In an interim rule effective January 12, 2001, and published in the Federal Register on January 22, 2001 (66 FR 6429-6436, Docket No. 00-110-1), we amended the Domestic Quarantine Notices in 7 CFR part 301 by adding a new “Subpart—West Indian Fruit Fly” (7 CFR 301.98 through 301.98-10, referred to below as the regulations). The regulations designated a portion of Cameron County, TX, as a quarantined area because of an infestation of West Indian fruit fly and restricted the interstate movement of regulated articles from the quarantined area. In a document published in the Federal Register on April 20, 2001 (66 FR 20186, Docket No. 00-110-2), we corrected the definition for Day degrees in § 301.98-1 to rectify an error in the day degrees formula provided in that definition. In a second interim rule effective on June 1, 2001, and published in the Federal Register on June 25, 2001 (66 FR 33631-33632, Docket No. 00-110-3), we amended the regulations by removing the quarantine on a portion of Cameron County, TX, and removing restrictions on the interstate movement of regulated articles from that area based on our determination that the West Indian fruit fly had been eradicated from that area. Upon the effective date of our June 2001 interim rule, there were no longer any areas in the continental United States quarantined for the West Indian fruit fly.

Comments on each interim rule were required to be received on or before 60 days after the date of its publication in the Federal Register . We did not receive any comments on either of the interim rules. Therefore, for the reasons given in the interim rules, we are adopting the interim rules as a final rule.

This action also affirms the information contained in the interim rules concerning Executive Order 12866 and the Regulatory Flexibility Act, Executive Orders 12372 and 12988, and the Paperwork Reduction Act.

Further, for this action, the Office of Management and Budget has waived the review process required by Executive Order 12866.

In the final rule published on January 8, 2002, (67 FR 791-801) make the following corrections.

This rule has been determined to be significant and was reviewed by the Office of Management and Budget under Executive Order 12866.

In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-602), the undersigned has determined and certified by signature of this document that this rule will not have a significant economic impact on a substantial number of small entities. New provisions included in this rule will not impact a substantial number of small entities to a greater extent than large entities. Therefore, a regulatory flexibility analysis was not performed.

It is the determination of FSA that this action is not a major Federal action significantly affecting the environment. Therefore, in accordance with the National Environmental Policy Act of 1969, and 7 CFR part 1940, subpart G, an Environmental Impact Statement is not required.

This rule has been reviewed in accordance with Executive Order 12988, Civil Justice Reform. In accordance with this executive order: (1) All State and local laws and regulations that are in conflict with this rule will be preempted; (2) except as specifically stated in this rule, no retroactive effect will be given to this rule; and (3) administrative proceedings in accordance with 7 CFR parts 11 and 780 must be exhausted before seeking judicial review.

For reasons contained in the notice related to 7 CFR part 3015, subpart V (48 FR 29115, June 24, 1983), the programs within this rule are excluded from the scope of E.O. 12372, which requires intergovernmental consultation with State and local officials.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) requires Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments or the private sector of $100 million or more in any 1 year. When such a statement is needed for a rule, section 205 of the UMRA requires FSA to prepare a written statement, including a cost and benefit assessment, for proposed and final rules with “Federal mandates” that may result in such expenditures for State, local, or tribal governments, in the aggregate, or to the private sector. UMRA generally requires agencies to consider alternatives and adopt the more cost effective or least burdensome alternative that achieves the objectives of the rule.

This rule contains no Federal mandates, as defined under title II of the UMRA, for State, local, and tribal governments or the private sector. Thus, this rule is not subject to the requirements of sections 202 and 205 of UMRA.

The policies contained in this rule do not have any substantial direct effect on 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. Nor does this rule impose substantial direct compliance costs on State and local governments. Therefore, consultation with the States is not required.

The amendments to 7 CFR part 1951 contained in this rule require no revisions to the information collection requirements that were previously approved by OMB (0560-0161) under the provisions of 44 U.S.C. chapter 35.

These changes affect the following FSA programs as listed in the Catalog of Federal Domestic Assistance:

10.404—Emergency Loans

10.406—Farm Operating Loans

10.407—Farm Ownership Loans

The Farm Service Agency (FSA) published a final rule on August 18, 2000, (65 FR 50401-50405) to change the amortization rate of the Shared Appreciation Agreement recapture amortization and reamortization from the Non-Program rate to the Homestead Protection Program rate. Section 818 of the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2001, (2001 Appropriations Act) enacted on October 28, 2000, mandates that the amortization rate on all Shared Appreciation (SA) amortization agreements made after enactment will be reduced to the current Homestead Protection Program interest rate less 100 basis points (1 percent). This rate will be referred to as the SA amortization rate. In addition, section 818 of the 2001 Appropriations Act requires the interest rate on all SA amortizations existing as of the date of enactment of the 2001 Appropriations Act, to be reduced to the SA amortization rate as of that date. To comply with the 2001 Appropriations Act, FSA is publishing this final rule. The changes enacted herein were mandated by statute. The changes in terminology regarding SA amortized payments amounts are simply clarifications of the existing regulation. Therefore, notice and comment are impractical, unnecessary and contrary to the public interest and not required.

The VWP permits nationals from designated countries to apply for admission to the United States for ninety (90) days or less as nonimmigrant visitors for business or pleasure without first obtaining a nonimmigrant visa from a U.S. consular officer abroad, provided that all statutory and regulatory requirements are met. 8 U.S.C. 1187(a). If arriving by air or sea, a VWP traveler must arrive on a carrier that signed an agreement (signatory carrier) guaranteeing to transport inadmissible or deportable VWP travelers out of the United States at no expense to the United States. 8 U.S.C. 1187(e).

Since December 2001, Argentina has been experiencing a serious economic crisis, including defaulting on loans by foreign creditors, devaluation of its currency, and increased levels of unemployment and poverty. As the economic climate has deteriorated in Argentina, the Immigration and Nationalization Service (Service) has experienced a pronounced increase in the number of Argentine nationals attempting to use the VWP to enter the United States to live and work illegally. While the number of Argentine nonimmigrant travelers to the United States declined between 1998 (518,770) and 2000 (516,153), the number of Argentines denied admission at the border rose from 173 cases in 1998 to 529 cases in 2000. Preliminary data suggest that the number of Argentines refused admission at the border nearly doubled from 2000 to 2001. Interior apprehensions also increased from 97 cases in 1998 to 230 cases in 2001. Since November 2001, Argentine VWP applicants for admission have been telling U.S. immigration officers at ports-of-entry (POEs) that they intend to reside in and seek employment in the United States because of the poor economic situation in Argentina. Many Argentine nationals use the VWP to obtain entry to the United States solely for the purpose of proceeding to the Canadian border and pursuing an asylum claim in Canada. According to Citizenship and Immigration Canada (CIC), over the last two years, more than 2,500 Argentines have filed refugee claims in Canada after transiting the United States under the VWP.

While the Argentine passport itself is a relatively secure document, the process for obtaining the documents to procure a passport lacks integrity, adding to the risk of successful organized smuggling of aliens into the United States.

Terminating Argentina's VWP program designation, thereby reinstating the regular nonimmigrant visa requirements for Argentine nationals, will make it more difficult for unauthorized immigrants to enter the United States. As with nationals of all other countries not designated for VWP, Argentine nationals seeking to enter the United States will have to apply for a nonimmigrant visa at a U.S. consular office abroad, and they will be screened again by an immigration officer at a U.S. port of entry to determine admissibility.

Sections 217(c)(5)(B)(i) and (c)(5)(B)(ii)(IV) of the Immigration and Nationality Act (8 U.S.C. 1187(c)(5)(B)(i) and (c)(5)(B)(ii)(IV)) require the Attorney General, in consultation with the Secretary of State, to terminate a country's VWP designation if he determines that a severe economic collapse in a program country threatens the law enforcement or security interests of the United States, including the interest in enforcement of the immigration laws of the United States.

The Attorney General, in consultation with the Department of State, has determined that, due to the existence of the conditions set forth in INA section 217(c)(5)(B)(ii)(IV), Argentina's participation in the VWP threatens the United States' interest in enforcement of the immigration laws. Accordingly, Argentine citizens are no longer eligible to participate in the VWP. Effective February 21, 2002, Argentina is removed as a participating country in the VWP.

As long as the alien lawfully gained admission under the VWP before the effective date of this termination of designation notice, and continues to be in compliance with the terms of his or her admission, he or she may remain in the United States for the period of time authorized on the date of admission.

The Department notes, however, that an alien admitted as a visitor for business or pleasure under the VWP is not eligible for change or extension of nonimmigrant status under the existing regulations.

This interim rule is effective February 21, 2002, although the Service invites post-promulgation comments and will address any such comments in a final rule. The Service finds that good cause exists for adopting this rule without the prior notice and comment period ordinarily required by 5 U.S.C. 553 for the following reasons. Since December 2001, Argentina has experienced a severe economic crisis and, at the same time, the Service has experienced an increasing number of Argentines attempting to use the program to work and live illegally in the United States—thus abusing the program. Increasing program abuse by Argentine nationals is inconsistent with the United States' interest in enforcing its immigration laws. Reestablishing the normal nonimmigrant visa requirements for Argentine nationals will have the immediate effect of stemming the flow of unauthorized immigration to the United States by such nationals. It would be contrary to the law and the public interest to allow such a threat to the immigration enforcement interests of the United States to continue. Because delaying the effective date of this interim rule is impractical and contrary to the public interest, there is good cause under 5 U.S.C. 553 to make this rule effective upon publication in the Federal Register .

The Attorney General, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities. Although individuals doing business with small entities will no longer be allowed to enter the United States without having a visa, they will be able to seek admission to the United States by obtaining a nonimmigrant visa at a United States consulate or embassy prior to arrival in the United States. This action is necessary to further the law enforcement and national security interests of the United States.

This rule is considered by the Department of Justice, to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. Accordingly, this rule has been submitted to the Office of Management and Budget (OMB) for review.

This 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. 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 will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, 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 251 of the Small Business Regulatory Enforcement Act of 1996. 5 U.S.C. 804. 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.

This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

Under the Paperwork Reduction Act of 1995, Public Law 104-13, 109 Stat. 163, all departments are required to submit to OMB, for review and approval, any reporting requirements inherent in a final rule. This rule does not impose any new reporting and recordkeeping requirements under the Paperwork Reduction Act.

The Civil Aviation Authority—The Netherlands (CAA-NL), which is the airworthiness authority for the Netherlands, notified the FAA that an unsafe condition may exist on certain Fokker Model F27 Mark 050 series airplanes. The CAA-NL advises that, during a product review, Fokker Services discovered that the structural provisions for the Global Positioning System (GPS) antenna do not meet pertinent structural strength requirements. Failure to meet these structural strength requirements could lead to reduced fatigue life of the GPS antenna's structural provisions. This condition, if not corrected, could result in cracking of the structure of the fuselage pressure vessel in the area of the GPS antenna, reduced structural integrity of the fuselage pressure vessel, and possible depressurization of the airplane.

Fokker Services B.V. has issued Fokker Service Bulletin SBF50-53-055, dated May 25, 2001. This service bulletin describes procedures for reinforcement of the structural provisions for the GPS antenna by replacement of existing fasteners with new fasteners. For certain airplanes, the reinforcement of the structural provisions for the GPS antenna also necessitates installation of conical washers and a doubler plate at stringer 26. Accomplishment of the applicable actions specified in the service bulletin is intended to adequately address the identified unsafe condition. The CAA-NL classified this service bulletin as mandatory and issued Dutch airworthiness directive 2001-092, dated July 31, 2001, in order to assure the continued airworthiness of these airplanes in the Netherlands.

These airplane models are manufactured in the Netherlands and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.19) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the CAA-NL has kept the FAA informed of the situation described above. The FAA has examined the findings of the CAA-NL, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.

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 cracking of the structure of the fuselage pressure vessel in the area of the GPS antenna, which could result in reduced structural integrity of the fuselage pressure vessel and consequent depressurization of the airplane. This AD requires accomplishment of the actions specified in the service bulletin described previously, except as discussed below.

The service bulletin and foreign airworthiness directive recommend that the actions in the service bulletin be accomplished within 6,000 flight cycles after installation of the structural provisions for the GPS antenna. The FAA finds, however, that such a compliance time could ground airplanes upon the effective date of this AD. Therefore, this AD provides a grace period of 60 days after the effective date of this AD for airplanes that have passed the 6,000-flight-cycle compliance threshold.

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 that is subject only to the replacement of fasteners be imported and placed on the U.S. Register in the future, it would require approximately 2 work hours to accomplish the required reinforcement, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of this AD would be $120 per airplane.

Should an affected airplane that is subject to both the replacement of fasteners and the installation of conical fasteners and a doubler be imported and placed on the U.S. Register in the future, it would require approximately 4 work hours to accomplish the required reinforcement, at an average labor rate of $60 per work hour. Required parts would cost approximately $142 per airplane. Based on these figures, the cost impact of this AD would be $382 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 proposed 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-332-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 .

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 Airbus Model A300 F4-605R airplanes was published in the Federal Register on April 30, 2001 (66 FR 21292). That action proposed to require installation of external doublers at frames 29 and 33.

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

The commenter, the manufacturer, says that French airworthiness directive 2000-456-323(B), issued by the Direction Générale de l'Aviation Civile (DGAC), applies to both Airbus Model A300 F4-605R production freighters and Model A300 series airplanes that have been converted to freighter configurations by supplemental type certificates (STCs) approved by the DGAC. However, the notice of proposed rulemaking (NPRM) issued by the FAA does not apply to airplanes that have been converted to freighter configurations. The commenter requests that the applicability of the AD be expanded to include Airbus Model A300 series airplanes which have been converted to freighter configurations by STC's approved by the FAA.

The FAA does not concur. The service bulletins cited by the DGAC in the French airworthiness directive apply only to production freighters and not to airplanes converted to freighter configurations in accordance with STCs. To address these converted airplanes, the FAA plans to work with the holders of STCs for those airplanes to evaluate the upper fuselage circumferential joints for fatigue. Depending upon the results, the FAA may issue further rulemaking addressing those airplanes.

After careful review of the available data, including the comment noted above, the FAA has determined that air safety and the public interest require the adoption of the rule as proposed.

The FAA estimates that 32 Model A300 F4-605R airplanes of U.S. registry will be affected by this AD, that it will take approximately 85 work hours per airplane to accomplish the required actions, and that the average labor rate is $60 per work hour. Required parts will cost approximately $1,820 per airplane. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $221,440 or $6,920 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) by superseding AD 97-02-10, amendment 39-9895 (62 FR 3781, January 27, 1997), applicable to certain McDonnell Douglas Model DC-9, DC-9-80, and C-9 series airplanes; Model MD-88 airplanes; and Model MD-90 airplanes, was published as a supplemental notice of proposed rulemaking (NPRM) in the Federal Register on February 14, 2001 (66 FR 10243). That supplemental NPRM would have, among other actions, revised a list of suspect parts; delayed accomplishment of a certain replacement; and revised the initial compliance time proposed by the original NPRM.

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 requests that the FAA revise the proposed AD to specify that operators will be given “credit” for having previously accomplished the actions required by AD 97-02-10 per McDonnell Douglas Service Bulletin DC9-32-315 and Boeing Service Bulletin MD90-32-033, Revision 01, both dated October 24, 2000. The commenter states that both of those service bulletins contain statements that they have been approved as an alternative methods of compliance (AMOC) with the requirements of AD 97-02-10. The commenter notes that paragraph (f)(2) of the proposed AD states, “Alternative methods of compliance, approved previously in accordance with AD 97-02-10, amendment 39-9895, are approved as alternative methods of compliance with paragraph (f)(1) of this AD.”

The FAA partially agrees. Operators are given credit for work previously performed by means of the phrase in the “Compliance” section of the AD that states, “Required as indicated, unless accomplished previously.” Therefore, in the case of this AD, if the required actions have been accomplished before the effective date of this AD, this AD does not require those actions to be repeated. However, we find that clarification with regard to paragraph (f)(2) of this AD is necessary. AMOCs approved previously in accordance with AD 97-02-10 are approved as AMOCs with this AD, not just paragraph (f)(1) of this AD as referenced in the proposed AD. Therefore, we have revised paragraph (f)(2) of this AD accordingly.

One commenter requests that the applicability of the proposed AD be revised to apply to affected airplanes on which upper lock link, part number (P/N) 3914464, has been installed.

The FAA agrees that revising the applicability would clarify that the AD affects those applicable airplanes equipped with upper lock links, P/N 3914464-1, -501, or -503. We have revised the applicability of the final rule to “Model DC-9, DC-9-80, and C-9 series airplanes; Model MD-88 airplanes; and Model MD-90 airplanes; as listed in Boeing Service Bulletins DC9-32-315, and MD90-32-033, both Revision 01, dated October 24, 2000; certificated in any category; equipped with upper lock links, P/N 3914464-1, -501, or -503.” In addition, we have revised the P/N of those links in paragraphs (a) and (c)(2)(iii) of the final rule to include the specific dash numbers.

One commenter requests that the applicability of paragraphs (a)(1) and (a)(2) of the proposed AD be revised to include a reference to paragraph (c) of AD 97-02-10, in addition to the reference to paragraph (c)(1) of AD 97-02-10. The commenter is concerned that there is a time gap between inspections required by paragraph (c) of AD 97-02-10 and those required by paragraphs (a)(1) and (a)(2) of the proposed AD.

The FAA does not agree. We did not reference paragraph (c) of AD 97-02-10 in the applicability of paragraph (a)(1) or (a)(2) of the proposed AD because that paragraph only requires an initial inspection. The follow-on (i.e., repetitive inspections) and corrective (i.e., replacement) actions occur in paragraph (c)(1) of AD 97-02-10.

The FAA's intent in paragraph (a)(1) of this AD is to ensure that operators that have accomplished the inspection per paragraph (c)(1) of AD 97-02-10 will accomplish the required removal and inspections “before 5,000 landings since the last inspection done per paragraph (c)(1) of AD 97-02-10, or within 90 days after the effective date of this AD, whichever occurs later.” If an airplane accumulates 5,000 landings just after the effective date of this AD, then the operator would have 90 days to accomplish the AD.

The FAA's intent in paragraph (a)(2) of this AD is to ensure that operators that have NOT accomplished the inspection per paragraph (c)(1) of AD 97-02-10 will accomplish the required removal and inspections “within 2,500 landings on the NLG after the effective date of this AD.” Those affected by paragraph (a)(2) of this AD include but are not limited to: the upper lock links found to be exempt in AD 97-02-10 and airplanes that have been added to the applicability of this AD, which were NOT subject to the requirements of AD 97-02-10.

In light of these findings, the FAA finds that no change to the final rule is necessary in this regard.

One commenter requests that all areas of the proposed AD that specify reidentifying the lock link with an “F” after the part number include a “compressive vibro-peening etch” method in addition to the electro chemical deep etch method identified in the proposed AD. The commenter states that the results of a Boeing stress analysis revealed that, “although an electro chemical deep etch process is the preferred method, the use of a vibro-peening, compressing tool to scribe an “F” after the part number will not reduce the overall strength or fatigue life of the unit.” The commenter also notes that McDonnell Douglas Service Bulletin DC9-32-315, dated March 11, 1999, describes procedures for a non-descript procedure “electro etch” to apply an “F” after the part number, and that it used a “vibro-peening” tool to etch the “F” in the material on all of its airplanes.

The FAA does not agree. As discussed in the preamble of the supplemental NPRM, Revision 01 of Boeing Service Bulletin DC9-32-315, dated October 24, 2000, redefines the type of etching method to be used when marking certain parts as “electro chemical deep etch method.” We find only the electro chemical deep etch method to be acceptable for compliance with the reidentification requirements of this AD based on the testing that Boeing has done to support this method. At this time, Boeing has not conducted sufficient testing of the compressive vibro-peening process.

For clarification purposes, one commenter requests that the compliance time specified in paragraphs (a)(2) and (d) of the proposed AD be revised to within 2,500 landings on the NLG “upper lock link.” The FAA concurs and has revised those paragraphs of the final rule accordingly.

One commenter requests that paragraph (c)(2)(ii) of the proposed AD be revised to include the following statement: “If an operator can track the location and limits of each individual link, then painting of the black stripe is not necessary.” The commenter states that adding a black paint strip to the non-die forged link will add no value to the inspection and replacement tracking of the part for ABX.

The FAA does not agree. The black stripe is used to distinguish the upper lock links made from plate or bar material that are being repetitively inspected until they are replaced. We have confidence that operators have the capability to track these parts. However, we have determined that the black stripe should be painted adjacent to the part number to distinguish the upper lock link from other parts.

One commenter would like confirmation that if no manufacturer's serial number is found stamped on the upper lock link, the link is not from the affected lot of hand forged links.

The FAA agrees with the commenter that if no manufacturer's serial number is found stamped on the upper lock link, the link is not from the affected lot of hand forged links. Therefore, operators must accomplish the etch inspection required by paragraph (c) of this AD, as specified in paragraph (b)(1) of this AD.

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 2,100 Model DC-9, DC-9-80, and C-9 series airplanes; Model MD-88 airplanes; and Model MD-90 airplanes of the affected design in the worldwide fleet. The FAA estimates that 1,400 airplanes of U.S. registry will be affected by this AD.

It will take approximately 1 work hour per airplane to accomplish the required inspections of the NLG upper lock link, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of this inspection required by this AD on U.S. operators is estimated to be $84,000, or $60 per airplane.

It will take approximately 4 work hours per airplane to accomplish each required replacement of the NLG upper lock link, at an average labor rate of $60 per work hour. Required parts will cost approximately $5,803 per airplane. Based on these figures, the cost impact of each replacement required by this AD on U.S. operators is estimated to be $8,460,200, or $6,043 per airplane.

The cost impact figures discussed above are 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 .

On March 20, 2001, we published a notice of proposed rulemaking (NPRM) entitled Drawbridge Operation Regulations; Gulf Intracoastal Waterway, Boca Grande, Charlotte County, FL in the Federal Register (66 FR 15677). We did not receive any letters commenting on the proposed rule. No public hearing was requested and none was held.

The Gasparilla Island Causeway Drawbridge across the Gulf Intracoastal Waterway, mile 34.3, has a vertical clearance of 9 feet at mean high water and a horizontal clearance of 81 feet. The owner of the bridge requested a change to current operating schedule in effect from January 1 through May 31. The owner requested that scheduled openings start at 7 a.m., three hours earlier than the current regulations provide, to ease the flow of seasonal vehicular traffic during the morning. This rule will ease the seasonal vehicle traffic flow during the morning rush hour and have little to no impact on vessel traffic.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not significant under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979) because this rule only extends the existing bridge operating schedule from January 1 to May 31 for three hours in the morning and still provides for openings every 15 minutes.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this final rule would not have a significant economic impact on a substantial number of small entities because the rule only slightly alters the current bridge operating schedule and still provides for openings every 15 minutes.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. If the rule will affect your small business, organization, or government jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed under FOR FURTHER INFORMATION CONTACT for assistance in understanding this rule.

We also have a point of contact for commenting on actions by employees of the Coast Guard. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

This final rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 1313, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that this rule does not have implications for federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this proposed rule would not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

We considered the environmental impact of this rule and concluded that, under, Figure 2-1, paragraph 32(e) of Commandant Instruction M16475.1D, this rule is categorically excluded from further environmental documentation. A “Categorical Exclusion Determination” is available in the docket where indicated under ADDRESSES.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it 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.

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

This supplementary information section is organized as follows:

This document is our approval of the SIP revision request that OEPA has submitted for its NSR program. In part, this document follows up on our April 22, 1996 proposed rulemaking action (61 FR 17669), in which we proposed to conditionally approve the SIP for general NSR rules and NSR rules for nonattainment areas. In this document, we address a series of SIP revisions made by OEPA since our April 22, 1996 proposal and explain why those revisions are approvable. We also approve additions to the SIP for general NSR language and for public notice procedures.

Because the fully approved NSR program is similar to the program that OEPA already operates under delegated authority, air pollution sources will generally not be affected by this action. Under the additional public notice procedures, however, people must file NSR permit appeals with OEPA rather than with the EPA Environmental Appeals Board as they have been doing under the delegated program.

OEPA submitted its first NSR SIP revision request on January 31, 1972, and submitted replacement regulations on June 6, 1973. The regulations submitted by the State provided requirements, such as best available technology, that were meant to be uniformly applied throughout the State.

The Clean Air Act Amendments (CAAA) of 1977, however, required States to go further than uniformly applied regulations. The CAAA of 1977 provided for the designation of areas within a State as “attainment” or “nonattainment.” An “attainment” area meets the National Ambient Air Quality Standards (NAAQS) for one of six criteria pollutants: Total suspended particulates, sulfur dioxide, ozone, carbon monoxide, nitrogen dioxide and lead. A “nonattainment” area does not meet the NAAQS for one or more pollutants. The CAAA of 1977 required States to adopt more stringent regulations, such as offsets and lowest achievable emission rate (LAER), for new pollution sources in nonattainment areas.

OEPA submitted a request to incorporate revised regulations in the SIP on October 4, 1982, and January 24, 1993, in order to comply with the CAAA of 1977. These revised regulations sought to add the offset requirements to the SIP by incorporating Appendix S to Title 40, Part 51 of the Code of Federal Regulations. We granted only limited approval of the revised regulations on September 8, 1993 (58 FR 47214), stating that the regulations did not satisfy the nonattainment area planning requirements of Title I, Part D of the Clean Air Act (CAA).

The CAAA of 1990 imposed yet further NSR requirements for nonattainment areas. Pursuant to these latter amendments, OEPA submitted a request to revise the entire SIP package on August 20, 1993. We proposed to disapprove the SIP revision request because it was not sufficient to satisfy the Part D requirements of the CAA on March 4, 1994 (59 FR 10349). The final disapproval of the State request was published on September 21, 1994 (59 FR 48392).

OEPA submitted another SIP revision request on March 1, 1996. On April 22, 1996 (61 FR 17669), we proposed to conditionally approve the general and nonattainment provisions in the SIP. We stated that the proposed provisions were deficient for not providing a definition for “pollution control project.” We stated that this deficiency had to be corrected in order for the nonattainment provisions to be fully approved. OEPA subsequently submitted revisions to its request dated March 1, 1996, April 16, 1997, September 5, 1997, December 4, 1997, and April 21, 1998. We have not taken formal action on our proposed conditional approval of the nonattainment NSR program, nor have we previously acted on the subsequent SIP revision requests. The subsequent SIP revision requests allow us to fully approve the program for reasons described below.

The CAA requires that the public be given sufficient time to comment on a permit before the permit is issued. On August 19, 1999, OEPA submitted a request for approval of the incorporation of OAC 3745-47-01, 3745-47-02, 3745-47-03, 3745-47-05, 3745-47-07, and 3745-47-08(D) into the SIP.

Part D of Title I of the CAA requires OEPA to submit a SIP revision for NSR rules for nonattainment areas. OEPA submitted this SIP in the form of OAC 3745-31-21 to 3745-31-27. These rules were the subject of our April 22, 1996 proposed conditional approval. OEPA also submitted general NSR provisions applying to both attainment and nonattainment areas in the form of OAC 3745-31-01 to 3745-31-10.

Part C of Title I of the CAA requires public notice procedures for attainment areas. 40 CFR 51.165 and 51.166 contain the requirements for an NSR permitting program and for the public noticing of permits. OEPA satisfied these requirements by submitting OAC 3745-47-01, 3745-47-02, 3745-47-03, 3745-47-05, 3745-47-07 and 3745-47-08(D).

Yes, because OEPA has submitted rules that correct the deficiency that had prevented us from fully approving the rules. The January 21, 1997 submittal introduced a definition for “pollution control project” at OAC 3745-31-01(TT). OEPA's definition comports with the Federal definition at 40 CFR 51.165 (a)(1)(xxv).

The OEPA submittals subsequent to the March 1, 1996 revision request made some other definitional changes that we find approvable. The submittals amended or added the definitions for the following terms in OAC 3745-31-01 to make the Rule more consistent with 40 CFR 51: “Actual emissions,” “electric utility steam generating unit,” “major modification,” “reactivation of a very clean coal-fired electric utility steam generating unit,” “repowering,” and “representative actual emissions.” Because these amendments and additions make the Rule more consistent with Federal regulations, we find them approvable.

The submittals amended or added the definitions of the following terms to make them clearer or to consolidate the definitions at OAC 3745-31-01: “Clean coal technology demonstration project,” “major modification,” “modify” or “modification,” “net emissions increase,” and “temporary clean coal technology demonstration project.” Because these amendments and additions clarify and reorganize the rule without changing any of the definitions, we find them approvable.

The submittals amended the definition of “potential to emit” (PTE) at OAC 3745-31-01 in order to allow emission limits that are practically and legally enforceable by the State to be used to restrict the potential to emit of a source. OEPA has made this clarifying change based on the Federal definition of PTE being stricken by the Court ruling in National Mining Ass'n v. United States Environmental Protection Agency, 59 F.3d 1351 (D.C. Cir. 1995). Because we have not reformulated a definition for PTE, and because OEPA's amendment here comports with our guidance, we find this requested amendment approvable. Future changes to the requested SIP revision's definition of PTE may become necessary if we reformulate our PTE policy in the future.

The SIP revision requests amended the definition of “modify or modification” at OAC 3745-31-01 as it applies to solid waste disposal facilities and infectious waste treatment facilities. The definition now requires a permit only for modifications that substantially increase the limits of solid waste placement horizontally or vertically, rather than for modifications that substantially change the depth of excavation, finished topography, or total capacity. We find this amendment approvable because it will reduce the number of permits issued for modifications that have no significant impact on air quality. Second, the definition of “modify or modification” now requires permits for a modification in waste handling, an increase in treatment capacity, or any other substantial change of an infectious waste treatment facility. Because this revision request broadens the scope of the term “modify or modification” to include substantial changes at infectious waste treatment facilities, we find it approvable.

Yes. OEPA's NSR attainment rules fulfill the requirements of the Clean Air Act with three exceptions: OEPA's rules do not include a 25 tons per year significance level for particulate matter; the 50 ton per year significance level for municipal solid waste landfill emissions as required by 40 CFR 51.166(b)(23)(I); and because total reduced sulfur and reduced sulfur compounds incorrectly exclude hydrogen sulfide. In a December 5, 2000, letter seeking comment on rule changes to OAC 3745-31, OEPA committed to correct the definition of significance in OAC 3745-31. Because OEPA's rules meet all of the requirements of 40 CFR 51.165 and 51.166 with these exceptions and OEPA has started the process to correct the deficiencies, it is appropriate to finalize the conditional approval. The conditional approval provides that if OEPA does not submit approvable changes within one year timeframe, we will disapprove OEPA's attainment rules.

Yes, because they fulfill the public participation requirements specified in Part C of Title I of the CAA, 40 CFR 51.165, and 40 CFR 51.166.

In a June 21, 1996 letter, the Ohio Electric Utility Institute submitted two formal comments in response to our proposed conditional approval of Ohio's NSR program. Below are the comments and our responses.

Comment: “In [the April 22, 1996 proposed conditional approval 61 FR 17669], USEPA states that, because of certain definitional omissions, “Ohio has not given electric operating units the additional flexibility that the Federal rules would otherwise allow” (presumably under the so-called WEPCO rules, which are incorporated into the Federal New Source Review program). USEPA goes on to state: “On this point, the state [requirements are] more stringent than the federal requirements and, therefore, are approvable.” (See pages 17673-17674.) Regarding USEPA's contention that OEPA did not intend to incorporate the flexibility afforded by the WEPCO rules as part of the Ohio New Source Review program, the Utilities have the following two comments.

“First, the mere absence of certain federal definitions from the submitted New Source Review rules cannot be construed as evidence of Ohio EPA's intent to adopt a more stringent federal program. On the contrary, Ohio EPA has had a consistent policy of implementing its New Source Review program to afford the maximum flexibility provided by Federal law. Ohio EPA has implemented its policy of maximum flexibility, even though Ohio New Source Review rules did not include many specific Federal definitions. For instance, although Ohio EPA regulations never specifically provided for a “netting” rule in order to avoid PSD [Prevention of Significant Deterioration] or nonattainment review, Ohio EPA has consistently implemented its New Source Review permitting program to allow sources to “net” out of PSD or nonattainment review. Ohio accomplished this important policy decision by relying on other parts of Ohio statutory law and regulatory provisions which required Ohio EPA to issue permits in accordance with Federal law. This practice of incorporating Federal flexibility “by reference” into the Ohio air pollution control laws is one that is well established in Ohio and well understood by the Region. Accordingly, it is inappropriate for USEPA to infer that certain definitional omissions reflect an intent by Ohio EPA to be more stringent than Federal law. The Utilities suggest that in any final action on these rules, USEPA delete any textual material which implies or suggests that Ohio EPA did not intend to allow maximum WEPCO flexibility.”

Our response to this comment: EPA's comment in the relevant proposed rule deals only with OEPA's rulemaking, and not the State's implementation policy. It is in the public interest to note whenever Ohio's SIP is more stringent or less stringent than Federal requirements. Neither the State's implementation history nor their opinion on WEPCO flexibility bear on EPA's evaluation that the SIP provisions are acceptable. No inference is made or intended in this action regarding OEPA's “intent.”

Comment: “As a second comment, the Utilities note that several other commentors (including the Ohio Chamber of Commerce and the Ohio Petroleum Council) have suggested that USEPA refrain from any final approval of the Ohio New Source Review rules until Ohio EPA is afforded time to submit technical conforming amendments to the regulations which will clearly and explicitly refer to the WEPCO definitional requirements. The Utilities strongly support other Ohio industry groups on this point. Because of the vital importance of the WEPCO rule to the Utilities in Ohio, USEPA should take no final position that suggests such flexibility has been revoked. Rather, USEPA should allow Ohio EPA the time to submit the technical amendments necessary to conform the Ohio rules to the WEPCO definitions.”

Our response to this comment: We are obligated to act on OEPA's rule submittals as they are received unless OEPA requests a delay in action. OEPA has made no such request, nor have they stated any intention to submit technical amendments. Therefore, we are acting on the request as submitted by the State.

In this rule, EPA approves OEPA's March 1, 1996 request, as amended by OEPA's April 16, 1997 request, for additions and revisions to OAC 3745-31-01 to 3745-31-10, and OAC 3745-31-21 to 3745-31-27. EPA also approves OEPA's August 10, 1999 request for additions to OAC 3745-47-01, 3745-47-02, 3745-47-03, 3745-47-05, 3745-47-07 and 3745-47-08(D).

EPA is publishing this action without prior proposal because EPA views this action as a noncontroversial revision and anticipates no adverse comments. However, in a separate document in this Federal Register publication, EPA is proposing to approve the State Plan should adverse or critical written comments be filed. This action will be effective without further notice unless EPA receives relevant adverse written comment by March 25, 2002. Should EPA receive such comments, it will publish a final rule informing the public that this action will not take effect. Any parties interested in commenting on this action should do so at this time. If no such comments are received, the public is advised that this action will be effective on April 22, 2002.

Nothing in this action should be construed as permitting, allowing or establishing a precedent for any future request for revision to any State plan. Each request for revision to a State Plan shall be considered separately in light of specific technical, economic, and environmental factors and in relation to relevant statutory and regulatory requirements.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not have 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 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. 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. 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. section 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. section 804(2). This rule will be effective April 22, 2002.

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 April 22, 2002. 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).)

This supplemental information section is organized as follows:

In this action, EPA is approving into the Minnesota SO 2 SIP a site-specific revision for Koch, located in the Pine Bend Area of Rosemount, Dakota County, Minnesota. Specifically, EPA is approving and thereby incorporating Amendment No. 5 to Koch's administrative order (order) into the Minnesota SO 2 SIP.

EPA is taking this action because the state's submittal for Koch is fully approvable. The SIP revision provides for attainment and maintenance of the SO 2 National Ambient Air Quality Standards (NAAQS) and satisfies the applicable SO 2 requirements of the Act. A more detailed explanation of how the state's submittal meets these requirements is in EPA's November 9, 2001 Technical Support Document (TSD).

EPA designated Air Quality Control Region (AQCR) 131, which contains Dakota County, as a primary SO 2 nonattainment area on March 3, 1978 (43 FR 8962) based on monitored violations of the primary SO 2 NAAQS from 1975 through 1977. In response to the Part D requirements of the Act, MPCA submitted a final SO 2 plan for AQCR 131 on August 4, 1980. EPA approved the Minnesota Part D SO 2 SIP for AQCR 131 on April 8, 1981 (46 FR 20996). Based on monitored violations recorded in 1982, EPA declared the Dakota County SO 2 SIP inadequate and issued a call for revisions to the Minnesota SO 2 SIP on December 5, 1984 (49 FR 47488).

On July 29, 1992 MPCA submitted to EPA a revision to the SO 2 SIP for the Dakota County/Pine Bend SO 2 nonattainment area demonstrating attainment of the SO 2 NAAQS in response to the SIP call. The modeling for the SIP attainment demonstration showed that Koch was a culpable source for the 1982 violations and therefore, MPCA issued an order to Koch based on the modeling. The state submitted the revised order for Koch to EPA on February 25, 1994 and EPA took final action on September 9, 1994 (59 FR 46553), to approve Minnesota's SO 2 SIP revision submittals for the Dakota County/Pine Bend area of AQCR 131.

On September 7, 1994, MPCA submitted to EPA a request to redesignate the Pine Bend area of AQCR 131 to attainment. EPA approved the state's request in a direct final action published on May 31, 1995 (60 FR 28339) redesignating the Pine Bend area to attainment of the SO 2 NAAQS.

On December 20, 2000, MPCA submitted a SIP revision consisting of Amendment No. 4 to Koch's order. Amendment No. 4 requires Koch to reduce emissions of nitrogen oxides (NO X ) and SO 2 at its #2 crude unit. EPA approved Amendment No. 4 into the SO 2 SIP on June 12, 2001 (66 FR 31545).

The Fall 2001 Turnaround project is the second project initiated by Koch to reduce emissions of NO X and SO 2 pursuant to a December 22, 2000 consent decree in United States v. Koch Petroleum Group, L.P., Civil Action No. 00-2756-PAM-SRN. In this project Koch will modify the #2 crude unit, 32 unit, and 33 unit at the refinery. Koch addressed most of the #2 crude unit project in Amendment No. 4 of the order. Amendment No. 5 modifies the #2 crude unit by adding low-NO X burners to heater 12H-4, includes the addition of low-NO X burners to heaters 32H-4,5,6, 33H-31, and changes to the convection sections of heaters 33H-31 and 33H-32. Koch will use heaters 33H-31 and 33H-32 for heating process streams instead of steam generation. Because of these changes, the design stack temperatures for heaters 12H-4, 32H-5,6,7 and 33H-32 will drop below the stack temperatures used in the 1992 modeling. The current SIP for Koch requires a revision to the plan if it revises stack parameters.

The May 2, 2001 revision submitted by MPCA requests that EPA approve Amendment No. 5 to Koch's order into the Minnesota SO 2 SIP. Amendment No. 5 authorizes the installation of low-NO X burners to heaters 12H-4, 32H-4,5,6, 33H-31, and 33H-32. Heaters 33H-31 and 33H-32 will be used for heating process streams instead of steam generation. Within 180 days after the installation of the low-NO X burners, heater 33H-31 will burn refinery gas and will no longer be able to burn fuel oil. The revised order allows heater 16H-1 to operate on refinery fuel gas or natural gas with allowable SO 2 emissions of 5.6 lb/hr on a 3-hour average, and 15.3 tons of SO 2 per year. The revised order also limits heater 11H-6 to SO 2 emissions of 9.3 lb/hr on a 3-hour average, and 25.2 tons of SO 2 per year.

The MPCA submitted air quality modeling in support of Koch's SO 2 SIP revision. MPCA's modeling demonstrates that the SO 2 emissions from the Fall 2001 Turnaround project do not threaten attainment of the SO 2 NAAQS when factored into the 1992 attainment demonstration modeling. As discussed below, SO 2 emissions will decrease.

Net baseline emissions are the allowable emission rates used in the approved 1992 SIP attainment demonstration for the Pine Bend Area. The SO 2 emissions for the units modified by the current project totaled 2443 tons/year in the 1992 SIP. Total SO 2 emissions associated with the current project are 365 tons/year. The difference in SO 2 emissions from the 1992 SIP for the affected sources and the current project is a decrease of more than 2,000 tons/year. A more detailed discussion is in EPA's November 9, 2001 TSD.

EPA is approving the site-specific SIP revision for Koch Petroleum Group, LP, located in the Pine Bend area of Rosemount, Dakota County, Minnesota. Specifically, EPA is incorporating Amendment No. 5 to Koch's Administrative Order into the Minnesota SO 2 SIP. The State submitted this SIP revision on May 2, 2001 as a result of negotiations to a consent decree between EPA, MPCA and Koch, in which Koch proposed a series of modifications at the Pine Bend refinery. This project consists primarily of the modification of existing process heaters by replacing existing burners with low-NO X burners, thereby substantially decreasing SO 2 emissions at the facility. As described above, this project provides for attainment and maintenance of the SO 2 NAAQS in the Pine Bend area and is therefore fully approvable.

The EPA is publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the state plan if relevant adverse comments are filed. This rule will be effective April 22, 2002, without further notice unless we receive relevant adverse comments by March 25, 2002. If we receive such comments, we will withdraw this action before the effective date by publishing a subsequent document that will withdraw the final action. We will then address all public comments received in a subsequent final rule based on the proposed action. The EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. If we do not receive any comments, this action will be effective April 22, 2002.

Nothing in this action should be construed as permitting or allowing or establishing a precedent for any future implementation plan. Each request for revision to the SIP shall be considered separately in light of specific technical, economic, and environmental factors and in relation to relevant statutory and regulatory requirements.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely 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 this action under section 801 because this is a rule of particular applicability.

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 April 22, 2002. 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).)

On October 20, 1994, the State submitted EDCAPCD Rule 233, for which EPA published a limited disapproval in the Federal Register on January 13, 2000 (65 FR 2052). The effective date of our limited disapproval was February 14, 2000. EPA's disapproval action started an 18-month clock for the imposition of one sanction (followed by a second sanction 6 months later) and a 24-month clock for promulgation of a Federal Implementation Plan (FIP). The State subsequently submitted a revised version of Rule 233 on November 09, 2001. In the Proposed Rules section of today's Federal Register , EPA has proposed conditional approval of the November 2001 submittal.

Based on the proposed conditional approval, EPA believes that it is more likely than not that the State has corrected the original disapproval deficiencies. Therefore, EPA is taking this interim final rulemaking action finding that the State has corrected the deficiencies. However, EPA is also providing the public with a opportunity to comment on this interim final action. If, based on the comments on this action and the comments on EPA's proposed conditional approval, EPA determines that the State's submittal is not approvable and this interim final action was inappropriate, EPA will propose to disapprove the State's submittal and will take interim final action finding that the State has not corrected the original disapproval deficiencies. Upon a final disapproval of the State's submittal, EPA would finalize the interim final finding, finding that the State has not corrected the deficiencies.

This action does not stop the sanctions clock that started for this area on February 14, 2000, the effective date of our disapproval. However, this action will stay the imposition of the offset sanction and will defer imposition of the highway sanction. See 40 CFR 52.31(d)(2)(ii). If EPA takes final action conditionally approving the State's submittal, such action will continue any deferral or stay of the offset and highway sanctions. When the State meets its commitment and EPA takes final action fully approving the State's submittal meeting those commitments, such action will permanently stop the sanctions clock and will permanently lift any imposed, stayed or deferred sanctions. However, if at any time EPA determines that the State, in fact, did not correct the disapproval deficiencies, as appropriate, EPA either will withdraw this interim final determination or take final action finding that the State has not corrected the deficiencies. Such action will retrigger the sanctions consequences as described in 40 CFR 52.31.

EPA is taking interim final action finding that the State has corrected the disapproval deficiencies that started the sanctions clock. Based on this action, imposition of the offset sanction will be stayed and imposition of the highway sanction will be deferred until EPA takes final action fully approving the State's submittal or EPA takes action proposing or finally disapproving in whole or part the State submittal. If EPA takes final action conditionally approving the State's submittal, any deferral or stay of the sanctions clock will remain in place. If EPA subsequently takes final action fully approving the State submittal meeting its commitment, any sanctions clocks will be permanently stopped and any imposed, stayed or deferred sanctions will be permanently lifted.

Because EPA has preliminarily determined that the State has an approvable plan, relief from sanctions should be provided as quickly as possible. Therefore, EPA is invoking the good cause exception to the 30-day notice requirement of the Administrative Procedure Act because the purpose of this notice is to relieve a restriction. See 5 U.S.C. 553(d)(1).

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 32111, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely stays and defers federal sanctions. 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 only stays an imposed sanction and defers the imposition of another, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely stays a sanction and defers another one, 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.

This rule does not contain technical standards; 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 effected conduct. EPA has compiled 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. However, section 808 provides that any rule for which the issuing agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rule) that notice and public procedure thereon are impractible, unnecessary, or contrary to the public interest, shall take effect at such time as the agency promulgating the rule determines. 5 U.S.C. 808(2). As stated previously, EPA has made such a good cause finding, including the reasons therefor, and established an effective date of February 21, 2002. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the 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 April 22, 2002. 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 rules. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Throughout this document wherever “we” or “our” is used means EPA.

The Act requires States to observe certain procedural requirements in developing implementation plans and plan revisions for submission to EPA. Section 110(a)(2) of the Act provides that each implementation plan admitted by a State must be adopted after reasonable notice and public hearing. Section 110(1) of the Act similarly provides that each revision to an implementation plan submitted by a State under the Act must be adopted by such State after reasonable notice and public hearing.

EPA also must determine whether a submittal is complete and therefore warrants further EPA review and action (see section 110(k)(1) and 57 FR 13565). EPA's completeness criteria are set out at 40 CFR part 51, appendix V. EPA attempts to make completeness determinations within 60 days of receiving a submission. However, a submittal is deemed complete by operation of law if a completeness determination is not made by EPA six months after receipt of submission.

To entertain public comment, the State of Utah, after providing adequate public notice, held a public hearing on March 1, 1999 to address revisions to the SIP. Following the public hearings and public comment period, the Utah Air Quality Board adopted the revisions. Revisions to R307-101-2 (previously codified as R307-101-1) were adopted on April 1, 1999.

The Governor of Utah submitted the revisions to the SIP in a letter dated April 19, 2000. The SIP revisions were deemed complete by operation of law.

The revisions the State of Utah's SIP were made to reflect the current federal definitions of “significant” and “volatile organic compounds”. The first revision to the SIP incorporates changes to 40 CFR 51.166(23)(i), which was amended to establish significance levels for four pollutants emitted from municipal waste combustors and solid waste landfills, thus changing the definition for “significant”. The significance level is used to determine the scope of review needed for an application to increase emissions for sources which are covered by the Prevention of Significant Deterioration (PSD) requirements. The second SIP revision incorporates by reference EPA's definition of “volatile organic compound” (VOC) found in 40 CFR 51.100(s)(1), July 1, 1998. The definition of VOC was amended to delete methyl acetate from the list of volatile organic compounds that contribute to the formation of ground level ozone, thus changing the definition of “volatile organic compound”. EPA believes these revisions are acceptable and is approving them into the SIP.

The April 19, 2000 submittal also contained revisions to definitions in Utah's Air Conservation Regulations section R307-410-4. The Governor of Utah withdrew these revisions on October 16, 2000.

EPA is approving the revisions to the Utah SIP submitted on April 19, 2000. The revisions incorporate the latest federal definitions for “significant” and “volatile organic compound” and amend the State's Air Conservation Regulations section R307-101-2. EPA believes these revisions to the SIP are consistent with the Clean Air Act and EPA policy.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments However, in the “Proposed Rules” section of today's Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments be filed. This rule will be effective April 22, 2002 without further notice unless the Agency receives adverse comments by March 25, 2002. If the EPA receives adverse comments, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. 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 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely 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. section 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. section 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 April 22, 2002. 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).)

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This section provides additional information by addressing the following questions:

Section 110 of the Clean Air Act (CAA) requires states to develop air pollution regulations and control strategies to ensure that state air quality meets the national ambient air quality standards established by us. These ambient standards are established under section 109 of the CAA, and they currently address six criteria pollutants. These pollutants are: carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide.

Each state must submit these regulations and control strategies to us for approval and incorporation into the Federally-enforceable SIP.

Each Federally-approved SIP protects air quality primarily by addressing air pollution at its point of origin. These SIPs can be extensive, containing state regulations or other enforceable documents and supporting information such as emission inventories, monitoring networks, and modeling demonstrations.

In order for state regulations to be incorporated into the Federally-enforceable SIP, states must formally adopt the regulations and control strategies consistent with state and Federal requirements. This process generally includes a public notice, public hearing, public comment period, and a formal adoption by a state-authorized rulemaking body.

Once a state rule, regulation, or control strategy is adopted, the state submits it to us for inclusion into the SIP. We must provide public notice and seek additional public comment regarding the proposed Federal action on the state submission. If adverse comments are received, they must be addressed prior to any final Federal action by us.

All state regulations and supporting information approved by us under section 110 of the CAA are incorporated into the Federally-approved SIP. Records of such SIP actions are maintained in the Code of Federal Regulations (CFR) at Title 40, Part 52, entitled “Approval and Promulgations of Implementation Plans.” The actual state regulations which are approved are not reproduced in their entirety in the CFR outright but are “incorporated by reference,” which means that we have approved a given state regulation with a specific effective date.

Enforcement of the state regulation before and after it is incorporated into the Federally-approved SIP is primarily a state responsibility. However, after the regulation is Federally approved, we are authorized to take enforcement action against violators. Citizens are also offered legal recourse to address violations as described in the CAA.

The CAA Amendments of 1990 require all states to develop operating permits programs that meet certain Federal criteria. In implementing this program, the states are to require certain sources of air pollution to obtain permits that contain all applicable requirements under the CAA. One purpose of the part 70 operating permits program is to improve enforcement by issuing each source a single permit that consolidates all of the applicable CAA requirements into a Federally-enforceable document. By consolidating all of the applicable requirements for a facility into one document, the source, the public, and the permitting authorities can more easily determine 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 our implementing regulations. For example, all sources regulated under the acid rain program, regardless of size, must obtain permits. Examples of major sources include those that emit 100 tons per year or more of volatile organic compounds, carbon monoxide, lead, sulfur dioxide, nitrogen dioxide, or PM 10 ; 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.

Revisions to the state and local agencies operating permits program are also subject to public notice, comment, and our approval.

The state of Missouri has requested that EPA approve as a revision to the Missouri SIP and part 70 Operating Permits Program recently adopted revisions to rule 10 CSR 10-6.110, “Submission of Emission Data, Emission Fees, and Process Information.”

This rule applies to sources that are required to obtain a construction or Title V permit and to sources seeking an exemption from major source permitting requirements. The rule requires the submittal of an Emission Inventory Questionnaire (EIQ) and payment of emission fees based on information submitted in the EIQ.

Missouri updates this rule annually. The only revision this year was to make the rule applicable to calendar year 2001 emissions by revising the applicable date in section (5)(A) from 2000 to 2001. The annual emission fee was not revised, so it remains at twenty-five dollars and seventy cents ($25.70) per ton. This fee, along with program cash reserves, is sufficient to fund the cost of administering the part 70 program.

Further discussion and background information is contained in the technical support document prepared for this action, which is available from the EPA contact listed above.

The state submittal has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submittal also satisfied the completeness criteria of 40 CFR part 51, appendix V. In addition, as explained above and in more detail in the technical support document which is part of this document, the revisions meet the substantive SIP requirements of the CAA, including section 110 and implementing regulations. Finally, the submittal meets the substantive requirements of Title V of the 1990 CAA Amendments and 40 CFR part 70.

EPA is processing this action as a direct final action because the revisions make routine changes to the existing rules which are noncontroversial, and make regulatory revisions required by state statute. Therefore, we do not anticipate any adverse comments.

Final action: EPA is approving as an amendment to the Missouri SIP revisions to rule 10 CSR 10-6.110, “Submission of Emission Data, Emission Fees, and Process Information” pursuant to section 110. EPA is also approving this rule as a program revision to the state's part 70 Operating Permits Program pursuant to part 70.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the 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 . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the 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 April 22, 2002. 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)).

Throughout this document wherever “we,” “us,” or “our” are used we mean the Environmental Protection Agency.

In this action, we are approving a change in the legal designation of the Billings area from nonattainment for CO to attainment and we're approving the maintenance plan that is designed to keep the area in attainment for CO for the next 10 years.

We originally designated the Billings area as nonattainment for CO under the provisions of the 1977 Clean Air Act (CAA) Amendments (see 43 FR 8962, March 3, 1978). On November 15, 1990, the Clean Air Act Amendments of 1990 were enacted (Pub. L. 101-549, 104 Stat. 2399, codified at 42 U.S.C. 7401-7671q). Under section 107(d)(1)(C) of the CAA, we designated the Billings area as nonattainment for CO because the area had been previously designated as nonattainment before November 15, 1990. The Billings area was classified as a “not classified” CO nonattainment area as the area had not violated the CO NAAQS in 1988 and 1989. 1

Under the CAA, designations can be changed if sufficient data are available to warrant such changes and if certain other requirements are met. See CAA section 107(d)(3)(D). Section 107(d)(3)(E) of the CAA provides that the Administrator may not promulgate a redesignation of a nonattainment area to attainment unless:

(i) the Administrator determines that the area has attained the national ambient air quality standard;

(ii) the Administrator has fully approved the applicable implementation plan for the area under CAA section 110(k);

(iii) the Administrator determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable implementation plan and applicable Federal air pollutant control regulations and other permanent and enforceable reductions;

(iv) the Administrator has fully approved a maintenance plan for the area as meeting the requirements of CAA section 175A; and,

(v) the State containing such area has met all requirements applicable to the area under section 110 and part D of the CAA.

Before we can approve the redesignation request, we must decide that all applicable State Implementation Plan (SIP) elements have been fully approved. Approval of the applicable SIP elements may occur prior to final approval of the redesignation request or simultaneously with final approval of the redesignation request. We note there are no outstanding SIP elements necessary for the Billings redesignation.

Section 110(k) of the CAA sets out provisions governing our actions on submissions of revisions to a SIP. The CAA also requires States to observe certain procedural requirements in developing SIP revisions for submittal to EPA. Section 110(a)(2) of the CAA requires that each SIP revision be adopted after reasonable notice and public hearing. This must occur prior to the revision being submitted by a State to us.

The Montana Department of Environmental Quality (DEQ) held a public hearing on December 19, 2000, for the Billings CO redesignation request and maintenance plan. The redesignation request and maintenance plan were adopted by the Montana DEQ directly after the hearing and became State effective December 19, 2000. These SIP materials were submitted by the Governor to us on February 9, 2001. We have evaluated the Governor's submittal and have determined that the State met the requirements for reasonable notice and public hearing under section 110(a)(2) of the CAA.

As required by under section 110(k)(1)(B) of the CAA, we reviewed these SIP materials for conformance with the completeness criteria in 40 CFR part 51, appendix V and determined that the Governor's February 9, 2001, submittal was administratively and technically complete. Our completeness determination was sent on March 16, 2001, through a letter from Jack W. McGraw, Acting Regional Administrator, to Governor Judy Martz.

EPA has reviewed the State's redesignation request and maintenance plan and believes that approval of the request is warranted, consistent with the requirements of CAA section 107(d)(3)(E). The following are descriptions of how the section 107(d)(3)(E) requirements are being addressed.

(a) Redesignation Criterion: The Area Must Have Attained The Carbon Monoxide (CO) NAAQS.

Section 107(d)(3)(E)(i) of the CAA states that for an area to be redesignated to attainment, the Administrator must determine that the area has attained the applicable NAAQS. As described in 40 CFR 50.8, the national primary ambient air quality standard for carbon monoxide is 9 parts per million (10 milligrams per cubic meter) for an 8-hour average concentration not to be exceeded more than once per year. 40 CFR 50.8 continues by stating that the levels of CO in the ambient air shall be measured by a reference method based on 40 CFR part 50, appendix C and designated in accordance with 40 CFR part 53 or an equivalent method designated in accordance with 40 CFR part 53. Attainment of the CO standard is not a momentary phenomenon based on short-term data. Instead, we consider an area to be in attainment if each of the CO ambient air quality monitors in the area doesn't have more than one exceedance of the CO standard over a one-year period. 40 CFR 50.8 and 40 CFR part 50, appendix C. If any monitor in the area's CO monitoring network records more than one exceedance of the CO standard during a one-year calendar period, then the area is in violation of the CO NAAQS. In addition, our interpretation of the CAA and our national policy, as presented in the September 4, 1992, John Calcagni policy memorandum entitled “Procedures for Processing Requests to Redesignate Areas to Attainment” (hereafter referred to as the “Calcagni Memorandum”), has been that an area seeking redesignation to attainment must show attainment of the CO NAAQS for at least a continuous two-year calendar period. In addition, the area must continue to show attainment through the date that we promulgate the redesignation to attainment in the Federal Register .

Montana's CO redesignation request for the Billings area is based on an analysis of quality assured ambient air quality monitoring data that are relevant to the redesignation request. Ambient air quality monitoring data for consecutive calendar years 1988 through 2000 show a measured exceedance rate of the CO NAAQS of 1.0 or less per year, per monitor, in the Billings nonattainment area. These data were collected and analyzed as required by EPA (see 40 CFR 50.8 and 40 CFR part 50, appendix C) and have been archived by the State in EPA's Aerometric Information and Retrieval System (AIRS) national database. Further information on CO monitoring is presented in section 56.12.3 of the State's maintenance plan. We have evaluated the ambient air quality data and determined that the Billings area has not violated the CO standard and continues to demonstrate attainment.

Because the Billings nonattainment area has quality-assured data showing no violations of the CO NAAQS for 1997, 1998, and 1999, the years the State used to support the redesignation request, the Billings area has met the first component for redesignation: demonstration of attainment of the CO NAAQS. We note that the State of Montana has also committed in section 56.12.7.4.A of the maintenance plan to the necessary continued operation of the CO monitors in compliance with all applicable federal regulations and guidelines.

(b) Redesignation Criterion: The Area Must Have Met All Applicable Requirements Under Section 110 and Part D of the CAA.

To be redesignated to attainment, section 107(d)(3)(E)(v) requires that an area must meet all applicable requirements under section 110 and part D of the CAA. We interpret section 107(d)(3)(E)(v) to mean that for a redesignation to be approved by us, the State must meet all requirements that applied to the subject area prior to or at the time of the submission of a complete redesignation request. In our evaluation of a redesignation request, we don't need to consider other requirements of the CAA that became due after the date of the submission of a complete redesignation request.

On January 10, 1980, we approved revisions to Montana's SIP as meeting the requirements of section 110(a)(2) of the CAA (see 45 FR 2034). Although section 110 of the CAA was amended in 1990, most of the changes were not substantial. Thus, we have determined that the SIP revisions approved in 1980 continue to satisfy the requirements of section 110(a)(2). For further detail, please see 45 FR 2034. In addition, we have analyzed the SIP elements that we are approving as part of this action and we have determined they comply with the relevant requirements of section 110(a)(2).

The Billings area was originally designated as nonattainment for CO on March 3, 1978 (see 43 FR 8962). Montana's original CAA Part D plan for attainment of the CO standards in the Billings area was submitted to EPA on April 24, 1979. On March 4, 1980, we proposed conditional approval of the April 24, 1979, Governor's submittal (see 45 FR 14072). On September 25, 1980, we finalized our conditional approval of this plan (see 45 FR 62982). A revision, responding to our conditions as stated in our March 4, 1980, proposed action (see 45 FR 14072), was submitted by the Governor on August 14, 1981. The Governor's 1979 and 1981 submittals relied on traffic flow improvements and projected emission reductions from mobile sources to attain the CO NAAQS. On January 16, 1986 (see 51 FR 2397), we granted full approval for the Billings CO SIP element as by 1985, ambient air quality data were showing that the area had attained the CO NAAQS.

EPA had begun development of its forthcoming post-1987 policy for carbon monoxide; however, we did not finalize our post-1987 policy for CO because the Clean Air Act (CAA) was amended on November 15, 1990. Under section 107(d)(1)(C) of the CAA, we designated the Billings area as nonattainment for CO because the area had been previously designated nonattainment before November 15, 1990. As stated previously, the Billings area was classified as a “not classified” CO nonattainment area as the area had not violated the CO NAAQS in 1988 and 1989.

Before the Billings not classified CO nonattainment area may be redesignated to attainment, the State must have fulfilled the applicable requirements of part D. Under part D, an area's classification indicates the requirements to which it will be subject. Subpart 1 of part D sets forth the basic nonattainment requirements applicable to all nonattainment areas, whether classified or nonclassifiable.

The relevant Subpart 1 requirements are contained in sections 172(c) and 176. The April 16, 1992, General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990 (see 57 FR 13498; hereafter referred to as the “General Preamble of April 16, 1992”) provides our interpretations of the CAA requirements for not classified CO areas (see specifically 57 FR 13535):

Under section 172(b), the applicable section 172(c) requirements, as determined by the Administrator, were due no later than three years after an area was designated as nonattainment under section 107(d) of the amended CAA (see 56 FR 56694, November 6, 1991). In the case of the Billings area, the due date was November 15, 1993. As the Billings CO redesignation request and maintenance plan were not submitted by the Governor until February 9, 2001, the General Preamble of April 16, 1992, provides that the applicable requirements of CAA section 172 are 172(c)(3) (emissions inventory), 172(c)(5) (new source review permitting program), and 172(c)(7) (the section 110(a)(2) air quality monitoring requirements)). See 57 FR 13535, April 16, 1992. We have determined that Part D requirements for Reasonably Available Control Measures (RACM), an attainment demonstration, reasonable further progress (RFP), and contingency measures (CAA section 172(c)(9)) are not applicable to not classified CO areas. See 57 FR 13535, April 16, 1992. It is also worth noting that we have interpreted the requirements of sections 172(c)(1) (reasonable available control measures—RACM), 172(c)(2) (reasonable further progress—RFP), 172(c)(6) (other measures), and 172(c)(9) (contingency measures) as being irrelevant to a redesignation request because they only have meaning for an area that is not attaining the standard. See the General Preamble of April 16, 1992, and the Calcagni Memorandum. Finally, the State has not sought to exercise the options that would trigger sections 172(c)(4) (identification of certain emissions increases) and 172(c)(8) (equivalent techniques). Thus, these provisions are also not relevant to this redesignation request.

Section 176 of the CAA contains requirements related to conformity. Although our regulations (see 40 CFR 51.396) require that states adopt transportation conformity provisions in their SIPs for areas designated nonattainment or subject to an EPA-approved maintenance plan, we have decided that a transportation conformity SIP is not an applicable requirement for purposes of evaluating a redesignation request under section 107(d) of the CAA. This decision is reflected in our 1996 approval of the Boston carbon monoxide redesignation. (See 61 FR 2918, January 30, 1996.)

The applicable requirements of CAA section 172 are discussed below.

Section 172(c)(3) of the CAA requires a comprehensive, accurate, current inventory of all actual emissions from all sources in the Billings nonattainment area. Our interpretation of the emission inventory requirement for “not classified” CO nonattainment areas is detailed in the General Preamble of April 16, 1992. We determined that an emissions inventory is specifically required under CAA section 172(c)(3) and is not tied to an area's proximity to attainment. We concluded that an emissions inventory must be included as a revision to the SIP and was due three years from the time of the area's designation. For “not classified” CO areas, this date became November 15, 1993. To address the section 172(c)(3) requirement for a “current” inventory, EPA interpreted “current” to mean calendar year 1990 (see 57 FR 13502, April 16, 1992).

On July 18, 1995, the Governor submitted to us the 1990 base year inventory for the Billings CO nonattainment area. We approved this 1990 base year CO emissions inventory on December 15, 1997 (see 62 FR 65613.)

The CAA requires all nonattainment areas to meet several requirements regarding NSR, including provisions to ensure that increased emissions will not result from any new or modified stationary major sources and a general offset rule. The State of Montana has a fully-approved NSR program (60 FR 36715, July 18, 1995) that meets the requirements of CAA section 172(c)(5). The State also has a fully approved Prevention of Significant Deterioration (PSD) program (60 FR 36715, July 18, 1995) that will apply after the redesignation to attainment is approved by EPA.

According to our interpretations presented in the General Preamble of April 16, 1992, “not classified” CO nonattainment areas should meet the “applicable” air quality monitoring requirements of section 110(a)(2) of the CAA as explicitly referenced by sections 172(b) and (c) of the CAA. With respect to this requirement, the State indicates in section 56.12.3 (“Ambient Air Quality Data”) of the maintenance plan, that relevant ambient CO monitoring data have been properly collected and uploaded to EPA's Aerometric Information and Retrieval System (AIRS) for the Billings area. Air quality data through 1999 are included in section 56.12.3A of the maintenance plan. We have more recently polled the AIRS database and has verified that the State has also uploaded additional ambient CO data through 2000. The data in AIRS indicate that the Billings area has shown, and continues to show, attainment of the CO NAAQS.

Information concerning CO monitoring in Montana is included in the Monitoring Network Review (MNR) prepared by the State and submitted to EPA. EPA personnel have concurred with Montana's annual network reviews and have agreed that the Billings network remains adequate. Finally, in section 56.12.7.4.A of the maintenance plan, the State commits to the continued operation of the existing Billings CO monitoring network, according to all applicable Federal regulations and guidelines, even after the Billings area is redesignated to attainment for CO.

(c) Redesignation Criterion: The Area Must Have A Fully Approved SIP Under Section 110(k) of the CAA.

Section 107(d)(3)(E)(ii) of the CAA states that for an area to be redesignated to attainment, it must be determined that the Administrator has fully approved the applicable implementation plan for the area under section 110(k).

Based on the approval into the SIP of provisions under the pre-1990 CAA, our prior approval of a SIP revision required under the 1990 amendments to the CAA, and our approval of the State's commitment to maintain an adequate monitoring network (contained in the maintenance plan), we have determined that, as of the date of this Federal Register action, Montana has a fully approved CO SIP under section 110(k) for the Billings CO nonattainment area.

(d) Redesignation Criterion: The Area Must Show That the Improvement in Air Quality Is Due To Permanent And Enforceable Emissions Reductions.

Section 107(d)(3)(E)(iii) of the CAA provides that for an area to be redesignated to attainment, the Administrator must determine that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable implementation plan (Billings CO revision as approved on January 16, 1986, see 51 FR 2397), implementation of applicable Federal air pollutant control regulations, and other permanent and enforceable reductions.

The CO emissions reductions for the Billings area were primarily derived through the Federal Motor Vehicle Control Program (FMVCP) and an intersection reconstruction that was detailed in the Billings SIP revision (see 51 FR 2397, January 16, 1986.)

In general, the FMVCP provisions require vehicle manufacturers to meet more stringent vehicle emission limitations for new vehicles in future years. These emission limitations are phased in (as a percentage of new vehicles manufactured) over a period of years. As new, lower emitting vehicles replace older, higher emitting vehicles (“fleet turnover”), emission reductions are realized for a particular area such as Billings. For example, EPA promulgated lower hydrocarbon (HC) and CO exhaust emission standards in 1991, known as Tier I standards for new motor vehicles (light-duty vehicles and light-duty trucks) in response to the 1990 CAA amendments. These Tier I emissions standards were phased in with 40% of the 1994 model year fleet, 80% of the 1995 model year fleet, and 100% of the 1996 model year fleet. The benefits to the Billings CO area of the FMVCP are further presented in section 56.12.5.B of the maintenance plan.

In addition, as part of the Billings CO SIP revision approved by EPA on January 16, 1986, intersection reconstruction was performed at Exposition Drive and First Avenue North near to where CO violations had previously occurred. The project included widening Exposition Drive from four to six lanes, widening the approach of First Avenue North to the intersection with Exposition Drive, and improving signalization to increase traffic flow and speed. This control measure is further described in section 56.12.5.B of the maintenance plan.

Finally, Yellowstone County (which Billings is a part of), as part of the County's air pollution control plan, developed regulations governing open burning including requiring permits. The State indicates in section 56.12.5.B of the maintenance plan that open burning is not a major contributor to CO levels in the Billings area on average, but may be responsible for elevated levels during certain times of the year. These regulations, that we approved into the SIP (see 66 FR 32545, June 15, 2001), allow Yellowstone County to require Best Available Control Technology (BACT) on open burning permits to limit emissions through a variety of methods including prioritizing burns. The regulations also dictate the times of year to which open burning is limited. The State indicates that a percent reduction in CO emissions would be difficult to quantify, however, the State believes that having the County's open burning regulations reduces air quality impacts.

We have evaluated the various State and Federal control measures, the 1990 base year emission inventory, and the 1996 attainment year emission inventory, and has concluded that the improvement in air quality in the Billings nonattainment area has resulted from emission reductions that are permanent and enforceable.

(e) Redesignation Criterion: The Area Must Have A Fully Approved Maintenance Plan Under CAA Section 175A.

Section 107(d)(3)(E)(iv) of the CAA provides that for an area to be redesignated to attainment, the Administrator must have fully approved a maintenance plan for the area meeting the requirements of section 175A of the CAA.

Section 175A of the CAA sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. For areas such as Billings that are utilizing EPA's limited maintenance plan approach, as detailed in the EPA guidance memorandum entitled “Limited Maintenance Plan Option for Nonclassifiable CO Nonattainment Areas” from Joseph Paisie, Group Leader, Integrated Policy and Strategies Group, Office of Air Quality and Planning Standards, dated October 6, 1995 (hereafter referred to as “Paisie Memorandum”), the maintenance plan demonstration requirement is considered to be satisfied for nonclassifiable areas if the monitoring data show that the area is meeting the air quality criteria for limited maintenance areas (i.e., a design value at or below 7.65 ppm, or 85% of the CO NAAQS, based on the 8 consecutive quarters—2 years of data—used to determine attainment). There is no requirement to project emissions over the maintenance period. EPA believes if the area begins the maintenance period at or below 85 percent of CO NAAQS, the continued applicability of PSD requirements, any control measures already in the SIP, and Federal measures, should provide adequate assurance of maintenance over the initial 10-year maintenance period. In addition, the design value for the area must continue to be at or below 7.65 ppm until the time of final EPA action on the redesignation. The method for calculating the design value is presented in the June 18, 1990, EPA guidance memorandum entitled “Ozone and Carbon Monoxide Design Value Calculations”, from William G. Laxton, Director of the OAQPS Technical Support Division, to Regional Air Directors (hereafter referred to as the “Laxton Memorandum'.)

In the case of a nonclassifiable area applying for a limited maintenance plan, all the monitors must have a separate design value calculated and the highest design value must be at or below 7.65 ppm. Should the design value for the area exceed 7.65 ppm prior to final EPA action on the redesignation, then the area no longer qualifies for the limited maintenance plan and must instead submit a full maintenance plan as described in the Calcagni Memorandum.

Eight years after our approval of this redesignation, the State must submit a revised maintenance plan that demonstrates continued maintenance of the CO NAAQS for 10 years following the initial ten-year maintenance period. To address the possibility of future NAAQS violations, the maintenance plan must contain contingency measures, with a schedule for adoption and implementation, that are adequate to assure prompt correction of a violation. In addition, EPA issued further maintenance plan interpretations in the General Preamble of April 16, 1992, the Calcagni Memorandum, and the Paisie Memorandum. In this direct final rulemaking action, we are approving the State of Montana's limited maintenance plan for the Billings nonattainment area because EPA has determined, as detailed below, that the State's maintenance plan submittal meets the requirements of section 175A of the CAA and is consistent with the documents referenced above. Our analysis of the pertinent maintenance plan requirements, with reference to the Governor's February 9, 2001, submittal, is provided as follows:

Our interpretations of the CAA section 175A maintenance plan requirements for a limited maintenance plan are described in the Calcagni Memorandum and Paisie Memorandum as referenced above. The State is to develop an attainment year emissions inventory to identify a level of emissions in the area which is sufficient to attain the CO NAAQS. This inventory is to be consistent with EPA's most recent guidance on emissions inventories for nonattainment areas available at the time  2 and should represent emissions during the time period associated with the monitoring data showing attainment.

The maintenance plan that the Governor submitted on February 9, 2001, included a comprehensive inventory of CO emissions for the Billings area for a typical CO season day work day in 1996. This inventory includes emissions from stationary point sources, area sources, non-road mobile sources, and on-road mobile sources. The State selected 1996 as the year from which to develop the attainment year inventory as it correlated with other inventory work that the State was proceeding with. The use of a 1996 inventory is acceptable to us as it represents a recent year for which the Billings area was showing attainment for the CO NAAQS. We note, and as archived in our Aerometric Information Retrieval System (AIRS) national database, that the Billings area has actually continuously demonstrated attainment of the CO NAAQS since 1988. Further, use of the 1996 attainment year conforms with the requirements in both the Calcagni Memorandum and Paisie Memorandum.

A more detailed description of the 1996 attainment year inventory is documented in the maintenance plan, section 56.12.7.1, and in the State's Technical Support Document (TSD). The State's submittal contains detailed emission inventory information for the Billings area that was prepared in accordance with EPA guidance.

We note in the maintenance plan, section 56.12.7.1, and the State's TSD that the State elected to perform a more comprehensive gridded emission inventory that not only contained emissions from Billings, but also emissions from the nearby communities of Huntley and Laurel which may impact the Billings area. This was denoted as the “Billings CO Emission Inventory Study Area.” The total CO emissions for all three communities, as provided in the maintenance plan and in Table 5.1.b of the State's TSD, were 144,645.93 kilograms per day or 159.47 tons per day. However, for the purposes of the redesignation to attainment, only CO emissions from the actual Billings nonattainment area are necessary. The State also provided the CO nonattainment area emission figures in Table 5.1.c of the State's TSD. The total CO emissions for just the Billings nonattainment area were 94,936.31 kilograms per day or 104.67 tons per day.

Therefore, we are only archiving the Billings nonattainment area's summary CO emission figures from the 1996 attainment year in Table II.—2 below.

As described in our October 6, 1995, limited maintenance plan guidance memorandum (Paisie Memorandum), the maintenance plan demonstration requirement is considered to be satisfied for nonclassifiable CO areas (such as Billings) if the monitoring data show that the area is meeting the air quality criteria for limited maintenance areas (i.e., equal to or less than a 7.65 ppm design value). There is no requirement to project emissions over the maintenance period. EPA believes that if an area begins the maintenance period at or below 85 percent of the CO NAAQS (7.65 ppm), the continued application of control measures already in the SIP, PSD requirements, and Federal measures provides adequate assurance of maintenance over the initial 10-year maintenance period.

As presented in section 56.12.7.2 and in Table 56.12.7.2.A of maintenance plan, the CO design value for the Billings area is 5.8 ppm which is below the limited maintenance plan requirement of 7.65 ppm. Therefore, the Billings area has adequately demonstrated maintenance.

The October 6, 1995, Paisie Memorandum for limited maintenance plan areas states that to verify the attainment status of an area, such as Billings, over the maintenance period, the maintenance plan should contain provisions for the continued operation of an appropriate, EPA-approved air quality monitoring network in accordance with 40 CFR part 58.

This monitoring network requirement is met in section 56.12.7.3 of the Billings maintenance plan. This section states that the Montana Department of Environmental Quality (MDEQ) has operated and will continue to operate the Billings monitoring network in full accordance with the provisions of 40 CFR part 58 and the EPA-approved Montana Quality Assurance Project Plan. The MDEQ will also analyze the monitoring data to verify continued attainment of the CO NAAQS for the Billings area. The above air quality monitoring commitment by the State, which will be enforceable by EPA after this final approval of the Billings maintenance plan SIP revision, is deemed adequate by EPA.

Section 175A(d) of the CAA requires that a maintenance plan include contingency provisions. To meet this requirement, the State has identified appropriate contingency measures along with a schedule for the development and implementation of such measures. As stated in section 56.12.7.4 of the maintenance plan, the State will use an exceedance of the CO NAAQS as the trigger for adopting specific contingency measures for the Billings area. The State indicates that notification to EPA, and other affected governments, of the exceedance will occur within 60 days. Upon notification of a CO NAAQS exceedance, the MDEQ and Yellowstone County Air Quality Control (YCAQC) will convene to recommend an appropriate contingency measure or measures that would be necessary to avoid a violation of the CO NAAQS standard. The necessary contingency measure(s) will then be proposed for local adoption. The local adoption process will be completed within three months of the exceedance notification. Full implementation of the locally adopted contingency measure(s) will be achieved within one year after the recording of a CO NAAQS violation.

The potential contingency measures, identified in section 56.12.7.4.C of the Billings maintenance plan, include implementation of an oxygenated fuels program with local regulations in the Billings or Yellowstone County area for the winter months of November, December, and January and establishing a high pollution day episodic woodburning curtailment program. A more complete description of the triggering mechanism and these contingency measures can be found in section 56.12.7. 4 of the maintenance plan.

Based on the above, we find that the contingency measures and procedures provided in the State's maintenance plan for Billings are sufficient and meet the requirements of section 175A(d) of the CAA and the Paisie Memorandum for CO limited maintenance plans.

The State of Montana has committed to submit a future, revised maintenance plan for the Billings area. This commitment is contained in section 56.12.7.4.D of the Billings maintenance plan and meets the requirements of the CAA and EPA policy and guidance. Section 56.12.7.4.D states that eight years after EPA redesignates the Billings area to attainment, the State commits to submit to EPA a revised maintenance plan that will provide maintenance of the CO NAAQS for an additional 10 years after the expiration of the initial maintenance period.

Because the Billings area qualified for and utilized EPA's limited maintenance plan national policy (Paisie Memorandum), special conformity provisions apply as indicated below in an excerpt from such policy:

In addition, for Billings, Federal actions are also considered to satisfy the transportation conformity rule's requirements for expeditious implementation of transportation control measures (TCM) because there are no TCMs in the Billings CO SIP element. Transportation plans, transportation improvement programs, and Federal projects still require conformity determinations in order to proceed and Federal projects are still subject to the hotspot modeling requirements of the transportation conformity rule.

In this action, EPA is approving the Billings carbon monoxide redesignation request to attainment and the maintenance plan.

EPA is publishing this action 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 publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. This rule will be effective April 22, 2002, without further notice unless the Agency receives adverse comments by March 25, 2002.

If EPA receives such comments, then EPA will publish a timely withdrawal of the direct final rule informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on this rule. Any parties interested in commenting on this rule should do so at this time. If no such comments are received, the public is advised that this rule will be effective on April 22, 2002, and no further action will be taken on the proposed rule.

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

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.

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 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, because it merely approves state rules implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. In addition, redesignation of an area to attainment under sections 107(d)(3)(D) and (E) of the Clean Air Act does not impose any new requirements. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”

This direct final rule does not have tribal implications. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule.

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.

The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions.

This final approval will not have a significant impact on a substantial number of small entities because SIP approvals under section 110 and subchapter I, part D of the Clean Air Act do not create any new requirements, but simply approve requirements that the State is already imposing. Therefore, because the SIP final approval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities. Moreover, due to the nature of the Federal-State relationship under the Clean Air Act, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2). Redesignation of an area to attainment under sections 107(d)(3)(D) and (E) of the Clean Air Act does not impose any new requirements. Redesignation to attainment is an action that affects the legal designation of a geographical area and does not impose any regulatory requirements. Therefore, because the final approval of the redesignation does not create any new requirements, I certify that the final approval of the redesignation request will not have a significant economic 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 by the rule.

EPA has determined that this final 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 approves pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective April 22, 2002.

Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.

The EPA believes that VCS are inapplicable to this action. Today's action does not require the public to perform activities conducive to the use of VCS.

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 April 22, 2002. 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) of the Clean Air Act.)

This section provides additional information by addressing the following questions:

The CAA Amendments of 1990 required all state and local permitting authorities to develop operating permit programs that met certain federal criteria. In implementing the title V operating permit programs, the permitting authorities require certain sources of air pollution to obtain permits that contain all applicable requirements under the CAA. The focus of the operating permit program is to improve enforcement by issuing each source a permit that consolidates all of the applicable CAA requirements into a federally enforceable document. By consolidating all of the applicable requirements for a facility, the source, the public, and the permitting authorities can more easily determine 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 (VOCs), carbon monoxide, lead, sulfur dioxide, nitrogen oxides (NO X ), or particulate matter (PM 10 ); those that emit 10 tons per year of any single hazardous air pollutant (specifically listed under the CAA); or those that emit 25 tons per year or more of a combination of hazardous air pollutants (HAPs). In areas that are not meeting the National Ambient Air Quality Standards for ozone, carbon monoxide, or particulate matter, major sources are defined by the gravity of the nonattainment classification. For example, in ozone nonattainment areas classified as serious, major sources include those with the potential of emitting 50 tons per year or more of VOCs or NO X .

Jefferson County has submitted six revisions to its approved title V program since EPA granted full approval on March 22, 1996 (61 FR 11738). These submittals are dated February 20, 1998, January 11, 1999, September 30, 1999, March 17, 2000, March 21, 2001, and October 23, 2001. This document describes and approves the changes that Jefferson County has made to its approved program.

Jefferson County conducted rulemaking in July 1996 and March 1997 to change its fee provisions in Regulation 2.08. The County's title V program received full approval based on use of the “presumptive minimum” fee amount described in 40 CFR 70.9(b)(2)(i). Because Regulation 2.08 specified the emission fee rate, the County needed to revise it every year based on EPA's annual update to the “presumptive minimum” fee amount. Accordingly, Jefferson County conducted rulemaking in July 1996 to increase the fee rate. However, instead of changing the fee rate each year thereafter, the County conducted rulemaking in March 1997 to replace the rate language in Regulation 2.08 with generic Consumer Price Index language. The local-effective rule changes were submitted to EPA on January 11, 1999. The County also submitted a fee program update on September 30, 1999, demonstrating that its title V program was adequately funded by operating permit fee revenue.

In September 1996, Jefferson County conducted rulemaking to revise the permit application due dates contained in Regulation 2.16. The deadline for submitting the last two-thirds of permit applications was changed to coincide with one year from the effective date of EPA's full approval of the County's title V program. The local-effective rule change was submitted to EPA on January 11, 1999.

In November 1997 and March 2000, Jefferson County conducted rulemaking to update its acid rain program. In November 1997, the County incorporated by reference 40 CFR part 76, entitled “Acid Rain Nitrogen Oxides Emission Reduction Program,” and submitted the local-effective rule change to EPA on February 20, 1998. In March 2000, the County incorporated by reference the following federal acid rain rules: 40 CFR part 73, entitled “Sulfur Dioxide Allowance System”; part 74, entitled “Sulfur Dioxide Opt-Ins”; part 75, entitled “Continuous Emission Monitoring”; part 77, entitled “Excess Emissions'; and part 78, entitled “Appeal Procedures for Acid Rain Program.” The local-effective rule changes were submitted to EPA on March 17, 2000.

On January 10, 2000, EPA notified Jefferson County of a deficiency in its insignificant activities provisions that came to light as a result of the decision by the Ninth Circuit Court of Appeals in Western States Petroleum Association (WSPA) v. EPA, No. 95-70034 (June 17, 1996); EPA had inadvertently approved the County's title V program without identifying the exemption of insignificant activities from permit content requirements as a program deficiency. In the Federal Register notice granting final interim approval to Alaska's title V operating permit program (61 FR 64466, December 5, 1996), EPA acknowledged that its approval of the insignificant activity provisions in the Jefferson County program may have been inconsistent with the WSPA decision. Further review revealed this to be true, which prompted EPA to send the January 2000 letter notifying the County that a Notice of Deficiency would be published in the Federal Register if the deficiency was not corrected. The January 2000 letter also identified two other deficiencies in Jefferson County's insignificant activity provisions: (1) Regulation 2.16 implied that the County could add activities to its list without EPA review and approval, and (2) the list of insignificant activities did not require emission caps to ensure that potential emissions were indeed insignificant.

Jefferson County addressed the deficiencies in its insignificant activities provisions by revising the definition of “Insignificant activity” in Regulation 2.16 to eliminate exemptions from applicable requirements and to impose potential emission thresholds of five tons per year for regulated pollutants and 1000 pounds per year for HAPs. The County also revised its applicability provisions in Regulation 2.16 to remove the exemption of insignificant activities from permit requirements. Additional changes in the County's insignificant activities provisions include: (1) Revised permit application requirements that allow for generic grouping and treatment of insignificant activities consistent with EPA's guidance memoranda entitled “White Paper Streamlined Development of Part 70 Permit Applications” (July 10, 1995) and “White Paper Number 2 for Improved Implementation of the Part 70 Operating Permits Program” (March 5, 1996); (2) revised permit content requirements that streamline monitoring, record keeping, and reporting requirements for insignificant activities consistent with EPA's White Paper 2; and (3) the requirement for sources to include current lists of insignificant activities in their annual compliance certifications. Jefferson County completed the rulemaking in December 2000 and submitted the local-effective rule changes to EPA on March 21, 2001.

The Jefferson County Air Pollution Control District made six submittals of revisions to its approved title V program after it received full approval on March 22, 1996, and EPA is taking final action by this notice to approve program changes in those submittals. EPA is publishing this action 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 publication, EPA is publishing a separate document that will serve as the proposal to grant full approval should adverse comments be filed. This action will be effective April 22, 2002 unless the Agency receives adverse comments by March 25, 2002.

If EPA receives such comments, then it will withdraw the final rule and inform the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on April 22, 2002 and no further action will be taken on the proposed rule.

EPA requests comments on the program revisions discussed in this action. Copies of the Jefferson County submittals and other supporting documentation used in developing this notice are contained in the EPA docket file numbered KY-JEFF-2002-01 that is maintained at the EPA Region 4 office. The docket is an organized and complete file of all the information submitted to, or otherwise considered by, EPA in the development of this proposed full approval. The primary purposes of the docket are: (1) To allow interested parties a means to identify and locate documents so that they can effectively participate in the approval process, and (2) to serve as the record in case of judicial review. The docket files are available for public inspection at the location listed under the ADDRESSES section of this document. EPA will consider any comments received in writing by March 25, 2002.

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

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 is not an economically significant regulatory action as defined in Executive Order 12866, and it does not involve decisions intended to mitigate environmental health or safety risks.

This rule does not have Federalism implications because it will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, “Federalism” (64 FR 43255, August 10, 1999). This rule merely approves existing requirements under state law, and does not alter the relationship or the distribution of power and responsibilities between the state and the federal government established in the CAA.

This rule 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, “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000).

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.

The Regulatory Flexibility Act generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions.

This rule will not have a significant impact on a substantial number of small entities because operating permit program approvals under section 502 of the CAA do not create any new requirements but simply approve requirements that the state is already imposing. Therefore, because this approval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities.

Under sections 202 of the Unfunded Mandates Reform Act of 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 by the rule.

EPA has determined that the approval action proposed 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 approves pre-existing requirements under state or local law, and imposes no new requirements. Accordingly, no additional costs to state, local, or tribal governments, or to the private sector, result from this action.

Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.

In reviewing operating permit programs, EPA's role is to approve state choices, provided that they meet the criteria of the CAA and EPA's regulations codified at 40 CFR part 70. In this context, in the absence of a prior existing requirement for the state to use 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, to use VCS in place of an operating permit program that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of NTTAA do not apply.

This action will not impose any collection of information subject to the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., other than those previously approved and assigned OMB control number 2060-0243. For additional information concerning these requirements, see 40 CFR part 70. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

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