirement embodied in the reference to Subsection B has been extended to within 20 days after performance of inspections required by paragraph (a) of the final rule.

One commenter, the airplane manufacturer, states that, since there is reference to the 25,000-flight-cycle threshold and 50,000-flight-cycle threshold in the preamble of the NPRM, it should also be noted that there is a flight cycle versus flight hour threshold for some items that are sensitive to flight length. Also, the commenter notes that there are some other restrictions, such as a calendar threshold of 20 years unless an FAA-approved Corrosion Prevention and Control Program (CPCP) has been implemented, as well as a requirement to revert any escalated structural inspections back to the intervals specified in Section 8 of the Maintenance Planning Data (MPD) document.

The FAA acknowledges that there is other information available in the revision to the MPD, which was not discussed in the preamble of the NPRM. The information that we provided in the preamble of the NPRM was intended to be representative of the information that was used to determine that none of the airplanes affected is likely to reach the threshold for certain PSEs, which are identified as Structurally Significant Items (SSIs) in the ALIs. Since the Discussion section in the preamble of the NPRM does not reappear in the final rule, no change to the final rule is necessary in this regard.

One commenter, the manufacturer, notes that some necessary clarifications and corrections to information included under the heading “Actions Taken by the Manufacturer” in the preamble of the NPRM. The commenter advises that reference to the word “recently” is misleading since most of the listed actions occurred many years ago. The commenter also recommends listing the actions in order of significance and adding additional items to the actions specified under that heading.

The FAA acknowledges that certain information under that heading could be revised for clarification purposes. However, since the information in the paragraph under that heading in the preamble of the NPRM does not reappear in the final rule, no change to the final rule is necessary in this regard.

One commenter requests that the proposed requirements of the NPRM be revised to reflect certain repair actions for SSIs that were installed before the effective date of the AD and certain other repair actions for SSIs that are installed after the effective date of the AD.

The FAA does not agree. In the case of this final rule, the required action is simply to revise Section 9 of the Model 757 MPD by incorporating Subsection B of Boeing Document D622N001-9, Revision May 1997 or November 1998. The specific information contained in the MPD is developed (with the concurrence of the FAA) and then printed by the manufacturer. We point out that the requirements of this AD do not address the accomplishment of the specific information contained in Subsection B. The effect of requiring that the MPD be revised to incorporate the current version of the ALI is that, in accordance with 14 CFR Part 91.403(c), operators are then required to comply with limitations contained in the MPD. This is analogous to the effect of requiring a revision to the operating limitations. (In accordance with 14 CFR Part 91.9(a), operators are required to comply with the revised operating limitations.) However, a new NOTE 1 has been added to the AD to address the possible need to obtain approval of alternative methods of compliance (AMOC) for certain repairs. Therefore, no further change to the final rule is necessary in this regard.

One commenter, the manufacturer, notes that the reference in the NPRM to “Chapter B” of Section 9 of Boeing 757 MPD is incorrect. The commenter states that the correct title is “Subsection B.” The FAA agrees and has revised the final rule accordingly.

Several commenters state that the NPRM is unnecessary.

One commenter states that the NPRM is unnecessary because Section 9 of the MPD already mandates compliance with Airworthiness Certification Maintenance Requirements.

Another commenter states that the NPRM is unnecessary as long as Boeing agrees to incorporate the changes on their own within the proposed three-year compliance time. The commenter states that issuing an AD to require the manufacturer to comply with a certain revision of its own manuals will only require more regulation down the road. The commenter explains that, when it is time to revise the MPD, an Alternate Means of Compliance (AMOC) would be required prior to using the new revision.

Another commenter states that the rule is unnecessary because operators cannot revise a Boeing document.

The FAA infers that, since these commenters state that they believe the NPRM is unnecessary, the commenters would like the NPRM to be withdrawn. We do not agree. The airworthiness limitations, like the operating limitations, are a part of the type certificate for an airplane. Once an airworthiness certificate is issued for an airplane certifying that it conforms to an approved type design, this design is “locked” in the sense that the manufacturer cannot unilaterally change it for the subject airplane. Therefore, when the manufacturer makes any subsequent changes to the type certificate, including changes to the operating or airworthiness limitations, those changes are legally required only for products that are submitted for airworthiness certification based on a showing of conformity to the later design.

Thus, for many years, the FAA has imposed operating restrictions that are necessary to address identified unsafe conditions by requiring revisions to the operating limitations section of the Airplane Flight Manual (AFM). (Revision of the AFM by the type certificate holder would be effective only for airplanes produced after that revision.) Similarly, Boeing's revision to the ALI was effective only for airplanes later certificated with those revisions included in their type certificate. For this reason, as stated in the NPRM, we must engage in rulemaking (i.e., issuance of an AD), in order to make the revisions mandatory for previously certificated airplanes.

While the ALIs are contained in a “Boeing document” in the sense that Boeing originally produced it, the document, nevertheless, is a part of the instructions for continued airworthiness that operators must use to maintain the airplane properly. As explained in the NPRM, the effect of requiring that the document be revised to incorporate the current version of the ALI is that, in accordance with 14 CFR part 91.403(c), operators are then required to comply with those limitations. This is analogous to the effect of requiring a revision to the operating limitations: in accordance with 14 CFR part 91.9(a), operators are required to comply with the revised operating limitations.

Of course, those operators that have previously revised the ALI (or incorporated the revision into their maintenance programs) are given credit for having previously accomplished the requirements of this AD, as allowed by the phrase, “unless accomplished previously.” The legal effect is the same: the operator is required to comply with the limitations per 14 CFR part 91.403(c).

One commenter states that paragraph (b) of the NPRM (paragraph (c) of the final rule) appears to conflict with the original intent of the NPRM. Paragraph (b) of the NPRM specifies that, after revising the MPD in accordance with paragraph (a) of the NPRM, no alternative inspections or inspection intervals shall be approved for the PSEs. The commenter explains that it is not clear why paragraph (b) is needed if the inspections were accomplished in accordance with 14 CFR parts 43 and 91. The commenter states that paragraph (b) of the NPRM essentially defeats the stated purpose of the NPRM, which is to have operators record their AD compliance only once (at the time the operator's maintenance program is changed), in order to reduce the burden of record keeping and tracking.

The FAA does not agree. The purpose of this AD is to address the identified unsafe condition of fatigue cracking in certain PSEs. We have determined that, in order to accomplish that purpose, those airplanes must be brought into compliance with the certification basis, i.e., 14 CFR Part 25.571, amendment 25-45. Revising the ALI, as required by paragraph (a) of this AD, fulfills this purpose. Once an operator records that the ALI have been revised, additional record keeping of AD compliance is not required, since the actual accomplishment of the inspections specified in the ALI is required, not by the AD, but by 14 CFR 91.403(c). We point out that paragraph (c) of the final rule merely repeats and enforces the provision presently existing in the Boeing 757 MPD, which requires any revision of the airworthiness limitations to be approved by the Manager, Seattle Aircraft Certification Office, FAA. We consider that paragraph (c) of the final rule, therefore, does not conflict with the intention to have operators record their AD compliance only once. No change is necessary to the final rule in this regard.

One commenter requests that paragraph (b) of the NPRM be revised to permit compliance with the DTR system. The commenter states that the supplemental inspection program uses the DTR system to determine the inspections/inspection intervals necessary to provide adequate fatigue damage detection for each SSI. The commenter notes that the DTR check forms define inspection options permitting an operator to customize an inspection program.

The FAA does not agree that a revision is necessary. The DTR system is specifically referenced in the ALI, and its use is allowed by paragraph (a) of this AD. Therefore, there is no need to obtain a separate approval for its use. This AD does not specifically address (or restrict) the use of the DTR specified in the ALI. No change is necessary to the final rule in this regard.

One commenter, the manufacturer, suggests that the NPRM be revised to require the operators to incorporate the ALIs into the appropriate Maintenance Program Specification (Operations Specification).

The FAA does not agree that incorporation of the ALIs into the Operations Specifications (Ops Specs) is appropriate. Operation of certain transport airplanes may be exclusively under the provisions and requirements of part 91, and therefore, operators would not even be required to maintain Ops Specs. Further, Ops Specs simply authorize the use of a Continuous Airworthiness Maintenance Program (CAMP) for the operator's individual airplane models and specify, in particular, that procedures, standards, checks, service, repair, and/or preventive maintenance, and tests, shall be described in the certificate holder's manual.

The commenter further requests that the requirements of the NPRM be written such that the operator's Ops Specs is continuously updated with the current revision of Section 9 of the MPD. If that process is not possible, the commenter suggests that the requirements be accomplished in accordance with the latest FAA-approved revision of Section 9 of the MPD.

The FAA does not agree with the commenter's requests. We note that the commenter provided no justification or benefit of implementing the suggested changes. In response to the suggestion that the Ops Specs be continuously updated with current revisions of Section 9 of the MPD, we note that incorporation of new revisions of the ALI into the Ops Specs would have the effect of imposing new requirements without providing notice to the public and opportunity for comment.

However, in this case, the request to reference a specific later revision is acceptable as an alternative method of compliance, as explained previously in comment number 1. of this final rule. Therefore, we have revised paragraph (a) of the final rule to add the “November 1998” revision of Section 9 of the MPD as an optional or alternative method of compliance with the requirements of this AD.

The manufacturer requests that the apostrophe be deleted on plural use of acronyms, e.g., PSEs and ADs. The FAA acknowledges that there are different applications of the use of apostrophes for plural acronyms. For the purpose of consistency in this AD, we have revised all plural acronyms to omit the apostrophe.

We have revised the contents of Note 1 of the final rule to clarify for operators the intent and purposes of that note when performing inspections in accordance with certain airworthiness limitations documents.

We also note that, while SSIs are a subset of PSEs, the Federal Aviation Regulations (FAR) related to damage tolerance refer only to PSEs. Therefore, for the purposes of this AD, we consider the two terms interchangeable. A new NOTE 2 has been added to the final rule to clarify this information.

After careful review of the available data, including the comments noted above, the FAA has determined that air safety and the public interest require the adoption of the rule with the changes previously described. The FAA has determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD.

There are approximately 764 Boeing Model 757 series airplanes of the affected design in the worldwide fleet. The FAA estimates that 300 airplanes of U.S. registry will be affected by this AD, that it will take approximately 1 work hour per airplane to accomplish the required actions, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $18,000, or $60 per airplane.

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

Although this AD requires only a revision to the current ALI, the FAA recognizes that the inspections contained in the ALI will then be required by parts 43 and 91 of the FAR. The FAA estimates that it will take approximately 1,000 work hours to accomplish all of the ALI inspections. At an average labor rate of $60 per work hour, the cost to perform the ALI inspections (required by FAR parts 43 and 91, rather than by part 39) will be approximately $60,000 per airplane. The FAA notes that the majority of work hours needed to perform the inspections will be expended when an affected airplane reaches the 50,000-flight-cycle threshold. Based upon current airplane utilization, the FAA estimates that no airplane will reach this threshold for at least 10 years.

The regulations adopted herein 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. Therefore, in accordance with Executive Order 12612, it is determined that this final rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption ADDRESSES.

The FAA has received a report indicating that an inspection to determine the cause of a popped circuit breaker revealed burn marks and a loose terminal screw at the bus bar side of a circuit breaker in the ground service electrical circuit breaker panel on a McDonnell Douglas Model MD-90-30 series airplane. Further inspection revealed that several more circuit breakers in the same circuit breaker panel were also found to have loose terminal screws. The loose terminal screws of the circuit breaker were attributed to incorrect reinstallation of electrical components after replacement of circuit breaker panel, which had misdrilled mounting holes during production. This condition, if not corrected, could result in damage to the circuit breaker, wiring, or surrounding insulation blankets, and consequent smoke or fire in the flightdeck.

The FAA has reviewed and approved McDonnell Alert Service Bulletin MD90-24A049, dated September 18, 1997, which describes procedures for a visual inspection of the circuit breakers of the ground service electrical circuit breaker panel located in the left console, for heat damage, arcing, or loose terminal screws. The alert service bulletin also describes procedures for replacing any circuit breaker having heat damage or evidence of arcing with a new circuit breaker, and tightening any loose terminal screw on the circuit breakers. Accomplishment of the actions specified in the service bulletin is intended to adequately address the identified unsafe condition.

Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design that may be registered in the United States at some time in the future, this AD is being issued to prevent damage to the circuit breaker, wiring, or surrounding insulation blankets due to overheating or arcing of the circuit breakers, which could result in smoke or fire in the flightdeck. This AD requires accomplishment of the actions specified in the service bulletin described previously.

None of the airplanes affected by this action are on the U.S. Register. All airplanes included in the applicability of this rule currently are operated by non-U.S. operators under foreign registry; therefore, they are not directly affected by this AD action. However, the FAA considers that this rule is necessary to ensure that the unsafe condition is addressed in the event that any of these subject airplanes are imported and placed on the U.S. Register in the future.

Should an affected airplane be imported and placed on the U.S. Register in the future, it would require approximately 1 work hour to accomplish the required actions at an average labor rate of $60 per work hour. Based on these figures, the cost impact of this AD would be $60 per airplane.

Since this AD action does not affect any airplane that is currently on the U.S. register, it has no adverse economic impact and imposes no additional burden on any person. Therefore, prior notice and public procedures hereon are unnecessary and the amendment may be made effective in less than 30 days after publication in the Federal Register .

Although this action is in the form of a final rule and was not preceded by notice and opportunity for public comment, comments are invited on this rule. Interested persons are invited to comment on this rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified under the caption ADDRESSES . All communications received on or before the closing date for comments will be considered, and this rule may be amended in light of the comments received. Factual information that supports the commenter's ideas and suggestions is extremely helpful in evaluating the effectiveness of the AD action and determining whether additional rulemaking action would be needed.

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the AD is being requested.

• Include justification (e.g., reasons or data) for each request.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify the rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report that summarizes each FAA-public contact concerned with the substance of this AD will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2001-NM-131-AD.” The postcard will be date stamped and returned to the commenter.

The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption ADDRESSES .

On August 31, 2001, the FAA issued Emergency AD 2001-18-51, for ECF Model SA.315B, SA.316C, SA 3180, SA 318B, SA 318C, SA.319B, SE.3160, and SA.316B helicopters, which requires, within 10 hours TIS, inspecting the magnetic drain plug and the MGB filter for a rust-colored deposit, inspecting the MGB to determine the angular displacement on the MGB output flange, and periodically examining oil samples. If a rust-colored deposit is found on the drain plug or filter, if the oil is rust-colored, or if the angular displacement is 1 millimeter (0.039 inch) or more, the AD requires replacing the MGB with an airworthy MGB before further flight. Repairing or overhauling the gearbox, or re-identifying certain gearboxes that have already been appropriately overhauled, is terminating action for the requirements of the AD. That action was prompted by an accident of an ECF Model SA.315B helicopter that lost power to the tail rotor. The loss of power to the tail rotor was due to wear of the splines of the output bevel drive pinion in the MGB. An overhaul and repair shop used an unauthorized sealant that led to spline wear. This condition, if not corrected, could result in a loose splined coupling, spline wear, loss of power to the tail rotor, and subsequent loss of control of the helicopter.

Eurocopter has issued Alert Service Bulletin Nos. 05.40 and 05.99, both dated August 7, 2001, which specify checking the wear rate of the lower pinion-to-MGB vertical shaft bevel gear housing coupling splines. The Direction Generale de L'Aviation Civile (DGAC), which is the airworthiness authority for France, classified these service bulletins as mandatory and issued ADs T2001-366-059(A), T2001-367-062(A), and T2001-368-045(A), all dated August 13, 2001, to ensure the continued airworthiness of these helicopters in France.

Since the unsafe condition described is likely to exist or develop on other ECF Model SA.315B, SA.316C, SA 3180, SA 318B, SA 318C, SA.319B, SE.3160, and SA.316B helicopters of the same type designs, the FAA issued Emergency AD 2001-18-51 to prevent a loose splined coupling, spline wear, loss of power to the tail rotor, and subsequent loss of control of the helicopter. The AD requires the following at specified hours TIS:

• If appropriate, re-identify the MGB. Appropriately re-identifying certain MGBs is terminating action for the requirements of this AD.

• Inspect the magnetic drain plug and the MGB filter for a rust-colored deposit. Inspect the MGB to determine the angular displacement on the MGB output flange.

• If a rust-colored deposit is found or if the angular displacement is 1 millimeter (0.039 inch) or more, replace the MGB with an airworthy MGB before further flight.

• Take an oil sample and drain the MGB. If the oil is rust-colored, replace the MGB with an airworthy MGB before further flight. If the oil is not rust-colored, take a sample for future comparison.

• At each oil change, take a sample and compare it to the previous sample. If the oil is rust-colored, replace the MGB with an airworthy MGB before further flight. If the color is unchanged, store the last sample for future comparison.

The actions must be accomplished in accordance with the alert service bulletins described previously. The short compliance time involved is required because the previously described critical unsafe condition can adversely affect the structural integrity and controllability of the helicopter. Therefore, the actions described previously are required within 10 hours TIS, and this AD must be issued immediately.

Since it was found that immediate corrective action was required, notice and opportunity for prior public comment thereon were impracticable and contrary to the public interest, and good cause existed to make the AD effective immediately by individual letters issued on August 31, 2001, to all known U.S. owners and operators of ECF Model SA.315B, SA.316C, SA 3180, SA 318B, SA 318C, SA.319B, SE.3160, and SA.316B helicopters. These conditions still exist, and the AD is hereby published in the Federal Register as an amendment to 14 CFR 39.13 to make it effective to all persons.

The FAA estimates that 73 helicopters of U.S. registry will be affected by this AD, that it will take approximately 2.5 work hours per helicopter to accomplish the required actions, and the average labor rate is $60 per work hour. Required parts will cost approximately $15 per helicopter. Based on these figures, the total cost impact of the AD on U.S. operators is estimated to be $12,045.

Although this action is in the form of a final rule that involves requirements affecting flight safety and, thus, was not preceded by notice and an opportunity for public comment, comments are invited on this rule. Interested persons are invited to comment on this rule by submitting such written data, views, or arguments as they may desire. Communications should identify the Rules Docket number and be submitted in triplicate to the address specified under the caption ADDRESSES. All communications received on or before the closing date for comments will be considered, and this rule may be amended in light of the comments received. Factual information that supports the commenter's ideas and suggestions is extremely helpful in evaluating the effectiveness of the AD action and determining whether additional rulemaking action would be needed.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify the rule. All comments submitted will be available in the Rules Docket for examination by interested persons. A report that summarizes each FAA-public contact concerned with the substance of this AD will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their mailed comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. 2001-SW-36-AD.” The postcard will be date stamped and returned to the commenter.

The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.

The FAA has determined that this regulation is an emergency regulation that must be issued immediately to correct an unsafe condition in aircraft, and that it is not a “significant regulatory action” under Executive Order 12866. It has been determined further that this action involves an emergency regulation under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979). If it is determined that this emergency regulation otherwise would be significant under DOT Regulatory Policies and Procedures, a final regulatory evaluation will be prepared and placed in the Rules Docket. A copy of it, if filed, may be obtained from the Rules Docket at the location provided under the caption ADDRESSES.

The current regulation pertaining to the Q-2 nonimmigrant visa category is found at 22 CFR 41.57(b). The Department published this rule as an interim final rule with a 60-day period for public comment (65 FR 14768, March 17, 2000). There were no comments received from the public regarding the interim rule. Nevertheless, the Department is making some changes to the interim rule following an interagency review of the IPPCTP during its initial program year. The rule as originally written contained a description of the factual elements that an alien applicant for the IPPCTP must establish to the satisfaction of the Program Administrator. However, because the determination of those elements is, in the first instance, a responsibility of the Program Administrator under authority delegated to the Administrator by the Department of State, the elements should instead be described in the regulation relating to the structure and operation of the IPPCTP. Therefore, they are being removed from this regulation pertaining to visa issuance and appear in a separate notice that describes structure and operation of the program itself.

Under the IPPCTP, participants may be selected either from among unemployed persons or from among employed persons whose employers wish them to participate in the IPPCTP in order to receive additional training to enhance their existing job skills. Requirements for participation of the latter group in the IPPCTP were still being considered at the time of the publication of the existing interim rule. Therefore the list of requirements contained in the interim rule for information to be provided in the certification letter did not adequately reflect the information required for this group of participants. The additional requirements for participation of an already employed person in the IPPCTP have now been determined and will be reflected in the requirements for the certification letter by addition of the current employer's name and the interagency group formulating the IPPCTP has determined that the necessary physical residence in Northern Ireland or in a qualifying county of the Republic of Ireland required for participation in the program should be counted backward from the date of the issuance of the letter that certifies the acceptance of the alien into the program. Therefore, that change is also reflected in the portion of the regulation that describes the requirements for the content of the certification letter.

The Department is making one other small change to the interim rule. Section 41.57(b)(ii) will be revised to indicate that the certification letter required as evidence of an alien's acceptance into the IPPCTP will “establish” rather than simply “state” the alien's qualifications for the program. This will more accurately reflect the fact that the Program Administrator has verified such qualifications and is certifying them to the Department and to immigration and consular officers.

In this rule the Department is amending 22 CFR 41.57, in part, by removing part of the existing text relating to the requirements for the Q-2 Program Administrator in issuing the certification letter for the purpose of qualifying an alien for participation in the IPPCTP. The Department is publishing this rule in conjunction with a companion rule at 22 CFR 139 in which more accurately reflecting the administrative authorities relevant to implementation of the IPPCTP. The interim rule on the establishment and operation of IPPCTP was published originally at 65 FR 14764, March 17, 2000. The Department is also amending 22 CFR 41.57 by adding to the required content of the program certification letter certain information related to the employment in Ireland or Northern Ireland or already employed program participants. The rule establishes the issuance date of the certification letter as the date prior to which the length of physical residence of the applicant letter, and by changing the language regarding the certification letter to reflect the fact that the Program Administrator has established the alien's qualifications for participation in the IPPCTP.

The Department's implementation of this regulation as an interim rule, with a provision for public comments, is based upon the “good cause” exceptions found at 5 U.S.C. 553(b)(B) and (d)(3). The Department decided that there was not enough time to issue a proposed rule with request for comments as the Irish Peace Process Cultural and Training Program is limited by law to a period that has already begun (FY 2000 through FY 2005, i.e., October 1, 1999 through September 30, 2005). Publication of this regulation as an interim rule will expedite implementation of Public Law 105-319 that this already in effect and allow eligible aliens to apply for an participate in this program as soon as possible in light of the statutory expiration of the program on October 1, 2005.

The Department of State, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b), has review this regulation and, by approving it, certifies that the rule will not have a significant economic impact on a substantial number of small entities. Participation in the Irish Peace Process Cultural and Training Program Act of 1998 is limited to 4,000 individuals annually for three consecutive years. The activities of the participants in the United States will take place in various locations and in a number of sectors of the economy so that no significant economic impact should occur.

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 year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

The Department of State does not consider this rule, to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. Therefore, in accordance with the letter to the Department of State of February 4, 1994 from the Director of the Office of Management and Budget, it does not require review by the Office of Management and Budget.

This regulation 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. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

This rule involves the collection of information subject to the Paperwork Reduction Act of 1995 by means of two information collections that have been approved by the Office of Management and Budget. The first is OMB # 1405-0018, Nonimmigrant Visa Application; the second is OMB # 1405-0124, Irish Peace Process Cultural and Training Program (IPPCTP) Employer Information Collection.

Irish Peace Process Cultural and Training Program. The Department of State published in the Federal Register on March 17, 2000 (65 FR 14764), an interim regulation to implement Public Law 105-319, 112 Stat. 3013, and requested comments. Several comments were received from one organization and will be addressed in this revised rule. Some of these comments also were addressed to companion regulations issued by the Immigration and Naturalization Service (hereafter INS) published concurrently in the Federal Register on March 17, 2000. This rule also addresses other issues arising out of experience under the initial interim rule.

One comment recommended that employment changes should be considered as the rule rather than exceptional. While recognizing that more flexibility needs to be built into the regulations, the Department believes that, for a program limited in numbers and duration, the basic expectation is that each participant will stay with one employer for the duration of his or her participation. However, this interim rule will make clear that, while a participant may be expected to remain with an approved employer for up to 3 years (the duration of the program), it will allow shorter periods of participation, for example, to accept employment at home and permit one change of approved employment for the duration of stay.

Along the same lines, the comments recommended that the proposed employers of participants “self-certify” themselves to facilitate job changes. The Department considers that it continues to be necessary to concentrate jobs for participants in certain locations where cultural and community support is available and to make sure that majority of employers are in the sectors identified by authorities of Northern Ireland or the Republic of Ireland, and that individual certification of employers is the best way to carry out that policy.

Another comment suggested that the regulations did not provide for adequate oversight of the Program Administrator. The Department believes that such oversight of the contractor is properly a responsibility and authority of the agency procurement officers; however, the Department is proposing some changes from the interim rule to spell out in more detail what is expected of the Program Administrator. One such requirement will be to provide training to participants in personal and professional development, including conflict resolution, as well as to encourage participants to undertake such training.

A specific comment addressed to the INS regulations was to change the point at which the maximum age of 35 is applied from time of admission to time of issuance of a visa. This would affect Department of State regulations as well, and we believe that the recommendation must be rejected because the statutory numerical limitation is based upon admissions, and the interval between visa issuance and admission depends upon so many factors that compliance with the ceiling would be problematic.

As indicated earlier, the basic expectation is that participants will stay with one employer for the duration of the program for each individual. Job opportunities in other sectors (when need for such skills has been identified by FAS or T & EA) or locations may be identified as eligible for participation in the program, and the Department proposes to expand the eligible sectors and locations from time to time by public notice in the Federal Register . For participants coming from employment in Ireland or Northern Ireland for whom definite post-program employment opportunities back home have been identified, jobs with different employers or outside the current locations or sectors may be authorized by the Program Administrator. What other changes are being proposed in the Department of State regulations?

Experience suggests that there has been some misunderstanding about the consequences of termination of approved employment, and the Department proposes to amend the interim regulation to make clear that termination of employment for cause results in termination of participation in the program and the participant is expected to leave the United States within 10 days after employment has terminated and the Administrator determines that employment was properly ended; however, employers will be required to consult with the Program Administrator prior to terminating employment for cause (such as failure to report to work or refusal to observe work-place safety as opposed to such events as employer downsizing). The Program Administrator will be expected to counsel the employer and the participant during this period, but the the Program Administrator's decision (normally to be made within two business days after termination of employment) as to whether separation for cause is justified will not be subject to appeal. For termination of employment other than for cause, the participant will have a period of 30 days to obtain alternative employment from another approved employer or reasonable prospect of such employment; failing that, the participant again is expected to leave the United States immediately.

In addition to continuation of approved employment, participants will be expected to undertake personal and professional development training, including conflict resolution, and to observe the program's rules of conduct.

The Department therefore proposes to amend the interim rule to require that, before the Program Administrator issues a certification letter to participate in the program, each participant shall read and sign a code of conduct, or, if a certification letter has been delivered to the participant, as soon as possible thereafter. The code explains what conduct is termination for cause and sets forth other actions that could cause termination of participation in the program. The code of conduct has been developed by the Department of State and INS, working with the Training and Employment Agency of the Republic of Ireland (FAS) and the Training and Employment Agency of Northern Ireland (T&EA), and may be modified from time to time in light of experience. Violation of the code of conduct or the Program Administrator's rules may result in termination from the program.

The amended rule will also specify other required components of the certification letter (replacing that presently set forth in 22 CFR 41.57(b)(ii)): name of participant's employer in the U.S., the employment is in an occupation designated by the appropriate training and employment administration of the participant's place of residence as being most beneficial to the local economy (except when employment is by approved nomination under section 139.5(d)(2)), the Program Administrator has registered the participant in the program, and the participant has been physically resident in Northern Ireland or the designated counties of the Republic of Ireland for the prescribed length of time (5 months unless otherwise authorized) prior to the issuance of the certification letter.

The regulations will also be amended to permit a new program for participation by students pursuing university or other further or higher education certificates in Northern Ireland to obtain work experience required for that certification.

Section 139.3, pertaining to Department of State responsibilities, will be amended to provide that the Department, upon recommendation of the Program Administrator or its own motion, will add or remove employers from the list of approved employers, and may authorize change of sector or, in the case of participants under section 139.5(d)(2), of location. The Department will also announce additions or deletions of target economic sectors and geographic areas for job/training opportunities by publication of notice in the Federal Register .

Section 139.4, pertaining to Program Administrator responsibilities, will be amended in several respects. The Program Administrator will be expected to recommend addition to, or deletion from, established target economic sectors and geographic areas of job/training opportunity. The Program Administrator will be given specific responsibilities with respect to participants, specifically to make available training in personal and professional development; to mediate when notified by an employer of a case of termination for cause; to give written notification to the Department of State and INS when it exercises its authority to terminate a participant from the program, learns that a participant has dropped out, or that there has been a change of employer; and to notify the Department and INS of the departure of participants from the United States. The Program Administrator will be given the following additional guidance: when to terminate a participant from the program; to give appropriate notice of certain actions; for participants already in the United States who have changed employment, to withhold approval to make further changes; to conduct an exit interview of terminated participants and retrieve their certification letters; and to maintain its data base (to which the Department and INS will have access) but transfer it to the Department after termination of the program.

Section 139.5, pertaining to selection of trainees, will be amended to clarify that it contains requirements for continued participation as well as selection. It also will provide for participant agreement to a code of conduct. Participants will be required to have continuous, adequate health insurance for mutual protection against illness or accident. For a local employer in Northern Ireland or Ireland to nominate a participant, the participant must have work experience of not less than 90 days (unless otherwise authorized) with that employer, who is to identify the US employer and the type of training in the U.S. and to justify the length of that training. The nominating employer must set forth the mutual benefits and guarantee a job offer to the participant upon his or her return from the US. Section 135(d)(2) would be amended to include students pursuing university or other further or higher education certificates in Northern Ireland to be sponsored by their educational institution without regard to the otherwise applicable requirements for sponsoring employers—actual employment and offer of employment upon return to Northern Ireland. The rule will also be amended to require that an applicant has been physically present in the eligible areas for at least five months prior to the date of the certification letter. The rule will clarify when a participant will be terminated and state the participant's obligation to depart the US after termination. Finally, the section will be amended to permit reinstatement with the approval of Department, in consultation with INS, in limited circumstances.

Section 139.6, pertaining to requests to participate, will be amended to make clear that neither FAS, T & EA, nor the Program Administrator will consider requests from a former participant. It also provides that an employee sponsored by a current employer in Northern Ireland or Ireland must have experience not less than 90 days (unless otherwise authorized) with that employer.

Section 139.7, pertaining to employer responsibilities, will be amended to make clear that an employer will notify the Program Administrator of intention to terminate a participant for cause, with reasons, and provide a reasonable opportunity for the Program Administrator to mediate any dispute. The compensation requirements will also be made more specific. It will also be amended to permit employment in other employment sectors or geographic areas for participants who have been nominated by a current employer in Ireland or Northern Ireland with whom there is an existing work relationship.

As noted above in section 139.3, preferred economic sectors for participants as set forth in section 139.8 will be by public notice published in the Federal Register . It is anticipated that new target areas, such as construction, may be added to those initially authorized or authorized on a case-by-case basis.

The Department's implementation of this regulation as an interim rule, with a provision for public comments, is based upon the “good cause” exceptions found at 5 U.S.C. 553(b)(B) and (d)(3). The Department decided that there was not enough time to issue a proposed rule with request for comments as the Irish Peace Process Cultural and Training Program is limited by law to a period that has already begun (FY 2000 through FY 2005, i.e., October 1, 1999, through September 30, 2005). Publication of this regulation as an interim rule will expedite implementation of Public Law 105-319 that is already in effect and allow eligible aliens to apply for and participate in this program as soon as possible in light of the statutory expiration of the program on October 1, 2005.

In accordance with the Regulatory Flexibility Act (5 U.S.C. section 605(b)), the Department of State has reviewed this rule and certifies that it will not have a significant economic effect on a substantial number of small entities. Participation in the program is limited to 4000 individuals annually for three consecutive years. The activities of the participants will take place in multiple locations and economic sectors so that no significant economic impact should occur.

This rule will not include any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, of $100 million or more, or increased expenditures by the private sector of $100 million or more. Therefore, the requirements of the Unfunded Mandates Reform Act of 1995 do not apply here.

This proposed rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996.

Although exempted from Executive Order 12866, this rule has been reviewed to ensure consistency with its principles and is not a “significant regulatory action” under that order. This rule does not contain policies with federalism implications sufficient to warrant preparation of a federalism assessment under Executive Order 13132.

This rule involves collection of information subject to the Paperwork Reduction Act of 1995 by means of two information collections that have been approved by the Office of Management and Budget. The first is OMB # 1405-0018, Nonimmigrant Visa Application; the second is OMB # 1405-0124. Irish Peace Process Cultural and Training Program (IPPCTP) Employer Information Collection.

On July 1, 1997 and April 19, 2001, PADEP submitted revisions to the Pennsylvania SIP which establish and impose RACT for several major sources of VOC and/or NO X . This rulemaking pertains to four of those sources. The remaining sources are or have been the subject of separate rulemakings. The Commonwealth's submittals consist of plan approval and agreement upon consent orders (Consent Orders or COs) and enforcement order (EO) issued by the Allegheny County Health Department (ACHD). These four sources are located in the Pittsburgh area and consist of Ashland Chemical Company; Hercules, Incorporated (NO X -emitting installations); Hercules, Incorporated (VOC-emitting processes); and Neville Chemical Company.

On August 10, 2001, EPA published a direct final rule (66 FR 42136) and a companion notice of proposed rulemaking (66 FR 42187) to approve these SIP revisions. On September 7, 2001, we received adverse comments on our direct final rule from the Citizens for Pennsylvania's Future (PennFuture). On September 20, 2001 (66 FR 48348), we published a timely withdrawal in the Federal Register informing the public that the direct final rule did not take effect. We indicated in our August 10, 2001 direct final rulemaking that if we received adverse comments, EPA would address all public comments in a subsequent final rule based on the proposed rule (66 FR 42187). This is that subsequent final rule. A description of the RACT determination(s) made for each source was provided in the August 10, 2001 direct final rule and will not be restated here. A summary of the comments submitted by PennFuture germane to this final rulemaking and EPA's responses are provided in Section II of this document.

The Citizens for Pennsylvania's Future (PennFuture) submitted adverse comments on twenty proposed rules published by EPA in the Federal Register between August 6 and August 24, 2001 to approve case-by-case RACT SIP submissions from the Commonwealth for NO X and/or VOC sources located in the Pittsburgh area. PennFuture's letter includes general comments and comments specific to EPA's proposals for certain sources. A summary of those comments and EPA's responses are provided below.

A. Comment: PennFuture comments that EPA has conducted no independent technical review, and has prepared no technical support document to survey potential control technologies, determine the capital and operating costs of different options, and rank these options in total and marginal cost per ton of NO X and VOC controlled. In citing the definition of the term “RACT,” and the Strelow Memorandum [Roger Strelow, Assistant Administrator for Air and Waste Management, EPA, December 9, 1976, cited in Michigan v. Thomas, 805 F.2d 176, 180 (6th Cir. 1986) and at 62 FR 43134, 43136 (1997)], PennFuture appears to comment that in every situation, RACT must include an emission rate. PennFuture asserts that EPA should conduct its own RACT evaluation for each source, or at a minimum document a step-by-step review demonstrating the adequacy of state evaluations, to ensure that appropriate control technology is applied. The commenter also believes that EPA's failure to conduct its own independent review of control technologies has resulted in our proposing to approve some RACT determinations that fail to meet the terms of EPA's own RACT standard.

Response: On March 23, 1998 (63 FR 13789), EPA granted conditional limited approval of Pennsylvania's generic RACT regulations, 25 PA Code Chapters 121 and 129, thereby approving the definitions, provisions and procedures contained within those regulations under which the Commonwealth would require and impose RACT. Subsection 129.91, Control of major sources of NO X and VOCs, requires subject facilities to submit a RACT plan proposal to both the Pennsylvania Department of Environmental Protection (DEP) and to EPA Region III by July 15, 1994 in accordance with subsection 129.92, entitled, RACT proposal requirements. Under subsection 129.92, that proposal is to include, among other information: (1) A list of each subject source at the facility; (2) The size or capacity of each affected source, and the types of fuel combusted, and the types and amounts of materials processed or produced at each source; (3) A physical description of each source and its operating characteristics; (4) Estimates of potential and actual emissions from each affected source with supporting documentation; (5) A RACT analysis which meets the requirements of subsection 129.92 (b), including technical and economic support documentation for each affected source; (6) A schedule for implementation as expeditiously as practicable but not later than May 15, 1995; (7) The testing, monitoring, recordkeeping and reporting procedures proposed to demonstrate compliance with RACT; and (8) any additional information requested by the DEP necessary to evaluate the RACT proposal. Under subsection 129.91, the DEP will approve, deny or modify each RACT proposal, and submit each RACT determination to EPA for approval as a SIP revision.

The conditional nature of EPA's March 23, 1998 conditional limited approval did not impose any conditions pertaining to the regulation's procedures for the submittal of RACT plans and analyses by subject sources and approval of case-by-case RACT determinations by the DEP. Rather, EPA stated that “* * * RACT rules may not merely be procedural rules (emphasis added) that require the source and the State to later agree to the appropriate level of control; rather the rules must identify the appropriate level of control for source categories or individual sources.”

On May 3, 2001 (66 FR 22123), EPA published a rulemaking determining that Pennsylvania had satisfied the conditions imposed in its conditional limited approval. In that rulemaking, EPA removed the conditional status of its approval of the Commonwealth's generic VOC and NO X RACT regulations on a statewide basis. EPA received no public comments on its action and that final rule removing the conditional status of Pennsylvania's VOC and NO X RACT regulations became effective on June 18, 2001. As of that time, Pennsylvania's generic VOC and NO X RACT regulations retained a limited approval status. On August 24, 2001 (66 FR 44578), EPA proposed to remove the limited nature of its approval of Pennsylvania's generic RACT regulation in the Pittsburgh area. EPA received no public comments on that proposal. Final action converting the limited approval to full approval shall occur once EPA has completed rulemaking to approve either (1) the case-by-case RACT proposals for all sources subject to the RACT requirements currently known in the Pittsburgh-Beaver area or (2) for a sufficient number of sources such that the emissions from any remaining subject sources represent a de minimis level of emissions as defined in the March 23, 1998 rulemaking (63 FR 13789).

EPA agrees that it has an obligation to review the case-by-case RACT plan approvals and/or permits submitted as individual SIP revisions by Commonwealth to verify and determine if they are consistent with the RACT requirements of the Act and any relevant EPA guidance. EPA does not agree, however, that this obligation to review the case-by-case RACT determinations submitted by Pennsylvania necessarily extends to our performing our own RACT analyses, independent of the sources' RACT plans/analyses (included as part of the case-by-case RACT SIP revisions) or the Commonwealth's analyses. EPA first reviews this submission to ensure that the source and the Commonwealth followed the SIP-approved generic rule when applying for and imposing RACT for a specific source. Then EPA performs a thorough review of the technical and economic analyses conducted by the source and the state. If EPA believes additional information may further support or would undercut the RACT analyses submitted by the state, then EPA may add additional EPA-generated analyses to the record.

While RACT, as defined for an individual source or source category, often does specify an emission rate, such is not always the case. EPA has issued Control Technique Guidelines (CTGs) which states are to use as guidance in development of their RACT determinations/rules for certain sources or source categories. Not every CTG issued by EPA includes an emission rate. There are several examples of CTGs issued by EPA wherein equipment standards and/or work practice standards alone are provided as RACT guidance for all or part of the processes covered. Such examples include the CTGs issued for Bulk gasoline plants, Gasoline service stations—Stage I, Petroleum Storage in Fixed-roof tanks, Petroleum refinery processes, Solvent metal cleaning, Pharmaceutical products, External Floating roof tanks and Synthetic Organic Chemical Manufacturing (SOCMI)/polymer manufacturing. (The publication numbers for these CTG documents may be found at http://www.epa.gov/ttn/catc/dir1/ctg.txt).

EPA disagrees with PennFuture's general comment that our failure to conduct our own independent review of control technologies for every case-by-case RACT determination conducted by the Commonwealth has resulted in our proposing to approve some RACT determinations that fail to meet the terms of our own RACT standard. PennFuture submitted comments specific to the case-by-case RACT determinations for only three sources located in the Pittsburgh area, namely for Duquesne Light's Elrama, Phillips and Brunot Island stations. EPA summarizes those comments and provides responses in the final rule pertaining to those sources.

B. Comment: PennFuture comments that when EPA reviewed Pennsylvania's RACT program, it noted that Pennsylvania coal-fired boilers with a rated heat input of equal to or greater than 100 million Btu per hour “are some of the largest NO X emitting sources in the Commonwealth and in the Northeast United States” [63 FR 13789, 13791 (1998)] and as such should have numeric emission limitations imposed as RACT whether or not they install presumptive RACT (under 25 Pa.Code 129.93) to guarantee that sources would achieve quantifiable emissions reductions under the RACT program. PennFuture goes on to comment that because EPA has not conducted and documented a technical review of Pennsylvania case-by case RACT submissions, EPA has not demonstrated that these large boilers are subject to “numeric emission limitations” under RACT. EPA must conduct a thorough RACT evaluation or review for each such source, and must document the application of numeric emission limits and quantifiable reductions for each coal-fired boiler with a rated heat input of over 100 million Btu per hour.

Response: Circumstances may exist wherein a state could justify otherwise, however, in general, EPA agrees with PennFuture that coal-fired boilers with a rated heat input of equal to or greater than 100 million Btu per hour should have numeric emission limitations imposed as RACT whether or not they install presumptive RACT (under 25 Pa.Code 129.93).

As provided in the response found in II. A, EPA does not agree that it must conduct its own technical analysis of each of the case-by-case RACT determinations submitted for each RACT source in order to document that its RACT requirements include numeric emission limitations. That determination can be made by EPA when it reviews the plan approval, consent order, or permit issued to such a source as submitted by the Commonwealth as SIP revision. PennFuture's comment did not point to a specific instance where a RACT plan approval, consent order or permit imposing RACT on a coal-fired boiler with a rated heat input of equal to or greater than 100 million Btu per hour did, in fact, lack a numerical emission limitation(s). Nonetheless, pursuant to PennFuture's comment, EPA has re-examined all of the case-by-case RACT SIP submissions made by the Commonwealth for such sources located in the Pittsburgh area. That re-examination, combined with information provided by the Commonwealth, indicates that each case-by-case RACT plan approval, consent order and/or permit for each coal-fired boiler with a rated heat input of equal to or greater than 100 million Btu per hour includes a numeric emission limitation. A listing of each source, its plan approval, consent order and/or permit number and its numerical emission limitation has been placed in the Administrative Records for the case-by-case RACT rulemakings for the Pittsburgh area.

C. Comment: PennFuture asserts that the Commonwealth has not adopted and submitted category RACT rules for all VOC source categories for which federal control technique guidelines (CTGs) have been issued. The commenter refers to Appendix 1 of the Technical Support Document (dated May 14, 2001), prepared by EPA in support of its proposed rule to redesignate the Pittsburgh-Beaver Valley Ozone Nonattainment Area (66 FR 29270), to assert that EPA has failed to require the Commonwealth to submit VOC RACT rules for certain categories of sources. PennFuture specifically names source categories such as equipment leaks from natural gas/gas processing plants, coke oven batteries, iron and steel foundries, and publically owned treatment works and asserts that the Commonwealth has neglected a statutory requirement to adopt category RACT regulations for these and 14 other unnamed VOC source categories.

Response: EPA has not issued CTGs for coke oven batteries, iron and steel foundries and publically owned treatment works. The Appendix 1, referred to by the commenter, lists CTG covered categories as well as source categories taken from two STAPPA/ALAPCO documents entitled, “Meeting the 15-Percent Rate-of-Progress Requirement Under the Clean Air Act—A Menu of Options” (September 1993) and “Controlling Nitrogen Oxides Under the Clean Air Act—A Menu of Options” (July 1994). The categories referenced by PennFuture are not VOC categories for which EPA has issued CTGs, but were included in Appendix A as examples of some of the types of sources that could be subject to Pennsylvania's generic RACT regulations.

The Commonwealth is under no statutory obligation to adopt RACT rules for source categories for which EPA has not issued a CTG. In fact, CTGs do not exist for all but one of the categories to which the commenter explicitly refers.

The Act requires that states adopt regulations to impose RACT for “major sources of VOC,” located within those areas of a state where RACT applies under Part D of the Act [182(b)(2)(C)]. This is referred to as the non-CTG VOC RACT requirement. Moreover, EPA disagrees that there is a statutory mandate that a state adopt a source category RACT regulation even for a source category where EPA has issued a CTG. There are two statutory provisions that address RACT for sources covered by a CTG. One provides that states must adopt RACT for “any category of VOC sources” covered by a CTG issued prior to November 15, 1990 [182(b)(2)(A)]. The other provides that states must adopt VOC RACT for all “VOC sources” covered by a CTG issued after November 15, 1990 [182(b)(2)(B)]. EPA has long interpreted the statutory RACT requirement to be met either by adoption of category-specific rules or by source-specific rules for each source within a category. When initially established, RACT was clearly defined as a case-by-case determination, but EPA provided CTG's to simplify the process for states such that they would not be required to adopt hundreds or thousands of individual rules. See Strelow Memorandum dated December 9, 1976 and 44 FR 53761, September 17, 1979. EPA does not believe that Congress' use of “source category” in one provision of section 182(b)(2) was intended to preclude the adoption of source-specific rules.

Thus, where CTG-subject sources are located within those areas of a state where RACT applies under Part D of the Act, the state is obligated to impose RACT for the same universe of sources covered by the CTG. However, that obligation is not required to be met by the adoption and submittal of a source category RACT rule. A state may, instead, opt to impose RACT for such sources in permits, plan approvals, consent orders or in any other state enforceable document and submit those documents to EPA for approval as source-specific SIP revisions. This option has been exercised by many states, and happens most commonly when only a few CTG-subject sources are located in the state. The source-specific approach is generally employed to avoid what can be a lengthy and resource-intensive state rule adoption process for only a few sources that may have different needs and considerations that must be taken into account.

As stated earlier, there is one source category explicitly included in PennFuture's comment for which EPA has issued a CTG, namely natural gas/gas processing plants. The Commonwealth made a negative declaration to EPA on April 13, 1993, stating that as of that date there were no applicable sources in this category. Therefore, the Commonwealth did not adopt a category RACT regulation for natural gas/gas processing plants.

D. Comment: PennFuture cites EPA correspondence [letter from Marcia Spink, EPA, to James Salvaggio, DEP, December 15, 1993] to the Commonwealth which states that establishing any dollar figure in RACT guidance will not provide for the “automatic” selection or rejection of a control technology or emission limitation as RACT for a source or source category. With regard to the Pennsylvania DEP's intent to finalize a NO X RACT Guidance Document for implementation of its NO X RACT regulation, EPA's 1993 letter stated that the document could improperly be used to establish “bright line” or “cook-book” approaches, particularly for a regulation applicable to many source categories and suggested that if the guidance document must include dollar figures/ton, it provide approximate ranges by source category. PennFuture comments that DEP issued its “Guidance Document on Reasonably Available Control Technology for Sources of NO X Emissions,” March 11, 1994, and on pp. 8-9 states that the acceptable threshold is $1500 per ton, and that this figure applies to “all source categories.” PennFuture notes that EPA later objected to the $1500 per ton methodology as “not generically acceptable to EPA” [letter from Thomas Maslany, EPA, to James Salvaggio, DEP, June 24, 1997] and further stated in a Federal Register notice that a “dollar per ton threshold” is “inconsistent with the definition of RACT” [62 FR 43134, 37-38 (1997)].

PennFuture comments that EPA is proposing to approve RACT determinations based on a cost per ton method that EPA had previously rejected, and according to its own clearly expressed standard, EPA must not approve RACT determinations by Pennsylvania DEP that apply this $1500 per ton threshold. The commenter states that PennFuture's review of several of the current DEP evaluations indicate that the Commonwealth applied this standard and provides the examples of Duquesne Light—Elrama (auxiliary boiler); Allegheny Ludlum—Washington (formerly Jessop Steel). PennFuture asserts EPA must reject all Pennsylvania RACT determinations applying the standard of $1500 per ton, or any other “bright line” approach, as failing to follow EPA procedures established for Pennsylvania RACT.

Response: EPA still takes the position that a single cost per ton dollar figure may not, in and of itself, form the basis for rejecting a control technology, equipment standard, or work practice standard as RACT. The Technical Support Document prepared by EPA in support of its March 23, 1998 rulemaking [63 FR 13789] clearly indicates that the Commonwealth's document, “Guidance Document on Reasonably Available Control Technology for Sources of NO X Emissions.” March 11, 1994, had not been included as part of the SIP submission of the Commonwealth's generic regulation and, therefore, had not been approved by EPA. EPA further notes that the Administrative Record of the March 23, 1998 rulemaking [63 FR 13789], in addition to the correspondence cited by PennFuture, also includes correspondence from DEP to EPA [letter from James Salvaggio, DEP to David Arnold, EPA, September 10, 1997] stating that DEP's RACT guidance document does not establish a maximum dollar per ton for determining the cost effectiveness for RACT determinations and notes that the DEP's $1500 per ton cost effectiveness is a target value and not an absolute maximum. For example, in its analyses of the cost effectiveness of RACT control options submitted by DEP as part of the case-by-case SIP revision for Peoples Natural Gas (PNG) Valley Compressor Station's turbo charged lean burn IC engine (see the Administrative Record for 66 FR 43492), the Commonwealth included DEP interoffice memoranda (Thomas Joseph to Krishnan Ramamurthy, July 14, 1994 and Krishnan Ramamurthy to Thomas McGinley, Babu Patel, Ronald Davis, Richard Maxwell, and Devendra Verma, July 15, 1994) which spoke directly to the $1500/ton dollar figure as being a guideline and not an upper limit. These memoranda explain that although PNG initially proposed intermediate original equipment manufacturer (OEM) combustion controls which would have reduced NO X emissions from 254.7 tons per year to 115 tons per year (by 55%) at a cost of $1355 per ton reduced, DEP required the installation of an OEM lean combustion modification that reduced NO X emissions from 254.7 tons per year to 76 tons per year (by 69%) at a cost of $1684 per ton reduced. The DEP's July 15, 1994 interoffice memorandum says of the PNG RACT determination which exceeded the cost effectiveness screening level of $1500 per ton “ Tom's (Joseph) insistence for the next more stringent level of control than the company's chosen level in the case of PNG was consistent with EPA Region III's sentiment that establishing any dollar figure in RACT guidance will not provide for an “automatic” rejection of a control technology as RACT for a source.”

In no instance, including that for Duquesne Light—Elrama (auxiliary boiler) and Allegheny Ludlum—Washington (formerly Jessop Steel), has EPA proposed to approve a RACT determination submitted by the Commonwealth which was based solely on a conclusion that controls that cost more than $1500/ton were not required as RACT. As explained in the response provided in section II. A. of this document, EPA conducts its review of the entire case-by-case RACT SIP submittal including the source's proposed RACT plan and analyses, Pennsylvania's analyses and the RACT plan approval, consent order or permit itself to insure that the requirements of the SIP-approved generic RACT have been followed. These analyses not only evaluate and consider the costs of potential control options, but also evaluate their technological feasibility.

E. Comment: PennFuture comments that any emission reduction credits (ERCs) earned by sources subject to RACT must be surplus to all applicable state and federal requirements. Under Pennsylvania law, ERCs must be surplus, permanent, quantified, and Federally enforceable. 25 Pa.Code 127.207(1). As to the requirement that ERCs be surplus, the Pennsylvania Code states: ERCs shall be included in the current emission inventory, and may not be required by or be used to meet past or current SIP, attainment demonstration, RFP, emission limitation or compliance plans. Emission reductions necessary to meet NSPS, LAER, RACT, Best Available Technology, BACT and permit or plan approval emissions limitations or another emissions limitation required by the Clean Air Act or the [Air Pollution Control Act] may not be used to generate ERCs. 25 Pa.Code 127.207(1)(i). To be creditable, ERCs must surpass not only RACT requirements but a host of other possible sources of emission limits. PennFuture comments that some of the RACT evaluations at issue in the current EPA notices purport to establish RACT as a baseline for future ERCs. PennFuture does acknowledge that EPA notes in its boilerplate for the notices, that Pennsylvania and EPA have established a series of NO X -reducing rules, including the recent Chapter 145 rule, to reduce NO X at large utility and industrial sources. See, for example, 66 FR 42415, 16-17 (August 13, 2001). Because any ERCs must be surplus to the most stringent limitation applicable under state or federal law as described in the Pennsylvania Code provision set forth above, DEP and EPA must not approve ERCs unless they surpass all such limitations in addition to any limits set by RACT.

Response: EPA agrees with this comment by PennFuture. The approval of a case-by-case RACT determination, in and of itself, does not establish the baseline from which further emission reductions may be calculated and assumed creditable under the Commonwealth's SIP-approved NSR and ERC program. Moreover, EPA's review of the Pennsylvania DEP's implementation of its approved SIP-approved NSR and ERC program indicates that the Commonwealth calculates and credits ERCs in accordance with the SIP-approved criteria for doing so as outlined in PennFuture's comment. No source for which EPA is approving a case-by-case RACT determination should assume that its RACT approval alone automatically establishes the baseline against which it may calculate creditable ERCs.

F. Comment: PennFuture comments that as in the case with Pennsylvania Power—Newcastle, EPA should compare RACT proposals to applicable acid rain program emission limits and control strategies. PennFuture contends that EPA previously disapproved a RACT proposal for the Pennsylvania Power—Newcastle plant [62 FR 43959 (1997); 63 FR 23668 (1998)] and that EPA did so on the basis that the acid rain program requires more stringent emission limits. PennFuture asserts that while EPA had originally proposed to approve this proposal, an analysis of comparable boilers and, especially, a comparison to Phase II emission limits under the acid rain program led EPA to conclude that the RACT proposal emission limits were too lenient. [62 FR at 43961]. Therefore, PennFuture contends that for sources subject to the acid rain program, EPA should consider emissions and control strategies for compliance with acid rain emission limits when evaluating proposals for compliance with RACT.

Response: Title IV of the Act, addressing the acid rain program, contains NO X emission requirements for utilities which must be met in addition to any RACT requirements (see NO X Supplement to the General Preamble at 57 FR 55625, November 25, 1992). The Act provides for a number of control programs that may affect similar sources. For example, new sources may be subject to new source performance standards (NSPS), best available control technology (BACT), and lowest achievable emission rate (LAER). Other controls, under such programs as the acid rain program or the hazardous air pollutant program may also apply to sources. However, the applicability of these other requirements, which are often more stringent than RACT, do not establish what requirements must apply under the RACT program. While these programs may provide information as to the technical and economic feasibility of reduction programs for RACT, there is no presumption that acid rain controls should be mandated as RACT.

EPA stated in the final disapproval of the NO X RACT determination for PPNC [63 FR at 23669], that the discussion concerning average emission rates for boilers with respect to the acid rain program requirements were included in order to provide a context for EPA's proposed disapproval. EPA made clear in its August 18, 1997 proposed disapproval of Pennsylvania Powers'—Newcastle (PPNC) RACT determination, that the basis for disapproval was a comparison between PPNC's boilers and other similar combustion units, not acid rain limits. In fact, EPA stated in the August 18, 1997 proposed disapproval that “Without additional knowledge or information, it would be erroneous and premature to conclude that the limits in the acid rain permit are RACT.” [62 FR at 43961]. EPA clearly stated in the final disapproval for PPNC that it did not use acid rain permit limits, or Pennsylvania's participation in any other NO X control program, to determine PPNC RACT approvability [63 FR at 23670]. Nor has EPA intended to use participation in NO X control programs including acid rain, in determining RACT for PPNC or any other subject sources. EPA also stated that the April 30, 1998, PPNC disapproval was based on the absence of pertinent information regarding a computerized combustion optimization system through an enforceable permit, not comparison of acid rain permit limits.

EPA is approving the revisions to the Pennsylvania SIP submitted by PADEP on behalf of ACHD to establish and require VOC and NO X RACT for four major sources located in the Pittsburgh area. EPA is approving these RACT SIP submittals because ACHD established and imposed these RACT requirements in accordance with the criteria set forth in the SIP-approved RACT regulations applicable to these sources. The ACHD has also imposed recordkeeping, monitoring, and testing requirements on these sources sufficient to determine compliance with the applicable RACT determinations.

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 (Public Law 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 approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. 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 Clean Air Act. 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 Clean Air Act. 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. Section 804 exempts from section 801 the following types of rules: (1) Rules of particular applicability; (2) rules relating to agency management or personnel; and (3) rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required to submit a rule report regarding today's action under section 801 because this is a rule of particular applicability establishing source-specific requirements for four named sources.

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 17, 2001. 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 approving the Commonwealth's source-specific RACT requirements to control VOC and NO X from four individual sources in Pennsylvania may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

On January 21, 1997, July 1, 1997, March 3, 1999, April 9, 1999, and July 5, 2001, PADEP submitted revisions to the Pennsylvania SIP which establish and impose RACT for several major sources of VOC and/or NO X . This rulemaking pertains to eleven of those sources. The RACT determinations for the other sources are, or have been, the subject of separate rulemakings. The Commonwealth's submittals consist of Operating Permits (OPs) issued by PADEP and Plan Approvals and Agreement Upon Consent Orders (COs) issued by the Allegheny County Health Department (ACHD). The PADEP submitted the COs to EPA as SIP revisions on behalf of the ACHD. These OPs and COs impose VOC and/or NO X RACT requirements for each source. These sources are all located in the Pittsburgh area and consist of J & L Structural, Inc.-Aliquippa; J & L Specialty Steel, Inc.-Midland Facility; LTV Steel Company, Inc.; Universal Stainless & Alloy Products, Inc.; U.S. Steel Clairton Works; USX Corporation, US Steel Group, Edgar Thomson Works; USX Corporation, US Steel Group, Irvin Works; Washington Steel Corporation; Wheeling-Pittsburgh Steel Corporation; Koppers; Shenango, Inc.

On August 21, 2001, EPA published a direct final rule (66 FR 43788) and a companion notice of proposed rulemaking (66 FR 43823) to approve these SIP revisions. On September 7, 2001, we received adverse comments on our direct final rule from the Citizens for Pennsylvania's Future (PennFuture). On September 27, 2001(66 FR 49292), we published a timely withdrawal in the Federal Register informing the public that the direct final rule did not take effect. We indicated in our August 20, 2001 direct final rulemaking that if we received adverse comments, EPA would address all public comments in a subsequent final rule based on the proposed rule (66 FR 43823). This is that subsequent final rule. A description of the RACT determination(s) made for each source was provided in the August 21, 2001 direct final rule and will not be restated here. A summary of the comments submitted by PennFuture germane to this final rulemaking and EPA's responses are provided in Section II of this document.

The Citizens for Pennsylvania's Future (PennFuture) submitted adverse comments on twenty proposed rules published by EPA in the Federal Register between August 6 and August 24, 2001 to approve case-by-case RACT SIP submissions from the Commonwealth for NO X and or VOC sources located in the Pittsburgh area. PennFuture's letter includes general comments and comments specific to EPA's proposals for certain sources. A summary of those comments and EPA's responses are provided below.

A. Comment: PennFuture comments that EPA has conducted no independent technical review, and has prepared no technical support document to survey potential control technologies, determine the capital and operating costs of different options, and rank these options in total and marginal cost per ton of NO X and VOC controlled. In citing the definition of the term “RACT,” and the Strelow Memorandum [Roger Strelow, Assistant Administrator for Air and Waste Management, EPA, December 9, 1976, cited in Michigan v. Thomas, 805 F.2d 176, 180 (6th Cir. 1986) and at 62 FR 43134, 43136 (1997)], PennFuture appears to comment that in every situation, RACT must include an emission rate. PennFuture asserts that EPA should conduct its own RACT evaluation for each source, or at a minimum document a step-by-step review demonstrating the adequacy of state evaluations, to ensure that appropriate control technology is applied. The commenter also believes that EPA's failure to conduct its own independent review of control technologies has resulted in our proposing to approve some RACT determinations that fail to meet the terms of EPA's own RACT standard.

Response: On March 23, 1998 (63 FR 13789), EPA granted conditional limited approval of Pennsylvania's generic RACT regulations, 25 PA Code Chapters 121 and 129, thereby approving the definitions, provisions and procedures contained within those regulations under which the Commonwealth would require and impose RACT. Subsection 129.91, Control of major sources of NO X and VOCs, requires subject facilities to submit a RACT plan proposal to both the Pennsylvania Department of Environmental Protection (DEP) and to EPA Region III by July 15, 1994 in accordance with subsection 129.92, entitled, RACT proposal requirements. Under subsection 129.92, that proposal is to include, among other information: (1) A list of each subject source at the facility; (2) The size or capacity of each affected source, and the types of fuel combusted, and the types and amounts of materials processed or produced at each source; (3) A physical description of each source and its operating characteristics; (4) Estimates of potential and actual emissions from each affected source with supporting documentation; (5) A RACT analysis which meets the requirements of subsection 129.92 (b), including technical and economic support documentation for each affected source; (6) A schedule for implementation as expeditiously as practicable but not later than May 15, 1995; (7) The testing, monitoring, recordkeeping and reporting procedures proposed to demonstrate compliance with RACT; and (8) any additional information requested by the DEP necessary to evaluate the RACT proposal. Under subsection 129.91, the DEP will approve, deny or modify each RACT proposal, and submit each RACT determination to EPA for approval as a SIP revision.

The conditional nature of EPA's March 23, 1998 conditional limited approval did not impose any conditions pertaining to the regulation's procedures for the submittal of RACT plans and analyses by subject sources and approval of case-by case RACT determinations by the DEP. Rather, EPA stated that “* * * RACT rules may not merely be procedural rules (emphasis added) that require the source and the State to later agree to the appropriate level of control; rather the rules must identify the appropriate level of control for source categories or individual sources.”

On May 3, 2001 (66 FR 22123), EPA published a rulemaking determining that Pennsylvania had satisfied the conditions imposed in its conditional limited approval. In that rulemaking, EPA removed the conditional status of its approval of the Commonwealth's generic VOC and NO X RACT regulations on a statewide basis. EPA received no public comments on its action and that final rule removing the conditional status of Pennsylvania's VOC and NO X RACT regulations became effective on June 18, 2001. As of that time, Pennsylvania's generic VOC and NO X RACT regulations retained a limited approval status. On August 24, 2001 (66 FR 44578), EPA proposed to remove the limited nature of its approval of Pennsylvania's generic RACT regulation in the Pittsburgh area. EPA received no public comments on that proposal. Final action converting the limited approval to full approval shall occur once EPA has completed rulemaking to approve either (1) the case-by-case RACT proposals for all sources subject to the RACT requirements currently known in the Pittsburgh-Beaver area or (2) for a sufficient number of sources such that the emissions from any remaining subject sources represent a de minimis level of emissions as defined in the March 23, 1998 rulemaking (63 FR 13789).

EPA agrees that it has an obligation to review the case-by-case RACT plan approvals and/or permits submitted as individual SIP revisions by Commonwealth to verify and determine if they are consistent with the RACT requirements of the Act and any relevant EPA guidance. EPA does not agree, however, that this obligation to review the case-by-case RACT determinations submitted by Pennsylvania necessarily extends to our performing our own RACT analyses, independent of the sources' RACT plans/analyses (included as part of the case-by case RACT SIP revisions) or the Commonwealth's analyses. EPA first reviews this submission to ensure that the source and the Commonwealth followed the SIP-approved generic rule when applying for and imposing RACT for a specific source. Then EPA performs a thorough review of the technical and economic analyses conducted by the source and the state. If EPA believes additional information may further support or would undercut the RACT analyses submitted by the state, then EPA may add additional EPA-generated analyses to the record.

While RACT, as defined for an individual source or source category, often does specify an emission rate, such is not always the case. EPA has issued Control Technique Guidelines (CTGs) which states are to use as guidance in development of their RACT determinations/rules for certain sources or source categories. Not every CTG issued by EPA includes an emission rate. There are several examples of CTGs issued by EPA wherein equipment standards and/or work practice standards alone are provided as RACT guidance for all or part of the processes covered. Such examples include the CTGs issued for Bulk gasoline plants, Gasoline service stations—Stage I, Petroleum Storage in Fixed-roof tanks, Petroleum refinery processes, Solvent metal cleaning, Pharmaceutical products, External Floating roof tanks and Synthetic Organic Chemical Manufacturing (SOCMI)/polymer manufacturing. (The publication numbers for these CTG documents may be found at http://www.epa.gov/ttn/catc/dir1/ctg.txt ).

EPA disagrees with PennFuture's general comment that our failure to conduct our own independent review of control technologies for every case-by-case RACT determination conducted by the Commonwealth has resulted in our proposing to approve some RACT determinations that fail to meet the terms of our own RACT standard. PennFuture submitted comments specific to the case-by-case RACT determinations for only three sources located in the Pittsburgh area, namely for Duquesne Light's Elrama, Phillips and Brunot Island stations. EPA summarizes those comments and provides responses in the final rule pertaining to those sources.

B. Comment: PennFuture comments that when EPA reviewed Pennsylvania's RACT program, it noted that Pennsylvania coal-fired boilers with a rated heat input of equal to or greater than 100 million Btu per hour “are some of the largest NO X emitting sources in the Commonwealth and in the Northeast United States” [63 FR 13789, 13791 (1998)] and as such should have numeric emission limitations imposed as RACT whether or not they install presumptive RACT (under 25 Pa.Code 129.93) to guarantee that sources would achieve quantifiable emissions reductions under the RACT program. PennFuture goes on to comment that because EPA has not conducted and documented a technical review of Pennsylvania case-by case RACT submissions, EPA has not demonstrated that these large boilers are subject to “numeric emission limitations” under RACT. EPA must conduct a thorough RACT evaluation or review for each such source, and must document the application of numeric emission limits and quantifiable reductions for each coal-fired boiler with a rated heat input of over 100 million Btu per hour.

Response: Circumstances may exist wherein a state could justify otherwise, however, in general, EPA agrees with PennFuture that coal-fired boilers with a rated heat input of equal to or greater than 100 million Btu per hour should have numeric emission limitations imposed as RACT whether or not they install presumptive RACT (under 25 Pa.Code 129.93).

As provided in the response found in II. A, EPA does not agree that it must conduct its own technical analysis of each of the case-by-case RACT determinations submitted for each RACT source in order to document that its RACT requirements include numeric emission limitations. That determination can be made by EPA when it reviews the plan approval, consent order, or permit issued to such a source as submitted by the Commonwealth as SIP revision. PennFuture's comment did not point to a specific instance where a RACT plan approval, consent order or permit imposing RACT on a coal-fired boiler with a rated heat input of equal to or greater than 100 million Btu per hour did, in fact, lack a numerical emission limitation(s). Nonetheless, pursuant to PennFuture's comment, EPA has re-examined all of the case-by-case RACT SIP submissions made by the Commonwealth for such sources located in the Pittsburgh area. That re-examination, combined with information provided by the Commonwealth, indicates that each case-by-case RACT plan approval, consent order and/or permit for each coal-fired boiler with a rated heat input of equal to or greater than 100 million Btu per hour includes a numeric emission limitation. A listing of each source, its plan approval, consent order and/or permit number and its numerical emission limitation has been placed in the Administrative Records for the case-by-case RACT rulemakings for the Pittsburgh area.

C. Comment: PennFuture asserts that the Commonwealth has not adopted and submitted category RACT rules for all VOC source categories for which federal control technique guidelines (CTGs) have been issued. The commenter refers to Appendix 1 of the Technical Support Document (dated May 14, 2001), prepared by EPA in support of its proposed rule to redesignate the Pittsburgh-Beaver Valley Ozone Nonattainment Area (66 FR 29270), to assert that EPA has failed to require the Commonwealth to submit VOC RACT rules for certain categories of sources. PennFuture specifically names source categories such as equipment leaks from natural gas/gas processing plants, coke oven batteries, iron and steel foundries, and publically owned treatment works and asserts that the Commonwealth has neglected a statutory requirement to adopt category RACT regulations for these and 14 other unnamed VOC source categories.

Response: EPA has not issued CTGs for coke oven batteries, iron and steel foundries and publically owned treatment works. The Appendix 1, referred to by the commenter, lists CTG covered categories as well as source categories taken from two STAPPA/ALAPCO documents entitled, “Meeting the 15-Percent Rate-of-Progress Requirement Under the Clean Air Act—A Menu of Options” (September 1993) and “Controlling Nitrogen Oxides Under the Clean Air Act—A Menu of Options” (July 1994). The categories referenced by PennFuture are not VOC categories for which EPA has issued CTGs, but were included in Appendix A as examples of some of the types of sources that could be subject to Pennsylvania's generic RACT regulations. The Commonwealth is under no statutory obligation to adopt RACT rules for source categories for which EPA has not issued a CTG. In fact, CTGs do not exist for all but one of the categories to which the commenter explicitly refers.

The Act requires that states adopt regulations to impose RACT for “major sources of VOC,” located within those areas of a state where RACT applies under Part D of the Act [182(b)(2)(C)]. This is referred to as the non-CTG VOC RACT requirement. Moreover, EPA disagrees that there is a statutory mandate that a state adopt a source category RACT regulation even for a source category where EPA has issued a CTG. There are two statutory provisions that address RACT for sources covered by a CTG. One provides that states must adopt RACT for “any category of VOC sources” covered by a CTG issued prior to November 15, 1990 [182(b)(2)(A)]. The other provides that states must adopt VOC RACT for all “VOC sources” covered by a CTG issued after November 15, 1990 [182(b)(2)(B)]. EPA has long interpreted the statutory RACT requirement to be met either by adoption of category-specific rules or by source-specific rules for each source within a category. When initially established, RACT was clearly defined as a case-by-case determination, but EPA provided CTG's to simplify the process for states such that they would not be required to adopt hundreds or thousands of individual rules. See Strelow Memorandum dated December 9, 1976 and 44 FR 53761, September 17, 1979. EPA does not believe that Congress' use of “source category” in one provision of section 182(b)(2) was intended to preclude the adoption of source-specific rules.

Thus, where CTG-subject sources are located within those areas of a state where RACT applies under Part D of the Act, the state is obligated to impose RACT for the same universe of sources covered by the CTG. However, that obligation is not required to be met by the adoption and submittal of a source category RACT rule. A state may, instead, opt to impose RACT for such sources in permits, plan approvals, consent orders or in any other state enforceable document and submit those documents to EPA for approval as source-specific SIP revisions. This option has been exercised by many states, and happens most commonly when only a few CTG-subject sources are located in the state. The source-specific approach is generally employed to avoid what can be a lengthy and resource-intensive state rule adoption process for only a few sources that may have different needs and considerations that must be taken into account.

As stated earlier, there is one source category explicitly included in PennFuture's comment for which EPA has issued a CTG, namely natural gas/gas processing plants. The Commonwealth made a negative declaration to EPA on April 13, 1993, stating that as of that date there were no applicable sources in this category. Therefore, the Commonwealth did not adopt a category RACT regulation for natural gas/gas processing plants.

D. Comment: PennFuture cites EPA correspondence [letter from Marcia Spink, EPA, to James Salvaggio, DEP, December 15, 1993] to the Commonwealth which states that establishing any dollar figure in RACT guidance will not provide for the “automatic” selection or rejection of a control technology or emission limitation as RACT for a source or source category. With regard to the Pennsylvania DEP's intent to finalize a NO X RACT Guidance Document for implementation of its NO X RACT regulation, EPA's 1993 letter stated that the document could improperly be used to establish “bright line” or “cook-book” approaches, particularly for a regulation applicable to many source categories and suggested that if the guidance document must include dollar figures/ton, it provide approximate ranges by source category. PennFuture comments that DEP issued its “Guidance Document on Reasonably Available Control Technology for Sources of NO X Emissions,” March 11, 1994, and on pp. 8-9 states that the acceptable threshold is $1500 per ton, and that this figure applies to “all source categories.” PennFuture notes that EPA later objected to the $1500 per ton methodology as “not generically acceptable to EPA” [letter from Thomas Maslany, EPA, to James Salvaggio, DEP, June 24, 1997] and further stated in a Federal Register notice that a “dollar per ton threshold” is “inconsistent with the definition of RACT” [62 FR 43134, 37-38 (1997)].

PennFuture comments that EPA is proposing to approve RACT determinations based on a cost per ton method that EPA had previously rejected, and according to its own clearly expressed standard, EPA must not approve RACT determinations by Pennsylvania DEP that apply this $1500 per ton threshold. The commenter states that PennFuture's review of several of the current DEP evaluations indicate that the Commonwealth applied this standard and provides the examples of Duquesne Light—Elrama (auxiliary boiler); Allegheny Ludlum—Washington (formerly Jessop Steel). PennFuture asserts EPA must reject all Pennsylvania RACT determinations applying the standard of $1500 per ton, or any other “bright line” approach, as failing to follow EPA procedures established for Pennsylvania RACT.

Response: EPA still takes the position that a single cost per ton dollar figure may not, in and of itself, form the basis for rejecting a control technology, equipment standard, or work practice standard as RACT. The Technical Support Document prepared by EPA in support of its March 23, 1998 rulemaking [63 FR 13789] clearly indicates that the Commonwealth's document, “Guidance Document on Reasonably Available Control Technology for Sources of NO X Emissions.” March 11, 1994, had not been included as part of the SIP submission of the Commonwealth's generic regulation and, therefore, had not been approved by EPA. EPA further notes that the Administrative Record of the March 23, 1998 rulemaking [63 FR 13789], in addition to the correspondence cited by PennFuture, also includes correspondence from DEP to EPA [letter from James Salvaggio, DEP to David Arnold, EPA, September 10, 1997] stating that DEP's RACT guidance document does not establish a maximum dollar per ton for determining the cost effectiveness for RACT determinations and notes that the DEP's $1500 per ton cost effectiveness is a target value and not an absolute maximum. For example, in its analyses of the cost effectiveness of RACT control options submitted by DEP as part of the case-by-case SIP revision for Peoples Natural Gas (PNG) Valley Compressor Station's turbo charged lean burn IC engine (see the Administrative Record for 66 FR 43492), the Commonwealth included DEP interoffice memoranda (Thomas Joseph to Krishnan Ramamurthy, July 14, 1994 and Krishnan Ramamurthy to Thomas McGinley, Babu Patel, Ronald Davis, Richard Maxwell, and Devendra Verma, July 15, 1994) which spoke directly to the $1500/ton dollar figure as being a guideline and not an upper limit. These memoranda explain that although PNG initially proposed intermediate original equipment manufacturer (OEM) combustion controls which would have reduced NO X emissions from 254.7 tons per year to 115 tons per year (by 55%) at a cost of $1355 per ton reduced, DEP required the installation of an OEM lean combustion modification that reduced NO X emissions from 254.7 tons per year to 76 tons per year (by 69%) at a cost of $1684 per ton reduced. The DEP's July 15, 1994 interoffice memorandum says of the PNG RACT determination which exceeded the cost effectiveness screening level of $1500 per ton “Tom's (Joseph) insistence for the next more stringent level of control than the company's chosen level in the case of PNG was consistent with EPA Region III's sentiment that establishing any dollar figure in RACT guidance will not provide for an “automatic” rejection of a control technology as RACT for a source.”

In no instance, including that for Duquesne Light—Elrama (auxiliary boiler) and Allegheny Ludlum—Washington (formerly Jessop Steel), has EPA proposed to approve a RACT determination submitted by the Commonwealth which was based solely on a conclusion that controls that cost more than $1500/ton were not required as RACT. As explained in the response provided in section II. A. of this document, EPA conducts its review of the entire case-by-case RACT SIP submittal including the source's proposed RACT plan and analyses, Pennsylvania's analyses and the RACT plan approval, consent order or permit itself to insure that the requirements of the SIP-approved generic RACT have been followed. These analyses not only evaluate and consider the costs of potential control options, but also evaluate their technological feasibility.

E. Comment: PennFuture comments that any emission reduction credits (ERCs) earned by sources subject to RACT must be surplus to all applicable state and federal requirements. Under Pennsylvania law, ERCs must be surplus, permanent, quantified, and Federally enforceable. 25 Pa.Code 127.207(1). As to the requirement that ERCs be surplus, the Pennsylvania Code states: ERCs shall be included in the current emission inventory, and may not be required by or be used to meet past or current SIP, attainment demonstration, RFP, emission limitation or compliance plans. Emission reductions necessary to meet NSPS, LAER, RACT, Best Available Technology, BACT and permit or plan approval emissions limitations or another emissions limitation required by the Clean Air Act or the [Air Pollution Control Act] may not be used to generate ERCs. 25 Pa.Code 127.207(1)(i). To be creditable, ERCs must surpass not only RACT requirements but a host of other possible sources of emission limits. PennFuture comments that some of the RACT evaluations at issue in the current EPA notices purport to establish RACT as a baseline for future ERCs. PennFuture does acknowledge that EPA notes in its boilerplate for the notices, that Pennsylvania and EPA have established a series of NO X -reducing rules, including the recent Chapter 145 rule, to reduce NO X at large utility and industrial sources. See, for example, 66 FR 42415, 16-17 (August 13, 2001). Because any ERCs must be surplus to the most stringent limitation applicable under state or federal law as described in the Pennsylvania Code provision set forth above, DEP and EPA must not approve ERCs unless they surpass all such limitations in addition to any limits set by RACT.

Response: EPA agrees with this comment by PennFuture. The approval of a case-by-case RACT determination, in and of itself, does not establish the baseline from which further emission reductions may be calculated and assumed creditable under the Commonwealth's SIP-approved NSR and ERC program. Moreover, EPA's review of the Pennsylvania DEP's implementation of its approved SIP-approved NSR and ERC program indicates that the Commonwealth calculates and credits ERCs in accordance with the SIP-approved criteria for doing so as outlined in PennFuture's comment. No source for which EPA is approving a case-by-case RACT determination should assume that its RACT approval alone automatically establishes the baseline against which it may calculate creditable ERCs.

F. Comment: PennFuture comments that as in the case with Pennsylvania Power—Newcastle, EPA should compare RACT proposals to applicable acid rain program emission limits and control strategies. PennFuture contends that EPA previously disapproved a RACT proposal for the Pennsylvania Power—Newcastle plant [62 FR 43959 (1997); 63 FR 23668 (1998)] and that EPA did so on the basis that the acid rain program requires more stringent emission limits. PennFuture asserts that while EPA had originally proposed to approve this proposal, an analysis of comparable boilers and, especially, a comparison to Phase II emission limits under the acid rain program led EPA to conclude that the RACT proposal emission limits were too lenient. [62 FR at 43961]. Therefore, PennFuture contends that for sources subject to the acid rain program, EPA should consider emissions and control strategies for compliance with acid rain emission limits when evaluating proposals for compliance with RACT.

Response: Title IV of the Act, addressing the acid rain program, contains NO X emission requirements for utilities which must be met in addition to any RACT requirements (see NO X Supplement to the General Preamble at 57 FR 55625, November 25, 1992). The Act provides for a number of control programs that may affect similar sources. For example, new sources may be subject to new source performance standards (NSPS), best available control technology (BACT), and lowest achievable emission rate (LAER). Other controls, under such programs as the acid rain program or the hazardous air pollutant program may also apply to sources. However, the applicability of these other requirements, which are often more stringent than RACT, do not establish what requirements must apply under the RACT program. While these programs may provide information as to the technical and economic feasibility of reduction programs for RACT, there is no presumption that acid rain controls should be mandated as RACT.

EPA stated in the final disapproval of the NO X RACT determination for PPNC [63 FR at 23669], that the discussion concerning average emission rates for boilers with respect to the acid rain program requirements were included in order to provide a context for EPA's proposed disapproval. EPA made clear in its August 18, 1997 proposed disapproval of Pennsylvania Powers'—Newcastle (PPNC) RACT determination, that the basis for disapproval was a comparison between PPNC's boilers and other similar combustion units, not acid rain limits. In fact, EPA stated in the August 18, 1997 proposed disapproval that “Without additional knowledge or information, it would be erroneous and premature to conclude that the limits in the acid rain permit are RACT.” [62 FR at 43961]. EPA clearly stated in the final disapproval for PPNC that it did not use acid rain permit limits, or Pennsylvania's participation in any other NO X control program, to determine PPNC RACT approvability [63 FR at 23670]. Nor has EPA intended to use participation in NO X control programs including acid rain, in determining RACT for PPNC or any other subject sources. EPA also stated that the April 30, 1998, PPNC disapproval was based on the absence of pertinent information regarding a computerized combustion optimization system through an enforceable permit, not comparison of acid rain permit limits.

EPA is approving the revisions to the Pennsylvania SIP submitted by PADEP to establish and require VOC and NO X RACT for eleven major of sources located in the Pittsburgh area. EPA is approving these RACT SIP submittals because the ACHD and PADEP established and imposed these RACT requirements in accordance with the criteria set forth in the SIP-approved RACT regulations applicable to these sources. The ACHD and PADEP have also imposed record-keeping, monitoring, and testing requirements on these sufficient to determine compliance with the applicable RACT determinations.

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 (Public Law 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 approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. 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 Clean Air Act. 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 Clean Air Act. 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. Section 804 exempts from section 801 the following types of rules: (1) Rules of particular applicability; (2) rules relating to agency management or personnel; and (3) rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required to submit a rule report regarding today's action under section 801 because this is a rule of particular applicability establishing source-specific requirements for eleven named sources.

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 17, 2001. 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 approving the Commonwealth's source-specific RACT requirements to control VOC and NO X from eleven individual steel/coke manufacturing sources in Pennsylvania may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

On March 21, 1996, PADEP submitted revisions to the Pennsylvania SIP which establish and impose case-by-case RACT for several sources of VOC and/or NO X . This rulemaking pertains to the Commonwealth's submittal of operating permit (OP) 65-000-016 which imposes NO X RACT requirements for the Latrobe Steel Company (LSC), a major source of NO X located in the Pittsburgh area. The RACT determinations submitted on March 21, 1996 for other sources are or have been the subject of separate rulemakings.

On August 10, 2001, EPA published a direct final rule (66 FR 42123) and a companion notice of proposed rulemaking (66 FR 42172) to approve these SIP revisions. On September 7, 2001, we received adverse comments on our direct final rule from the Citizens for Pennsylvania's Future (PennFuture). On September 20, 2001 (66 FR 48347), we published a timely withdrawal in the Federal Register informing the public that the direct final rule did not take effect. We indicated in our August 10, 2001 direct final rulemaking that if we received adverse comments, EPA would address all public comments in a subsequent final rule based on the proposed rule (66 FR 42172). This is that subsequent final rule. A description of the RACT determination made for LSC was provided in the August 10, 2001 direct final rule and will not be restated here. A summary of the comments submitted by PennFuture germane to this final rulemaking and EPA's responses are provided in Section II of this document.

The Citizens for Pennsylvania's Future (PennFuture) submitted adverse comments on twenty proposed rules published by EPA in the Federal Register between August 6 and August 24, 2001 to approve case-by-case RACT SIP submissions from the Commonwealth for NO X and or VOC sources located in the Pittsburgh area. PennFuture's letter includes general comments and comments specific to EPA's proposals for certain sources. A summary of those comments and EPA's responses are provided below.

A. Comment: PennFuture comments that EPA has conducted no independent technical review, and has prepared no technical support document to survey potential control technologies, determine the capital and operating costs of different options, and rank these options in total and marginal cost per ton of NO X and VOC controlled. In citing the definition of the term “RACT,” and the Strelow Memorandum [Roger Strelow, Assistant Administrator for Air and Waste Management, EPA, December 9, 1976, cited in Michigan v. Thomas, 805 F.2d 176, 180 (6th Cir. 1986) and at 62 FR 43134, 43136 (1997)], PennFuture appears to comment that in every situation, RACT must include an emission rate. PennFuture asserts that EPA should conduct its own RACT evaluation for each source, or at a minimum document a step-by-step review demonstrating the adequacy of state evaluations, to ensure that appropriate control technology is applied. The commenter also believes that EPA's failure to conduct its own independent review of control technologies has resulted in our proposing to approve some RACT determinations that fail to meet the terms of EPA's own RACT standard.

Response: On March 23, 1998 (63 FR 13789), EPA granted conditional limited approval of Pennsylvania's generic RACT regulations, 25 PA Code Chapters 121 and 129, thereby approving the definitions, provisions and procedures contained within those regulations under which the Commonwealth would require and impose RACT. Subsection 129.91, Control of major sources of NO X and VOCs, requires subject facilities to submit a RACT plan proposal to both the Pennsylvania Department of Environmental Protection (DEP) and to EPA Region III by July 15, 1994 in accordance with subsection 129.92, entitled, RACT proposal requirements. Under subsection 129.92, that proposal is to include, among other information: (1) A list of each subject source at the facility; (2) The size or capacity of each affected source, and the types of fuel combusted, and the types and amounts of materials processed or produced at each source; (3) A physical description of each source and its operating characteristics; (4) Estimates of potential and actual emissions from each affected source with supporting documentation; (5) A RACT analysis which meets the requirements of subsection 129.92 (b), including technical and economic support documentation for each affected source; (6) A schedule for implementation as expeditiously as practicable but not later than May 15, 1995; (7) The testing, monitoring, recordkeeping and reporting procedures proposed to demonstrate compliance with RACT; and (8) any additional information requested by the DEP necessary to evaluate the RACT proposal. Under subsection 129.91, the DEP will approve, deny or modify each RACT proposal, and submit each RACT determination to EPA for approval as a SIP revision.

The conditional nature of EPA's March 23, 1998 conditional limited approval did not impose any conditions pertaining to the regulation's procedures for the submittal of RACT plans and analyses by subject sources and approval of case-by case RACT determinations by the DEP. Rather, EPA stated that “* * * RACT rules may not merely be procedural rules (emphasis added) that require the source and the State to later agree to the appropriate level of control; rather the rules must identify the appropriate level of control for source categories or individual sources.”

On May 3, 2001 (66 FR 22123), EPA published a rulemaking determining that Pennsylvania had satisfied the conditions imposed in its conditional limited approval. In that rulemaking, EPA removed the conditional status of its approval of the Commonwealth's generic VOC and NO X RACT regulations on a statewide basis. EPA received no public comments on its action and that final rule removing the conditional status of Pennsylvania's VOC and NO X RACT regulations became effective on June 18, 2001. As of that time, Pennsylvania's generic VOC and NO X RACT regulations retained a limited approval status. On August 24, 2001 (66 FR 44578), EPA proposed to remove the limited nature of its approval of Pennsylvania's generic RACT regulation in the Pittsburgh area. EPA received no public comments on that proposal. Final action converting the limited approval to full approval shall occur once EPA has completed rulemaking to approve either (1) the case-by-case RACT proposals for all sources subject to the RACT requirements currently known in the Pittsburgh-Beaver area or (2) for a sufficient number of sources such that the emissions from any remaining subject sources represent a de minimis level of emissions as defined in the March 23, 1998 rulemaking (63 FR 13789).

EPA agrees that it has an obligation to review the case-by-case RACT plan approvals and/or permits submitted as individual SIP revisions by Commonwealth to verify and determine if they are consistent with the RACT requirements of the Act and any relevant EPA guidance. EPA does not agree, however, that this obligation to review the case-by-case RACT determinations submitted by Pennsylvania necessarily extends to our performing our own RACT analyses, independent of the sources' RACT plans/analyses (included as part of the case-by case RACT SIP revisions) or the Commonwealth's analyses. EPA first reviews this submission to ensure that the source and the Commonwealth followed the SIP-approved generic rule when applying for and imposing RACT for a specific source. Then EPA performs a thorough review of the technical and economic analyses conducted by the source and the state. If EPA believes additional information may further support or would undercut the RACT analyses submitted by the state, then EPA may add additional EPA-generated analyses to the record.

While RACT, as defined for an individual source or source category, often does specify an emission rate, such is not always the case. EPA has issued Control Technique Guidelines (CTGs) which states are to use as guidance in development of their RACT determinations/rules for certain sources or source categories. Not every CTG issued by EPA includes an emission rate. There are several examples of CTGs issued by EPA wherein equipment standards and/or work practice standards alone are provided as RACT guidance for all or part of the processes covered. Such examples include the CTGs issued for Bulk gasoline plants, Gasoline service stations—Stage I, Petroleum Storage in Fixed-roof tanks, Petroleum refinery processes, Solvent metal cleaning, Pharmaceutical products, External Floating roof tanks and Synthetic Organic Chemical Manufacturing (SOCMI)/polymer manufacturing. (The publication numbers for these CTG documents may be found at http://www.epa.gov/ttn/catc/dir1/ctg.txt ).

EPA disagrees with PennFuture's general comment that our failure to conduct our own independent review of control technologies for every case-by-case RACT determination conducted by the Commonwealth has resulted in our proposing to approve some RACT determinations that fail to meet the terms of our own RACT standard. PennFuture submitted comments specific to the case-by-case RACT determinations for only three sources located in the Pittsburgh area, namely for Duquesne Light's Elrama, Phillips and Brunot Island stations. EPA summarizes those comments and provides responses in the final rule pertaining to those sources.

B. Comment: PennFuture comments that when EPA reviewed Pennsylvania's RACT program, it noted that Pennsylvania coal-fired boilers with a rated heat input of equal to or greater than 100 million Btu per hour “are some of the largest NO X emitting sources in the Commonwealth and in the Northeast United States” [63 FR 13789, 13791 (1998)] and as such should have numeric emission limitations imposed as RACT whether or not they install presumptive RACT (under 25 Pa.Code 129.93) to guarantee that sources would achieve quantifiable emissions reductions under the RACT program. PennFuture goes on to comment that because EPA has not conducted and documented a technical review of Pennsylvania case-by case RACT submissions, EPA has not demonstrated that these large boilers are subject to “numeric emission limitations” under RACT. EPA must conduct a thorough RACT evaluation or review for each such source, and must document the application of numeric emission limits and quantifiable reductions for each coal-fired boiler with a rated heat input of over 100 million Btu per hour.

Response: Circumstances may exist wherein a state could justify otherwise, however, in general, EPA agrees with PennFuture that coal-fired boilers with a rated heat input of equal to or greater than 100 million Btu per hour should have numeric emission limitations imposed as RACT whether or not they install presumptive RACT (under 25 Pa.Code 129.93).

As provided in the response found in II. A, EPA does not agree that it must conduct its own technical analysis of each of the case-by-case RACT determinations submitted for each RACT source in order to document that its RACT requirements include numeric emission limitations. That determination can be made by EPA when it reviews the plan approval, consent order, or permit issued to such a source as submitted by the Commonwealth as SIP revision. PennFuture's comment did not point to a specific instance where a RACT plan approval, consent order or permit imposing RACT on a coal-fired boiler with a rated heat input of equal to or greater than 100 million Btu per hour did, in fact, lack a numerical emission limitation(s). Nonetheless, pursuant to PennFuture's comment, EPA has re-examined all of the case-by-case RACT SIP submissions made by the Commonwealth for such sources located in the Pittsburgh area. That re-examination, combined with information provided by the Commonwealth, indicates that each case-by-case RACT plan approval, consent order and/or permit for each coal-fired boiler with a rated heat input of equal to or greater than 100 million Btu per hour includes a numeric emission limitation. A listing of each source, its plan approval, consent order and/or permit number and its numerical emission limitation has been placed in the Administrative Records for the case-by -case RACT rulemakings for the Pittsburgh area.

C. Comment: PennFuture asserts that the Commonwealth has not adopted and submitted category RACT rules for all VOC source categories for which federal control technique guidelines (CTGs) have been issued. The commenter refers to Appendix 1 of the Technical Support Document (dated May 14, 2001), prepared by EPA in support of its proposed rule to redesignate the Pittsburgh-Beaver Valley Ozone Nonattainment Area (66 FR 29270), to assert that EPA has failed to require the Commonwealth to submit VOC RACT rules for certain categories of sources. PennFuture specifically names source categories such as equipment leaks from natural gas/gas processing plants, coke oven batteries, iron and steel foundries, and publically owned treatment works and asserts that the Commonwealth has neglected a statutory requirement to adopt category RACT regulations for these and 14 other unnamed VOC source categories.

Response: EPA has not issued CTGs for coke oven batteries, iron and steel foundries and publically owned treatment works. The Appendix 1, referred to by the commenter, lists CTG covered categories as well as source categories taken from two STAPPA/ALAPCO documents entitled, “Meeting the 15-Percent Rate-of-Progress Requirement Under the Clean Air Act—A Menu of Options' (September 1993) and “Controlling Nitrogen Oxides Under the Clean Air Act—A Menu of Options” (July 1994). The categories referenced by PennFuture are not VOC categories for which EPA has issued CTGs, but were included in Appendix A as examples of some of the types of sources that could be subject to Pennsylvania's generic RACT regulations.

The Commonwealth is under no statutory obligation to adopt RACT rules for source categories for which EPA has not issued a CTG. In fact, CTGs do not exist for all but one of the categories to which the commenter explicitly refers.

The Act requires that states adopt regulations to impose RACT for “major sources of VOC,” located within those areas of a state where RACT applies under Part D of the Act [182(b)(2)(C)]. This is referred to as the non-CTG VOC RACT requirement. Moreover, EPA disagrees that there is a statutory mandate that a state adopt a source category RACT regulation even for a source category where EPA has issued a CTG. There are two statutory provisions that address RACT for sources covered by a CTG. One provides that states must adopt RACT for “any category of VOC sources” covered by a CTG issued prior to November 15, 1990 [182(b)(2)(A)]. The other provides that states must adopt VOC RACT for all “VOC sources” covered by a CTG issued after November 15, 1990 [182(b)(2)(B)]. EPA has long interpreted the statutory RACT requirement to be met either by adoption of category-specific rules or by source-specific rules for each source within a category. When initially established, RACT was clearly defined as a case-by-case determination, but EPA provided CTG's to simplify the process for states such that they would not be required to adopt hundreds or thousands of individual rules. See Strelow Memorandum dated December 9, 1976 and 44 FR 53761, September 17, 1979. EPA does not believe that Congress' use of “source category” in one provision of section 182(b)(2) was intended to preclude the adoption of source-specific rules.

Thus, where CTG-subject sources are located within those areas of a state where RACT applies under Part D of the Act, the state is obligated to impose RACT for the same universe of sources covered by the CTG. However, that obligation is not required to be met by the adoption and submittal of a source category RACT rule. A state may, instead, opt to impose RACT for such sources in permits, plan approvals, consent orders or in any other state enforceable document and submit those documents to EPA for approval as source-specific SIP revisions. This option has been exercised by many states, and happens most commonly when only a few CTG-subject sources are located in the state. The source-specific approach is generally employed to avoid what can be a lengthy and resource-intensive state rule adoption process for only a few sources that may have different needs and considerations that must be taken into account.

As stated earlier, there is one source category explicitly included in PennFuture's comment for which EPA has issued a CTG, namely natural gas/gas processing plants. The Commonwealth made a negative declaration to EPA on April 13, 1993, stating that as of that date there were no applicable sources in this category. Therefore, the Commonwealth did not adopt a category RACT regulation for natural gas/gas processing plants.

D. Comment: PennFuture cites EPA correspondence [letter from Marcia Spink, EPA, to James Salvaggio, DEP, December 15, 1993] to the Commonwealth which states that establishing any dollar figure in RACT guidance will not provide for the “automatic” selection or rejection of a control technology or emission limitation as RACT for a source or source category. With regard to the Pennsylvania DEP's intent to finalize a NO X RACT Guidance Document for implementation of its NO X RACT regulation, EPA's 1993 letter stated that the document could improperly be used to establish “bright line” or “cook-book” approaches, particularly for a regulation applicable to many source categories and suggested that if the guidance document must include dollar figures/ton, it provide approximate ranges by source category. PennFuture comments that DEP issued its “Guidance Document on Reasonably Available Control Technology for Sources of NO X Emissions,” March 11, 1994, and on pp. 8-9 states that the acceptable threshold is $1500 per ton, and that this figure applies to “all source categories.” PennFuture notes that EPA later objected to the $1500 per ton methodology as “not generically acceptable to EPA” [letter from Thomas Maslany, EPA, to James Salvaggio, DEP, June 24, 1997] and further stated in a Federal Register notice that a “dollar per ton threshold” is “inconsistent with the definition of RACT” [62 FR 43134, 37-38 (1997)].

PennFuture comments that EPA is proposing to approve RACT determinations based on a cost per ton method that EPA had previously rejected, and according to its own clearly expressed standard, EPA must not approve RACT determinations by Pennsylvania DEP that apply this $1500 per ton threshold. The commenter states that PennFuture's review of several of the current DEP evaluations indicate that the Commonwealth applied this standard and provides the examples of Duquesne Light—Elrama (auxiliary boiler); Allegheny Ludlum—Washington (formerly Jessop Steel). PennFuture asserts EPA must reject all Pennsylvania RACT determinations applying the standard of $1500 per ton, or any other “bright line” approach, as failing to follow EPA procedures established for Pennsylvania RACT.

Response: EPA still takes the position that a single cost per ton dollar figure may not, in and of itself, form the basis for rejecting a control technology, equipment standard, or work practice standard as RACT. The Technical Support Document prepared by EPA in support of its March 23, 1998 rulemaking [63 FR 13789] clearly indicates that the Commonwealth's document, “Guidance Document on Reasonably Available Control Technology for Sources of NO X Emissions.” March 11, 1994, had not been included as part of the SIP submission of the Commonwealth's generic regulation and, therefore, had not been approved by EPA. EPA further notes that the Administrative Record of the March 23, 1998 rulemaking [63 FR 13789], in addition to the correspondence cited by PennFuture, also includes correspondence from DEP to EPA [letter from James Salvaggio, DEP to David Arnold, EPA, September 10, 1997] stating that DEP's RACT guidance document does not establish a maximum dollar per ton for determining the cost effectiveness for RACT determinations and notes that the DEP's $1500 per ton cost effectiveness is a target value and not an absolute maximum. For example, in its analyses of the cost effectiveness of RACT control options submitted by DEP as part of the case-by-case SIP revision for Peoples Natural Gas (PNG) Valley Compressor Station's turbo charged lean burn IC engine (see the Administrative Record for 66 FR 43492), the Commonwealth included DEP interoffice memoranda (Thomas Joseph to Krishnan Ramamurthy, July 14, 1994 and Krishnan Ramamurthy to Thomas McGinley, Babu Patel, Ronald Davis, Richard Maxwell, and Devendra Verma, July 15, 1994) which spoke directly to the $1500/ton dollar figure as being a guideline and not an upper limit. These memoranda explain that although PNG initially proposed intermediate original equipment manufacturer (OEM) combustion controls which would have reduced NO X emissions from 254.7 tons per year to 115 tons per year (by 55 %) at a cost of $1355 per ton reduced, DEP required the installation of an OEM lean combustion modification that reduced NO X emissions from 254.7 tons per year to 76 tons per year (by 69%) at a cost of $1684 per ton reduced. The DEP's July 15, 1994 interoffice memorandum says of the PNG RACT determination which exceeded the cost effectiveness screening level of $1500 per ton “Tom's (Joseph) insistence for the next more stringent level of control than the company's chosen level in the case of PNG was consistent with EPA Region III's sentiment that establishing any dollar figure in RACT guidance will not provide for an “automatic” rejection of a control technology as RACT for a source.”

In no instance, including that for Duquesne Light—Elrama (auxiliary boiler) and Allegheny Ludlum—Washington (formerly Jessop Steel), has EPA proposed to approve a RACT determination submitted by the Commonwealth which was based solely on a conclusion that controls that cost more than $1500/ton were not required as RACT. As explained in the response provided in section II. A. of this document, EPA conducts its review of the entire case-by-case RACT SIP submittal including the source's proposed RACT plan and analyses, Pennsylvania's analyses and the RACT plan approval, consent order or permit itself to insure that the requirements of the SIP-approved generic RACT have been followed. These analyses not only evaluate and consider the costs of potential control options, but also evaluate their technological feasibility.

E. Comment: PennFuture comments that any emission reduction credits (ERCs) earned by sources subject to RACT must be surplus to all applicable state and federal requirements. Under Pennsylvania law, ERCs must be surplus, permanent, quantified, and Federally enforceable. 25 Pa.Code 127.207(1). As to the requirement that ERCs be surplus, the Pennsylvania Code states: ERCs shall be included in the current emission inventory, and may not be required by or be used to meet past or current SIP, attainment demonstration, RFP, emission limitation or compliance plans. Emission reductions necessary to meet NSPS, LAER, RACT, Best Available Technology, BACT and permit or plan approval emissions limitations or another emissions limitation required by the Clean Air Act or the [Air Pollution Control Act] may not be used to generate ERCs. 25 Pa.Code 127.207(1)(i). To be creditable, ERCs must surpass not only RACT requirements but a host of other possible sources of emission limits. PennFuture comments that some of the RACT evaluations at issue in the current EPA notices purport to establish RACT as a baseline for future ERCs. PennFuture does acknowledge that EPA notes in its boilerplate for the notices, that Pennsylvania and EPA have established a series of NO X -reducing rules, including the recent Chapter 145 rule, to reduce NO X at large utility and industrial sources. See, for example, 66 FR 42415, 16-17 (August 13, 2001). Because any ERCs must be surplus to the most stringent limitation applicable under state or federal law as described in the Pennsylvania Code provision set forth above, DEP and EPA must not approve ERCs unless they surpass all such limitations in addition to any limits set by RACT.

Response: EPA agrees with this comment by PennFuture. The approval of a case-by-case RACT determination, in and of itself, does not establish the baseline from which further emission reductions may be calculated and assumed creditable under the Commonwealth's SIP-approved NSR and ERC program. Moreover, EPA's review of the Pennsylvania DEP's implementation of its approved SIP-approved NSR and ERC program indicates that the Commonwealth calculates and credits ERCs in accordance with the SIP-approved criteria for doing so as outlined in PennFuture's comment. No source for which EPA is approving a case-by-case RACT determination should assume that its RACT approval alone automatically establishes the baseline against which it may calculate creditable ERCs.

F. Comment: PennFuture comments that as in the case with Pennsylvania Power—Newcastle, EPA should compare RACT proposals to applicable acid rain program emission limits and control strategies. PennFuture contends that EPA previously disapproved a RACT proposal for the Pennsylvania Power—Newcastle plant [62 FR 43959 (1997); 63 FR 23668 (1998)] and that EPA did so on the basis that the acid rain program requires more stringent emission limits. PennFuture asserts that while EPA had originally proposed to approve this proposal, an analysis of comparable boilers and, especially, a comparison to Phase II emission limits under the acid rain program led EPA to conclude that the RACT proposal emission limits were too lenient. [62 FR at 43961]. Therefore, PennFuture contends that for sources subject to the acid rain program, EPA should consider emissions and control strategies for compliance with acid rain emission limits when evaluating proposals for compliance with RACT.

Response: Title IV of the Act, addressing the acid rain program, contains NO X emission requirements for utilities which must be met in addition to any RACT requirements (see NO X Supplement to the General Preamble at 57 FR 55625, November 25, 1992). The Act provides for a number of control programs that may affect similar sources. For example, new sources may be subject to new source performance standards (NSPS), best available control technology (BACT), and lowest achievable emission rate (LAER). Other controls, under such programs as the acid rain program or the hazardous air pollutant program may also apply to sources. However, the applicability of these other requirements, which are often more stringent than RACT, do not establish what requirements must apply under the RACT program. While these programs may provide information as to the technical and economic feasibility of reduction programs for RACT, there is no presumption that acid rain controls should be mandated as RACT.

EPA stated in the final disapproval of the NO X RACT determination for PPNC [63 FR at 23669], that the discussion concerning average emission rates for boilers with respect to the acid rain program requirements were included in order to provide a context for EPA's proposed disapproval. EPA made clear in its August 18, 1997 proposed disapproval of Pennsylvania Powers'—Newcastle (PPNC) RACT determination, that the basis for disapproval was a comparison between PPNC's boilers and other similar combustion units, not acid rain limits. In fact, EPA stated in the August 18, 1997 proposed disapproval that “Without additional knowledge or information, it would be erroneous and premature to conclude that the limits in the acid rain permit are RACT.” [62 FR at 43961]. EPA clearly stated in the final disapproval for PPNC that it did not use acid rain permit limits, or Pennsylvania's participation in any other NO X control program, to determine PPNC RACT approvability [63 FR at 23670]. Nor has EPA intended to use participation in NO X control programs including acid rain, in determining RACT for PPNC or any other subject sources. EPA also stated that the April 30, 1998, PPNC disapproval was based on the absence of pertinent information regarding a computerized combustion optimization system through an enforceable permit, not comparison of acid rain permit limits.

EPA is approving Latrobe Steel's OP 65-000-016 as a revision to the Pennsylvania SIP. It was submitted by PADEP to establish and impose NO X RACT for Latrobe Steel, a major source located in the Pittsburgh area. EPA is approving Pennsylvania's RACT SIP submittal of OP 65-000-016 which establishes and imposes RACT requirements on Latrobe Steel in accordance with the criteria set forth in its SIP-approved RACT regulations and which also imposes record-keeping, monitoring, and testing requirements sufficient to determine compliance with the applicable RACT determinations.

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 (Public Law 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 approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. 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 Clean Air Act. 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 Clean Air Act. 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. Section 804 exempts from section 801 the following types of rules: (1) Rules of particular applicability; (2) rules relating to agency management or personnel; and (3) rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required to submit a rule report regarding today's action under section 801 because this is a rule of particular applicability establishing source-specific requirements for one named source.

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 17, 2001. 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 approving the Commonwealth's source-specific RACT requirements to control NO X from Latrobe Steel may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

On April 9, 1999 and July 5, 2001, the PADEP submitted revisions to the Pennsylvania SIP which establish and impose RACT for several sources of NO X and VOCs. The RACT determinations for four of those sources, named below, are the subject of this rulemaking. These four sources are all located in the Pittsburgh area. The RACT determinations submitted for the other sources are or have been the subject of separate rulemakings. These four sources are all located in the Pittsburgh area and consist of Lukens Steel Corporation, Houston Plant; Allegheny Ludlum Steel Corporation, West Leechburg Plant; Allegheny Ludlum Corporation, Jessop Steel Company, Washington Plant; and Koppel Steel Corporation, Koppel Plant.

On August 15, 2001, EPA published a direct final rule (66 FR 42756) and a companion notice of proposed rulemaking (66 FR 42831) to approve these SIP revisions. On September 7, 2001, we received adverse comments on our direct final rule from the Citizens for Pennsylvania's Future (PennFuture). On September 28, 2001 (66 FR 49541), we published a timely withdrawal in the Federal Register informing the public that the direct final rule did not take effect. We indicated in our August 15, 2001 direct final rulemaking that if we received adverse comments, EPA would address all public comments in a subsequent final rule based on the proposed rule (66 FR 42831). This is that subsequent final rule. A description of the RACT determination(s) made for each source was provided in the August 15, 2001 direct final rule and will not be restated here. A summary of the comments submitted by PennFuture germane to this final rulemaking and EPA's responses are provided in Section II of this document.

The Citizens for Pennsylvania's Future (PennFuture) submitted adverse comments on twenty proposed rules published by EPA in the Federal Register between August 6 and August 24, 2001 to approve case-by-case RACT SIP submissions from the Commonwealth for NO X and or VOC sources located in the Pittsburgh area. PennFuture's letter includes general comments and comments specific to EPA's proposals for certain sources. A summary of those comments and EPA's responses are provided below.

A. Comment: PennFuture comments that EPA has conducted no independent technical review, and has prepared no technical support document to survey potential control technologies, determine the capital and operating costs of different options, and rank these options in total and marginal cost per ton of NO X and VOC controlled. In citing the definition of the term “RACT,” and the Strelow Memorandum [Roger Strelow, Assistant Administrator for Air and Waste Management, EPA, December 9, 1976, cited in Michigan v. Thomas, 805 F.2d 176, 180 (6th Cir. 1986) and at 62 FR 43134, 43136 (1997)], PennFuture appears to comment that in every situation, RACT must include an emission rate. PennFuture asserts that EPA should conduct its own RACT evaluation for each source, or at a minimum document a step-by-step review demonstrating the adequacy of state evaluations, to ensure that appropriate control technology is applied. The commenter also believes that EPA's failure to conduct its own independent review of control technologies has resulted in our proposing to approve some RACT determinations that fail to meet the terms of EPA's own RACT standard.

Response: On March 23, 1998 (63 FR 13789), EPA granted conditional limited approval of Pennsylvania's generic RACT regulations, 25 PA Code Chapters 121 and 129, thereby approving the definitions, provisions and procedures contained within those regulations under which the Commonwealth would require and impose RACT. Subsection 129.91, Control of major sources of NO X and VOCs, requires subject facilities to submit a RACT plan proposal to both the Pennsylvania Department of Environmental Protection (DEP) and to EPA Region III by July 15, 1994 in accordance with subsection 129.92, entitled, RACT proposal requirements. Under subsection 129.92, that proposal is to include, among other information: (1) A list of each subject source at the facility; (2) The size or capacity of each affected source, and the types of fuel combusted, and the types and amounts of materials processed or produced at each source; (3) A physical description of each source and its operating characteristics; (4) Estimates of potential and actual emissions from each affected source with supporting documentation; (5) A RACT analysis which meets the requirements of subsection 129.92 (b), including technical and economic support documentation for each affected source; (6) A schedule for implementation as expeditiously as practicable but not later than May 15, 1995; (7) The testing, monitoring, recordkeeping and reporting procedures proposed to demonstrate compliance with RACT; and (8) any additional information requested by the DEP necessary to evaluate the RACT proposal. Under subsection 129.91, the DEP will approve, deny or modify each RACT proposal, and submit each RACT determination to EPA for approval as a SIP revision.

The conditional nature of EPA's March 23, 1998 conditional limited approval did not impose any conditions pertaining to the regulation's procedures for the submittal of RACT plans and analyses by subject sources and approval of case-by-case RACT determinations by the DEP. Rather, EPA stated that “* * * RACT rules may not merely be procedural rules (emphasis added) that require the source and the State to later agree to the appropriate level of control; rather the rules must identify the appropriate level of control for source categories or individual sources.”

On May 3, 2001 (66 FR 22123), EPA published a rulemaking determining that Pennsylvania had satisfied the conditions imposed in its conditional limited approval. In that rulemaking, EPA removed the conditional status of its approval of the Commonwealth's generic VOC and NO X RACT regulations on a statewide basis. EPA received no public comments on its action and that final rule removing the conditional status of Pennsylvania's VOC and NO X RACT regulations became effective on June 18, 2001. As of that time, Pennsylvania's generic VOC and NO X RACT regulations retained a limited approval status. On August 24, 2001 (66 FR 44578), EPA proposed to remove the limited nature of its approval of Pennsylvania's generic RACT regulation in the Pittsburgh area. EPA received no public comments on that proposal. Final action converting the limited approval to full approval shall occur once EPA has completed rulemaking to approve either (1) the case-by-case RACT proposals for all sources subject to the RACT requirements currently known in the Pittsburgh-Beaver area or (2) for a sufficient number of sources such that the emissions from any remaining subject sources represent a de minimis level of emissions as defined in the March 23, 1998 rulemaking (63 FR 13789).

EPA agrees that it has an obligation to review the case-by-case RACT plan approvals and/or permits submitted as individual SIP revisions by Commonwealth to verify and determine if they are consistent with the RACT requirements of the Act and any relevant EPA guidance. EPA does not agree, however, that this obligation to review the case-by-case RACT determinations submitted by Pennsylvania necessarily extends to our performing our own RACT analyses, independent of the sources' RACT plans/analyses (included as part of the case-by case RACT SIP revisions) or the Commonwealth's analyses. EPA first reviews this submission to ensure that the source and the Commonwealth followed the SIP-approved generic rule when applying for and imposing RACT for a specific source. Then EPA performs a thorough review of the technical and economic analyses conducted by the source and the state. If EPA believes additional information may further support or would undercut the RACT analyses submitted by the state, then EPA may add additional EPA-generated analyses to the record.

While RACT, as defined for an individual source or source category, often does specify an emission rate, such is not always the case. EPA has issued Control Technique Guidelines (CTGs) which states are to use as guidance in development of their RACT determinations/rules for certain sources or source categories. Not every CTG issued by EPA includes an emission rate. There are several examples of CTGs issued by EPA wherein equipment standards and/or work practice standards alone are provided as RACT guidance for all or part of the processes covered. Such examples include the CTGs issued for Bulk gasoline plants, Gasoline service stations—Stage I, Petroleum Storage in Fixed-roof tanks, Petroleum refinery processes, Solvent metal cleaning, Pharmaceutical products, External Floating roof tanks and Synthetic Organic Chemical Manufacturing (SOCMI)/polymer manufacturing. (The publication numbers for these CTG documents may be found at http://www.epa.gov/ttn/catc/dir1/ctg.txt).

EPA disagrees with PennFuture's general comment that our failure to conduct our own independent review of control technologies for every case-by-case RACT determination conducted by the Commonwealth has resulted in our proposing to approve some RACT determinations that fail to meet the terms of our own RACT standard. PennFuture submitted comments specific to the case-by-case RACT determinations for only three sources located in the Pittsburgh area, namely for Duquesne Light's Elrama, Phillips and Brunot Island stations. EPA summarizes those comments and provides responses in the final rule pertaining to those sources.

B. Comment: PennFuture comments that when EPA reviewed Pennsylvania's RACT program, it noted that Pennsylvania coal-fired boilers with a rated heat input of equal to or greater than 100 million Btu per hour “are some of the largest NO X emitting sources in the Commonwealth and in the Northeast United States” [63 FR 13789, 13791 (1998)] and as such should have numeric emission limitations imposed as RACT whether or not they install presumptive RACT (under 25 Pa.Code 129.93) to guarantee that sources would achieve quantifiable emissions reductions under the RACT program. PennFuture goes on to comment that because EPA has not conducted and documented a technical review of Pennsylvania case-by case RACT submissions, EPA has not demonstrated that these large boilers are subject to “numeric emission limitations” under RACT. EPA must conduct a thorough RACT evaluation or review for each such source, and must document the application of numeric emission limits and quantifiable reductions for each coal-fired boiler with a rated heat input of over 100 million Btu per hour.

Response: Circumstances may exist wherein a state could justify otherwise, however, in general, EPA agrees with PennFuture that coal-fired boilers with a rated heat input of equal to or greater than 100 million Btu per hour should have numeric emission limitations imposed as RACT whether or not they install presumptive RACT (under 25 Pa.Code 129.93).

As provided in the response found in II. A, EPA does not agree that it must conduct its own technical analysis of each of the case-by-case RACT determinations submitted for each RACT source in order to document that its RACT requirements include numeric emission limitations. That determination can be made by EPA when it reviews the plan approval, consent order, or permit issued to such a source as submitted by the Commonwealth as SIP revision. PennFuture's comment did not point to a specific instance where a RACT plan approval, consent order or permit imposing RACT on a coal-fired boiler with a rated heat input of equal to or greater than 100 million Btu per hour did, in fact, lack a numerical emission limitation(s). Nonetheless, pursuant to PennFuture's comment, EPA has re-examined all of the case-by-case RACT SIP submissions made by the Commonwealth for such sources located in the Pittsburgh area. That re-examination, combined with information provided by the Commonwealth, indicates that each case-by-case RACT plan approval, consent order and/or permit for each coal-fired boiler with a rated heat input of equal to or greater than 100 million Btu per hour includes a numeric emission limitation. A listing of each source, its plan approval, consent order and/or permit number and its numerical emission limitation has been placed in the Administrative Records for the case-by-case RACT rulemakings for the Pittsburgh area.

C. Comment: PennFuture asserts that the Commonwealth has not adopted and submitted category RACT rules for all VOC source categories for which federal control technique guidelines (CTGs) have been issued. The commenter refers to Appendix 1 of the Technical Support Document (dated May 14, 2001), prepared by EPA in support of its proposed rule to redesignate the Pittsburgh-Beaver Valley Ozone Nonattainment Area (66 FR 29270), to assert that EPA has failed to require the Commonwealth to submit VOC RACT rules for certain categories of sources. PennFuture specifically names source categories such as equipment leaks from natural gas/gas processing plants, coke oven batteries, iron and steel foundries, and publically owned treatment works and asserts that the Commonwealth has neglected a statutory requirement to adopt category RACT regulations for these and 14 other unnamed VOC source categories.

Response: EPA has not issued CTGs for coke oven batteries, iron and steel foundries and publically owned treatment works. The Appendix 1, referred to by the commenter, lists CTG covered categories as well as source categories taken from two STAPPA/ALAPCO documents entitled, “Meeting the 15-Percent Rate-of-Progress Requirement Under the Clean Air Act—A Menu of Options” (September 1993) and “Controlling Nitrogen Oxides Under the Clean Air Act—A Menu of Options” (July 1994). The categories referenced by PennFuture are not VOC categories for which EPA has issued CTGs, but were included in Appendix A as examples of some of the types of sources that could be subject to Pennsylvania's generic RACT regulations. The Commonwealth is under no statutory obligation to adopt RACT rules for source categories for which EPA has not issued a CTG. In fact, CTGs do not exist for all but one of the categories to which the commenter explicitly refers.

The Act requires that states adopt regulations to impose RACT for “major sources of VOC,” located within those areas of a state where RACT applies under Part D of the Act [182(b)(2)(C)]. This is referred to as the non-CTG VOC RACT requirement. Moreover, EPA disagrees that there is a statutory mandate that a state adopt a source category RACT regulation even for a source category where EPA has issued a CTG. There are two statutory provisions that address RACT for sources covered by a CTG. One provides that states must adopt RACT for “any category of VOC sources” covered by a CTG issued prior to November 15, 1990 [182(b)(2)(A)]. The other provides that states must adopt VOC RACT for all “VOC sources” covered by a CTG issued after November 15, 1990 [182(b)(2)(B)]. EPA has long interpreted the statutory RACT requirement to be met either by adoption of category-specific rules or by source-specific rules for each source within a category. When initially established, RACT was clearly defined as a case-by-case determination, but EPA provided CTG's to simplify the process for states such that they would not be required to adopt hundreds or thousands of individual rules. See Strelow Memorandum dated December 9, 1976 and 44 FR 53761, September 17, 1979. EPA does not believe that Congress' use of “source category” in one provision of section 182(b)(2) was intended to preclude the adoption of source-specific rules.

Thus, where CTG-subject sources are located within those areas of a state where RACT applies under Part D of the Act, the state is obligated to impose RACT for the same universe of sources covered by the CTG. However, that obligation is not required to be met by the adoption and submittal of a source category RACT rule. A state may, instead, opt to impose RACT for such sources in permits, plan approvals, consent orders or in any other state enforceable document and submit those documents to EPA for approval as source-specific SIP revisions. This option has been exercised by many states, and happens most commonly when only a few CTG-subject sources are located in the state. The source-specific approach is generally employed to avoid what can be a lengthy and resource-intensive state rule adoption process for only a few sources that may have different needs and considerations that must be taken into account.

As stated earlier, there is one source category explicitly included in PennFuture's comment for which EPA has issued a CTG, namely natural gas/gas processing plants. The Commonwealth made a negative declaration to EPA on April 13, 1993, stating that as of that date there were no applicable sources in this category. Therefore, the Commonwealth did not adopt a category RACT regulation for natural gas/gas processing plants.

D. Comment: PennFuture cites EPA correspondence [letter from Marcia Spink, EPA, to James Salvaggio, DEP, December 15, 1993] to the Commonwealth which states that establishing any dollar figure in RACT guidance will not provide for the “automatic” selection or rejection of a control technology or emission limitation as RACT for a source or source category. With regard to the Pennsylvania DEP's intent to finalize a NO X RACT Guidance Document for implementation of its NO X RACT regulation, EPA's 1993 letter stated that the document could improperly be used to establish “bright line” or “cook-book” approaches, particularly for a regulation applicable to many source categories and suggested that if the guidance document must include dollar figures/ton, it provide approximate ranges by source category. PennFuture comments that DEP issued its “Guidance Document on Reasonably Available Control Technology for Sources of NO X Emissions,” March 11, 1994, and on pp. 8-9 states that the acceptable threshold is $1500 per ton, and that this figure applies to “all source categories.” PennFuture notes that EPA later objected to the $1500 per ton methodology as “not generically acceptable to EPA” [letter from Thomas Maslany, EPA, to James Salvaggio, DEP, June 24, 1997] and further stated in a Federal Register notice that a “dollar per ton threshold” is “inconsistent with the definition of RACT” [62 FR 43134, 37-38 (1997)].

PennFuture comments that EPA is proposing to approve RACT determinations based on a cost per ton method that EPA had previously rejected, and according to its own clearly expressed standard, EPA must not approve RACT determinations by Pennsylvania DEP that apply this $1500 per ton threshold. The commenter states that PennFuture's review of several of the current DEP evaluations indicate that the Commonwealth applied this standard and provides the examples of Duquesne Light—Elrama (auxiliary boiler); Allegheny Ludlum—Washington (formerly Jessop Steel). PennFuture asserts EPA must reject all Pennsylvania RACT determinations applying the standard of $1500 per ton, or any other “bright line” approach, as failing to follow EPA procedures established for Pennsylvania RACT.

Response: EPA still takes the position that a single cost per ton dollar figure may not, in and of itself, form the basis for rejecting a control technology, equipment standard, or work practice standard as RACT. The Technical Support Document prepared by EPA in support of its March 23, 1998 rulemaking [63 FR 13789] clearly indicates that the Commonwealth's document, “Guidance Document on Reasonably Available Control Technology for Sources of NO X Emissions.” March 11, 1994, had not been included as part of the SIP submission of the Commonwealth's generic regulation and, therefore, had not been approved by EPA. EPA further notes that the Administrative Record of the March 23, 1998 rulemaking [63 FR 13789], in addition to the correspondence cited by PennFuture, also includes correspondence from DEP to EPA [letter from James Salvaggio, DEP to David Arnold, EPA, September 10, 1997] stating that DEP's RACT guidance document does not establish a maximum dollar per ton for determining the cost effectiveness for RACT determinations and notes that the DEP's $1500 per ton cost effectiveness is a target value and not an absolute maximum. For example, in its analyses of the cost effectiveness of RACT control options submitted by DEP as part of the case-by-case SIP revision for Peoples Natural Gas (PNG) Valley Compressor Station's turbo charged lean burn IC engine (see the Administrative Record for 66 FR 43492), the Commonwealth included DEP interoffice memoranda (Thomas Joseph to Krishnan Ramamurthy, July 14, 1994 and Krishnan Ramamurthy to Thomas McGinley, Babu Patel, Ronald Davis, Richard Maxwell, and Devendra Verma, July 15, 1994) which spoke directly to the $1500/ton dollar figure as being a guideline and not an upper limit. These memoranda explain that although PNG initially proposed intermediate original equipment manufacturer (OEM) combustion controls which would have reduced NO X emissions from 254.7 tons per year to 115 tons per year (by 55%) at a cost of $1355 per ton reduced, DEP required the installation of an OEM lean combustion modification that reduced NO X emissions from 254.7 tons per year to 76 tons per year (by 69%) at a cost of $1684 per ton reduced. The DEP's July 15, 1994 interoffice memorandum says of the PNG RACT determination which exceeded the cost effectiveness screening level of $1500 per ton “Tom's (Joseph) insistence for the next more stringent level of control than the company's chosen level in the case of PNG was consistent with EPA Region III's sentiment that establishing any dollar figure in RACT guidance will not provide for an “automatic” rejection of a control technology as RACT for a source.”

In no instance, including that for Duquesne Light—Elrama (auxiliary boiler) and Allegheny Ludlum—Washington (formerly Jessop Steel), has EPA proposed to approve a RACT determination submitted by the Commonwealth which was based solely on a conclusion that controls that cost more than $1500/ton were not required as RACT. As explained in the response provided in section II. A. of this document, EPA conducts its review of the entire case-by-case RACT SIP submittal including the source's proposed RACT plan and analyses, Pennsylvania's analyses and the RACT plan approval, consent order or permit itself to insure that the requirements of the SIP-approved generic RACT have been followed. These analyses not only evaluate and consider the costs of potential control options, but also evaluate their technological feasibility.

E. Comment: PennFuture comments that any emission reduction credits (ERCs) earned by sources subject to RACT must be surplus to all applicable state and federal requirements. Under Pennsylvania law, ERCs must be surplus, permanent, quantified, and Federally enforceable. 25 Pa.Code 127.207(1). As to the requirement that ERCs be surplus, the Pennsylvania Code states: ERCs shall be included in the current emission inventory, and may not be required by or be used to meet past or current SIP, attainment demonstration, RFP, emission limitation or compliance plans. Emission reductions necessary to meet NSPS, LAER, RACT, Best Available Technology, BACT and permit or plan approval emissions limitations or another emissions limitation required by the Clean Air Act or the [Air Pollution Control Act] may not be used to generate ERCs. 25 Pa.Code 127.207(1)(i). To be creditable, ERCs must surpass not only RACT requirements but a host of other possible sources of emission limits. PennFuture comments that some of the RACT evaluations at issue in the current EPA notices purport to establish RACT as a baseline for future ERCs. PennFuture does acknowledge that EPA notes in its boilerplate for the notices, that Pennsylvania and EPA have established a series of NO X -reducing rules, including the recent Chapter 145 rule, to reduce NO X at large utility and industrial sources. See, for example, 66 FR 42415, 16-17 (August 13, 2001). Because any ERCs must be surplus to the most stringent limitation applicable under state or federal law as described in the Pennsylvania Code provision set forth above, DEP and EPA must not approve ERCs unless they surpass all such limitations in addition to any limits set by RACT.

Response: EPA agrees with this comment by PennFuture. The approval of a case-by-case RACT determination, in and of itself, does not establish the baseline from which further emission reductions may be calculated and assumed creditable under the Commonwealth's SIP-approved NSR and ERC program. Moreover, EPA's review of the Pennsylvania DEP's implementation of its approved SIP-approved NSR and ERC program indicates that the Commonwealth calculates and credits ERCs in accordance with the SIP-approved criteria for doing so as outlined in PennFuture's comment. No source for which EPA is approving a case-by-case RACT determination should assume that its RACT approval alone automatically establishes the baseline against which it may calculate creditable ERCs.

F. Comment: PennFuture comments that as in the case with Pennsylvania Power—Newcastle, EPA should compare RACT proposals to applicable acid rain program emission limits and control strategies. PennFuture contends that EPA previously disapproved a RACT proposal for the Pennsylvania Power—Newcastle plant [62 FR 43959 (1997); 63 FR 23668 (1998)] and that EPA did so on the basis that the acid rain program requires more stringent emission limits. PennFuture asserts that while EPA had originally proposed to approve this proposal, an analysis of comparable boilers and, especially, a comparison to Phase II emission limits under the acid rain program led EPA to conclude that the RACT proposal emission limits were too lenient. [62 FR at 43961]. Therefore, PennFuture contends that for sources subject to the acid rain program, EPA should consider emissions and control strategies for compliance with acid rain emission limits when evaluating proposals for compliance with RACT.

Response: Title IV of the Act, addressing the acid rain program, contains NO X emission requirements for utilities which must be met in addition to any RACT requirements (see NO X Supplement to the General Preamble at 57 FR 55625, November 25, 1992). The Act provides for a number of control programs that may affect similar sources. For example, new sources may be subject to new source performance standards (NSPS), best available control technology (BACT), and lowest achievable emission rate (LAER). Other controls, under such programs as the acid rain program or the hazardous air pollutant program may also apply to sources. However, the applicability of these other requirements, which are often more stringent than RACT, do not establish what requirements must apply under the RACT program. While these programs may provide information as to the technical and economic feasibility of reduction programs for RACT, there is no presumption that acid rain controls should be mandated as RACT.

EPA stated in the final disapproval of the NO X RACT determination for PPNC [63 FR at 23669], that the discussion concerning average emission rates for boilers with respect to the acid rain program requirements were included in order to provide a context for EPA's proposed disapproval. EPA made clear in its August 18, 1997 proposed disapproval of Pennsylvania Powers'—Newcastle (PPNC) RACT determination, that the basis for disapproval was a comparison between PPNC's boilers and other similar combustion units, not acid rain limits. In fact, EPA stated in the August 18, 1997 proposed disapproval that “Without additional knowledge or information, it would be erroneous and premature to conclude that the limits in the acid rain permit are RACT.” [62 FR at 43961]. EPA clearly stated in the final disapproval for PPNC that it did not use acid rain permit limits, or Pennsylvania's participation in any other NO X control program, to determine PPNC RACT approvability [63 FR at 23670]. Nor has EPA intended to use participation in NO X control programs including acid rain, in determining RACT for PPNC or any other subject sources. EPA also stated that the April 30, 1998, PPNC disapproval was based on the absence of pertinent information regarding a computerized combustion optimization system through an enforceable permit, not comparison of acid rain permit limits.

EPA is approving the SIP revisions to the Pennsylvania SIP submitted by PADEP to establish and require NO X RACT for four major sources located in the Pittsburgh area. EPA is approving Pennsylvania's RACT SIP submittals because PADEP established and imposed these RACT requirements in accordance with the criteria set forth in its SIP-approved RACT regulations. The Commonwealth has also imposed record-keeping, monitoring, and testing requirements on these sufficient to determine compliance with the applicable RACT determinations.

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 (Public Law 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 approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. 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 Clean Air Act. 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 Clean Air Act. 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. Section 804 exempts from section 801 the following types of rules: (1) Rules of particular applicability; (2) rules relating to agency management or personnel; and (3) rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required to submit a rule report regarding today's action under section 801 because this is a rule of particular applicability establishing source-specific requirements for four named sources.

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 17, 2001. 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 approving the Commonwealth's source-specific RACT requirements to control NO X from four individual steel facilities in the Pittsburgh-Beaver Valley nonattainment area in Pennsylvania may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

On March 21, 1996, July 1, 1997, April 9, 1999, and April 19, 2001, PADEP submitted revisions to the Pennsylvania SIP which establish and impose RACT for several sources of VOC and/or NO X . This rulemaking pertains to 10 of those sources. The remaining sources are or have been the subject of separate rulemakings. The Commonwealth's submittals consist of plan approvals (PAs) and operating permits (OPs) issued by PADEP, and agreement upon consent orders (COs) issued by the Allegheny County Health Department (ACHD) which impose VOC and/or NO X RACT requirements for each source. These sources are all located in the Pittsburgh area and consist of Anchor Glass Container Corp.; Anchor Hocking Specialty Glass Co.; Corning Consumer Products Co.; General Electric Company; Glenshaw Glass Company, Inc.; Guardian Industries, Corp.; Allegheny County Sanitary Authority; Browning-Ferris Ind.; Chambers Development Company; and Kelly Run Sanitation.

On August 24, 2001, EPA published a direct final rule (66 FR 44532) and a companion notice of proposed rulemaking (66 FR 44580) to approve these SIP revisions. On September 7, 2001, we received adverse comments on our direct final rule from the Citizens for Pennsylvania's Future (PennFuture). On September 28, 2001 (66 FR 49539), we published a timely withdrawal in the Federal Register informing the public that the direct final rule did not take effect. We indicated in our August 24, 2001 direct final rulemaking that if we received adverse comments, EPA would address all public comments in a subsequent final rule based on the proposed rule (66 FR 44580). This is that subsequent final rule. A description of the RACT determination(s) made for each source was provided in the August 24, 2001 direct final rule and will not be restated here. A summary of the comments submitted by PennFuture germane to this final rulemaking and EPA's responses are provided in Section II of this document.

The Citizens for Pennsylvania's Future (PennFuture) submitted adverse comments on twenty proposed rules published by EPA in the Federal Register between August 6 and August 24, 2001 to approve case-by-case RACT SIP submissions from the Commonwealth for NO X and or VOC sources located in the Pittsburgh area. PennFuture's letter includes general comments and comments specific to EPA's proposals for certain sources. A summary of those comments and EPA's responses germane to this rulemaking are provided below.

A. Comment: PennFuture comments that EPA has conducted no independent technical review, and has prepared no technical support document to survey potential control technologies, determine the capital and operating costs of different options, and rank these options in total and marginal cost per ton of NO X and VOC controlled. In citing the definition of the term “RACT,” and the Strelow Memorandum [Roger Strelow, Assistant Administrator for Air and Waste Management, EPA, December 9, 1976, cited in Michigan v. Thomas , 805 F.2d 176, 180 (6th Cir. 1986) and at 62 FR 43134, 43136 (1997)], PennFuture appears to comment that in every situation, RACT must include an emission rate. PennFuture asserts that EPA should conduct its own RACT evaluation for each source, or at a minimum document a step-by-step review demonstrating the adequacy of state evaluations, to ensure that appropriate control technology is applied. The commenter also believes that EPA's failure to conduct its own independent review of control technologies has resulted in our proposing to approve some RACT determinations that fail to meet the terms of EPA's own RACT standard.

Response: On March 23, 1998 (63 FR 13789), EPA granted conditional limited approval of Pennsylvania's generic RACT regulations, 25 PA Code Chapters 121 and 129, thereby approving the definitions, provisions and procedures contained within those regulations under which the Commonwealth would require and impose RACT. Subsection 129.91, Control of major sources of NO X and VOCs, requires subject facilities to submit a RACT plan proposal to both the Pennsylvania Department of Environmental Protection (DEP) and to EPA Region III by July 15, 1994 in accordance with subsection 129.92, entitled, RACT proposal requirements. Under subsection 129.92, that proposal is to include, among other information: (1) A list of each subject source at the facility; (2) The size or capacity of each affected source, and the types of fuel combusted, and the types and amounts of materials processed or produced at each source; (3) A physical description of each source and its operating characteristics; (4) Estimates of potential and actual emissions from each affected source with supporting documentation; (5) A RACT analysis which meets the requirements of subsection 129.92 (b), including technical and economic support documentation for each affected source; (6) A schedule for implementation as expeditiously as practicable but not later than May 15, 1995; (7) The testing, monitoring, recordkeeping and reporting procedures proposed to demonstrate compliance with RACT; and (8) any additional information requested by the DEP necessary to evaluate the RACT proposal. Under subsection 129.91, the DEP will approve, deny or modify each RACT proposal, and submit each RACT determination to EPA for approval as a SIP revision.

The conditional nature of EPA's March 23, 1998 conditional limited approval did not impose any conditions pertaining to the regulation's procedures for the submittal of RACT plans and analyses by subject sources and approval of case-by-case RACT determinations by the DEP. Rather, EPA stated that “* * * RACT rules may not merely be procedural rules (emphasis added) that require the source and the State to later agree to the appropriate level of control; rather the rules must identify the appropriate level of control for source categories or individual sources.”

On May 3, 2001 (66 FR 22123), EPA published a rulemaking determining that Pennsylvania had satisfied the conditions imposed in its conditional limited approval. In that rulemaking, EPA removed the conditional status of its approval of the Commonwealth's generic VOC and NO X RACT regulations on a statewide basis. EPA received no public comments on its action and that final rule removing the conditional status of Pennsylvania's VOC and NO X RACT regulations became effective on June 18, 2001. As of that time, Pennsylvania's generic VOC and NO X RACT regulations retained a limited approval status. On August 24, 2001 (66 FR 44578), EPA proposed to remove the limited nature of its approval of Pennsylvania's generic RACT regulation in the Pittsburgh area. EPA received no public comments on that proposal. Final action converting the limited approval to full approval shall occur once EPA has completed rulemaking to approve either (1) the case-by-case RACT proposals for all sources subject to the RACT requirements currently known in the Pittsburgh-Beaver area or (2) for a sufficient number of sources such that the emissions from any remaining subject sources represent a de minimis level of emissions as defined in the March 23, 1998 rulemaking (63 FR 13789).

EPA agrees that it has an obligation to review the case-by-case RACT plan approvals and/or permits submitted as individual SIP revisions by Commonwealth to verify and determine if they are consistent with the RACT requirements of the Act and any relevant EPA guidance. EPA does not agree, however, that this obligation to review the case-by-case RACT determinations submitted by Pennsylvania necessarily extends to our performing our own RACT analyses, independent of the sources' RACT plans/analyses (included as part of the case-by-case RACT SIP revisions) or the Commonwealth's analyses. EPA first reviews this submission to ensure that the source and the Commonwealth followed the SIP-approved generic rule when applying for and imposing RACT for a specific source. Then EPA performs a thorough review of the technical and economic analyses conducted by the source and the state. If EPA believes additional information may further support or would undercut the RACT analyses submitted by the state, then EPA may add additional EPA-generated analyses to the record.

While RACT, as defined for an individual source or source category, often does specify an emission rate, such is not always the case. EPA has issued Control Technique Guidelines (CTGs) which states are to use as guidance in development of their RACT determinations/rules for certain sources or source categories. Not every CTG issued by EPA includes an emission rate. There are several examples of CTGs issued by EPA wherein equipment standards and/or work practice standards alone are provided as RACT guidance for all or part of the processes covered. Such examples include the CTGs issued for Bulk gasoline plants, Gasoline service stations—Stage I, Petroleum Storage in Fixed-roof tanks, Petroleum refinery processes, Solvent metal cleaning, Pharmaceutical products, External Floating roof tanks and Synthetic Organic Chemical Manufacturing (SOCMI)/polymer manufacturing. (The publication numbers for these CTG documents may be found at http://www.epa.gov/ttn/catc/dir1/ctg.txt).

EPA disagrees with PennFuture's general comment that our failure to conduct our own independent review of control technologies for every case-by-case RACT determination conducted by the Commonwealth has resulted in our proposing to approve some RACT determinations that fail to meet the terms of our own RACT standard. PennFuture submitted comments specific to the case-by-case RACT determinations for only three sources located in the Pittsburgh area, namely for Duquesne Light's Elrama, Phillips and Brunot Island stations. EPA summarizes those comments and provides responses in the final rule pertaining to those sources.

B. Comment: PennFuture comments that when EPA reviewed Pennsylvania's RACT program, it noted that Pennsylvania coal-fired boilers with a rated heat input of equal to or greater than 100 million Btu per hour “are some of the largest NO X emitting sources in the Commonwealth and in the Northeast United States' [63 FR 13789, 13791 (1998)] and as such should have numeric emission limitations imposed as RACT whether or not they install presumptive RACT (under 25 Pa.Code 129.93) to guarantee that sources would achieve quantifiable emissions reductions under the RACT program. PennFuture goes on to comment that because EPA has not conducted and documented a technical review of Pennsylvania case-by-case RACT submissions, EPA has not demonstrated that these large boilers are subject to “numeric emission limitations” under RACT. EPA must conduct a thorough RACT evaluation or review for each such source, and must document the application of numeric emission limits and quantifiable reductions for each coal-fired boiler with a rated heat input of over 100 million Btu per hour.

Response: Circumstances may exist wherein a state could justify otherwise, however, in general, EPA agrees with PennFuture that coal-fired boilers with a rated heat input of equal to or greater than 100 million Btu per hour should have numeric emission limitations imposed as RACT whether or not they install presumptive RACT (under 25 Pa.Code 129.93).

As provided in the response found in II. A, EPA does not agree that it must conduct its own technical analysis of each of the case-by-case RACT determinations submitted for each RACT source in order to document that its RACT requirements include numeric emission limitations. That determination can be made by EPA when it reviews the plan approval, consent order, or permit issued to such a source as submitted by the Commonwealth as SIP revision. PennFuture's comment did not point to a specific instance where a RACT plan approval, consent order or permit imposing RACT on a coal-fired boiler with a rated heat input of equal to or greater than 100 million Btu per hour did, in fact, lack a numerical emission limitation(s). Nonetheless, pursuant to PennFuture's comment, EPA has re-examined all of the case-by-case RACT SIP submissions made by the Commonwealth for such sources located in the Pittsburgh area. That re-examination, combined with information provided by the Commonwealth, indicates that each case-by-case RACT plan approval, consent order and/or permit for each coal-fired boiler with a rated heat input of equal to or greater than 100 million Btu per hour includes a numeric emission limitation. A listing of each source, its plan approval, consent order and/or permit number and its numerical emission limitation has been placed in the Administrative Records for the case-by-case RACT rulemakings for the Pittsburgh area.

C. Comment: PennFuture asserts that the Commonwealth has not adopted and submitted category RACT rules for all VOC source categories for which federal control technique guidelines (CTGs) have been issued. The commenter refers to Appendix 1 of the Technical Support Document (dated May 14, 2001), prepared by EPA in support of its proposed rule to redesignate the Pittsburgh-Beaver Valley Ozone Nonattainment Area (66 FR 29270), to assert that EPA has failed to require the Commonwealth to submit VOC RACT rules for certain categories of sources. PennFuture specifically names source categories such as equipment leaks from natural gas/gas processing plants, coke oven batteries, iron and steel foundries, and publicly owned treatment works and asserts that the Commonwealth has neglected a statutory requirement to adopt category RACT regulations for these and 14 other unnamed VOC source categories.

Response: EPA has not issued CTGs for coke oven batteries, iron and steel foundries and publicly owned treatment works. The Appendix 1, referred to by the commenter, lists CTG covered categories as well as source categories taken from two STAPPA/ALAPCO documents entitled, “Meeting the 15-Percent Rate-of-Progress Requirement Under the Clean Air Act—A Menu of Options' (September 1993) and “Controlling Nitrogen Oxides Under the Clean Air Act—A Menu of Options” (July 1994). The categories referenced by PennFuture are not VOC categories for which EPA has issued CTGs, but were included in Appendix A as examples of some of the types of sources that could be subject to Pennsylvania's generic RACT regulations.

The Commonwealth is under no statutory obligation to adopt RACT rules for source categories for which EPA has not issued a CTG. In fact, CTGs do not exist for all but one of the categories to which the commenter explicitly refers.

The Act requires that states adopt regulations to impose RACT for “major sources of VOC,” located within those areas of a state where RACT applies under Part D of the Act [182(b)(2)(C)]. This is referred to as the non-CTG VOC RACT requirement. Moreover, EPA disagrees that there is a statutory mandate that a state adopt a source category RACT regulation even for a source category where EPA has issued a CTG. There are two statutory provisions that address RACT for sources covered by a CTG. One provides that states must adopt RACT for “any category of VOC sources” covered by a CTG issued prior to November 15, 1990 [182(b)(2)(A)]. The other provides that states must adopt VOC RACT for all “VOC sources” covered by a CTG issued after November 15, 1990 [182(b)(2)(B)]. EPA has long interpreted the statutory RACT requirement to be met either by adoption of category-specific rules or by source-specific rules for each source within a category. When initially established, RACT was clearly defined as a case-by-case determination, but EPA provided CTG's to simplify the process for states such that they would not be required to adopt hundreds or thousands of individual rules. See Strelow Memorandum dated December 9, 1976 and 44 FR 53761, September 17, 1979. EPA does not believe that Congress' use of “source category” in one provision of section 182(b)(2) was intended to preclude the adoption of source-specific rules.

Thus, where CTG-subject sources are located within those areas of a state where RACT applies under Part D of the Act, the state is obligated to impose RACT for the same universe of sources covered by the CTG. However, that obligation is not required to be met by the adoption and submittal of a source category RACT rule. A state may, instead, opt to impose RACT for such sources in permits, plan approvals, consent orders or in any other state enforceable document and submit those documents to EPA for approval as source-specific SIP revisions. This option has been exercised by many states, and happens most commonly when only a few CTG-subject sources are located in the state. The source-specific approach is generally employed to avoid what can be a lengthy and resource-intensive state rule adoption process for only a few sources that may have different needs and considerations that must be taken into account.

As stated earlier, there is one source category explicitly included in PennFuture's comment for which EPA has issued a CTG, namely natural gas/gas processing plants. The Commonwealth made a negative declaration to EPA on April 13, 1993, stating that as of that date there were no applicable sources in this category. Therefore, the Commonwealth did not adopt a category RACT regulation for natural gas/gas processing plants.

D. Comment: PennFuture cites EPA correspondence [letter from Marcia Spink, EPA, to James Salvaggio, DEP, December 15, 1993] to the Commonwealth which states that establishing any dollar figure in RACT guidance will not provide for the “automatic” selection or rejection of a control technology or emission limitation as RACT for a source or source category. With regard to the Pennsylvania DEP's intent to finalize a NO X RACT Guidance Document for implementation of its NO X RACT regulation, EPA's 1993 letter stated that the document could improperly be used to establish “bright line” or “cook-book” approaches, particularly for a regulation applicable to many source categories and suggested that if the guidance document must include dollar figures/ton, it provide approximate ranges by source category. PennFuture comments that DEP issued its “Guidance Document on Reasonably Available Control Technology for Sources of NO X Emissions,” March 11, 1994, and on pp. 8-9 states that the acceptable threshold is $1500 per ton, and that this figure applies to “all source categories.” PennFuture notes that EPA later objected to the $1500 per ton methodology as “not generically acceptable to EPA” [letter from Thomas Maslany, EPA, to James Salvaggio, DEP, June 24, 1997] and further stated in a Federal Register notice that a “dollar per ton threshold” is “inconsistent with the definition of RACT” [62 FR 43134, 37-38 (1997)].

PennFuture comments that EPA is proposing to approve RACT determinations based on a cost per ton method that EPA had previously rejected, and according to its own clearly expressed standard, EPA must not approve RACT determinations by Pennsylvania DEP that apply this $1500 per ton threshold. The commenter states that PennFuture's review of several of the current DEP evaluations indicate that the Commonwealth applied this standard and provides the examples of Duquesne Light—Elrama (auxiliary boiler); Allegheny Ludlum—Washington (formerly Jessop Steel). PennFuture asserts EPA must reject all Pennsylvania RACT determinations applying the standard of $1500 per ton, or any other “bright line” approach, as failing to follow EPA procedures established for Pennsylvania RACT.

Response: EPA still takes the position that a single cost per ton dollar figure may not, in and of itself, form the basis for rejecting a control technology, equipment standard, or work practice standard as RACT. The Technical Support Document prepared by EPA in support of its March 23, 1998 rulemaking [63 FR 13789] clearly indicates that the Commonwealth's document, “Guidance Document on Reasonably Available Control Technology for Sources of NO X Emissions.” March 11, 1994, had not been included as part of the SIP submission of the Commonwealth's generic regulation and, therefore, had not been approved by EPA. EPA further notes that the Administrative Record of the March 23, 1998 rulemaking [63 FR 13789], in addition to the correspondence cited by PennFuture, also includes correspondence from DEP to EPA [letter from James Salvaggio, DEP to David Arnold, EPA, September 10, 1997] stating that DEP's RACT guidance document does not establish a maximum dollar per ton for determining the cost effectiveness for RACT determinations and notes that the DEP's $1500 per ton cost effectiveness is a target value and not an absolute maximum. For example, in its analyses of the cost effectiveness of RACT control options submitted by DEP as part of the case-by-case SIP revision for Peoples Natural Gas (PNG) Valley Compressor Station's turbo charged lean burn IC engine (see the Administrative Record for 66 FR 43492), the Commonwealth included DEP interoffice memoranda (Thomas Joseph to Krishnan Ramamurthy, July 14, 1994 and Krishnan Ramamurthy to Thomas McGinley, Babu Patel, Ronald Davis, Richard Maxwell, and Devendra Verma, July 15, 1994) which spoke directly to the $1500/ton dollar figure as being a guideline and not an upper limit. These memoranda explain that although PNG initially proposed intermediate original equipment manufacturer (OEM) combustion controls which would have reduced NO X emissions from 254.7 tons per year to 115 tons per year (by 55%) at a cost of $1355 per ton reduced, DEP required the installation of an OEM lean combustion modification that reduced NO X emissions from 254.7 tons per year to 76 tons per year (by 69%) at a cost of $1684 per ton reduced. The DEP's July 15, 1994 interoffice memorandum says of the PNG RACT determination which exceeded the cost effectiveness screening level of $1500 per ton “ Tom's (Joseph) insistence for the next more stringent level of control than the company's chosen level in the case of PNG was consistent with EPA Region III's sentiment that establishing any dollar figure in RACT guidance will not provide for an “automatic” rejection of a control technology as RACT for a source.”

In no instance, including that for Duquesne Light—Elrama (auxiliary boiler) and Allegheny Ludlum—Washington (formerly Jessop Steel), has EPA proposed to approve a RACT determination submitted by the Commonwealth which was based solely on a conclusion that controls that cost more than $1500/ton were not required as RACT. As explained in the response provided in section II. A. of this document, EPA conducts its review of the entire case-by-case RACT SIP submittal including the source's proposed RACT plan and analyses, Pennsylvania's analyses and the RACT plan approval, consent order or permit itself to insure that the requirements of the SIP-approved generic RACT have been followed. These analyses not only evaluate and consider the costs of potential control options, but also evaluate their technological feasibility.

E. Comment: PennFuture comments that any emission reduction credits (ERCs) earned by sources subject to RACT must be surplus to all applicable state and federal requirements. Under Pennsylvania law, ERCs must be surplus, permanent, quantified, and Federally enforceable. 25 Pa.Code 127.207(1). As to the requirement that ERCs be surplus, the Pennsylvania Code states: ERCs shall be included in the current emission inventory, and may not be required by or be used to meet past or current SIP, attainment demonstration, RFP, emission limitation or compliance plans. Emission reductions necessary to meet NSPS, LAER, RACT, Best Available Technology, BACT and permit or plan approval emissions limitations or another emissions limitation required by the Clean Air Act or the [Air Pollution Control Act] may not be used to generate ERCs. 25 Pa.Code 127.207(1)(i). To be creditable, ERCs must surpass not only RACT requirements but a host of other possible sources of emission limits. PennFuture comments that some of the RACT evaluations at issue in the current EPA notices purport to establish RACT as a baseline for future ERCs. PennFuture does acknowledge that EPA notes in its boilerplate for the notices, that Pennsylvania and EPA have established a series of NO X -reducing rules, including the recent Chapter 145 rule, to reduce NO X at large utility and industrial sources. See, for example, 66 FR 42415, 16-17 (August 13, 2001). Because any ERCs must be surplus to the most stringent limitation applicable under state or federal law as described in the Pennsylvania Code provision set forth above, DEP and EPA must not approve ERCs unless they surpass all such limitations in addition to any limits set by RACT.

Response: EPA agrees with this comment by PennFuture. The approval of a case-by-case RACT determination, in and of itself, does not establish the baseline from which further emission reductions may be calculated and assumed creditable under the Commonwealth's SIP-approved NSR and ERC program. Moreover, EPA's review of the Pennsylvania DEP's implementation of its approved SIP-approved NSR and ERC program indicates that the Commonwealth calculates and credits ERCs in accordance with the SIP-approved criteria for doing so as outlined in PennFuture's comment. No source for which EPA is approving a case-by-case RACT determination should assume that its RACT approval alone automatically establishes the baseline against which it may calculate creditable ERCs.

F. Comment: PennFuture comments that as in the case with Pennsylvania Power—Newcastle, EPA should compare RACT proposals to applicable acid rain program emission limits and control strategies. PennFuture contends that EPA previously disapproved a RACT proposal for the Pennsylvania Power—Newcastle plant [62 FR 43959 (1997); 63 FR 23668 (1998)] and that EPA did so on the basis that the acid rain program requires more stringent emission limits. PennFuture asserts that while EPA had originally proposed to approve this proposal, an analysis of comparable boilers and, especially, a comparison to Phase II emission limits under the acid rain program led EPA to conclude that the RACT proposal emission limits were too lenient. (62 FR 43961). Therefore, PennFuture contends that for sources subject to the acid rain program, EPA should consider emissions and control strategies for compliance with acid rain emission limits when evaluating proposals for compliance with RACT.

Response: Title IV of the Act, addressing the acid rain program, contains NO X emission requirements for utilities which must be met in addition to any RACT requirements (see NO X Supplement to the General Preamble at 57 FR 55625, November 25, 1992). The Act provides for a number of control programs that may affect similar sources. For example, new sources may be subject to new source performance standards (NSPS), best available control technology (BACT), and lowest achievable emission rate (LAER). Other controls, under such programs as the acid rain program or the hazardous air pollutant program may also apply to sources. However, the applicability of these other requirements, which are often more stringent than RACT, do not establish what requirements must apply under the RACT program. While these programs may provide information as to the technical and economic feasibility of reduction programs for RACT, there is no presumption that acid rain controls should be mandated as RACT.

EPA stated in the final disapproval of the NO X RACT determination for PPNC (63 FR 23669), that the discussion concerning average emission rates for boilers with respect to the acid rain program requirements were included in order to provide a context for EPA's proposed disapproval. EPA made clear in its August 18, 1997 proposed disapproval of Pennsylvania Powers'—Newcastle (PPNC) RACT determination, that the basis for disapproval was a comparison between PPNC's boilers and other similar combustion units, not acid rain limits. In fact, EPA stated in the August 18, 1997 proposed disapproval that “Without additional knowledge or information, it would be erroneous and premature to conclude that the limits in the acid rain permit are RACT.” (62 FR at 43961). EPA clearly stated in the final disapproval for PPNC that it did not use acid rain permit limits, or Pennsylvania's participation in any other NO X control program, to determine PPNC RACT approvability (63 FR at 23670). Nor has EPA intended to use participation in NO X control programs including acid rain, in determining RACT for PPNC or any other subject sources. EPA also stated that the April 30, 1998, PPNC disapproval was based on the absence of pertinent information regarding a computerized combustion optimization system through an enforceable permit, not comparison of acid rain permit limits.

G. Comment: Corning-Charleroi— PennFuture comments that in its RACT review memorandum, DEP found that the conversion of Tank #11 at the Corning Consumer Products plant in Charleroi to full gas/oxygen firing with a 30% electric boost exceeded RACT requirements and thus the reductions achieved in excess of RACT were eligible for ERCs. [Memorandum, Review of RACT Application and ERC Registry Application, Barbara Hatch, DEP, September 26, 1995.] PennFuture notes that EPA staff critiqued this finding based on the lack of “an adequate economic demonstration that the costs of gas/oxygen firing were higher than those of controls generally considered RACT.” [Letter from Ray Chalmers, EPA, to John Slade, DEP, March 25, 1999, p. 1.] PennFuture further notes that EPA also questioned the baseline used for the RACT/ERC determination, and pointed out that “Corning would appear not to be eligible for ERCs” if NO X emission inventory data were used to determine the baseline. PennFuture contends, therefore, that unless DEP has provided specific additional information to EPA justifying its findings on RACT and the emissions baseline, EPA must not permit the installation of this technology to be the basis for any ERCs.

Response: The Pennsylvania DEP has provided specific additional information justifying its RACT determination for the Corning-Charleroi plant's Tank #11 which has been placed in the Administrative Record for this rulemaking. That information consists of a March 11, 1998 letter from Corning Incorporated with enclosures labeled Exhibits A—D which provide supplemental technical and economic analyses of the overall conversion of Tank #11 from a gas/air fired regenerative furnace to a gas/oxy direct fired furnace. The information provided also indicates that the redesign and rebuild of Tank #11 to a gas/oxy direct fired furnace results in reduction of natural gas consumption from 27, 600 cfh to 17, 000 cfh. The conversion's capital investment and associated costs when compared to the total tons of NO X reduced result in a cost figure of $2589 per ton of VOC reduced. EPA has concluded that the DEP's RACT determination for this installation is consistent with EPA's interpretation that RACT represents controls that are technically and economically feasible. definitions, provisions and procedures of it SIP-approved generic RACT regulation. EPA does agree with PennFuture that regardless of the SIP-approved RACT determination, Pennsylvania's SIP-approved NSR and ERC Program would not allow DEP to approve ERCs from any source where the claimed emission reductions were calculated from a baseline higher than the emissions data of the relevant pollutant for that source in the nonattainment area's baseline inventory used to develop control strategy SIPs (e.g., the rate of progress plans and attainment demonstration). Such reductions would not pass the test of being surplus. Moreover, if additional requirements beyond RACT, such as MACT, were to be promulgated and applicable to the RACT subject source or process; the emission reductions achieved between complying with RACT and the new more stringent requirements would not be eligible as ERCs under Pennsylvania's SIP-approved NSR and ERC Program.

EPA is approving the revisions to the Pennsylvania SIP submitted by PADEP to establish and require VOC and NO X RACT for ten major of sources located in the Pittsburgh area. EPA is approving these RACT SIP submittals because PADEP and ACHD established and imposed these RACT requirements in accordance with the criteria set forth in the SIP-approved RACT regulations applicable to these sources. The Commonwealth and the County have also imposed record-keeping, monitoring, and testing requirements on these sufficient to determine compliance with the applicable RACT determinations.

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 (Public Law 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 approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. 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 Clean Air Act. 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 Clean Air Act. 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. Section 804 exempts from section 801 the following types of rules: (1) Rules of particular applicability; (2) rules relating to agency management or personnel; and (3) rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required to submit a rule report regarding today's action under section 801 because this is a rule of particular applicability establishing source-specific requirements for ten named sources.

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 17, 2001. 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 approving the Commonwealth's source-specific RACT requirements to control VOC and NO X from ten individual sources in Pennsylvania may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

On August 24, 2001 (66 FR 44578), EPA published a notice of proposed rulemaking (NPR) for the State of Pennsylvania. The NPR proposed to remove the limited status of EPA's approval of the Commonwealth of Pennsylvania SIP revision that requires all major sources of VOC and NO X to implement reasonably available control technology (RACT) as it applies in the Pittsburgh area. The rationale for EPA's proposed action is explained in the NPR and will not be restated here. No public comments were received on the NPR.

EPA is converting its limited approval of Pennsylvania's generic VOC and NO X RACT regulations, 25 Pa Code Chapter 129.91 through 129.95, to full approval as they apply in the seven-county Pittsburgh-Beaver Valley ozone nonattainment area. EPA has approved all of the case-by-case RACT determinations submitted by PADEP for affected major sources of NO X and/or VOC sources located in Allegheny, Armstrong, Beaver, Butler, Fayette, Washington, and Westmoreland Counties, the seven counties that comprise the Pittsburgh area.

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 (Public Law 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 approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. 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 Clean Air Act. 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 Clean Air Act. 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 . This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 17, 2001. 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 converting EPA's limited approval of Pennsylvania's generic VOC and NO X RACT regulations, 25 Pa Code Chapter 129.91 through 129.95, to full approval as they apply in the seven-county Pittsburgh-Beaver Valley ozone nonattainment area may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

EPA is approving the negative declaration of air emissions from small MWCs submitted by the State of Vermont.

EPA is publishing this negative declaration without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the proposed rules section of this Federal Register , EPA is publishing a separate document that will serve as the proposal to approve this negative declaration should relevant adverse comments be filed. If EPA receives no significant, material, or adverse comment by November 15, 2001, this action will be effective December 17, 2001.

If EPA receives significant, material, and adverse comments by the above date, we will withdraw this action before the effective date by publishing a subsequent document in the Federal Register that will withdraw this final action. EPA will address all public comments received in a subsequent final rule based on the parallel proposed rule published in today's Federal Register . EPA will not institute a second comment period on this action. Any parties interested in commenting on this action should do so at this time. If EPA receives no comments, this action will be effective December 17, 2001.

Under section 111(d) of the Clean Air Act, EPA published regulations at 40 CFR part 60, subpart B which require states to submit plans to control emissions of designated pollutants from designated facilities. In the event that a state does not have a particular designated facility located within its boundaries, EPA requires that a negative declaration be submitted in lieu of a control plan.

On August 30, 1999 (64 FR 47233), EPA proposed emission guidelines for small MWC units with an individual unit capacity of 35 to 250 tons per day. This action would enable EPA to list small MWCs as designated facilities. EPA specified particulate matter, opacity, sulfur dioxide, hydrogen chloride, oxides of nitrogen, carbon monoxide, lead, cadmium, mercury, and dioxins/furans as designated pollutants by proposing emission guidelines for existing small MWCs. These guidelines were published in final form on December 6, 2000 (65 FR 76378).

On June 5, 2001, the Vermont Agency of Natural Resources (ANR) submitted a letter certifying that there are no existing small MWCs subject to 40 CFR part 60, subpart B. EPA is publishing this negative declaration at 40 CFR 62.11460. Section 62.06 provides that when no such designated facilities exist within a state's boundaries, the affected state may submit a letter of “negative declaration” instead of a control plan.

The Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order 12866, entitled “Regulatory Planning and Review.”

Federalism (64 FR 43255, August 10, 1999) revokes and replaces Executive Orders 12612 (Federalism) and 12875 (Enhancing the Intergovernmental Partnership). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation.

This final rule 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, the requirements of section 6 of the Executive Order do not apply to this rule.

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 Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

This rule is not subject to Executive Order 13045 because it does not involve decisions intended to mitigate environmental health or safety risks that EPA has reason to believe may have a disproportionate effect on children.

Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly affects or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments. If the mandate is unfunded, EPA must provide to the Office of Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected and other representatives of Indian tribal governments “to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.”

Today's action does not create any new requirements. Thus, the action will not significantly or uniquely affect the communities of Indian tribal governments. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq. , EPA must prepare a regulatory flexibility analysis assessing the impact of any proposed or final rule on small entities. 5 U.S.C. 603 and 604. Alternatively, EPA may certify that the rule will not have a significant impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and government entities with jurisdiction over populations of less than 50,000.

Negative declaration approvals under section 111(d) of the Clean Air Act do not create any new requirements for any entity affected by this rule, including small entities. Furthermore, in developing the small MWC emission guidelines and standards, EPA prepared a written statement pursuant to the Regulatory Flexibility Act which it published in the 1997 promulgation notice ( see 62 FR 48348). In accordance with EPA's determination in issuing the 1997 small MWC emission guidelines, this negative declaration approval does not include any new requirements that will have a significant economic impact on a substantial number of small entities.

Therefore, because this approval does not impose any new requirements and pursuant to section 605(b) of the Regulatory Flexibility Act, the Regional Administrator certifies that this rule will not have a significant impact on a substantial number of small entities.

Under section 202 of the Unfunded Mandates Reform Act of 1995 (“Unfunded Mandates Act”), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated costs to State, local, or tribal governments in the aggregate, or to the private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted on by the rule.

EPA has determined that this approval action does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action. Thus, this action is not subject to the requirements of sections 202, 203, 204, and 205 of the Unfunded Mandates Act.

Under 5 U.S.C. 801(a)(1)(A), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, EPA submitted 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 General Accounting Office prior to publication of the rule in today's Federal Register . This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

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

In approving or disapproving negative declarations under section 129 of the Clean Air Act, EPA does not have the authority to revise or rewrite the State's declaration, so the Agency does not have authority to require the use of particular voluntary consensus standards. Accordingly, EPA has not sought to identify or require the State to use voluntary consensus standards. Therefore, the requirements of the NTTAA are not applicable to this final rule.

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 a significant regulatory action under Executive Order 12866.

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 17, 2001. 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), 42 U.S.C. 7607(b)(2)). EPA encourages interested parties to comment in response to the proposed rule rather than petition for judicial review, unless the objection arises after the comment period allowed for in the proposal.

Today's action corrects the final Project XL Site-Specific Rule approving revisions to the National Emissions Standards for Hazardous Air Pollutants (NESHAP) which concern the control of hazardous air pollutant (HAP) emissions from the pulp and paper industry. This action applies only to the Weyerhaeuser Company's Flint River Operations in Oglethorpe, Georgia.

EPA proposed the site-specific rule for Weyerhaeuser on March 27, 2001. EPA proposed to add a new § 63.459 to 40 CFR part 63, subpart S. The introductory language to proposed § 63.459(a)(2) read: “The owner or operator of the pulping system shall control total HAP emissions from equipment systems listed in paragraphs (a)(2)(i) through (a)(2)(ix) of this section as specified in § 63.443(c) and (d) of this subpart no later than April 16, 2002.” The introductory language to proposed § 63.459(a)(3) read: “The owner or operator of the pulping system shall operate the isothermal Cooking system at the site while pulp is being produced in the continuous digester at any time after April 16, 2002.” Inadvertently, when EPA published the final rule on June 27, 2001 (66 FR 34119), the date April 16, 2001 was used in both these sections instead of the date April 16, 2002, that had been used in the proposed rule. April 16, 2002 is the correct date. This action corrects these two typographical errors.

Section 553 of the Administrative Procedure Act, 5 U.S.C. 553(b)(B), applicable to this rule under section 307(d)(1) of the Clean Air Act, 42 U.S.C. 7607(d)(1), provides that, when an 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. EPA has determined that there is good cause for making today's rule final without prior proposal and opportunity for comment because the changes to the rule are minor technical corrections, are noncontroversial in nature, and are consistent with the proposed rule and thus do not substantively change what was intended by EPA for the requirements of the June 27, 2001, revision to the Pulp and Paper NESHAP for Weyerhaeuser Company's Flint River Operations in Oglethorpe, Georgia. Thus, notice and public procedure are unnecessary. EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(B). In addition, under section 112(d)(10) of the Clean Air Act, 42 U.S.C. 7412(d)(10), today's technical correction is effective immediately. (In the preamble to the June 27, 2001, final rule, EPA inadvertently made a good cause finding under 5 U.S.C. 553(d)(3) and 42 U.S.C. 6930(b)(3), making the June 27, 2001, final rule effective upon publication. The June 27, 2001, final rule should have referred to section 112(d)(10) of the Clean Air Act, rather than to 5 U.S.C. 553(d)(3) and 42 U.S.C. 6930(b)(3), as the authority for making the final rule immediately effective.)

EPA's compliance with various statutes and Executive Orders for the underlying rule is discussed in the June 27, 2001 final rule (66 FR 34119).

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 804 exempts from section 801 the following types of rules: (1) rules of particular applicability; (2) rules relating to agency management or personnel; and (3) rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required to submit a rule report regarding today's action under section 801 because this is a rule of particular applicability affecting just one private sector facility.

On May 21, 2001, August 30, 2001, and September 26, 2001, the District of Columbia submitted amendments to its State operating permit program. These amendments are the subject of this document and this section provides additional information on the amendments by addressing the following questions:

The Clean Air Act Amendments of 1990 required all States to develop operating permit programs that meet certain federal criteria. When implementing the operating permit programs, the States require certain sources of air pollution to obtain permits that contain all of their applicable requirements under the Clean Air Act (CAA). The focus of the operating permit program is to improve enforcement by issuing each source a permit that consolidates all of its applicable CAA requirements into a federally-enforceable document. By consolidating all of the applicable requirements for a given air pollution source into an operating permit, the source, the public, and the State environmental agency can more easily understand what CAA requirements apply and how compliance with those requirements is determined.

Sources required to obtain an operating permit under this program include “major” sources of air pollution and certain other sources specified in the CAA or in EPA's implementing regulations. For example, all sources regulated under the acid rain program, regardless of size, must obtain operating permits. Examples of “major” sources include those that have the potential to emit 100 tons per year or more of volatile organic compounds, carbon monoxide, lead, sulfur dioxide, nitrogen oxides, or particulate matter (PM10); those that emit 10 tons per year of any single hazardous air pollutant (HAP) specifically listed under the CAA; or those that emit 25 tons per year or more of a combination of HAPs. In areas that are not meeting the national ambient air quality standards (NAAQS) for ozone, carbon monoxide, or particulate matter, major sources are defined by the gravity of the nonattainment classification.

The minimum program elements for an approvable operating permit program are those mandated by title V of the Clean Air Act Amendments of 1990 and established by EPA's implementing regulations at title 40, part 70—“State Operating Permit Programs” in the Code of Federal Regulations (40 CFR part 70). Title V required state and local air pollution control agencies to develop operating permit programs and submit them to EPA for approval by November 15, 1993. Under title V, State and local air pollution control agencies that implement operating permit programs are called “permitting authorities”.

Where an operating permit program substantially, but not fully, met the program approval criteria outlined at 40 CFR part 70, EPA granted interim approval contingent on the permitting authority revising its program to correct those programmatic deficiencies that prevented full approval. The District of Columbia's original operating permit program substantially, but not fully, met the requirements of 40 CFR part 70. Therefore, EPA granted final interim approval of the program in a rulemaking published on August 7, 1995. [See 60 FR 40101.] The interim approval notice identified 29 outstanding deficiencies that had to be corrected in order for the District of Columbia's program to receive full approval. On May 21, 2001, August 30, 2001, and September 26, 2001, the District of Columbia submitted amendments to its operating permit program to EPA to address its outstanding program deficiencies.

The District of Columbia's May 21, 2001, August 30, 2001, and September 26, 2001 submittals satisfy the District's requirement to submit program amendments to EPA for action by December 1, 2001. After December 1, 2001, those jurisdictions lacking fully-approved operating permit programs will, by operation of law, be subject to a federal operating permit program implemented by EPA under 40 CFR part 71 [See 65 FR 32035, dated May 22, 2000].

On May 21, 2001, August 30, 2001, and September 26, 2001, the District of Columbia submitted amendments to its currently EPA-approved title V operating permit program. In general, the District of Columbia amended its operating permit program regulations to address deficiencies identified by EPA when it granted final interim approval of the District of Columbia's program in 1995.

On December 11, 2000, EPA announced a 90-day comment period for members of the public to identify deficiencies they perceive exist in State and local agency operating permits programs. [See 65 FR 77376.] The public was able to comment on all currently-approved operating permit programs, regardless of whether they have been granted full or interim approval. The December 11, 2000 notice instructed the public to not include in their comments any program deficiencies that were previously identified by EPA when the subject program was granted interim approval. Since those program deficiencies have already been identified and permitting authorities have been working to correct them, EPA will solicit comments when taking action on those corrective measures.

The EPA stated that it will consider information received from the public pursuant to the December 11, 2000 notice and determine whether it agrees or disagrees with the purported deficiencies. Where EPA agrees there is a deficiency, it will publish a notice of deficiency consistent with 40 CFR 70.4(i) and 40 CFR 70.10(b). The Agency will at the same time publish a notice identifying any alleged problems that we do not agree are deficiencies. For programs that have not yet received full approval, such as the District of Columbia's program, EPA will publish these notices by December 1, 2001.

The EPA received numerous comments in response to the December 11, 2000 notice announcing the start of the 90-day public comment period. As part of those comments, EPA Region III received comments germane to the District of Columbia's currently-approved operating permit program. The Agency will respond to those comments in a separate notice(s) by December 1, 2001 as required by the December 11, 2000 notice.

The EPA is not addressing any comments received pursuant to the December 11, 2000 notice in this document. As mentioned above, comments provided in accordance with the December 11, 2000 notice were to address shortcomings that had not previously been identified by EPA as deficiencies necessitating interim, rather than full, approval of a state's operating permit program. This action granting full approval of the District of Columbia's operating permit program only addresses program deficiencies identified when EPA granted interim approval to the District of Columbia's program in 1995. Therefore, any persons wishing to comment on this action should do so at this time.

The EPA has reviewed the District of Columbia's May 21, 2001, August 30, 2001, and September 26, 2001 program amendments in conjunction with the portion of the District of Columbia's program that was earlier approved on an interim basis. Based on this review, EPA is granting full approval of the District of Columbia's amended operating permit program. The EPA has determined that the amendments to the District of Columbia's operating permit program adequately address the 29 deficiencies identified by EPA in its August 7, 1995 rulemaking granting interim approval. The District of Columbia's operating permit program, including the amendments submitted on May 21, 2001, August 30, 2001, and September 26, 2001, fully meets the minimum requirements of 40 CFR part 70.

The interim approval deficiencies identified by EPA in 60 FR 40101 (August 7, 1995) are listed in each of the 29 headings below.

The District of Columbia revised 20 DCMR 399.1 to properly identify the definition of “fugitive emissions.”

Since EPA has yet to revise the definition of a “Title I modification” to include changes subject to minor new source review, the District's current regulations are consistent with 40 CFR part 70. Should EPA revise this definition in the future, the District will be required to revise its regulations as appropriate.

The District of Columbia has revised 20 DCMR 301.1(b)(6) to add a new section 301.1(b)(6)(C) that requires permit renewal applications to contain compliance certifications, as specified by section 301.3(i). Compliance plans continue to be required by 20 DCMR 301.1(b)(6)(B). This amendment makes the District of Columbia's program consistent with 40 CFR 70.7(c)(1)(i) with regard to permit renewal requirements.

Title 20 DCMR 301.3(c)(1) contained the following exception regarding permit application requirements “* * * except where the units are exempted under this subsection or section 300.2”. The District of Columbia revised section 301.3(c)(1) to delete this language related to exemptions. By removing this statement, all applicable requirements must be described in permit applications, without exception. This revision makes the District of Columbia's program consistent with 40 CFR 70.5(c).

Title 20 DCMR 301.3(g) contained two misreferenced sections. An incorrect reference to section 302.1(i) has been changed to 302.1(j) regarding alternative operating scenarios and an incorrect reference to section 302.1(j) has been changed to 302.1(k) regarding defining permit terms and conditions allowing emissions trading. This amendment makes the District of Columbia's program consistent with 40 CFR 70.5(c)(7), 70.4(b)(12)(iii), and 70.6 (a)(10).

The District of Columbia revised 20 DCMR 301.3(h)(3)(C) to include the following language: “Any schedule of compliance shall be supplemental to, and shall not sanction noncompliance with, the applicable requirements on which it is based.” This amendment makes the District of Columbia's program consistent with 40 CFR 70.5(c)(8)(iii)(C).

The District of Columbia revised 20 DCMR 302.1(k) to include the following language: “The terms and conditions for the trading or averaging of emissions shall meet all applicable requirements and the requirements of the operating permits program.” This amendment makes the District of Columbia's program consistent with 40 CFR 70.6(a)(10)(iii).

The District of Columbia renumbered 20 DCMR 302.3(e)(6) to 302.3(f).

The District of Columbia revised 20 DCMR 302.4(e) to require subject sources to meet the general permit qualification criteria and application requirements and that sources covered by the general permit must be in compliance with the general permit. This amendment makes the District of Columbia's program consistent with 40 CFR 70.6(d)(2).

The EPA indicated that the District should restructure 20 DCMR 302.8 pertaining to operational flexibility in accordance with the structure of 40 CFR part 70 provisions for operational flexibility. The District of Columbia provided a legal opinion on the adequacy of its air quality regulations regarding operational flexibility dated September 26, 2001. In its legal opinion, the District compared each of the requirements of 40 CFR 70.4(b)(12) to the requirements in 20 DCMR 302.8. The District's legal opinion clarifies that the District's regulations pertaining to operational flexibility are functionally equivalent to the federal requirements. With the clarifying opinion from the District, the restructuring of section 302.8 is not necessary. The District of Columbia's program is consistent with 40 CFR 70.4 with regard to operational flexibility.

The District of Columbia provided a legal opinion on the adequacy of its air quality regulations regarding operational flexibility dated September 26, 2001. The District's legal opinion states that 20 DCMR 302.8 is substantially similar to 40 CFR 70.4(b)(12). One of the purposes of 20 DCMR 302.8(b) and 40 CFR 70.4(b)(12)(ii)(B) is to enable permitted sources to trade increases and decreases in emissions. However, the federal regulations explicitly provide that the trades shall be determined according to requirements of the applicable implementation plan authorizing the emissions trade. The District's regulations refer to compliance with “applicable requirements” instead of directly referencing the District's SIP. The term “applicable requirements,” however, is a defined term in 20 DCMR 399 and includes the requirements of the District's approved SIP. The District's legal opinion states that the District's regulations, by requiring emission trades to comply with “applicable requirements,” also requires compliance with the District's SIP. Therefore, the District interprets its operational flexibility provisions to require that a source wishing to trade emissions first have that authority under the District's SIP and provide written notice of that authority pursuant to the SIP. With this clarification, the District of Columbia's program is consistent with 40 CFR 70.4 with regard to emissions trading.

Title 20 DCMR 303.1(f) provides that the Mayor shall transmit a proposed permit, permit modification, or renewal to the Administrator no later than 45 days before the appropriate deadline for permit issuance. Section 303.1(d)(1) provides that the proposed permit, modification, or renewal shall be issued no later than 45 days preceding the respective deadlines for permit issuance, modifications and renewals. The District of Columbia revised 20 DCMR 303.1(f) and 303.1(d)(1) to ensure that the part 70 permit issuance deadlines will be met. This amendment makes the District of Columbia's program consistent with 40 CFR 70.4(b)(6).

The District of Columbia revised 20 DCMR 303.3(a) to clarify that applications for permit renewal and renewal permits in their entirety must be subject to the same procedural requirements, including those for public participation, affected state review and EPA review that apply to initial permit issuance. This amendment makes the District of Columbia's program consistent with 40 CFR 70.7(c)(1)(i).

The District of Columbia revised 20 DCMR 303.5(d)(1) by adding 303.5(d)(1)(E) requiring that significant modification procedures shall be used for applications requesting permit modifications that do not qualify as administrative permit amendments or minor permit modifications. This amendment makes the District of Columbia's program consistent with 40 CFR 70.7(e).

The District of Columbia revised the public participation procedures of 20 DCMR 303.10(a) to require the District to send notices of permit actions to persons on a mailing list developed by the Mayor, including those who request in writing to be on the list pursuant to 20 DCMR 303.10(a)(2). This amendment makes the District of Columbia's program consistent with 40 CFR 70.7(h)(1).

The District of Columbia revised 20 DCMR 303.10(a)(1)(B) to establish procedures for the public to request a hearing on a permit action if the Mayor has not scheduled a hearing. This amendment makes the District of Columbia's program consistent with 40 CFR 70.7(h)(2).

The District of Columbia revised 20 DCMR 303.10(a)(1) by adding 303.10(a)(1)(C) requiring that any notice of a public hearing be published at least 30 days in advance of the hearing. This amendment makes the District of Columbia's program consistent with 40 CFR 70.7(h)(4).

Each title V source in the District of Columbia is provided the updated adjusted annual fee calculation each year by the District. The District of Columbia adjusts the annual fee based on the CPI-Urban Index that represents the12-month average from September through August of the following year. The District uses the same presumptive minimum fee that is computed by EPA each year. With this clarification, the District of Columbia's program is consistent with 40 CFR 70.9(b)(2)(iv).

The District of Columbia revised 20 DCMR 305.1 to remove “or the equivalent over some other period.” The revised 20 DCMR 305.1 now reads as follows: “Owners or operators of Part 70 sources shall pay annual fees of twenty-five dollars ($25) per year (as adjusted pursuant to the criteria set forth in section 305.2) times the total tons of actual emissions of each regulated pollutant (for presumptive fee calculation purposes) emitted from Part 70 sources.” This amendment makes the District of Columbia's program consistent with 40 CFR 70.9.

The EPA determined that the provisions cited in the Corporation Counsel's opinion of January 13, 1994 did not specifically identify authorities to restrain or enjoin immediately permit violators without the need for prior revocation of the permit. EPA added that if such enforcement authority existed, the District must clearly establish that the authority extends to Chapter 3 of Title 20 DCMR. The Corporation Counsel in its “May 2001 Amendment to ‘Corporation Counsel's (Attorney General's) Legal Opinion’ submitted to the United States Environmental Protection Agency, Region III, by letter dated January 13, 1994”, cites to several provisions in the District's Air Pollution Control Act implementing regulations and to the Home Rule Act, approved December 24, 1973 (87 Stat. 813; D.C. section102(a)) that provide the necessary authorities. Specifically, the Corporation Counsel identifies the following authorities in the implementing regulations of the Air Pollution Control Act: (1) 20 DCMR 102.3 provides that the Mayor may seek “enforcement of this subtitle by injunctive relief or other appropriate remedy; (2) 20 DCMR 401.10 authorizes the Mayor to issue emergency orders forbidding operation where the Mayor finds that a situation is causing or contributing to air pollution, or has the potential to do so; and, (3) 20 DCMR 401.12 provides that nothing shall preclude the Mayor from seeking relief or remedy, other than penalties, that is provided for by law. The Corporation Counsel further states that 20 DCMR 102.3 extends to all chapters in Subtitle A of the Air Pollution Control Act, including Chapter 3. With this clarification, the District of Columbia's program is consistent with 40 CFR 70.11.

EPA requested that the District of Columbia clarify that civil fines are recoverable for the violations enumerated in 40 CFR 70.11(a)(3)(i). The Corporation Counsel in its “May 2001 Amendment to ‘Corporation Counsel's (Attorney General's) Legal Opinion’ submitted to the United States Environmental Protection Agency, Region III, by letter dated January 13, 1994”, cites to several provisions in its Air Pollution Control Act implementing regulations for the required authority. Specifically, the Corporation Counsel indicates that 20 DCMR 100.6 and 105.1 authorize the imposition of civil fines for each of the violations listed in 40 CFR 70.11(a)(3)(i), including a violation of any applicable requirement as defined in 20 DCMR 399, any permit condition, including any requirement in 20 DCMR 302; any fee or filing requirement as provided in 20 DCMR 301 and 305; any duty to allow or carry out inspection, entry or monitoring activities as provided in 20 DCMR 302.3; or, any regulation or orders issued by the Mayor pursuant to 20 DCMR 102 and 104.10. In addition, according to the Corporation Counsel, 20 DCMR 100.6 and 105.2 authorize the imposition of civil fines, penalties and fees as alternative sanctions for violations of the Air Pollution Control Act's implementing regulations using the process of scheduling and enforcing these fines under the Civil Infractions Act. With this clarification, the District of Columbia's program is consistent with 40 CFR 70.11(a)(3).

EPA requested that the District of Columbia establish civil enforcement authority for the collection of penalties in the maximum amount of not less than $10,000 per day per violation. The District revised 20 DCMR 105.5 to require that “[i]n the event of any violation of, or failure to comply with, the air quality provisions of this title [which includes Subtitle A thereof, the Air Pollution Control Act's implementing regulations], each and every day of the violation or failure shall constitute a separate offense, and the penalties described in 20 DCMR 105.1 shall be applicable to each separate offense.” The Corporation Counsel in its “May 2001 Amendment to ‘Corporation Counsel's (Attorney General's) Legal Opinion’ submitted to the United States Environmental Protection Agency, Region III, by letter dated January 13, 1994” stated that civil fines are recoverable under 20 DCMR 100.6, 105.1, 105.2, and 105.5 in the amount of $10,000 per day per violation for failure to comply with 20 DCMR including the Air Pollution Control Act's implementing regulations in 20 DCMR Subtitle A as required by 40 CFR 70.11(a)(3)(i). This amendment makes the District of Columbia's program consistent with 40 CFR 70.11(a)(3).

With respect to the 20 DCMR 100.6 civil enforcement authority, EPA requested that the District of Columbia clarify that mental state is not allowed as an element of proof for civil violations. The Corporation Counsel in its “May 2001 Amendment to ‘Corporation Counsel's (Attorney General's) Legal Opinion’ submitted to the United States Environmental Protection Agency, Region III, by letter dated January 13, 1994” states that 20 DCMR 100.6, 105.1 and 105.2 do not include mental state as an element of proof of civil violations. District laws and regulations enacted to protect the public health and safety (among other purposes), including those of 20 DCMR Subtitle A are generally construed as strict liability violations for purposes of civil proceedings. With this clarification, the District of Columbia's program is consistent with 40 CFR part 70.

The EPA requested that the District of Columbia clarify that criminal fines are recoverable for each of the specific types of knowing violations mentioned in 40 CFR 70.11(a)(3)(ii) and (iii). The Corporation Counsel in its “May 2001 Amendment to ‘Corporation Counsel's (Attorney General's) Legal Opinion’ submitted to the United States Environmental Protection Agency, Region III, by letter dated January 13, 1994” states that criminal penalties are recoverable under 20 DCMR 105.1 for all the violations enumerated in 40 CFR 70.11(a)(3)(ii), which include any applicable requirement (as defined in 20 DCMR 399); any permit condition (including any requirement in 20 DCMR 302); and, any fee or filing requirement (as provided in 20 DCMR 301 and 305). The Corporation Counsel further states that 20 DCMR 105.1 allows for recovery of criminal penalties for all the violations enumerated in 40 CFR 70.11(a)(3)(iii), which include making a false statement, representation or certification in any form, in any notice or report required by a permit (prohibited by 20 DCMR 105.1) or knowingly rendering inaccurate any required monitoring device or method (prohibited by 20 DCMR 107.1). With this clarification, the District of Columbia's program is consistent with 40 CFR 70.11.

The EPA requested that the District of Columbia revise 20 DCMR 105.1 to provide for the recovery of criminal fines at a maximum amount of $10,000 per day per violation as required by 40 CFR 70.11(a)(3)(i) for the violations enumerated in 40 CFR 70.11(a)(3)(ii) and (iii). The District revised 20 DCMR 105 by adding 105.5. The Corporation Counsel in its “May 2001 Amendment to ‘Corporation Counsel's (Attorney General's) Legal Opinion’ submitted to the United States Environmental Protection Agency, Region III, by letter dated January 13, 1994” states that pursuant to 20 DCMR 105.5, “[i]n the event of any violation of, or failure to comply with, the air quality provisions of this title [which includes Subtitle A thereof, the Air Pollution Control Act's implementing regulations], each and every day of the violation or failure shall constitute a separate offense, and the penalties described in 20 DCMR 105.1 shall be applicable to each separate offense.” This amendment makes the District of Columbia's program consistent with 40 CFR 70.11(a)(3).

The District of Columbia revised 20 DCMR 303.11 by deleting 303.11(c) and restructuring 303.11(a) to clarify that when the Mayor fails to issue or deny a permit within the required deadline, this failure can be challenged any time before the permitting authority denies the permit or issues the final permit. The permit program regulations now provide that no application for judicial review may be filed more than 90 days following the final action on which the review is sought, unless the final action being challenged is the Mayor's failure to take final action, in which case an application for judicial review may be filed any time before the Mayor denies the permit or issues the final permit. This amendment makes the District of Columbia's program consistent with 40 CFR 70.4.

The District of Columbia's management of its operating permit program is divided between the EPB and the CEB. EPB, under the supervision of the branch chief, is responsible for permit issuance; modifications and renewals; inventory management; and, the annual fee computation. Likewise, under the supervision of the branch chief, CEB is responsible for plant inspections; receipt and review of semi-annual and annual compliance reports and certifications; review and approval of testing protocols; compliance determinations; issuance of citations to violators; participation in hearings; and, transmittal of enforcement data to EPA. Both branches are supported by the Office of the Program Manager (OPM) and the attorney advisor in the Air Quality Division (AQD). Staff from EPB, CEB, and OPM who work on title V activities, including compliance and enforcement activities charge the time expended on such tasks to the title V account to reflect direct salary, fringe benefits and indirect costs (to cover overhead, such as utilities, rental, telephone and supplies). Other AQD supervisors and advisors who provide applicable title V services also charge their time appropriately, inclusive of fringe benefits and indirect costs. The number of hours worked on title V activities during each pay period are submitted on time sheets. With this clarification, the District of Columbia's program is consistent with 40 CFR 70.9(c).

The District of Columbia's Compliance & Enforcement Branch (CEB) is responsible for ensuring source compliance with the applicable requirements of title V permits. This is accomplished through annual on-site inspections, review of semi-annual and annual certification reports, and pursuit of enforcement actions. Existing EPA and District of Columbia agreements require the District to submit a compliance monitoring strategy, which includes detailed information about sources targeted for inspections. These existing agreements require the District to submit semi-annual enforcement reports, to participate in quarterly enforcement program reviews, and to report inspection compliance and enforcement data. With this clarification, the District of Columbia's program is consistent with 40 CFR part 70.

The District of Columbia reports enforcement activities, including specific information required by 70.4(b)(9) to EPA primarily by way of the Aerometric Information Retrieval System/AIRS Facility Subsystem (AIRS/AFS). With this clarification, the District of Columbia's program is consistent with 40 CFR part 70.

The District of Columbia has satisfactorily addressed the program deficiencies identified when EPA granted final interim approval of its operating permit program on August 7, 1995. The operating permit program amendments that are the subject of this document considered together with that portion of the District of Columbia's operating permit program that was earlier approved on an interim basis fully satisfy the minimum requirements of 40 CFR part 70 and the Clean Air Act. Therefore, EPA is taking direct final action to fully approve the District of Columbia title V operating permit program in accordance with 40 CFR 70.4(e).

The EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register , EPA is publishing a separate document that will serve as the proposal to approve the operating permit program approval if adverse comments are filed relevant to the issues discussed in this action. This rule will be effective on November 30, 2001 without further notice unless EPA receives adverse comment by November 30, 2001. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. The EPA will address all public comments in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

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 Fed. Reg. 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 (Public Law 104-4). This rule also does 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), nor will it 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), because it merely approves a State rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing State operating permit program submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. 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 an operating permit program for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews an operating permit program submission, to use VCS in place of an operating permit program submission that otherwise satisfies the provisions of the Clean Air Act. 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. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. The EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. 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 . This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 17, 2001. 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 fully approving the District of Columbia's title V operating permit program may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Public Law 106-559 signed by the President on December 21, 2000 amends the Alaska Native Allotment Act of 1998. It:

a. Changes the dates of military service under which an Alaska Native Veteran may be eligible for an allotment by extending the ending date for completing the required six months of military service from June 2, 1971, to December 31, 1971;

b. Extends the dates of military service under which a deceased Alaska Native Veteran may be eligible for an allotment from the original period beginning January 1, 1969, and ending December 31, 1971, to the period beginning August 5, 1964, and ending December 31, 1971;

c. Clarifies that a deceased Alaska Native Veteran must have served in South East Asia during the 1964-1971 time period; and

d. Clarifies that the appropriate Alaska State court must appoint personal representatives to represent deceased eligible veterans.

We are issuing this final rule because the purpose of the rule is to provide the public with the information concerning changes to previous law which were made in Public Law 106-559. The changes made are specific and allow BLM no discretion. Therefore, public comment on a proposed rule would not be in the public interest; rather comment would delay the fuller, complete, and clear public disclosure we seek.

This final rule follows the changes in Public Law 106-559 by:

(a) Changing the dates of military service under which an Alaska Native Veteran may be eligible for an allotment by extending the ending date for completing the required six months of military service from June 2, 1971, to December 31, 1971;

(b) Extending the dates of military service under which a deceased Alaska Native Veteran may be eligible for an allotment from the original period beginning January 1, 1969, and ending December 31, 1971, to the period beginning August 5, 1964, and ending December 31, 1971;

(c) Clarifying that a deceased Alaska Native Veteran must have served in South East Asia during the 1964-1971 time period and;

(d) Clarifying that the appropriate Alaska State court must appoint personal representatives to represent deceased eligible veterans.

The rule also deletes § 2568.92, Is there anything else I should consider if I apply for land that is selected by a Native Corporation or by the State of Alaska? The last sentence of the Section stated “If BLM does not receive and approve a relinquishment from a Native corporation or the State before the allotment application filing period ends, you cannot file an application for an allotment in a different location and you will not be eligible for an alternative allotment.” It is true that an applicant would not be able to file a new application in a different location once the filing period ends, but it is not true that an applicant would not be eligible for an alternative allotment. If an applicant is found eligible for an alternative allotment, that eligibility would have nothing to do with the end of the filing period. This section was intended to be a warning of possible risk to applicants, not a statement of a requirement. We have determined that deleting the section, rather than rewording it, is in the public interest. We determined this after considering alternative language which we found would add confusion rather than clarity to the rulemaking.

These final regulations are not a significant regulatory action and were not subject to review by the Office of Management and Budget under Executive Order 12866. These final regulations will not have an effect of $100 million or more on the economy. They will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, of State, local, or tribal governments of communities. These final regulations will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. These final regulations do not alter the budgetary effects of entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients; nor do they raise novel legal or policy issues. The effect of these final regulations will be on a limited number of individuals who are qualified to apply for allotments and on the Interior Department agencies responsible for administering the allotment program. The allotment application period is limited by law to 18 months, and existing staff of responsible agencies will process applications following most of the same rules that are currently in effect for allotment applications under the 1906 Native Allotment Act.

Section 910 of the Alaska National Interest Lands Conservation Act (ANILCA) of December 2, 1980, 43 U.S.C. 1638, made conveyances, regulations, and other actions which lead to the issuance of conveyances to Natives under ANCSA exempt from NEPA compliance requirements. Since Congress made the Alaska Native Veterans Allotment Act a part of ANCSA, NEPA does not apply.

Congress enacted the Regulatory Flexibility Act of 1980, as amended, 5 U.S.C. 601-612, to ensure that Government regulations do not unnecessarily or disproportionately burden small entities. The RFA requires a regulatory flexibility analysis if a rule would have a significant economic impact, either detrimental or beneficial, on a substantial number of small entities. This final rule will apply only to certain Alaska Native veterans and specific classes of heirs of Alaskan Native veterans who are eligible to apply for allotments. Therefore, the Department of the Interior certifies that this document will not have any significant impacts on small entities under the RFA.

These final regulations are not a “major rule” as defined at 5 U.S.C. 804(2). This final rule does not meet any of the criteria for a “major rule” under the definition contained in SBREFA. The final rule will result in some costs to allotment applicants, and to the Department of the Interior to implement the allotment program over the next several years. It will not result in major cost or price increases for consumers, industries, or regions, and the cost increases for government agencies will be small. This final rule will have no significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. The total annual effect on the economy will be far below $100 million. Based on Department of Veterans Affairs data, BLM estimates that about 1,100 individuals with at least one quarter Alaska Native blood meet the military service criteria in the Alaska Native Veterans law and may be eligible to apply for allotments. If each applicant were to choose the maximum number of land parcels involved would be 2,200. BLM estimates the cost of processing an application for a single allotment parcel does not exceed $25,000, including the cost of adjudication, examination, survey, and conveyance. This estimate is based on the average cost of processing allotment applications originally filed under the Alaska Native Allotment Act of 1906. The total cost to process 2,200 parcels would be $55 million over the life of the program, which is the statutory 18-month application period and as many additional years as necessary to complete all applications. In no case would these costs approximate the $100 million annual impact threshold.

These final regulations do not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year; nor do these final regulations have a significant or unique effect on State, local, or tribal governments or the private sector. The only mandate imposed on State governments will be for the State court appointment of personal representatives in cases involving the estates of certain deceased applicants, but this mandate will cost far below $100 million per year. These final regulations impose no mandate on local or tribal governments or the private sector. Program costs will fall primarily on the Department of the Interior. Therefore, BLM is not required to prepare a statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq. ).

The final rule does not represent a government action capable of interfering with constitutionally protected property rights. The final rule will allow BLM to convey Federal land only under certain circumstances, and the land containing other applications or entries is specifically forbidden by law from being conveyed to Native veterans. Even if a Native veteran could show use and occupancy of land before another application or entry was made, the Native would have no vested property right until he or she filed an application for an allotment under section 41 of ANCSA. No existing applications or entries or other private property interest will be affected by this proposed rule. Therefore, the Department of the Interior has determined that the rule will not cause a taking of private property or require further discussion of takings implications under this Executive Order.

The final rule will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. The final rule will give the State the authority to voluntarily relinquish up to 160 acres of a selection so that a Native veteran can apply for an allotment, but the State is not required to relinquish. Voluntarily relinquishments will have no effect on the State's ability to reach its full acreage entitlement from the Federal government. Native veterans will not be able to apply for land already owned by the State, even if they can show that they used and occupied the land before the State applied for it. Allotments conveyed under section 41 of ANCSA are not taxable, just as allotments conveyed under the 1906 Act are not taxable. Native allotments are conveyed from Federal public land which is not subject to State or local taxation, so conveyance of allotments under this rule will not change tax status or cause any impact on State or local property tax revenue. Therefore, in accordance with Executive Order 12612, BLM has determined that this final rule does not have sufficient Federalism implications to warrant preparation of a Federalism Assessment. Representatives of the State of Alaska and the BLM Alaska have had general discussions on the content of the statute and the final regulations. Representatives of the State of Alaska recognize that lands conveyed to the State are prohibited from land availability under the statute and that the State may relinquish, but is not required to relinquish, a selection to allow a Native veteran to file an allotment application.

Under Executive Order 12988, the Office of the Solicitor has determined that this final rule would not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order.

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951) and 512 DM 2 when we initially wrote this rule we consulted with tribes as follows:

Section 41 of ANCSA, which authorizes Native allotments for certain veterans, specifically requires that the Department of the Interior promulgate these regulations “after consultation with Alaska Natives groups.” BLM consulted with the Bureau of Indian Affairs throughout the process of the initial rulemaking and held public meetings to discuss the rule with Native entities, including tribes. Native views were solicited very early in the rulemaking process and BLM included all written comments received from tribes and other Native entities in the administrative record for the rule. BLM held additional meetings with Native groups before the regulations became final and considered tribal and other Native views in the final rulemaking. Accordingly:

a. We consulted with affected tribes.

b. Consultations were open and candid so that the affected tribes could fully evaluate the potential impact of the rule on trust resources.

c. We considered tribal views in the final rulemaking.

d. We consulted with the appropriate bureaus and offices of the Department about the potential effects of the rule on tribes. We consulted with the Bureau of Indian Affairs and the Division of Indian Affairs, Office of the Solicitor.

This final rule contains information collection requirements covered under the provisions of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. All information requirements pertain to an application form whereby Alaska veterans may apply for the benefits described in this final rule. OMB reviewed and approved an information collection package (1004-0191) for the application form (AK 2561-10). Because all the information requirements are contained in the application form and covered by that information collection package, BLM has not prepared a separate information collection package for these regulations.

This rule is not a significant energy action. It will not have an adverse effect on energy supplies. This final rule will apply only to Alaska Native veterans and to a specific class of Alaskan Native veteran's heir who are eligible to apply for allotments.

The principal author of this rule is Connie Van Horn, Division of Conveyance Management, Bureau of Land Management, Anchorage, Alaska; assisted by Kelly Odom of BLM's Regulatory Affairs Group, Bureau of Land Management, Washington, DC.

This is a synopsis of the Commission's Report and Order, MM Docket No. 00-100, adopted October 5, 2001, and released October 11, 2001. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Center 445 12th Street, SW., Washington, DC. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW, CY-B402, Washington, DC 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail qualexint@aol.com.