This final rule is issued under Marketing Order No. 985 (7 CFR part 985), as amended, regulating the handling of spearmint oil produced in the Far West (Washington, Idaho, Oregon, and designated parts of Nevada and Utah), hereinafter referred to as the “order.” This order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866.

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, salable quantities and allotment percentages may be established for classes of spearmint oil produced in the Far West. This rule establishes the quantity of spearmint oil produced in the Far West, by class, which may be purchased from or handled for producers by handlers during the 2004-2005 marketing year, which begins on June 1, 2004. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

Pursuant to authority in §§ 985.50, 985.51, and 985.52 of the order, the Committee, with all of its eight members present, met on October 8, 2003, and recommended salable quantities and allotment percentages for both classes of oil for the 2004-2005 marketing year. The Committee unanimously recommended the establishment of a salable quantity and allotment percentage for Scotch spearmint oil of 766,880 pounds and 40 percent, respectively. For Native spearmint oil, with six members in favor, one opposed, and one abstention, the Committee recommended the establishment of a salable quantity and allotment percentage of 773,474 pounds and 36 percent, respectively.

This final rule limits the amount of spearmint oil that handlers may purchase from, or handle for, producers during the 2004-2005 marketing year, which begins on June 1, 2004. Salable quantities and allotment percentages have been placed into effect each season since the order's inception in 1980.

The U.S. production of Scotch spearmint oil is concentrated in the Far West, which includes Washington, Idaho, and Oregon and a portion of Nevada and Utah. Scotch spearmint oil is also produced in the Midwest states of Indiana, Michigan, and Wisconsin, as well as in the states of Montana, South Dakota, North Dakota, and Minnesota. The production area covered by the marketing order currently accounts for approximately 65 percent of the annual U.S. sales of Scotch spearmint oil.

When the order became effective in 1980, the United States produced nearly 100 percent of the world's supply of Scotch spearmint oil, of which approximately 72 percent was sales from the regulated production area in the Far West. During the period from 1981 to 1990 the Far West sales declined to an average of 67 percent of the world's Scotch spearmint oil. Sales from the Far West continued to decline during the period from 1991 to 2000 to an average of 44 percent of the world's Scotch spearmint oil. It is estimated for 2003 that the Far West will decline to 30 percent of the world's Scotch spearmint oil sales.

The steady decline in world sales for the Far West region is directly attributed to the increase in global production. Other factors that have played a significant role include the overall quality of the imported oil and technological advances that allow for more blending of lower quality oils. Such factors have provided the Committee with challenges in accurately predicting trade demand for Scotch oil. This, in turn, has made it difficult to balance available supplies with needs and to achieve the Committee's overall goal of stabilizing producer and market prices.

The marketing order has continued to contribute to price and general market stabilization for Far West producers. The Committee, as well as spearmint oil producers and handlers attending the October 8, 2003, meeting estimated that the 2003 producer price of Scotch oil would average $9.50 per pound, which represents the fourth price increase since 1999. However, this producer price is below the cost of production for most producers as indicated in a study from the Washington State University Cooperative Extension Service (WSU), which estimates production costs to be between $13.50 and $15.00 per pound.

This low level of producer returns has caused a reduction in acreage. The Committee estimates that the acreage of Scotch spearmint has declined from about 10,000 acres in 1998 to about 4,372 acres currently. Based on the reduced Scotch spearmint acreage, the Committee estimates that production for the current season (the 2003-2004 marketing season) will be about 565,261 pounds.

The Committee recommended the 2004-2005 Scotch spearmint oil salable quantity (766,880 pounds) and allotment percentage (40 percent) utilizing sales estimates for 2004-2005 Scotch oil as provided by several of the industry's handlers, as well as historical and current Scotch oil sales levels. Between June 1, 2003, and September 30, 2003, 143,124 pounds of Scotch oil were sold, a level dramatically below the most recent five-year average for this four-month period of 448,084 pounds. Handlers are estimating that sales for the 2003-2004 marketing year may range from a low of 600,000 pounds to a high of 750,000 pounds. With 354,053 pounds carried into the current marketing year and an estimated 565,261 pounds being produced, the total available supply for 2003-2004, including the 650,000 pounds already sold, is 919,314 pounds.

The recommendation for the 2004-2005 Scotch spearmint oil volume regulation is consistent with the Committee's stated intent of keeping adequate supplies available at all times, while attempting to stabilize prices at a level adequate to sustain the producers. Furthermore, the recommendation takes into consideration the industry's desire to compete with less expensive oil produced outside the regulated area.

Although Native spearmint oil producers are facing market conditions similar to those affecting the Scotch spearmint oil market, unlike Scotch, over 90 percent of the U.S. production of Native spearmint is produced within the Far West production area. Also, unlike Scotch, most of the world's supply of Native spearmint is produced in the United States.

The current, flat market contributed to the Committee's recommendation for a salable quantity of 773,474 pounds and an allotment percentage of 36 percent for Native spearmint oil for the 2004-2005 marketing year. The supply and demand characteristics of the current Native spearmint oil market are keeping the price relatively steady at about $9.50 per pound—a level the Committee considers too low for the majority of producers to maintain viability. The WSU study referenced earlier indicates that the cost of producing Native spearmint oil ranges from $10.26 to $10.92 per pound.

The Committee estimates that 853,820 pounds of Native oil is expected to be produced this year (2003-2004). With current sales approximating the five-year average of about 1,021,702 pounds, the current season's salable quantity of 808,993 pounds coupled with the June 1, 2003, carry-in of 163,617 pounds will likely produce a surplus of oil, adding to the nearly 1.4 million pounds already in reserve. The Committee is estimating that about 865,000 pounds of Native spearmint oil, on average, may be sold during the 2004-2005 marketing year. This estimate, combined with the information available regarding current supply and price, helped lead the Committee to its recommendation for a 2004-2005 salable quantity of 773,474 pounds. When considered in conjunction with the estimated carry-in of 130,610 pounds of oil on June 1, 2004, the recommended salable quantity results in a total available supply of Native spearmint oil next year of about 904,084 pounds.

The Committee's method of calculating the Native spearmint oil salable quantity and allotment percentage continues to primarily utilize information on price and available supply as they are affected by the estimated trade demand. The Committee's stated intent is to make adequate supplies available to meet market needs and improve producer prices.

The Committee believes that the order has contributed extensively to the stabilization of producer prices, which prior to 1980 experienced wide fluctuations from year to year. According to the National Agricultural Statistics Service, for example, the average price paid for both classes of spearmint oil ranged from $4.00 per pound to $11.10 per pound during the period between 1968 and 1980. Prices since the order's inception have generally stabilized at about $9.88 per pound for Native spearmint oil and at about $13.04 per pound for Scotch spearmint oil. However, the current prices for both classes of oil are below the average due to several factors, including the general uncertainty being experienced through the U.S. economy and the continuing overall weak farm situation, as well as an abundant global supply of spearmint oil. As noted earlier—although lower than what producers believe to be viable—prices currently appear to be stable at about $9.50 for both classes of oil.

The Committee based its recommendation for the salable quantity and allotment percentage for each class of spearmint oil for the 2004-2005 marketing year on the information discussed above, as well as the data outlined below.

(A) Estimated carry-in on June 1, 2004-269,314 pounds. This figure is the difference between the estimated 2003-2004 marketing year trade demand of 650,000 pounds and the 2003-2004 marketing year total available supply of 919,314 pounds.

(B) Estimated trade demand for the 2004-2005 marketing year—650,000 pounds. This figure represents the Committee's estimate based on the average of the estimates provided by producers at six Scotch spearmint oil production area meetings held in September 2003, as well as estimates provided by handlers and others at the October 8, 2003, meeting. Handler trade demand estimates for the 2004-2005 marketing year ranged from 600,000 to 750,000 pounds. The average of sales over the last five years was 827,522 pounds.

(C) Salable quantity required from the 2004-2005 marketing year production—380,686 pounds. This figure is the difference between the estimated 2004-2005 marketing year trade demand (650,000 pounds) and the estimated carry-in on June 1, 2004 (269,314 pounds).

(D) Total estimated allotment base for the 2004-2005 marketing year—1,917,200 pounds. This figure represents a one-percent increase over the revised 2003-2004 total allotment base. This figure is generally revised each year on June 1 due to producer base being lost due to the bona fide effort production provisions of § 985.53(e). The revision is usually minimal.

(E) Computed allotment percentage—19.9 percent. This percentage is computed by dividing the required salable quantity by the total estimated allotment base.

(F) Recommended allotment percentage—40 percent. This recommendation is based on the Committee's determination that a decrease from the current season's allotment percentage of 45 percent to the computed 19.9 percent would not adequately supply the potential 2004-2005 market.

(G) The Committee's recommended salable quantity—766,880 pounds. This figure is the product of the recommended allotment percentage and the total estimated allotment base.

(H) Estimated available supply for the 2004-2005 marketing year—1,036,194 pounds. This figure is the sum of the 2004-2005 recommended salable quantity (766,880 pounds) and the estimated carry-in on June 1, 2004 (269,314 pounds).

(A) Estimated carry-in on June 1, 2004—130,610 pounds. This figure is the difference between the estimated 2003-2004 marketing year trade demand of 842,000 pounds and the revised 2003-2004 marketing year total available supply of 972,610 pounds.

(B) Estimated trade demand for the 2004-2005 marketing year—865,000 pounds. This figure is based on input from producers at the five Native spearmint oil production area meetings held in September 2003, from handlers, and from Committee members and other meeting participants at the October 8, 2003, meeting. The average estimated trade demand provided at the five production area meetings was 875,400 pounds, whereas the average handler estimate was 885,000 pounds. The Committee discussed several estimates below these figures to take into consideration a general lack of 2004 contract offers to date.

(C) Salable quantity required from the 2004-2005 marketing year production—734,390 pounds. This figure is the difference between the estimated 2004-2005 marketing year trade demand (865,000 pounds) and the estimated carry-in on June 1, 2004 (130,610 pounds).

(D) Total estimated allotment base for the 2004-2005 marketing year—2,148,539 pounds. This figure represents a one percent increase over the revised 2003-2004 total allotment base. This figure is generally revised each year on June 1 due to producer base being lost due to the bona fide effort production provisions of § 985.53(e). The revision is usually minimal.

(E) Computed allotment percentage—34.2 percent. This percentage is computed by dividing the required salable quantity by the total estimated allotment base.

(F) Recommended allotment percentage—36 percent. This is the Committee's recommendation based on the computed allotment percentage, the average of the computed allotment percentage figures from the five production area meetings (36.5 percent), and input from producers and handlers at the October 8, 2003, meeting.

(G) The Committee's recommended salable quantity—773,474 pounds. This figure is the product of the recommended allotment percentage and the total estimated allotment base.

(H) Estimated available supply for the 2004-2005 marketing year—904,084 pounds. This figure is the sum of the 2004-2005 recommended salable quantity (773,474 pounds) and the estimated carry-in on June 1, 2004 (130,610 pounds).

The salable quantity is the total quantity of each class of spearmint oil, which handlers may purchase from, or handle on behalf of producers during a marketing year. Each producer is allotted a share of the salable quantity by applying the allotment percentage to the producer's allotment base for the applicable class of spearmint oil.

The Committee's recommended Scotch and Native spearmint oil salable quantities and allotment percentages of 766,880 pounds and 40 percent and 773,474 and 36 percent, respectively, are based on the Committee's goal of maintaining market stability by avoiding extreme fluctuations in supplies and prices and the anticipated supply and trade demand during the 2004-2005 marketing year. The salable quantities are not expected to cause a shortage of spearmint oil supplies. Any unanticipated or additional market demand for spearmint oil, which may develop during the marketing year, can be satisfied by an increase in the salable quantities. Both Scotch and Native spearmint oil producers who produce more than their annual allotments during the 2004-2005 season may transfer such excess spearmint oil to a producer with spearmint oil production less than his or her annual allotment or put it into the reserve pool.

This regulation is similar to regulations issued in prior seasons. Costs to producers and handlers resulting from this rule are expected to be offset by the benefits derived from a stable market and improved returns. In conjunction with the issuance of this final rule, USDA has reviewed the Committee's marketing policy statement for the 2004-2005 marketing year. The Committee's marketing policy statement, a requirement whenever the Committee recommends volume regulations, fully meets the intent of § 985.50 of the order. During its discussion of potential 2004-2005 salable quantities and allotment percentages, the Committee considered: (1) The estimated quantity of salable oil of each class held by producers and handlers; (2) the estimated demand for each class of oil; (3) prospective production of each class of oil; (4) total of allotment bases of each class of oil for the current marketing year and the estimated total of allotment bases of each class for the ensuing marketing year; (5) the quantity of reserve oil, by class, in storage; (6) producer prices of oil, including prices for each class of oil; and (7) general market conditions for each class of oil, including whether the estimated season average price to producers is likely to exceed parity. Conformity with the USDA's “Guidelines for Fruit, Vegetable, and Specialty Crop Marketing Orders” has also been reviewed and confirmed.

The establishment of these salable quantities and allotment percentages will allow for anticipated market needs. In determining anticipated market needs, consideration by the Committee was given to historical sales, as well as changes and trends in production and demand. This rule also provides producers with information on the amount of spearmint oil that should be produced for next season in order to meet anticipated market demand.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility.

There are 8 spearmint oil handlers subject to regulation under the order, and approximately 84 producers of Class 1 (Scotch) spearmint oil and approximately 97 producers of Class 3 (Native) spearmint oil in the regulated production area. Small agricultural service firms are defined by the Small Business Administration (SBA)(13 CFR 121.201) as those having annual receipts of less than $5,000,000, and small agricultural producers are defined as those whose annual receipts are less than $750,000.

Based on the SBA's definition of small entities, the Committee estimates that 2 of the 8 handlers regulated by the order could be considered small entities. Most of the handlers are large corporations involved in the international trading of essential oils and the products of essential oils. In addition, the Committee estimates that 16 of the 84 Scotch spearmint oil producers and 15 of the 97 Native spearmint oil producers could be classified as small entities under the SBA definition. Thus, a majority of handlers and producers of Far West spearmint oil may not be classified as small entities.

The Far West spearmint oil industry is characterized by producers whose farming operations generally involve more than one commodity, and whose income from farming operations is not exclusively dependent on the production of spearmint oil. A typical spearmint oil producing operation has enough acreage for rotation such that the total acreage required to produce the crop is about one-third spearmint and two-thirds rotational crops. Thus, the typical spearmint oil producer has to have considerably more acreage than is planted to spearmint during any given season. Crop rotation is an essential cultural practice in the production of spearmint oil for weed, insect, and disease control. To remain economically viable with the added costs associated with spearmint oil production, most spearmint oil-producing farms fall into the SBA category of large businesses.

This final rule establishes the quantity of spearmint oil produced in the Far West, by class, that handlers may purchase from, or handle for, producers during the 2004-2005 marketing year. The Committee recommended this rule to help maintain stability in the spearmint oil market by avoiding extreme fluctuations in supplies and prices. Establishing quantities to be purchased or handled during the marketing year through volume regulations allows producers to plan their spearmint planting and harvesting to meet expected market needs. The provisions of §§ 985.50, 985.51, and 985.52 of the order authorize this rule.

Small spearmint oil producers generally are not as extensively diversified as larger ones and as such are more at risk to market fluctuations. Such small producers generally need to market their entire annual crop and do not have the luxury of having other crops to cushion seasons with poor spearmint oil returns. Conversely, large diversified producers have the potential to endure one or more seasons of poor spearmint oil markets because income from alternate crops could support the operation for a period of time. Being reasonably assured of a stable price and market provides small producing entities with the ability to maintain proper cash flow and to meet annual expenses. Thus, the market and price stability provided by the order potentially benefit the small producer more than such provisions benefit large producers. Even though a majority of handlers and producers of spearmint oil may not be classified as small entities, the volume control feature of this order has small entity orientation.

Instability in the spearmint oil subsector of the mint industry is much more likely to originate on the supply side than the demand side. Fluctuations in yield and acreage planted from season-to-season tend to be larger than fluctuations in the amount purchased by buyers. Demand for spearmint oil tends to be relatively stable from year-to-year. The demand for spearmint oil is expected to grow slowly for the foreseeable future because the demand for consumer products that use spearmint oil will likely expand slowly, in line with population growth.

Demand for spearmint oil at the farm level is derived from retail demand for spearmint-flavored products at retail such as chewing gum, toothpaste, and mouthwash. The manufacturers of these products are by far the largest users of mint oil. However, spearmint flavoring is generally a very minor component of the products in which it is used, so changes in the raw product price have no impact on retail prices for those goods.

Spearmint oil production tends to be cyclical. Years of large production, with demand remaining reasonably stable, have led to periods in which large producer stocks of unsold spearmint oil have depressed producer prices for a number of years. Shortages and high prices may follow in subsequent years, as producers respond to price signals by cutting back production.

The significant variability is illustrated by the fact that the coefficient of variation (a standard measure of variability; “CV”) of Far West spearmint oil production from 1980 through 2002 was about 0.24. The CV for spearmint oil prices was about 0.13, well below the CV for production. This provides an indication of the price stabilizing impact of the marketing order.

Production in the shortest marketing year was about 49 percent of the 23-year average (1,870,783 pounds from 1980 through 2002) and the largest crop was approximately 165 percent of the 23-year average. A key consequence is that in years of oversupply and low prices, the season average producer price of spearmint oil is below the average cost of production (as measured by the Washington State University Cooperative Extension Service).

The wide fluctuations in supply and prices that result from this cycle, which was even more pronounced before the creation of the marketing order, can create liquidity problems for some producers. The marketing order was designed to reduce the price impacts of the cyclical swings in production. However, producers have been less able to weather these cycles in recent years because of the decline in prices of many of the alternative crops they grow. As noted earlier, almost all spearmint oil producers diversify by growing other crops.

In an effort to stabilize prices, the spearmint oil industry uses the volume control mechanisms authorized under the order. This authority allows the Committee to recommend a salable quantity and allotment percentage for each class of oil for the upcoming marketing year. The salable quantity for each class of oil is the total volume of oil that producers may sell during the marketing year. The allotment percentage for each class of spearmint oil is derived by dividing the salable quantity by the total allotment base.

Each producer is then issued an annual allotment certificate, in pounds, for the applicable class of oil, which is calculated by multiplying the producer's allotment base by the applicable allotment percentage. This is the amount of oil for the applicable class that the producer can sell.

By November 1 of each year, the Committee identifies any oil that individual producers have produced above the volume specified on their annual allotment certificates. This excess oil is placed in a reserve pool administered by the Committee.

There is a reserve pool for each class of oil that may not be sold during the current marketing year unless the Secretary approves a Committee recommendation to make a portion of the pool available. However, limited quantities of reserve oil are typically sold to fill deficiencies. A deficiency occurs when on-farm production is less than a producer's allotment. In that case, a producer's own reserve oil can be sold to fill that deficiency. Excess production (higher than the producer's allotment) can be sold to fill other producers' deficiencies.

In any given year, the total available supply of spearmint oil is composed of current production plus carry-over stocks from the previous crop. The Committee seeks to maintain market stability by balancing supply and demand, and to close the marketing year with an appropriate level of carryout. If the industry has production in excess of the salable quantity, then the reserve pool absorbs the surplus quantity of spearmint oil, which goes unsold during that year, unless the oil is needed for unanticipated sales.

Under its provisions, the order may attempt to stabilize prices by (1) limiting supply and establishing reserves in high production years, thus minimizing the price-depressing effect that excess producer stocks have on unsold spearmint oil, and (2) ensuring that stocks are available in short supply years when prices would otherwise increase dramatically. The reserve pool stocks grow in large production years and are drawn down in short marketing years.

An econometric model was used to assess the impact that volume control has on the prices producers receive for their commodity. Without volume control, spearmint oil markets would likely be over-supplied, resulting in low producer prices and a large volume of oil stored and carried over to the next marketing year. The model estimates how much lower producer prices would likely be in the absence of volume controls.

The Committee estimated the available supply during the 2004-2005 marketing year for both classes of oil at 1,940,278 pounds, and that the expected carry-in will be 399,924 pounds. With volume control, sales by producers for the 2004-2005 marketing year should be limited to 1,540,354 pounds (the recommended salable quantity for both classes of spearmint oil).

The recommended salable percentages, upon which 2004-2005 producer allotments are based, are 40 percent for Scotch and 36 percent for Native. Without volume controls, producers would not be limited to these allotment levels, and could produce and sell additional spearmint. The econometric model estimated a $1.71 decline in the season average producer price per pound (from both classes of spearmint oil) resulting from the higher quantities that would be produced and marketed without volume control. The Far West producer price for both classes of spearmint oil was $9.20 for 2002, which is below the average of $10.97 for the period from 1980 through 2002, based on National Agricultural Statistics Service data. The surplus situation for the spearmint oil market that would exist without volume controls in 2004-2005 also would likely dampen prospects for improved producer prices in future years because of the buildup in stocks.

The use of volume controls allows the industry to fully supply spearmint oil markets while avoiding the negative consequences of over-supplying these markets. The use of volume controls is believed to have little or no effect on consumer prices of products containing spearmint oil and will not result in fewer retail sales of such products.

The Committee discussed alternatives to the recommendations contained in this rule for both classes of spearmint oil. The Committee discussed and rejected the idea of recommending that there not be any volume regulation for Scotch spearmint oil because of the severe price-depressing effects that would occur without volume control.

The Committee also considered various alternative levels of volume control for Scotch spearmint oil, including leaving the percentage the same as the current season, increasing the percentage to a less restrictive level, or decreasing the percentage. After considerable discussion the Committee unanimously supported decreasing the percentage to 40 percent.

The Committee discussed and rejected the idea of recommending that there not be any volume regulation for Native spearmint oil. The immediate result would be to put an excessive amount of Native reserve pool oil on the market, causing depressed prices at the producer level. With the current price for Native spearmint oil lower than the 10-year average, and sales at the lowest level since 1987, the Committee, after considerable discussion, determined that 773,474 pounds and 36 percent would be the most effective salable quantity and allotment percentage, respectively, for the 2004-2005 marketing year. The dissenting Committee member felt that the recommended allotment percentage should have been lower, since the recommended salable quantity will likely be too high for market conditions, since demand has been flat.

As noted earlier, the Committee's recommendation to establish salable quantities and allotment percentages for both classes of spearmint oil was made after careful consideration of all available information, including: (1) The estimated quantity of salable oil of each class held by producers and handlers; (2) the estimated demand for each class of oil; (3) the prospective production of each class of oil; (4) the total of allotment bases of each class of oil for the current marketing year and the estimated total of allotment bases of each class for the ensuing marketing year; (5) the quantity of reserve oil, by class, in storage; (6) producer prices of oil, including prices for each class of oil; and (7) general market conditions for each class of oil, including whether the estimated season average price to producers is likely to exceed parity. Based on its review, the Committee believes that the salable quantity and allotment percentage levels recommended would achieve the objectives sought.

Without any regulations in effect, the Committee believes the industry would return to the pronounced cyclical price patterns that occurred prior to the order, and that prices in 2004-2005 would decline substantially below current levels.

As stated earlier, the Committee believes that the order has contributed extensively to the stabilization of producer prices, which prior to 1980 experienced wide fluctuations from year-to-year. National Agricultural Statistics Service records show that the average price paid for both classes of spearmint oil ranged from $4.00 per pound to $11.10 per pound during the period between 1968 and 1980. Prices have been consistently more stable since the marketing order's inception in 1980, with an average price of $13.04 per pound for Scotch spearmint oil (1980-2002) and $9.88 per pound for Native spearmint oil.

During the period of 1999 through 2002, however, large global production and carry-in inventories have contributed to prices below the 23-year average, despite the Committee's efforts to balance available supplies with demand. Prices have ranged from $8.00 to $10.00 per pound for Scotch spearmint oil and between $9.10 to $9.20 per pound for Native spearmint oil.

According to the Committee, the recommended salable quantities and allotment percentages are expected to achieve the goals of market and price stability.

As previously stated, annual salable quantities and allotment percentages have been issued for both classes of spearmint oil since the order's inception. Reporting and recordkeeping requirements have remained the same for each year of regulation. These requirements have been approved by the Office of Management and Budget under OMB Control No. 0581-0065. Accordingly, this rule will not impose any additional reporting or recordkeeping requirements on either small or large spearmint oil producers and handlers. All reports and forms associated with this program are reviewed periodically in order to avoid unnecessary and duplicative information collection by industry and public sector agencies. The USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

The Committee's meeting was widely publicized throughout the spearmint oil industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the October 8, 2003, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. Finally, interested persons were invited to submit information on the regulatory and informational impacts of this action on small businesses.

A proposed rule concerning this action was published in the Federal Register on January 23, 2004 (69 FR 3272). Copies of the rule were provided to Committee staff, which in turn made it available to spearmint oil producers, handlers, and other interested persons. Finally, the rule was made available through the Internet by the Office of the Federal Register and USDA. A 30-day comment period ending February 23, 2004, was provided to allow interested persons to respond to the proposal. No comments were received.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/fv/moab.html. Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

After consideration of all relevant matter presented, including the information and recommendation submitted by the Committee and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.

Background

Federal regulations implementing the National Cooperative State/Federal Bovine Tuberculosis Eradication Program are contained in 9 CFR part 77, “Tuberculosis” (referred to below as the regulations), and in the “Uniform Methods and Rules—Bovine Tuberculosis Eradication” (UMR), which is incorporated by reference into the regulations. The regulations restrict the interstate movement of cattle, bison, and captive cervids to prevent the spread of tuberculosis. Subpart B of the regulations contains requirements for the interstate movement of cattle and bison not known to be infected with or exposed to tuberculosis. The interstate movement requirements depend upon whether the animals are moved from an accredited-free State or zone, modified accredited advanced State or zone, modified accredited State or zone, accreditation preparatory State or zone, or nonaccredited State or zone.

Under the regulations in § 77.10, cattle and bison that originate in a modified accredited advanced State or zone and that are not known to be infected with or exposed to tuberculosis must meet certain identification, certification, and testing requirements prior to being moved interstate.

We recently published several interim rules that amended the regulations by changing the classification of the States of Texas, California, and New Mexico from accredited free to modified accredited advanced and that delayed compliance with certain provisions of § 77.10 until September 30, 2003. The interim rule that amended the classification of Texas was effective June 3, 2002, and published in the Federal Register on June 6, 2002 (67 FR 38841-38844, Docket No. 02-021-1); in a document published in the Federal Register on December 31, 2002, the compliance date for certain provisions of § 77.10 was extended from January 1, 2003, to September 30, 2003 (67 FR 79836-79837, Docket No. 02-021-3). The interim rule that amended the classification of California was effective and published in the Federal Register on April 25, 2003 (68 FR 20333-20336, Docket No. 03-005-1). The interim rule that amended the classification of New Mexico was effective and published in the Federal Register on July 24, 2003 (68 FR 43618-43621, Docket No. 03-044-1). Finally, in a document published in the Federal Register on August 8, 2003 (68 FR 47201-47202, Docket No. 03-072-1), we extended the delay in the date for compliance until March 30, 2004.

The specific provisions of § 77.10 that have a delayed compliance date are:

• The identification of sexually intact heifers moving to approved feedlots and steers and spayed heifers moving to any destination (§ 77.10(b));

• The identification requirements for sexually intact heifers moving to feedlots that are not approved feedlots (§ 77.10(d)); and

• Because identification is required for certification, the certification requirements for sexually intact heifers moving to unapproved feedlots (§ 77.10(d)).

Initially, we delayed the compliance with these requirements for the State of Texas for two reasons. First, the size of the cattle industry in Texas necessitated additional time to implement the identification requirements of the regulations. Second, some cattle that had begun moving through channels prior to the change in Texas' tuberculosis status would not have been identified at their premises of origin. In addition, we subsequently delayed the compliance date in response to comments received on the interim rule that classified Texas as modified accredited advanced and that also solicited comments on the current regulatory provisions of the domestic bovine tuberculosis eradication program. The compliance date was delayed for California and New Mexico to provide equitable treatment for producers in California and New Mexico.

Based on the comments that we received on the interim rule for Texas, it appears that the tuberculosis risk associated with the movement of nonbreeding cattle from modified accredited advanced States or zones through feeder channels to slaughter is low and that identification requirements for certain cattle destined for slaughter may be unnecessary. We are developing a proposed rule to amend the regulations as a result of those comments; in order to provide time for that rulemaking to proceed, we are further delaying the date for compliance with the identification and certification requirements of § 77.10(b) and (d) for nonbreeding cattle from the States of Texas, California, and New Mexico, until further notice. As stated in the interim rule for Texas, this delay in compliance does not apply to the movement of cattle from the former modified accredited advanced zone in El Paso and Hudspeth Counties, TX.

Merial Ltd., 3239 Satellite Blvd., Bldg. 500, Duluth, GA 30096-4640, filed NADA 141-227 for ULCERGARD (omeprazole) Paste. The application provides for oral use of omeprazole paste in horses for the prevention of gastric ulcers. The NADA is approved as of February 18, 2004, and the regulations are amended in 21 CFR 520.1615 to reflect the approval. The basis of approval is discussed in the freedom of information summary.

In accordance with the freedom of information provisions of 21 CFR part 20 and 21 CFR 514.11(e)(2)(ii), a summary of safety and effectiveness data and information submitted to support approval of this application may be seen in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday.

Under section 512(c)(2)(F)(ii) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360b(c)(2)(F)(ii)), this approval qualifies for 3 years of marketing exclusivity beginning February 18, 2004.

The agency has determined under 21 CFR 25.33(d)(1) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.

Phoenix Scientific, Inc., 3915 South 48th St. Terrace, St. Joseph, MO 64503, filed ANADA 200-345 for Lincomycin-Spectinomycin (lincomycin hydrochloride monohydrate/spectinomycin dihydrochloride pentahydrate) Water Soluble Powder. The application provides for oral use of lincomycin and spectinomycin soluble powder to make medicated drinking water for administration to chickens up to 7 days of age as an aid in the control of airsacculitis caused by either Mycoplasma synoviae or Mycoplasma gallisepticum susceptible to lincomycin-spectinomycin and complicated chronic respiratory disease (air sac infection) caused by Escherichia coli and M. gallisepticum susceptible to lincomycin-spectinomycin. Phoenix Scientific's Lincomycin-Spectinomycin Water Soluble Powder is approved as a generic copy of Pharmacia & Upjohn's L-S 50 (lincomycin hydrochloride monohydrate/ spectinomycin sulfate tetrahydrate) Water Soluble Powder, approved under NADA 46 109. ANADA 200 345 is approved as of February 5, 2004, and the regulations are amended in part 520 (21 CFR part 520) by removing § 520.1263b and by adding § 520.1265 to reflect the approval and a current format. The basis of approval is discussed in the freedom of information summary.

In accordance with the freedom of information provisions of 21 CFR part 20 and 21 CFR 514.11(e)(2)(ii), a summary of safety and effectiveness data and information submitted to support approval of this application may be seen in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday.

FDA has determined under 21 CFR 25.33(a)(1) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to congressional review requirements in 5 U.S.C. 801-808.

Phibro Animal Health, 710 Rte. 46 East, suite 401, Fairfield, NJ 07004, filed NADA 141-226 that provides for the use of AVIAX (semduramicin sodium), STAFAC (virginiamycin), and 3-NITRO (roxarsone) Type A medicated articles to formulate three-way combination drug Type C medicated feeds for broiler chickens. The Type C medicated feeds contain 22.7 grams per ton (g/ton) semduramicin, 20 g/ton virginiamycin, and 22.7 to 45.4 g/ton roxarsone, and are used for the prevention of coccidiosis caused by Eimeria acervulina , E. brunetti , E. maxima , E. mivati/E. mitis , E. necatrix , and E. tenella ; for prevention of necrotic enteritis caused by Clostridium perfringens susceptible to virginiamycin; and for increased rate of weight gain, improved feed efficiency, and improved pigmentation in broiler chickens. The application is approved as of February 23, 2004, and the regulations are amended in 21 CFR 558.555 and 558.635 to reflect the approval. The basis of approval is discussed in the freedom of information summary.

In accordance with the freedom of information provisions of 21 CFR part 20 and 21 CFR 514.11(e)(2)(ii), a summary of safety and effectiveness data and information submitted to support approval of this application may be seen in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday.

The agency has determined under 21 CFR 25.33(a)(2) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.

This Supplementary Information section is organized as follows:

1. The Regional Office has established an official public rulemaking file available for inspection at the Regional Office. EPA has established an official public rulemaking file for this action under “Region 5 Air Docket IN158”. The official public file consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the public rulemaking file does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public rulemaking file is the collection of materials that is available for public viewing at the Air Programs Branch, Air and Radiation Division, EPA Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604. EPA requests that if at all possible, you contact the contact listed in the For Further Information Contact section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30 excluding Federal holidays.

2. Electronic Access. You may access this Federal Register document electronically through the Regulations.gov Web site located at http://www.regulations.gov where you can find, review, and submit comments on Federal rules that have been published in the Federal Register , the Government's legal newspaper, and are open for comment.

For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing at the EPA Regional Office, as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in the official public rulemaking file. The entire printed comment, including the copyrighted material, will be available at the Regional Office for public inspection.

You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate rulemaking identification number by including the text “Public comment on proposed rulemaking Region 5 Air Docket IN158” in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments.

1. Electronically. If you submit an electronic comment as prescribed below, EPA recommends that you include your name, mailing address, and an e-mail address or other contact information in the body of your comment. Also include this contact information on the outside of any disk or CD ROM you submit, and in any cover letter accompanying the disk or CD ROM. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. EPA's policy is that EPA will not edit your comment, and any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.

i. E-mail. Comments may be sent by electronic mail (e-mail) to bortzer.jay@epa.gov . Please include the text “Public comment on proposed rulemaking Region 5 Air Docket IN158” in the subject line. EPA's e-mail system is not an “anonymous access” system. If you send an e-mail comment directly without going through Regulations.gov, EPA's e-mail system automatically captures your e-mail address. E-mail addresses that are automatically captured by EPA's e-mail system are included as part of the comment that is placed in the official public docket.

ii. Regulations.gov. Your use of Regulations.gov is an alternative method of submitting electronic comments to EPA. Go directly to Regulations.gov at http://www.regulations.gov , then click on the button “TO SEARCH FOR REGULATIONS CLICK HERE”, and select Environmental Protection Agency as the Agency name to search on. The list of current EPA actions available for comment will be listed. Please follow the online instructions for submitting comments. The system is an “anonymous access” system, which means EPA will not know your identity, e-mail address, or other contact information unless you provide it in the body of your comment.

iii. Disk or CD ROM. You may submit comments on a disk or CD ROM that you mail to the mailing address identified in Section 2, directly below. These electronic submissions will be accepted in WordPerfect, Word or ASCII file format. Avoid the use of special characters and any form of encryption.

2. By Mail. Send your comments to: J. Elmer Bortzer, Acting Chief, Air Programs Branch, (AR-18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604. Please include the text “Public comment on proposed rulemaking Region 5 Air Docket IN158” in the subject line on the first page of your comment.

3. By Hand Delivery or Courier. Deliver your comments to: J. Elmer Bortzer, Acting Chief, Air Programs Branch, (AR-18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, 18th floor, Chicago, Illinois 60604. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30 excluding Federal holidays.

Do not submit information that you consider to be CBI electronically to EPA. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR Part 2.

In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the official public regional rulemaking file. If you submit the copy that does not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public file and available for public inspection without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person identified in the FOR FURTHER INFORMATION CONTACT section.

We are approving PM 10 emissions regulations for U.S. Steel-Gary Works and U.S. Steel-Gary Coke Operations, located in Lake County, Indiana. Specifically, we are approving revisions to 326 IAC 6-1-10.1, Lake County PM 10 emission requirements, and 326 IAC 6-1-10.2, Lake County PM 10 coke battery emission requirements, into the Indiana PM 10 SIP. The revised rules were adopted by the Indiana Air Pollution Control Board on May 7, 2003, and were submitted by IDEM to EPA on June 13, 2003. IDEM submitted a supplement to its submission on October 3, 2003 indicating that the revised rules became effective September 5, 2003 and were published in the Indiana Register on October 1, 2003.

In the June 13, 2003 submission, IDEM requested that EPA approve revisions to regulation 326 IAC 6-1-10.1 that are specific to U.S. Steel's integrated steel-making operations in Gary, Indiana. The rule revisions address changes to 54 emission points that have occurred at the plant since the previous rule had become effective in 1993. Many of the changes, which substantially decrease PM 10 emissions, were the result of a March 22, 1996 Agreed Order entered into by IDEM and U.S. Steel. These revisions reflect the closure of 16 sources and the addition of 11 sources, resulting in an overall decrease in PM 10 emissions of approximately 350 tpy.

IDEM has also requested that EPA approve revisions to regulation 326 IAC 6-1-10.2 that are specific to U.S. Steel—Gary Coke Operations. The monitoring and reporting requirements in 326 IAC 6-1-10.2 had been specifically promulgated for the use of process water in the coke quench water system. In accordance with the March 22, 1996 Agreed Order, U.S. Steel began using lake water in the coke quench water system and ceased using process water. Initially, IDEM granted U.S. Steel a one-year variance from the monitoring and reporting requirements of 326 IAC 6-1-10.2 on April 19, 2002. IDEM granted a one-year extension to the variance on April 1, 2003. The revisions to the rule eliminate the need for annually renewing the variance by removing the former monitoring and reporting requirements for the use of process water since they are no longer necessary.

Based on the rule revisions, an air quality modeling analysis of PM 10 concentrations attributable to U.S. Steel and other Lake County sources was conducted using the Industrial Source Complex-Short Term model, Version 3 (ISCST3). This model is currently listed in EPA's Guideline on Air Quality Models (40 CFR part 51, Appendix W) as the recommended model for this kind of application. The model was set up to calculate predicted concentrations using the required regulatory default options. Building dimensions were considered in the analysis for downwash purposes. The building coordinates were determined using EPA's Building Profile Input Program (BPIP) and included in ISCST3. The analysis used surface weather conditions from the Hammond on-site tower combined with the mixing heights of Peoria and Lincoln, Illinois for the years 1991-1995.

The entire Lake County PM 10 inventory was modeled. IDEM used an updated inventory for U.S. Steel that includes fugitive dust emissions from the plant area, roadways, storage piles and material handling activities, and an update of emission sources due to the removal, replacement or installation of equipment. Background PM 10 concentrations, based on average daily wind direction, were added to the predicted PM 10 values for comparison to the National Ambient Air Quality Standards (NAAQS). IDEM did not identify any modeled exceedances at receptors placed in ambient locations.

EPA believes the modeling analysis submitted by IDEM satisfies the Act and applicable guidance. Results from the ISCST3 modeling indicate that the impacts from the rule revision do not cause any exceedances of the PM 10 NAAQS. EPA, therefore, concurs with IDEM that the requested SIP revision should continue to protect air quality in the area.

The revisions to regulation 326 IAC 6-1-10.2 make permanent the portion of the variance concerning quench water testing. These revisions retain the quench water SIP limit of 1500 milligrams per liter of dissolved solids, but eliminate the monitoring and reporting requirements and testing procedures which had been tailored for testing the quality of quench water that includes process water. U.S. Steel switched to the use of lake water in the coke quenching process in 1999. The removal of process water from the quench water system, as previously discussed, eliminates the unique circumstances that resulted in the specialized monitoring and reporting requirements in 326 IAC 6-1-10.2. U.S. Steel is now subject to the same monitoring and reporting requirements as other coke quenching operations in Indiana that use lake water.

The test methods for quench water are found in Indiana rule 326 IAC 6-6-2(i). Monitoring and reporting will be handled in accordance with the continuous compliance plan requirements in Indiana rule 326 IAC 6-1-10.1(1). Further, the national emission standards for hazardous air pollutants (NESHAP) for coke ovens found in 40 CFR 63 subpart CCCCC (promulgated April 14, 2003, at 68 FR 18007), identify the requirements for new and existing coke oven batteries. The coke oven NESHAP includes appropriate test methods and monitoring and reporting requirements. Indiana has confirmed that Method 2540D, Total Suspended Solids Dried at 103-105 C, from Standard Methods for the Examination of Water and Wastewater , 20th Edition, shall be used in any test of compliance with the quench water quality limits in 326 IAC 6-1-10.2 and 326 IAC 6-6-2. Method 2540D is an equivalent method to the test methods contained in 40 CFR 63 subpart CCCCC.

In summary, Indiana's rule revisions replace a test method tailored to previous circumstances at U.S. Steel with a more generally applicable and equally acceptable test method. Indiana has eliminated provisions requiring a specific schedule of periodic testing but continues to provide for State and Federal authority to require tests at any time, thus providing adequate authority for the State and EPA to assess ongoing compliance status.

Two public hearings before the State of Indiana Air Pollution Control Board were held on the rule revisions. One comment was made at the first public hearing on February 5, 2003 in support of the rule revisions. There were no comments made at the second public hearing held on May 7, 2003.

EPA is approving revisions to 326 IAC 6-1-10.1, the PM 10 emission requirements for Lake County, Indiana, and 326 IAC 6-1-10.2, the PM 10 coke battery emission requirements for Lake County, Indiana. The state submitted this SIP revision on June 13, 2003, with a supplement submitted on October 3, 2003. The revisions to the rules amend the PM 10 emission limits at U.S. Steel-Gary Works and U.S. Steel-Gary Coke Operations. The PM 10 modeling analysis provides for maintenance of the PM 10 NAAQS, therefore demonstrating that the air quality of Lake County, Indiana should be protected.

EPA is publishing this action without prior proposal, because EPA views this 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 SIP revision. Should EPA receive adverse written comments by April 21, 2004, we will withdraw this direct final rule and respond to any comments in a final action. If EPA does not receive adverse comments, this action will be effective without further notice. Any parties interested in commenting on this action should do so at this time. If we do not receive comments, this action will be effective on May 21, 2004.

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 May 21, 2004. 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, “we,” “us” and “our” refer to EPA.

Table 1 lists the rules we are approving with the dates that they were adopted by the local air agencies and submitted by the California Air Resources Board (CARB).

On July 18, 2003, EPA found these rule submittals met the completeness criteria in 40 CFR part 51, appendix V. These criteria must be met before formal EPA review can begin.

There are no previous versions of Rules 1133, 1133.1 and 1133.2 in the SIP.

VOCs help produce ground-level ozone and smog, which harm human health and the environment. Also, ammonia combines with other compounds, usually oxides of nitrogen, to form particulate matter. Section 110(a) of the CAA requires states to submit regulations that control VOC and particulate matter emissions.

Rule 1133 is an administrative rule that requires composting, chipping, and/or grinding facilities to register with the District. These facilities provide information such as types and amounts of feedstocks produced, and a description of the processes used at the facility. This information is updated annually. Rule 1133 includes the following provisions:

Rule 1133.1 establishes holding or processing time requirements for green waste and food waste chipping and grinding activities. The rule's objective is to prevent inadvertent decomposition caused by stockpiling of composting waste for extended time periods. Rule 1133.1 includes the following provisions:

Rule 1133.2 establishes control requirements for new and existing co-composting operations. Facilities may comply with the rule via two options. First, a facility can enclose and forced air aerate its compost curing operations; then, it directs all volatile organic compound (VOC) and ammonia emissions to an emission control device that reduces emissions by 80 percent. In the second option, as part of a compliance plan review process, a new co-composting facility may use any combination of composting methods and emission controls, such as add-on control devices, process controls, or best management practices, to meet an 80 percent emission reduction. Existing facilities may use a similar process to meet a 70 emission reduction requirement. All compliance options require source testing to verify compliance with the rule's requirements. SCAQMD's Rule 1133.2 includes the following provisions:

The TSD has more information about these rules.

Generally, SIP rules must be enforceable (see section 110(a) of the Act), must require Reasonably Available Control Technology (RACT) for major sources in nonattainment areas (see section 182(a)(2)(A)), and must not relax existing requirements (see sections 110(l) and 193). The SCAQMD regulates an ozone nonattainment area (see 40 CFR part 81), so Rules 1133, 1133.1, and 1133.2 must fulfill RACT.

Guidance and policy documents that we used to help evaluate specific enforceability and RACT requirements consistently include the following:

1. Portions of the proposed post-1987 ozone and carbon monoxide policy that concern RACT, 52 FR 45044, November 24, 1987.

2. “Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations,” EPA, May 25, 1988 (the Bluebook).

3. “Guidance Document for Correcting Common VOC & Other Rule Deficiencies,” EPA Region 9, August 21, 2001 (the Little Bluebook).

We believe these rules are consistent with the relevant policy and guidance regarding enforceability, RACT, and SIP relaxations. The TSD has more information on our evaluation.

As authorized in section 110(k)(3) of the Act, EPA is fully approving the submitted rules because we believe they fulfill all relevant requirements. We do not think anyone will object to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this Federal Register , we are simultaneously proposing approval of the same submitted rules. If we receive adverse comments by April 21, 2004, we will publish a timely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on May 21, 2004. This will incorporate these rules into the federally enforceable SIP.

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 (Public Law 104-4).

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

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . 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 May 21, 2004. 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).)

1. The Regional Office has established an official public rulemaking file available for inspection at the Regional Office. EPA has established an official public rulemaking file for this action under Regional Material EDocket Number R01-OAR-2004-ME-0001. The official public file consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the public rulemaking file does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public rulemaking file is the collection of materials that is available for public viewing at the Office of Ecosystem Protection, U.S. Environmental Protection Agency, EPA New England Regional Office, One Congress Street, Suite 1100, Boston, MA. EPA requests that if at all possible, you contact the contact listed in the For Further Information Contact section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30 excluding Federal Holidays.

2. Electronic Access. An electronic version of the public docket is available through EPA's Regional Material EDocket (RME) system, a part of EPA's electronic docket and comment system. You may access RME at http://docket.epa.gov/rmepub/index.jsp to review associated documents and submit comments. Once in the system, select “quick search,” then key in the appropriate RME Docket identification number.

You may also access this Federal Register document electronically through the Regulations.gov Web site located at http://www.regulations.gov where you can find, review, and submit comments on Federal rules that have been published in the Federal Register , the Government's legal newspaper, and are open for comment.

For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing at the EPA Regional Office, as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in the official public rulemaking file. The entire printed comment, including the copyrighted material, will be available at the Regional Office for public inspection.

3. Copies of the State submittal and EPA's technical support document are also available for public inspection during normal business hours, by appointment at the State Air Agency. The Bureau of Air Quality Control, Department of Environmental Protection, First Floor of the Tyson Building, Augusta Mental Health Institute Complex, Augusta, ME 04333-0017.

You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate rulemaking identification number by including the text “Public comment on proposed rulemaking R01-OAR-2004-ME-0001” in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments.

1. Electronically. If you submit an electronic comment as prescribed below, EPA recommends that you include your name, mailing address, and an e-mail address or other contact information in the body of your comment. Also include this contact information on the outside of any disk or CD-ROM you submit, and in any cover letter accompanying the disk or CD-ROM.

This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. EPA's policy is that EPA will not edit your comment, and any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket, and made available in Regional Material EDocket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.

i. Regional Material EDocket (RME). Your use of EPA's Regional Material EDocket to submit comments to EPA electronically is EPA's preferred method for receiving comments. Go directly to RME at http://docket.epa.gov/rmepub/index.jsp, and follow the online instructions for submitting comments. Once in the RME system, select “quick search,” and then key in RME Docket ID Number R01-OAR-2004-ME-0001. The system is an “anonymous access” system, which means EPA will not know your identity, e-mail address, or other contact information unless you provide it in the body of your comment.

ii. E-mail. Comments may be sent by electronic mail (e-mail) to brown.dan@epa.gov , please include the text “Public comment on proposed rulemaking R01-OAR-2004-ME-0001” in the subject line. EPA's e-mail system is not an “anonymous access” system. If you send an e-mail comment directly without going through Regulations.gov, EPA's e-mail system automatically captures your e-mail address. E-mail addresses that are automatically captured by EPA's e-mail system are included as part of the comment that is placed in the official public docket.

iii. Regulations.gov. Your use of Regulations.gov is an alternative method of submitting electronic comments to EPA. Go directly to Regulations.gov at http://www.regulations.gov, then click on the button “TO SEARCH FOR REGULATIONS CLICK HERE”, and select Environmental Protection Agency as Agency name to search on. The list of current EPA actions available for comment will be listed. Please follow the online instructions for submitting comments. The system is an “anonymous access” system, which means EPA will not know your identity, e-mail address, or other contact information unless you provide it in the body of your comment.

iv. Disk or CD-ROM. You may submit comments on a disk or CD-ROM that you mail to the mailing address identified in section 2, directly below. These electronic submissions will be accepted in WordPerfect, Word or ASCII file format. Avoid the use of special characters and any form of encryption.

2. By Mail. Send your comments to: Dan Brown, Acting Unit Manager, Air Permits, Toxics and Indoor Program Unit, Office of Ecosystem Protection (mail code CAP)] U.S. Environmental Protection Agency, EPA New England Regional Office, One Congress Street, Suite 1100, Boston, MA 02114-2023. Please include the text “Public comment on proposed rulemaking R01-OAR-2004-ME-0001” in the subject line on the first page of your comment.

3. By Hand Delivery or Courier. Deliver your comments to: Dan Brown, Acting Unit Manager, Air Permits, Toxics and Indoor Program Unit, Office of Ecosystem Protection, U.S. Environmental Protection Agency, EPA New England Regional Office, One Congress Street, Suite 11th floor, (CAP), Boston, MA 02114-2023. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30 excluding Federal holidays.

Do not submit information that you consider to be CBI electronically to EPA. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD-ROM, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the official public regional rulemaking file. If you submit the copy that does not contain CBI on disk or CD-ROM, mark the outside of the disk or CD-ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public file and available for public inspection without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person identified in the FOR FURTHER INFORMATION CONTACT section.

Organization of this document. The following outline is provided to aid in locating information in this preamble.

On August 23, 1996, the State of Maine formally submitted a request to revise its State Implementation Plan (SIP). The SIP revision consists of changes to the Maine Ambient Air Quality Standards at chapter 110 of the Department of Environmental Protection regulations in the Code of Maine Rules (“Chapter 110”).

On July 1, 1987, EPA promulgated a new rule (52 FR 24634) regarding the primary (health) and secondary (public welfare) National Ambient Air Quality Standards (NAAQS) for particulate matter (40 CFR 50.6). Under this rule, particulate matter is measured in the ambient air as PM10, or particles with a mean aerodynamic diameter of 10 microns or less, rather than as TSP, for the purposes of determining compliance with the NAAQS for particulate matter. Maine revised Chapter 110 in response to this new rule and submitted the revised Chapter 110 as a SIP revision in October 1989. EPA approved this SIP revision on March 23, 1993 (58 FR 15422), making the PM10 standard in the Maine Ambient Air Quality Standards (MAAQS) program federally enforceable.

On June 3, 1993, EPA promulgated a rule (58 FR 31622) replacing TSP with PM10 as the measure of particulate matter in the prevention of significant deterioration (PSD) program (40 CFR 51.166(c)). On July 24, 1996, Maine again revised Chapter 110 in response to this rule. Maine submitted the revised Chapter 110 as a SIP revision on August 23, 1996. By this final direct rulemaking, EPA is approving this SIP revision, making the PM10 standard in the PSD program federally enforceable.

This SIP revision amends section 10 of Chapter 110, which establishes PSD increments, or the maximum increases in concentrations of certain pollutants allowed in areas subject to the PSD program. Before revising Chapter 110 in July 1996, Maine used TSP as the indicator for particulate matter in the PSD program. After revising Chapter 110 on July 24, 1996, Maine began using PM10 to determine compliance with PSD increments as a matter of state law and continued using TSP to determine compliance with PSD increments under its SIP. This direct final rulemaking establishes PM10 as the sole indicator for the PSD program. Maine will continue to use PM10 to determine compliance with the NAAQS and MAAQS for particulate matter.

PSD increments are the maximum increases over a baseline concentration of certain air pollutants that are allowed in attainment areas. The PSD program allows increases in the ambient air concentration of a pollutant in an attainment area as long as the resulting total concentration does not exceed the sum of the baseline and increment. The sum of the baseline and increment is always smaller than concentration established by the NAAQS. Increments differ depending on the classification of an area. Class I areas, typically national parks, have smaller increments than Class II areas, and Class II areas have smaller increments than Class III areas, typically areas with a greater concentration of industry. There are no Class III areas in Maine.

In adopting revisions to Chapter 110 on July 24, 1996, Maine made its Ambient Air Quality Standards identical to those established at 40 CFR 51.166(c). By this final direct rulemaking, these revisions become part of the SIP and, thereby, federally enforceable. In particular, Class I areas are allowed an annual increment of 4 μg/m 3 and 24-hour increment of 8 μg/m 3 , Class II areas are allowed an annual increment of 17 μg/m 3 and 24-hour increment of 30 μg/m 3 , and Class III areas are allowed an annual increment of 34 μg/m 3 and 24-hour increment of 60 μg/m 3 , where all annual increments are determined using an arithmetic, rather than geometric, annual mean.

No. 40 CFR 81.320 lists the attainment status of all areas in Maine as either “better than national standards” or “cannot be classified” for both TSP and PM10.

No. This action is not affected by the decision in American Trucking Associations, Inc. v. U.S. EPA, 175 F.3d 1027 (D.C. Cir.1999), rev'd on other grounds, 531 U.S. 457 (2001). The American Trucking decision addressed, among other things, the particulate matter rule promulgated by EPA in July 1997 (62 FR 38652) that established a fine particulates NAAQS standard and redefined the PM10 NAAQS. In its decision, the D.C. Circuit Court vacated the redefined PM10 standard, leaving the July 1987 PM10 standard intact. The PM10 standard used in the PSD increments approved by this rulemaking is consistent with the NAAQS PM10 standard left intact by American Trucking.

EPA is approving the SIP revision submitted by the State of Maine on August 23, 1996. EPA is publishing this action without prior proposal because the Agency views this rulemaking as noncontroversial and anticipates no adverse comments. EPA is publishing in the proposed rules section of this Federal Register a separate document containing a proposed rulemaking to approve this SIP. Should relevant adverse comments be filed, they will be considered comments to this separate proposed rulemaking. This direct final rule will be effective May 21, 2004, without further notice unless the Agency receives relevant adverse comments by April 21, 2004.

If EPA receives such comments, it will publish a notice withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on the proposed rule. Only parties interested in commenting on the proposed rule should do so at this time. If no such comments are received, the public is advised that this rule will be effective on May 21, 2004, and no further action will be taken on the proposed rule. If EPA receives adverse comments on a section, paragraph, or other portion of this rule that 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), 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 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. )

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . 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 May 21, 2004. Interested parties should comment in response to the proposed rule rather than petition for judicial review, unless the objection arises after the comment period allowed for in the proposal. 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, the terms “you” refer to the reader of this rule and/or to sources subject to the State rule, and the terms “we,” “us,” or “our” refers to EPA.

This SUPPLEMENTARY INFORMATION section is organized as follows:

1. The Regional Office has established an official public rulemaking file available for inspection at the Regional Office. EPA has established an official public rulemaking file for this action under “Region 5 Air Docket OH160.” The official public file consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the public rulemaking file does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public rulemaking file is the collection of materials that is available for public viewing at the Air Programs Branch, Air and Radiation Division, EPA Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604. EPA requests that you contact the contact listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30 excluding Federal holidays.

2. Electronic Access. You may access this Federal Register document electronically through the regulations.gov Web site located at http://www.regulations.gov where you can find, review, and submit comments on Federal rules that have been published in the Federal Register and are open for comment.

For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public review at the EPA Regional Office, as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in the official public rulemaking file. The entire printed comment, including the copyrighted material, will be available at the Regional Office for public inspection.

You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate rulemaking identification number by including the text “Public comment on Direct Final rulemaking Region 5 Air Docket OH160” in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments.

1. Electronically. If you submit an electronic comment as prescribed below, EPA recommends that you include your name, mailing address, and an e-mail address or other contact information in the body of your comment. Also include this contact information on the outside of any disk or CD ROM you submit, and in any cover letter accompanying the disk or CD ROM. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. EPA's policy is that EPA will not edit your comment, and any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.

i. E-mail. Comments may be sent by electronic mail (e-mail) to bortzer.jay@epa.gov. Please include the text “Public Comment on Direct Final Rulemaking Region 5 Air Docket OH160” in the subject line. EPA's e-mail system is not an “anonymous access” system. If you send an e-mail comment directly without going through Regulations.gov, EPA's e-mail system automatically captures your e-mail address. E-mail addresses that are automatically captured by EPA's e-mail system are included as part of the comment that is placed in the official public docket.

ii. Regulations.gov. Your use of Regulations.gov is an alternative method of submitting electronic comments to EPA. Go directly to Regulations.gov at http://www.regulations.gov then click on the button “TO SEARCH FOR REGULATIONS CLICK HERE,” and select Environmental Protection Agency as the Agency name to search on. The list of current EPA actions available for comment will be listed. Please follow the online instructions for submitting comments. The system is an “anonymous access” system, which means EPA will not know your identity, e-mail address, or other contact information unless you provide it in the body of your comment.

iii. Disk or CD ROM. You may submit comments on a disk or CD ROM that you mail to the mailing address identified in Section 2, directly below. These electronic submissions will be accepted in WordPerfect, Word or ASCII file format. Avoid the use of special characters and any form of encryption.

2. By Mail. Send your comments to: J. Elmer Bortzer, Acting Chief, Air Programs Branch, (AR-18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604. Please include the text “Public comment on Direct Final Rulemaking Regional Air Docket OH160” in the subject line on the first page of your comment.

3. By Hand Delivery or Courier. Deliver your comments to: J. Elmer Bortzer, Acting Chief, Air Programs Branch, (AR-18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, 18th floor, Chicago, Illinois 60604. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30 excluding Federal holidays.

Do not submit information that you consider to be CBI electronically to EPA. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the official public regional rulemaking file. If you submit the copy that does not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public file and available for public inspection. If you have any questions about CBI or the procedures for claiming CBI, please consult the person identified in the FOR FURTHER INFORMATION CONTACT section.

On August 5, 2003, EPA gave conditional approval of the Ohio plan to control oxides of nitrogen from major sources in the State (68 FR 46089). The conditional approval requires Ohio to revise the date of the start of flow control in OAC rule 3745-14-06 from 2006 to 2005. This makes the date consistent with both the requirements in EPA's model rule, and also with the start date of flow control for all other states subject to the NO X SIP Call. Further information on the subject of flow control in the Ohio rule is available in the direct final rule at 68 FR 46089, dated August 5, 2003.

All sources in Ohio subject to the State NO X SIP Call rules in OAC Chapter 3745-14, are affected by this rule revision.

EPA's Part 51, Requirements for Preparation, Adoption, and Submittal of Implementation Plans enumerates the requirements of the trading program. Included in these requirements is the date by which the trading program is to be fully implemented, and also a date by which the provision limiting banked emissions (flow control) is to be triggered. These requirements specify that flow control is to be implemented in the second year of the trading program, if necessary. The requirement for flow control to be implemented in the second year is applicable to all States involved in the NO X Budget Trading Program. Flow control is a limitation on the use of banked allowances for compliance with the requirement to hold allowances which cover emissions from affected units. The limitation would apply in the second year of operation of the budget trading program. The limitation on banked allowances would be applied if the total number of emission reduction credits or banked allowances held by a source subject to the program exceeds ten percent of the sum of the allowable NO X emissions during the ozone season for all sources in the State subject to the trading program. 40 CFR 51.121(b)(1)(ii) and (2)(ii)(E).

At the time of compliance determination for each ozone season, if the total number of banked emission reduction credits or emission allowances held by a source subject to the trading program exceeds ten percent of the source's allowable NO X emissions, the source's total banked emission reduction credits used for compliance during the ozone season shall be subject to the reduction technique described in the Ohio rule. The Ohio NO X trading program begins in 2004, so therefore, the second year of the program is 2005. EPA conditioned the approval of the Ohio program on the change to the flow control date from 2006 to 2005.

To satisfy the conditional approval of the Ohio NO X Budget Trading Program, the State changed the flow control date from 2006 to 2005, found at OAC 3745-14-06(E)(6). Ohio EPA submitted the change as a revision the the SIP on November 26, 2003. This date change is the subject of this action.

The change in the date for flow control conforms to the requirement of the NO X Budget Trading Program provision noted above that flow control shall begin, if needed, in the second year of the trading program. Ohio satisfied the condition, and we are approving the change in this action.

Notice was given and public hearing announced regarding revision to OAC rule 3745-14-06, which regulates the NO X allowance tracking system. A public hearing was held on September 24, 2003, at 2 p.m. at Ohio EPA offices in Columbus, Ohio. Interested parties were invited to make oral comment and/or provide written comments on the rule revision. The rule was also available for review on the Ohio EPA Web site. Comments were also invited electronically to an address on the Ohio Web site. A transcript of the public hearing was submitted with the revised rule package. There were no comments made at the public hearing, and there were no comments submitted electronically or subsequently in writing.

EPA is approving the revision submitted by Ohio EPA which changes the application of flow control from 2006 to 2005. In the event we receive written adverse comment, this direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on a proposal published elsewhere in today's Federal Register.

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.

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).

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 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.

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). This rule will be effective May 21, 2004.

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 May 21, 2004. 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, “we,” “us” and “our” refer to EPA.

Table 1 lists the rules we are approving with the dates that they were adopted by the local air agency and submitted by the California Air Resources Board (CARB).

On October 4, 2000 and July 18, 2003, the submittals of Rule 1.1 and 2.33, respectively, were found to meet the completeness criteria in 40 CFR Part 51, Appendix V, which must be met before formal EPA review.

Submitted Rule 1.1 was intended to replace versions of Rule 1.1, Title, and Rule 1.2, Definitions, that we approved into the SIP on May 31, 1972 (37 FR 10856) and January 26, 1982 (44 FR 3550), respectively. The YSAQMD adopted revisions to the SIP-approved versions on December 8, 1993 and August 13, 1997 and CARB submitted them to us on March 29, 1994 and July 26, 2000, respectively. While we can act on only the most recently submitted version, we have reviewed materials provided with the previous submittal.

We approved a version of Rule 2.33 into the SIP on February 12, 1996 (61 FR 5288). The YSAQMD adopted this revision to the SIP-approved version on March 12, 2003 and CARB submitted it to us on June 5, 2003.

VOCs help produce ground-level ozone and smog, which harm human health and the environment. Section 110(a) of the CAA requires states to submit regulations that control VOC emissions. Rule 2.33 limits emissions of VOCs from the application of adhesives, adhesive primers, sealants, sealant primers, and from any solvent use associated with the application of these products. Rule 1.1 clarifies other YSAQMD air pollution regulations. The TSDs have more information about these rules.

Generally, SIP rules must be enforceable ( see section 110(a) of the Act), must require Reasonably Available Control Technology (RACT) for major sources in nonattainment areas ( see section 182(a)(2)(A)), and must not relax existing requirements (see sections 110(l) and 193). The YSAQMD regulates an ozone nonattainment area ( see 40 CFR part 81), so Rule 2.33 must fulfill RACT. RACT is not applicable to general regulations like Rule 1.1 which do not contain standards regulating specific sources.

Guidance and policy documents that we used to help evaluate specific enforceability and RACT requirements consistently include the following:

1. Portions of the proposed post-1987 ozone and carbon monoxide policy that concern RACT, 52 FR 45044, November 24, 1987.

2. “Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations,” EPA, May 25, 1988 (the Bluebook).

3. “Guidance Document for Correcting Common VOC & Other Rule Deficiencies,” EPA Region 9, August 21, 2001 (the Little Bluebook).

4. “Determination of Reasonably Available Control Technology and Best Available Retrofit Control Technology for Adhesives and Sealants,” CARB, December 1998.

We believe these rules are consistent with the relevant policy and guidance regarding enforceability, RACT, and SIP relaxations. The TSDs have more information on our evaluation.

The TSDs describe additional rule revisions that do not affect EPA's current action but are recommended for the next time the local agency modifies the rules.

As authorized in section 110(k)(3) of the Act, EPA is fully approving the submitted rules because we believe they fulfill all relevant requirements. We do not think anyone will object to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this Federal Register, we are simultaneously proposing approval of the same submitted rules. If we receive adverse comments by April 21, 2004, we will publish a timely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on May 21, 2004. This will incorporate these rules into the federally enforceable SIP.

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 (Public Law 104-4).

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

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note ) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. 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 May 21, 2004. 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).)

Maryland's NO X Reduction and Trading Program under COMAR 26.11.29 and 26.11.30 was approved by EPA as meeting the requirements of the NO X SIP Call on January 10, 2001 (66 FR 1866). The approved program contains NO X reduction requirements beginning May 1, 2003, and allowance allocations for affected trading sources for ozone seasons 2003 through 2005. Thereafter, Maryland's approved rule requires that allocations be updated, three years in advance, for every two year period, starting with 2006 and 2007. This SIP revision consists of Maryland's allocation update for 2006 and 2007, and includes changes to the requirements pertaining to its set aside pool.

On April 24, 2003, July 7, 2003, and December 1, 2003, the Maryland Department of the Environment (MDE) submitted formal revisions to its SIP. The revisions consist of NO X allowance allocations for the 2006 and 2007 ozone seasons, and revisions affecting Maryland's set aside pool for new sources and clean air projects. The MDE's initial submission of April 24, 2003, consists of revisions to COMAR 26.11.30.09, Allocation of Allowances. The MDE's letter of July 7, 2003, consists of an administrative change to correct an allocation for one source. It amends Mirant Dickerson's Unit #3 allocation from 410 to 404 tons of NO X . The revisions consisted of allocations for the control period 2006 and 2007 for each of the affected sources for which allocations were provided in the initial control period (2003 through 2005). The allocations for electric generating units (EGUS) were derived using each source's average actual heat input from the 2000 and 2001 ozone seasons multiplied by an emission rate of 0.15 pounds NO X /MMBTU, adjusted as a percentage of the total budget, with the exception of one source which received allocations based on its lower, permitted emission rate. The allocations for non-electric generating units (non-EGUS) are unchanged from the initial control period. For most sources the 2006 and 2007 allocations do not differ significantly from the initial 3-year allocations.

The MDE's submission of December 1, 2003, consists of revisions to COMAR 26.11.29.09, Requirements for New NO X Affected Trading Sources and Set-Aside Pool. These revisions clarify that the set aside pool continues beyond 2005, and establish the set aside pool calculated as 5 percent of the state's trading budget for each ozone season (obviating the need to submit a SIP revision for the set-aside every time future allocations are made). Also, the revisions allow new sources to secure allowances at the end of each ozone season, as is allowed for existing sources. Together, these submissions establish allocations that maintain Maryland's NO X SIP statewide budget. They are approvable as satisfying the NO X SIP Call requirement that Maryland update its allowance allocations for the 2006 and 2007 ozone seasons.

EPA is approving the SIP revisions submitted by MDE on April 24, 2003, July 7, 2003, and December 1, 2003. The revisions consist of NO X allowance allocations for the 2006 and 2007 ozone seasons, and revisions affecting Maryland's set aside pool for new sources and clean air projects.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register , EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on May 21, 2004, without further notice unless EPA receives adverse comment by April 21, 2004. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. 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.

You may submit comments either electronically or by mail. To ensure proper receipt by EPA, identify the appropriate rulemaking identification number MD145/154-3104 in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments.

1. Electronically. If you submit an electronic comment as prescribed below, EPA recommends that you include your name, mailing address, and an e-mail address or other contact information in the body of your comment. Also include this contact information on the outside of any disk or CD ROM you submit, and in any cover letter accompanying the disk or CD ROM. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. EPA's policy is that EPA will not edit your comment, and any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.

i. E-mail. Comments may be sent by electronic mail (e-mail) to morris.makeba@epa.gov, attention MD145/154-3104. EPA's e-mail system is not an “anonymous access” system. If you send an e-mail comment directly without going through Regulations.gov, EPA's e-mail system automatically captures your e-mail address. E-mail addresses that are automatically captured by EPA's e-mail system are included as part of the comment that is placed in the official public docket.

ii. Regulations.gov. Your use of Regulation.gov is an alternative method of submitting electronic comments to EPA. Go directly to http://www.regulations.gov, then select “Environmental Protection Agency” at the top of the page and use the “go” button. The list of current EPA actions available for comment will be listed. Please follow the online instructions for submitting comments. The system is an “anonymous access” system, which means EPA will not know your identity, e-mail address, or other contact information unless you provide it in the body of your comment.

iii. Disk or CD ROM. You may submit comments on a disk or CD ROM that you mail to the mailing address identified in the ADDRESSES section of this document. These electronic submissions will be accepted in WordPerfect, Word or ASCII file format. Avoid the use of special characters and any form of encryption.

2. By Mail. Written comments should be addressed to the EPA Regional office listed in the ADDRESSES section of this document.

For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing at the EPA Regional Office, as EPA receives them and without change, unless the comment contains copyrighted material, confidential business information (CBI), or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in the official public rulemaking file. The entire printed comment, including the copyrighted material, will be available at the Regional Office for public inspection.

Do not submit information that you consider to be CBI electronically to EPA. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the official public regional rulemaking file. If you submit the copy that does not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public file and available for public inspection without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person identified in the FOR FURTHER INFORMATION CONTACT section.

You may find the following suggestions helpful for preparing your comments:

1. Explain your views as clearly as possible.

2. Describe any assumptions that you used.

3. Provide any technical information and/or data you used that support your views.

4. If you estimate potential burden or costs, explain how you arrived at your estimate.

5. Provide specific examples to illustrate your concerns.

6. Offer alternatives.

7. Make sure to submit your comments by the comment period deadline identified.

8. To ensure proper receipt by EPA, identify the appropriate regional file/rulemaking identification number in the subject line on the first page of your response. It would also be helpful if you provided the name, date, and Federal Register citation related to your comments.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves State law as meeting Federal requirements and imposes no additional requirements beyond those imposed by State law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a State rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 21, 2004. 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 to approve both the Maryland NO X allowance allocations for 2006 through 2007 and the revisions to the set aside pool requirements, may not be challenged later in proceedings to enforce its requirements. ( See section 307(b)(2).)

This supplemental information section is organized as follows:

1. The Regional Office has established an official public rulemaking file available for inspection at the Regional Office. EPA has established an official public rulemaking file for this action under “Region 5 Air Docket Il219”. The official public file consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the public rulemaking file does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public rulemaking file is the collection of materials that is available for public viewing at the Air Programs Branch, Air and Radiation Division, EPA Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604. EPA requests that if at all possible, you contact the person listed in the For Further Information Contact section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30 excluding Federal holidays.

2. Electronic Access. You may access this Federal Register document electronically through the regulations.gov web site located at http://www.regulations.gov where you can find, review, and submit comments on Federal rules that have been published in the Federal Register , the Government's legal newspaper, and are open for comment.

For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing at the EPA Regional Office, as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in the official public rulemaking file. The entire printed comment, including the copyrighted material, will be available at the Regional Office for public inspection.

You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate rulemaking identification number by including the text “Public comment on proposed rulemaking Region 5 Air Docket “Il219” in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments.

1. Electronically. If you submit an electronic comment as prescribed below, EPA recommends that you include your name, mailing address, and an e-mail address or other contact information in the body of your comment. Also include this contact information on the outside of any disk or CD-ROM you submit, and in any cover letter accompanying the disk or CD-ROM. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. EPA's policy is that EPA will not edit your comment, and any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.

i. E-mail. Comments may be sent by electronic mail (e-mail) to bortzer.jay@epa.gov. Please include the text “Public comment on proposed rulemaking Region 5 Air Docket Il219” in the subject line. EPA's e-mail system is not an “anonymous access” system. If you send an e-mail comment directly without going through Regulations.gov, EPA's e-mail system automatically captures your e-mail address. E-mail addresses that are automatically captured by EPA's e-mail system are included as part of the comment that is placed in the official public docket.

ii. Regulations.gov. Your use of Regulations.gov is an alternative method of submitting electronic comments to EPA. Go directly to Regulations.gov at http://www.regulations.gov , then click on the button “TO SEARCH FOR REGULATIONS CLICK HERE”, and select Environmental Protection Agency as the Agency name to search on. The list of current EPA actions available for comment will be listed. Please follow the online instructions for submitting comments. The system is an “anonymous access” system, which means EPA will not know your identity, e-mail address, or other contact information unless you provide it in the body of your comment.

iii. Disk or CD-ROM. You may submit comments on a disk or CD-ROM that you mail to the mailing address identified in section 2, directly below. These electronic submissions will be accepted in WordPerfect, Word or ASCII file format. Avoid the use of special characters and any form of encryption.

2. By Mail. Send your comments to: J. Elmer Bortzer, Acting Chief, Air Programs Branch, (AR-18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604. Please include the text “Public comment on proposed rulemaking Region 5 Air Docket Il219” in the subject line on the first page of your comment.

3. By Hand Delivery or Courier. Deliver your comments to: J. Elmer Bortzer, Acting Chief, Air Programs Branch, (AR-18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, 18th floor, Chicago, Illinois 60604. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30 excluding Federal holidays.

Do not submit information that you consider to be CBI electronically to EPA. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD-ROM, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the official public regional rulemaking file. If you submit the copy that does not contain CBI on disk or CD-ROM, mark the outside of the disk or CD-ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public file and available for public inspection without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person identified in the FOR FURTHER INFORMATION CONTACT section.

In this action, EPA is approving into the Illinois VOC SIP an adjusted standard for Ford Motor Company's (Ford) solvent clean-up operations at its Chicago Assembly Plant in Chicago, IL. Specifically, EPA is approving the control requirements contained in the Illinois Pollution Control Board's November 21, 2002, Order which establishes an adjusted standard (AS 02-3) in place of the control requirements in 35 Ill. Adm. Code 218.986 for Ford's solvent clean-up operations.

The control requirements contained in the adjusted standard represents a level of control appropriate for solvent clean-up operations at an automobile assembly plant. The adjusted standard replaces an 81% control requirement in 35 Ill. Adm. Code 218.986 which is not appropriate for solvent clean-up operations because the emissions from these operations are not vented to add-on control equipment.

The adjusted standard applies to the paint booth cleaning operations, automated paint application cleaning, manual paint application equipment cleaning, floor cleaning, the purge system for automated paint application equipment, ultra filter cleaning and paint supply system cleaning and vehicle body cleaning. VOC emissions are limited to 340 tons/year as calculated on a 12 month rolling basis. That is, every month, the emissions from the prior 12 months are determined and subject to a 340 tons/year limit. The use of spray equipment is not allowed to apply any cleaning solvent in excess of 3.5 pounds VOC per gallon for cleaning paint booth walls, grates, or the exteriors of paint application equipment. Ford is prohibited from using VOC containing materials to remove paint from paint booth grates, and it is not allowed to store waste solvent or soiled rags from cleaning operations in open containers when not in use. In addition, the Illinois Pollution Control Board's (IPCB) Order contains sufficient recordkeeping requirements and test methods to establish whether the control requirements are achieved.

The Illinois EPA submitted the following information (along with other less substantive procedural documents) in support of its request for an Adjusted Standard from 35 Ill. Adm. Code 218.986:

(a) Ford's Petition from an Adjusted Standard, filed February 4, 2002.

(b) The Illinois EPA recommendation, filed April 22, 2002.

(c) Notice of Hearing, filed August 8, 2002.

(d) The Opinion and Order of the IPCB, in which the IPCB granted Ford an Adjusted Standard for its Chicago facility from 35 Ill. Adm. Code 218.986, adopted November 21, 2002.

A public hearing was held on August 15, 2002, in Chicago and a transcript of the hearing was submitted by Illinois EPA in support of its request for a SIP revision.

EPA requires that existing VOC sources in ozone nonattainment areas meet a level of control referred to as RACT. For many source categories EPA has established guidance documents which are referred to as Control Technique Guideline (CTG) documents which fairly explicitly establish the level of control that represents RACT for a specific source category. However, neither a CTG document nor explicit guidance has been established for solvent clean-up operations at automobile assembly plants. Instead, Illinois has a general 81% control requirement for those source categories for which explicit RACT guidance has not been established and Ford was found to be in violation of the 81% control requirement by EPA.

However, because an 81% control requirement is not the most suitable way to regulate solvent clean-up operations, an alternative control plan was agreed to by EPA and Ford in a February 10, 1997, United States District Court Consent Decree. The control requirements in the Consent Decree are the same as those described above in Section II.3., except that the annual limit is 390 tons VOC per year. This level of control was established because it was consistent with the level of control in place at other automotive assembly plants for their solvent clean-up operations. The 390 tons VOC/year was subsequently lowered to 340 tons VOC/year because of improvements made by Ford and as a result of discussions with community groups around Ford's Chicago Assembly Plant. The control requirements in the adjusted standard therefore represent RACT and are approvable.

For the reasons given above, EPA is approving the Adjusted Standard from 35 Ill. Adm. Code Section 218.986 for Ford that was submitted on June 20, 2003 as a SIP revision.

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 May 21, 2004, without further notice unless we receive relevant adverse written comments by April 21, 2004. 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. All public comments received will then be addressed 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 21, 2004.

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 May 21, 2004. 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).)

1. Docket. All the information including this rule and the response to comment document is available from the EPA docket. EPA has established an official public docket for this action under Docket ID No. RCRA-2001-0044 (numbered as F-2002-RDMP-FFFF in the proposed rule). The official public docket consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the public docket does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public docket is available for public viewing at the EPA Docket Center, (EPA/DC) EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the RCRA Docket is (202) 566-0270. The public may copy a maximum of 100 pages from any regulatory docket at no charge. Additional copies are $0.15 per page.

2. Electronic Access. You may access this Federal Register document electronically through the EPA Internet under the “Federal Register” listings at http://www.epa.gov/fedrgstr/. An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at http://www.epa.gov/edocket/ to view public comments, access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in Unit I.A. Once in the system, select “search,” then key in the appropriate docket identification number.

Entities potentially affected by this action are public or private owners or operators of landfills. Affected categories and entities include the following:

This table is a guide for readers that describes which entities are likely to be affected by this action. It lists the types of entities EPA is now aware could potentially be impacted by today's action. It is possible that other types of entities not listed in the table could also be affected. To determine whether you would be impacted by this action, you should carefully examine the applicability criteria. If you have questions about whether this action applies to a particular facility, please consult Mr. Paul Cassidy, U.S. Environmental Protection Agency, Office of Solid Waste (5306W), 1200 Pennsylvania Ave., SW., Washington, DC 20460, 703-308-7281, [ CASSIDY.PAUL@EPA.GOV ].

The authority for today's rule is sections 1008, 2002(a), 4004, 4005(c), 4010 and 8001(a) of the Resource Conservation and Recovery Act of 1976 (RCRA), as amended, 42 U.S.C. 6907, 6912(a), 6944, 6945(c), 6949a, 6981(a).

On June 10, 2002, EPA proposed a rule that would allow the Director of an approved State program to issue research, development, and demonstration (RD&D) permits to owners and operators of municipal solid waste landfill (MSWLF) units. RD&D permits would not be available in States without an approved MSWLF permit program, 67 FR 39662. EPA proposed this provision in an effort to stimulate the development of new technologies and alternative operational processes for the disposal of municipal solid waste in MSWLF units. The proposed rule would allow the State director to permit variances to specific provisions of the MSWLF criteria, including the (1) Operating criteria, except procedures for excluding hazardous waste and explosive gas control in subpart C; (2) the design criteria in subpart D; and (3) the final cover requirements in the closure and post-closure care criteria in subpart F. In order to issue an RD&D permit, the owner/operator of the MSWLF would have to demonstrate to the State Director's satisfaction that a landfill operating under an RD&D permit would pose no more risk to human health and the environment than it would operating under a permit in accordance with all existing MSWLF criteria.

The proposed rule would not allow State directors to deviate from certain criteria, based on a determination that compliance with the established criteria is necessary to protect human health and the environment. As proposed, the following criteria would not be subject to variance in an RD&D permit: (1) Location restrictions in subpart B; (2) ground-water monitoring and corrective action in subpart E; (3) financial assurance in subpart G; (4) explosive gas control in 40 CFR 258.23 of subpart C; and (5) hazardous waste control in 40 CFR 258.20 of subpart C.

Under the proposed rule, the duration of the initial RD&D permits would be limited to three years. However, the permit could be renewed for another three years up to a maximum of three times. Therefore, the proposed rule would allow for a maximum permit period of 12 years.

EPA considered, but did not propose, placing a size or quantity limitation on the RD&D projects to be permitted and requested public comment on whether the final rule should be limited to MSWLF units that do not exceed a certain size and/or quantity of waste placed in the landfill. EPA did not propose any such limitations based on the view that due to the potential variations in types of projects, any landfill size or waste quantity limitations should be determined by the State Director on a site-specific basis.

To ensure that projects operating under an RD&D permit meet the expectations of the research, development or demonstration project, EPA also proposed to require that the permittee test, monitor, and submit information to the State Director as specified in the RD&D permit in order for the State Director to determine the progress of the project, insure proper operation of the landfill, and assure protection of human health and the environment. EPA did not propose specific testing or recordkeeping requirements, nor did it specify monitoring frequency. The Agency believed that each project should be evaluated individually to determine the appropriate frequency of monitoring, type of testing, and what records should be kept. Therefore, under the proposed rule, the State Director would make this assessment and include specific monitoring, testing, and recordkeeping requirements in each permit.

As a separate requirement, the proposed rule would require the landfill owner/operator to submit an annual report to the State Director summarizing progress on how well the project is attaining its goals. Examples of goals include environmental protection, cost benefits, community benefits, compost recovery, improved ground water protection, more rapid and/or complete decomposition of waste, improved landfill gas recovery, and the geotechnical stability of the landfill. These goals should be clearly stated in the permit in objective, measurable terms where possible.

EPA received 12 comments on the proposed rule during the comment period. However, after the close of the comment period, EPA received, and continues to receive, electronic form letters expressing opposition to the proposed rule, which now number over 200 letters. Of the12 comments submitted during the comment period, eight came from states (environmental agencies or waste management departments) and an organization representing state waste management agencies; two were from waste management professionals; one was from a waste management trade organization; and one came from a coalition of environmental organizations. The e-form letters, which are identical, are from private individuals, and though submitted after the close of the comment period, have been considered by EPA in this rulemaking. 1

The state agencies and state agency organization, as well as the industry commenters generally expressed support for the proposed rule, although some particular issues were raised with respect to the scope of the rule. The environmental group coalition and individual commenters opposed the proposed rule. For EPA's complete responses to the comments, please see the Response to Comments document in the docket. The major issues and a summary of EPA's responses is set forth below in Section V.

Today's rule grants authority to directors of approved state programs to issue RD&D permits to provide variances from certain criteria in 40 CFR part 258 for new and existing MSWLF units and lateral expansions. However, as a result of comments on the proposal, and in an effort to clarify the Agency's intent, the final rule is narrower in scope than the proposed rule. One comment in particular questioned the broad scope of the proposed rule and the basis for EPA's authority to allow the degree of deviation from the criteria in part 258 that the commenter understood the proposal to allow. This comment was based on an interpretation of the proposal that EPA did not intend, indicating that the language of the proposal was potentially ambiguous. Therefore, in an effort to remove any potential ambiguity, the final rule focuses only on the particular areas of new variance authority. The final rule therefore differs from the proposal in approach, but not substantially in effect.

Specifically, the proposal identified a number of provisions in the part 258 criteria for which the Director of an approved State could allow for a variance in an RD&D permit. As explained in more detail below, many of these existing criteria already have their own variance provisions, whereby the Director of an approved State program is already authorized to include alternative means of meeting the criteria in an operating permit for a MSWLF unit. Thus, the inclusion of these provisions in the proposed RD&D rule created confusion and potential ambiguity, because it was not clear whether EPA intended simply to repeat the already-available flexibility or whether some additional variance authority was contemplated.

Moreover, based on the commenters' broad interpretation of the proposed RD&D rule, the commenter also more generally questioned EPA's authority to provide the degree of variance from the criteria as the proposed rule appeared to have allowed. EPA does not agree that, as a statutory matter, it could not have finalized the rule as proposed. However, in light of this comment and specific issues raised in connection with this point, (see section V.A. of the preamble for a detailed discussion), EPA also reconsidered whether it is prudent to allow each of the criteria included for variance authority in the proposal to be available for RD&D permit authority. As a result, EPA decided that several other criteria, which do not contain their own specific variance authority, should also not be included in the final rule, such as the air criteria and surface water requirements.

Therefore, today's rule provides approved States with the authority to issue RD&D permits to provide variances from the operating criteria in subpart C only with respect to run-on control systems in § 258.26(a)(1) and the liquids restrictions in § 258.28(a). In addition, the final rule allows an additional variance for the final cover set forth in the closure/post closure criteria in subpart F. Unlike the proposal, EPA is not including authority for further variance from the design criteria in subpart D.

Although the final rule allows variances for only three of the criteria in part 258, there is in fact little difference in the degree of flexibility that approved states can exercise in issuing permits for MSWLF units. In particular, several of the criteria that were proposed for RD&D permits may already be met through alternative means under the existing criteria. Therefore, EPA determined that RD&D permit authority is not needed to allow variances from those criteria. Indeed, unlike RD&D authority, there is no federal limitation on permit duration or renewals, as is contained into today's rule. Also, the existing authority in part 258 for alternatives to meeting the criteria remain available for RD&D projects. The purpose of today's rule is to expand the variance authority for innovative or new technologies or methods beyond the authority that already exists in the MSWLF criteria. This modification of the proposal also responds to a comment asserting that the RD&D permit proposal would unlawfully delegate standard-setting authority to approved states. By narrowing the RD&D permit to specific criteria which do not already include variance authority, EPA further clarifies that it did not intend that the variance, or “waiver,” authority as proposed would allow that the requirements themselves could have been waived altogether. The particular criteria that can be subject to RD&D permit variance are discussed in more specificity below.

The final rule is different in another respect from the proposal regarding the scope of coverage. In general, the final rule provides that RD&D permits may be approved for new and existing MSWLF units and lateral expansions. However, in response to a comment, the final rule states that small landfills which operate under § 258.1(f)(1) cannot receive a variance from the liquids restrictions, including the recirculation of leachate, and the addition of any run-on water on to the active portion of the landfill. The reason that the Agency is not applying the final rule to these landfills is that § 258.1(f)(1) is itself a variance from both the design requirements (Subpart D) and groundwater monitoring and corrective action requirements (Subpart E) for small landfills. EPA has concluded that a variance to add liquids to such small landfills which do not have liners meeting the design requirements in § 258.40 and/or are exempt from groundwater monitoring requirements would “present a reasonable probability of adverse affects on human health or the environment” and therefore would not meet the statutory standard for “sanitary landfills” under section 4004(a) of RCRA. In addition, because § 258.60(b)(3) already allows for owners/operators of small MSWLF units to receive a variance from final cover requirements with respect to the infiltration layer, today's RD&D authority for an alternative to the infiltration requirements in the final cover criteria do not apply to small MSWLF units.

Also in response to a comment, EPA has changed the language of § 258.4(a) to clarify that RD&D permits may be issued for “existing MSWLF units, new MSWLF units, and lateral expansions,” as those terms are defined in section § 258.2. Although this was the intent of the proposed rule, the terminology used in the proposal was not identical to the defined terms in part 258.

In response to comments regarding permit termination prior to expiration, EPA has decided to modify the language as proposed to allow the State Director to order alternative corrective action procedures to protect human and health and the environment as an option to termination of operations. In addition, the state permitting authority may include the criteria and process for project termination in the permit. Several commenters requested this change to allow the State Director more flexibility for correcting situations where there may be risks due to improper operations or unforseen problems at a site operating under today's rule. This modification is in keeping with Congress' intent that “disposal of solid wastes should continue to be primarily the function of State, regional, and local agencies * * *” RCRA section 1002(1)(4).

The rule finalizes unchanged from the proposal those requirements regarding type of waste received and other requirements necessary to protect human health and the environment, as well as the annual report requirement. Today's rule also finalizes the proposed rule with respect to the permit duration and renewal provisions. The final rule provides that RD&D permits may be approved for a period up to three years and may be renewed, with a maximum of three renewals allowed, for a total potential duration of 12 years. Also, today's action finalizes the proposal with respect to exclusion of criteria for groundwater monitoring in subpart E (§§ 258.50 through 258.59), closure and post closure requirements in subpart F (§§ 258.60 and 258.61) except alternative cover provisions in § 258.60, and financial assurance requirements subpart G (§§ 258.70 through 258.75). As in the proposal, there is no authority for a variance from these provisions in today's rule.

Today's final rule differs from the proposed rule with respect to those operating criteria in subpart C for which a variance through an RD&D permit is allowed. After further review and in response to comments, EPA is narrowing the specific sections of part 258, subpart C for which a variance in an RD&D permit may be approved. Specifically, the following operating conditions in subpart C are not included in today's final rule: daily cover material requirements described in § 258.21, disease vector control as described in § 258.22, air criteria described in § 258.24, access requirements as described in § 258.25, surface water requirements described in § 258.27, and recordkeeping requirements described in § 258.29. This is in addition to the exclusions in the proposed rule with respect to the procedures for excluding the receipt of hazardous waste and explosive gas controls described in §§ 258.20 and 258.23 respectively, which are also excluded from today's rule.

One comment in particular indicated that the proposed rule could be broadly interpreted to remove “critical components” of the criteria altogether from a permit. EPA does not agree that the proposed rule would have eliminated the criteria, however in order to address this concern, the final rule is omitting those criteria for which the existing rules already provide an alternate means/variance authority for approved state programs. This clarification also addresses another commenter's request that the final rule explicitly include the existing flexibility in part 258 into RD&D permits. EPA sees no reason to include those provisions in the RD&D permits, since approved states are already allowed to provide variances from these criteria in standard MSWLF permits. Therefore, EPA is not including variance authority for criteria where part 258 already includes authority for an approved State to allow an alternative means to meeting the criteria. However, EPA clarifies that the existing variance authority continues to be available for MSWLF units that may also receive RD&D permits under today's rule.

EPA is excluding two other criteria contained in part 258, subpart C from RD&D permit authority because the existing criteria implement requirements necessary for meeting statutory requirements. In considering the comment mentioned above regarding removal of critical components of the criteria, EPA decided that inclusion of these criteria, §§ 258.24 (air criteria) and 258.27 (surface water requirements) in today's rule would be confusing and misleading, and therefore they have been excluded from today's final rule. In addition, the run-off control variance for §§ 258.26(a)(2) and (b) were also deleted from the final rule. The purpose of the run-off controls is to prevent contamination of surface waters by the waste. Therefore, the inclusion of a variance of the run-off control variance as part of the run-on control variance in the proposed rule was inadvertent and is not included in today's final rule.

For the criteria included in today's RD&D permit rule, EPA intends that where the existing criterion prescribes the means of accomplishing the purpose of the criterion, an approved state would have authority to allow a different means to be used. For example, EPA proposed allowing a variance from the liquids restrictions in § 258.28 based on the understanding that the underlying purpose of the liquid restrictions—protection of ground water—would continue to be fulfilled. Because the only bulk liquid that is allowed to be added pursuant to § 258.28 is recirculated leachate/gas condensate, and this is only allowed in MWSLF units constructed with a composite liner and leachate collection system prescribed by § 258.40(a)(2), the existing criteria in § 258.28 provide no authority for approved states to allow the addition of bulk liquids other than recirculated leachate to MSWLF units constructed with the prescribed design. Nor is there any authority to allow leachate recirculation (or addition of other bulk liquids) to MSWLF units constructed with an alternative design approved under § 258.40(a)(1). The proposed rule was intended to provide this authority for approved states to allow these activities, but only where the MSWLF owner/operator adequately demonstrates that the alternative design under conditions of added liquids provides ground water protection—and in general is as protective of health and the environment—that is at least as protective as a MSWLF unit designed and operating as currently prescribed. As in the proposal, today's final rule in § 258.4(b) includes the provision that any RD&D permit “must include such terms and conditions at least as protective as the criteria in this part (part 258) to assure protection of human health and the environment.” Both the variances for §§ 258.28(a) and 258.26(a)(1) will allow the addition of water to a landfill. In the case of § 258.26(a)(1), the addition consists of rainwater running on to the landfill. However, the operator would still have to prevent rainwater from running off of the landfill. Therefore, the variance only applies to run-on of rainwater to the landfill.

The effect of today's rule, therefore, is to provide specific authority for states with approved programs to issue variances from part 258, subpart C requirements with respect to those operating criteria for which variance authority is appropriate, but not already included in the existing rule. These operating criteria are those for run-on control systems in § 258.26(a)(1) and the liquids restrictions in § 258.28(a).

To obtain a variance from either or both of these provisions, the owner/operator must demonstrate that there is no increased risk to human health and the environment. As stated in the proposal, the owner/operator would have to demonstrate “groundwater protection, landfill stability, as well as landfill gas collection and control sooner than is currently required under EPA air regulations,” 67 FR 39664. Since today's rule was proposed, EPA published on January 16, 2003 in the Federal Register , 68 FR 2227, the National Emission Standards for Hazardous Air Pollutants (NESHAPs) for municipal solid waste landfills. This rule applies to both major and area sources as explained in the notice. The rule has separate requirements for bioreactor landfills as set forth in subpart AAAA of part 63. The NESHAPs rule defines a bioreactor as: “ Bioreactor means a MSW landfill or portion of a MSW landfill where any liquid other than leachate (leachate includes landfill gas condensate) is added in a controlled fashion into the waste mass (often in combination with recirculating leachate) to reach a minimum average moisture content of at least 40 percent by weight to accelerate or enhance the anaerobic (without oxygen) biodegradation of the waste.” Any landfill that meets the definition of a bioreactor and the size requirements as set forth in part 63, subpart AAAA would have to meet the bioreactor standards at minimum. In addition, a state could have more stringent requirements with respect to defining or operating “bioreactors.” For example a state may designate a maximum moisture content level that is lower than the 40% by weight level specified in the definition of “bioreactor” in part 63, subpart AAAA.

In response to comments expressing concern with the liquids addition authority afforded by today's rule, EPA is modifying the variance authority as proposed with respect to these provisions by specifying that a variance may be allowed only for MSWLF units designed and constructed with a leachate collection system that maintains no more than a 30 centimeter depth of leachate on the liner. EPA has determined that the requisite demonstration of no increased risk to human health and the environment cannot be made unless the MSWLF unit to which the RD&D permit applies is constructed with a leachate collection system designed to maintain no more than a 30 centimeter depth of leachate on the liner. The major concern addressed by §§ 258.26 and 258.28(a) is contamination of surface and ground waters. Therefore, EPA is adding this condition to the variance authority because the alternative design standard presently in 40 CFR 258.40(a)(1) does not require a leachate collection system. Because § 258.28(a) does not allow leachate recirculation (or any bulk liquid addition) in MSWLF units constructed with an alternative liner, a leachate collection system is not a prerequisite to alternative design approval. However, since today's rule allows a variance to allow leachate recirculation and liquids addition to existing MSWLF units constructed with an alternative liner, EPA is including the requirement for a leachate collection system in this variance authority.

Under the rule as proposed, leachate and other liquids could theoretically have been allowed to be added to a MSWLF unit without a leachate collection system. It is unlikely that any RD&D permit allowing leachate recirculation or addition of other bulk liquids could have been issued to a MSWLF unit without a leachate collection system, because demonstrating the requisite level of protection would require that a leachate collection system be part of any design that would qualify for an RD&D permit. In the preamble to the proposed rule, EPA stated, “Today's proposed rule would grant State Directors in approved States the authority to issue permits allowing the addition of these liquids, provided the owner/operator demonstrates that there will be no increased risk to human health and the environment. The MSWLF owner/operator would therefore be required to demonstrate groundwater protection, landfill stability, * * *” 67 FR 39664. Therefore, EPA is clarifying that an adequately designed leachate collection system is a prerequisite to an RD&D permit involving the addition of liquids, including the recirculation of leachate. This issue is also discussed in the final notice of the MSWLF criteria, 56 FR 50978, 51054-56 (October 9, 1991).

As previously stated, a variance can only be granted where the MSWLF unit owner/operator demonstrates to the State Director that the risk of contamination to ground and surface waters will not be greater than the risk without a variance. Based on groundwater models such as the HELP model as well as the EPA report, “Assessment and Recommendations for Improving the Performance of Waste Containment Systems,” EPA/600/R-02/099, December 2002, EPA expects any alternative design that is demonstrated to qualify for a variance would necessarily include a leachate collection system that performs at least as well as the leachate collection system presently required under § 258.28. Therefore, today's rule requires that any alternative liner permitted under today's rule must have a leachate collection system where leachate recirculation and/or the addition of bulk liquid wastes (including storm water presently controlled by § 258.26(a)(1)), will be allowed. An adequate leachate collection system is one that is designed to maintain no more than a 30 centimeter head (pressure) on the liner. Liquid addition and/or leachate recirculation on an alternative liner without a leachate collection system above the liner and/or excessive head on the liner should be considered an unacceptable risk to groundwater and potentially to surface water. Standards for ground water protection are set forth in § 258.40. In addition, risk analysis methods are available for municipal landfills using EPA's MULTIMED and the HELP models. Additional information is available from the technical manual: “Solid Waste Disposal Facility Criteria” and technical resource document: “Assessment and Recommendations for Improving the Performance of Waste Containment Systems.” Another useful resource is the ASCE Seminar: “Design of Waste Containment Systems.” More information on the later item is available at: http://www.asce.org/conted/seminars/geotechnical.cfm.

A major concern with respect to the addition of water to a landfill is the geotechnical stability of the waste. The addition of liquid can change both the strength and behavior of the waste. Therefore, an owner/operator seeking an RD&D permit would be expected to complete a stability analysis demonstrating the physical stability of the landfill prior to the issuance of a permit. The owner/operator should be ever vigilant about any movement of the waste and should include in the demonstration a description of the methods for determining whether there is any actual or potential movement of the waste or liquid seepage from the landfill. The methods for determining geotechnical stability, as well as the results of monitoring, should be submitted to the permitting authority at least on annual basis as stated in III, A above.

EPA is not finalizing the proposed inclusion of RD&D permit authority to vary from the design criteria in subpart D. EPA received a lengthy comment opposing additional authority to vary from the design criteria in § 258.40 (see section V.B. below). After reviewing the comment and the authority existing in § 258.40, EPA has determined that the existing design criteria already provide adequate authority for the director of an approved state to allow an alternative design. The existing alternative design provision in § 258.40(a)(1) establishes the minimum criteria for protection of human health and the environment, specifically Table 1 and paragraph (d) of § 258.40. Because an RD&D permit is not authorized if the risk to human health and the environment would be greater than it would be without a variance, EPA believes that the better course is to maintain the minimum alternative design requirements in § 258.40(a)(1). The existing alternative design provision does not prescribe how these minimum performance criteria are to be met, thus the State Director already has the authority to approve alternative materials and structural components as long as they achieve the requisite level of performance.

EPA recognizes that a primary reason for interest in RD&D permit authority to vary from the design criteria is to enable MSWLF units constructed with an alternative liner design to be operated as a bioreactor. The obstacle in the part 258 criteria to operation of such a MSWLF unit as a bioreactor is not contained in the design criteria, § 258.40, however. Rather, it is the liquids restrictions in § 258.28(a) that prohibit the addition of bulk liquids, including leachate recirculation, in such landfills. EPA has therefore concluded that the authority for a variance from § 258.28(a) in an RD&D permit contained in today's rule is the only additional variance authority needed to allow for this type of innovation and experimentation. Any other experimentation with liner design, materials, structure, or other design aspects is already allowed pursuant to § 258.40(a)(1). Therefore, inclusion of authority to vary from the design criteria in § 258.40 is not needed.

EPA proposed a variance from the final cover requirements with respect to the infiltration and permeability layer, in 40 CFR 258.60(a)(1), (2) and (b)(1). One example of an alternative cover is a “phytocover.” Rather than serving as a complete physical barrier, phytocovers provide a totally different approach to controlling water infiltration to a landfill by using plants to remove moisture from the soil cover of the landfill and to control chemical or nutrient seepage on the surface of the landfill. In some cases, this type of cover may be used to remove moisture from the landfill if the plant uptake of moisture exceeds the input of water from precipitation.

Although § 258.60(b) provides authority for an alternative final cover, EPA has determined that the existing variance authority may not be sufficient to allow for experimentation with different approaches to final cover engineering, such as phytocovers. As EPA indicated in the preamble to the proposed rule, due to varying climates, topography, and waste handling techniques, there may be other means of keeping moisture from accumulating in a closed MSWLF unit than currently allowed (67 FR 39664). Section 258.60(b)(1) allows a variance from the permeability and infiltration layer specifications in § 258.60(a)(1) and (2), and § 258.60(b)(2) allows a variance from the erosion layer specifications in § 258.60(a)(3). However, the existing variance in § 258.60(b)(1) requires an infiltration layer that will achieve an equivalent reduction in infiltration as that achieved by the prescribed specifications for both permeability and infiltration in § 258.60(a)(1) and (2). This may be insufficient for alternative covers which may allow some moisture through the cap, but use some other mechanism to remove moisture from the waste. Therefore, EPA is including variance authority for 40 CFR 258.60(a)(1) and (2) in addition to that which is afforded in § 258.60(b)(1) in today's final rule. To demonstrate that a proposed experimental final cover will be as protective as a final cover meeting the requirements of § 258.60(a)(1) and (2), the owner/operator of the landfill must demonstrate that no moisture will escape from the landfill to the surrounding surface and groundwater.

The performance of the final cover on a MSWLF unit has long been a fundamental element of sound solid waste management. EPA addressed its concerns regarding final cover requirements when first promulgating the MSWLF criteria in 1991. 56 FR 51094-51106. A major concern regarding final cover performance is prevention of the “bathtub effect,” which is caused by water passing through the cover and filling up the liner Therefore, the criteria for final cover design prescribe a minimum permeability applicable to all MSWLF units, and where the MSWLF unit has a liner, the criteria require the final cover to be at least no more permeable than the bottom liner.

The bathtub effect is still the major concern with respect to final covers. A demonstration for an RD&D permit for a variance from the final cover criteria must demonstrate that there will not be abuildup of excess liquid in the waste and on the landfill liner. A landfill constructed with a leachate collection system provides the best opportunity for determining the amount of water in the landfill system and if there is a buildup of excess liquid on the liner. In addition, the physical stability of the landfill is a concern for an alternative final cover that can have significant permeability and allows the waste to pick up some water, even though there is little or no significant liquid on the liner. This is especially true for landfills that are not operated as bioreactors. The owner/operator and the State program Director should consider this possibility when developing an alternative cover under today's rule. The Director should be confident water contacting the waste will not compromise the physical stability of the landfill.

Although there is no measurement specified in today's rule, there is a requirement for a sufficient reduction in infiltration so that there will be no leakage of leachate from the landfill. In many cases, infiltration can be measured, in particular if the landfill has a leachate collection system. For landfills without a leachate collection system, or if measurement is otherwise not an option, alternative means of making a determination must be used. This does not necessarily require modeling, although modeling may be an appropriate means of demonstrating equivalence. Where models do not adequately account for the properties of a proposed alternative cover, the demonstration may be based on reasonable scientific facts and principles. In the case of phytocovers, for example, the demonstration could include the evapotranspiration rate of the cover, i.e. , the extent to which the cover would be capable of preventing water from reaching the waste or landfill liner. Therefore, the permitting authority could consider the infiltration rate of water to and through the waste over time as opposed to the degree of permeability of the cap alone. EPA intends that today's rule will provide adequate authority for the Director of an approved State program to approve the means for showing an appropriate reduction in the infiltration of water as part of the RD&D permit approval process.

Today's rule does not include a variance for the erosion layer requirements in § 250.60(a)(3) and (b)(2). Because § 258.60(b)(2) already provides authority for an alternative cover design that “provides equivalent protection from wind and water erosion as the erosion layer specified in paragraph (a)(3),” there is no need for any additional variance authority with respect to erosion control.

When allowing use of an alternative final cover, the State Director should consider if some type of financial assurance may be needed to replace an alternative cover with another cover as presently specified in § 258.60(a) and (b) in the event the alternative cover allowed by today's rule should fail. The State Director could include this financial assurance with respect to a replacement of the final cover as part of thesubpart G requirements for the Financial Assurance Criteria.

Some commenters urged EPA to expand the variance authority in the RD&D permit rule to allow variance from post-closure care requirements, as well as from the final cover requirements. EPA does not agree that additional flexibility is needed for the post closure care requirements in 40 CFR 258.61. There are already opportunities in § 258.61 for the Director of an approved State program to modify post-closure requirements on a case-by-case basis. Therefore, today's rule only allows a variance for § 258.60(a) and (b), because our review shows that the existing alternative final cover provision in § 258.60(b) is not sufficiently flexible to allow for a foreseeable range of alternative final cover developments.

The coalition of environmental groups claims that EPA does not have authority to allow a State with an approved program to issue RD&D permits because this constitutes an unlawful delegation of authority to set standards. They interpret the authority to grant variances from certain criteria through the RD&D permit process as the authority to set standards. The commenter bases this interpretation on four factors: (1) No EPA oversight to ensure that only truly innovative technologies are permitted; (2) no definition of “innovative” in the rule; (3) no means of determining whether the technology for which a variance is sought provides at least “equivalent” environmental and human health protection; and (4) the possibility of the RD&D permit lasting up to 12 years. Finally, they argue that the RD&D permit authority violates RCRA and the National Environmental Policy Act.

EPA disagrees with the premise of the comment that the rule effectively delegates authority to set national standards for municipal solid waste landfills to those states with approved programs. Section 4004(a) of RCRA directs EPA to “promulgate regulations containing criteria for determining which facilities shall be classified as sanitary landfills and which shall be classified as open dumps. . . . At a minimum, such criteria shall provide that a facility may be classified as a sanitary landfill and not an open dump only if there is no reasonable probability of adverse effects on health or the environment from disposal of solid waste at such facility.” Today's rule, in § 258.4(b) explicitly requires that any RD& D permit “include such terms and conditions at least as protective as the criteria for municipal solid waste landfills to assure protection of human health and the environment.” EPA clarifies that this requirement that RD&D permit terms and conditions be at least as protective as the existing part 258 criteria is a requirement that any variance under today's rule be equivalent to the existing criteria in protecting human health and the environment.

EPA agrees with the commenters, however, that the proposed rule was drafted more broadly than necessary to provide the flexibility intended. Therefore, to clarify the scope of the rule, EPA has omitted those parts of the part 258 criteria that already allow for different means to achieve the existing standards, and has added specific requirements for making the requisite demonstration that the permitted variance be as protective as the existing requirements in part 258.

As the comment notes, the variances allowed in an RD&D permit will allow more moisture to enter a landfill, through run-on of storm water and addition of other liquids. Under today's rule, any MSWLF unit must be designed to meet the ground water protection criteria in § 258.40, and must be constructed with a leachate collection system meeting the same performance standard contained in the design criteria (§ 258.40(a)(2)). Moreover, all ground water monitoring and corrective action requirements continue to apply. Therefore, EPA has not changed the ultimate regulatory standard, or allowed states to change the ultimate regulatory standard, that applies to MSWLF units. See Section V.H. below for further discussion of “equivalence.”

EPA does not agree that federal oversight of RD&D permits is required or authorized by RCRA. Unlike Subtitle C of RCRA, Subtitle D does not provide authority for a federal permitting program. On the contrary, section 4005(c) requires each State to adopt and implement a permit program to ensure that MSWLF units comply with the federal criteria. Oversight of MSWLF operations is within state, not federal, purview. Today's rule is consistent with existing criteria in part 258 which provides directors of approved state programs to allow alternative means of meeting the criteria to be included in a MSWLF permit ( e.g. , 40 CFR 258.21(b), 258.40(a)(1)).

Nor does EPA believe that it is necessary to define “innovative.” As more fully discussed in the Response to Comments Document, today's rule is modeled on 40 CFR 270.65, a research, development and demonstration permit rule for innovative and experimental hazardous waste treatment authorized by RCRA section 3005(g). Congress did not define “innovative and experimental” in the statute, nor did EPA define those terms in § 270.65. However, in the preamble to that rule, EPA explained that “innovative and experimental” covers a broad range from technologies or processes that have only been tested in a laboratory setting to those that have already had some commercial application. 50 FR 27802, 27828 (July 15, 1985). For purposes of today's rule, EPA also intends “innovative and new” to be read broadly, to cover technologies and operational methods that are not currently permitted under 40 CFR part 258, ranging from those “on paper” or tested only in the laboratory to those which may have already had some limited application, e.g. through Project XL.

EPA also does not agree that the 12 year maximum duration of operation under an RD&D permit indicates that the intent of the rule is allow circumvention of the criteria or delegation of standard setting authority. See Section V.D. below and the Response to Comments Document.

EPA also notes that, in addition to section 4004(a) of RCRA, today's rule is supported by RCRA section 8001(a). This provision authorizes EPA to encourage state and local public authorities and agencies, as well as private agencies and individuals, to conduct research, investigations, experiments, training, demonstrations, and studies relating to the development and application of new and improved methods for collecting and disposing of solid waste, as well as improvements with respect to landfills. Today's rule enables States with approved MSWLF permit programs to expand their programs to include permits for particular research, demonstrations, and development of new methods to managing solid waste disposal in MSWLF units, including “means for reducing harmful environmental effects of earlier and existing landfills,” and “means for rendering landfill safe for purposes of construction and other uses, and techniques for recovering materials and energy from landfills. RCRA section 8001(a)(10).

Finally, the comment raises the National Environmental Policy Act (NEPA), claiming that today's rule is an “end run” around NEPA because the rule constitutes a repeal of “its current bioreactor prohibition” and requires EPA to consider “less environmentally risky alternatives to bioreactors.” Again, EPA does not accept the premise that today's rule is a rule to authorize bioreactor operation on a national level. The final rule does not change the criteria on a national level; rather today's rule allows approved states to have greater flexibility in implementing specified criteria for research, demonstration and development purposes. Alternatives to today's rule would be alternative means of allowing research, development and demonstration of MSWLF operation and final cover. As the commenter has pointed out, there are already alternative means for conducting research: Project XL and CRADAs. Today's rule provides one additional means of demonstrating new techniques and materials. The means adopted in this rule, a limited purpose and limited duration permit, provides for public participation in each permit determination, and requires the Director of the approved state program to make a determination that the RD&D permit will not increase the probability of adverse effects to health or the environment over the existing criteria. See the Response to Comment document for further discussion of rulemaking under RCRA and NEPA requirements.

One commenter stated that § 258.40(e) already provides authority for an alternative design, while ensuring EPA oversight of alternative design approval by the State. As described above, EPA agrees that additional authority for a variance from the design criteria in § 258.40 is not needed, and the final rule does not include such authority. However, § 258.40(e) does not provide the basis for this conclusion.

Section 258.40(e) was specifically promulgated to allow alternative liners in states prior to promulgation of rules for approving state solid waste landfill permit programs. In contrast, § 258.40(a)(1) allows the State Director in a state with an approved program to authorize an alternative liner that meets the minimum ground water protection standards referenced in § 258.40(a)(1), but does not give the same authority to states without an approved program. The process set forth in § 258.40(e) allowed MSWLF owners/operators to construct alternative liners during the period when no EPA regulations for state program approval were in place. EPA promulgated state program approval regulations on October 23, 1998, now codified at 40 CFR part 239, implementing RCRA section 4005(c)(1)(B). Section 258.40(e) provided for EPA oversight because without state program approval, states could not approve a design as meeting the federal performance criteria. Once part 239 was promulgated, approved states were able to issue permits for landfills with alternative liners without the use of § 258.40(e), and EPA oversight or approval was no longer necessary. Thus MSWLF owners/operators in approved states seeking construction of an alternative liner no longer need the procedures set forth in § 258.40(e).

Since the authority in today's rule only applies in approved states, and approved states already have authority in § 258.40(a)(1) to allow alternative designs, there is no need to include authority for a variance from the design criteria in today's rule. As noted above, EPA does not exercise or claim oversight authority with respect to state approvals of alternative designs under 40 CFR 258.40(a)(1).

One commenter claims that EPA has sufficient processes for fostering innovation without providing additional variance authority through RD&D permits and referenced two other modes for fostering innovation. The first was the Cooperative Research and Development Agreements (CRADAs) and the second is Project XL.

EPA agrees that research by entering into CRADAs can provide useful and high quality information. EPA is currently working with Waste Management, Inc. under a CRADA on a five-year project concerning bioreactor operation at the Outer Loop Facility in Louisville, KY. 2 The major purpose of this CRADA is to receive technical EPA assistance in project development and monitoring techniques for the site. However, CRADA authority does not allow any variance from the existing landfill regulations. These limitations in scope, size, and project cost are reasons for the limited number of CRADAs. Therefore, the existing experiment is limited in the parameters that can be explored under existing criteria. Indeed, the existing CRADA at the Outer Loop facility illustrates why CRADAs do not provide the same opportunities for innovation. Today's rule will not effect the Outer Loop research under the CRADA. However, even without a CRADA for research at the Outer Loop facility, the State of Kentucky will be authorized to issue a state permit in the future to allow Waste Management to expand its research at this facility within the parameters of the RD&D permit authority.

The other avenue for innovation mentioned by the commenter was Project XL. EPA has processed four projects under Project XL involving MSWLFs, all of which involve some use of bioreactor technology or leachate recirculation. Each of these projects required a site-specific rule making at the federal level, as well as permit modifications on the state level. With today's rule, the federal site-specific rulemaking will not be needed to allow such projects to be permitted. However, similar demonstrations of expected performance and results will be needed in the permitting process, and public participation will take place in the permitting process as well. Therefore, while Project XL has proven useful for these and other innovative projects, EPA does not believe that the types of variances allowed under today's rule are such that a federal rulemaking should be required for each such project. EPA believes that the permit process provides the necessary scrutiny and public participation for variances included in RD&D permits. EPA Regional and Headquarters expertise is available to assist states in developing permits for the appropriate facilities.

Both CRADA authority and Project XL remain available for research and innovation. Because today's rule allows for particular variances, innovation with other aspects of MSWLF construction or operation may continue to be available only through a site-specific rulemaking for example, under Project XL. Today's rule provides an additional avenue for particular variances from prescribed means of meeting federal criteria for MSWLF units.

Several commenters argue that the proposed duration of up to 12 years, including permit renewals is too long and provides much more time than is necessary for testing innovative materials or practices. On the other hand, others believe that the maximum permit duration is too short, some of whom think there should be no maximum time limit on the permit, arguing that the State Director should make the final determination with respect to permit duration.

EPA does not agree with the view that a 12 year maximum duration is too long. Because there is a need to renew the permit every three years, EPA does not expect every RD&D permit to extend for the maximum number of years. However, some RD&D projects may be active for longer periods of time. While MSWLF units typically receive waste over relatively short time frames such as 5 to 7 years, the reaction or stabilization process may continue over a longer period of time. It may be reasonable, or even necessary, for an RD&D permit to encompass active operation, closure and post-closure in order for the permittee to assess a cover material, equipment performance, leachate quantity and quality, or other parameters for which a variance under today's rule has been granted in the permit. Extending the permit over a longer period also allows for collection of data that is required under an RD&D permit, but not required under the federal criteria for a standard MSWLF permit.

EPA also does not agree that the 12 year maximum is too short or that there should be no maximum period at all. EPA always intended these permits to be temporary, discrete permits from which data could be used for future rulemaking(s). Therefore, the purpose of RD&D permit authority is to allow innovation and experimentation under close state oversight for a limited period. It is not intended to allow permanent operation of a MSWLF using means outside the scope of the existing criteria.

If an experiment is successful and the state or EPA wishes a project to continue operation under the terms of the RD&D permit beyond the 12-year time frame, an amendment to 40 CFR part 258 would be needed. EPA anticipates that during the period of the final 3 year permit term, either the facility would seek a site-specific rule or EPA would consider a general rulemaking to incorporate the experimental aspects of the project into the part 258 criteria. At that time, the project would be evaluated by EPA, and if EPA agreed, the appropriate regulatory change, either on a site-specific or general basis, would be proposed. The subsequent EPA evaluation and rulemaking process, which will be similar to the Project XL rulemaking process, is expected to take another one to two years. EPA believes it has struck a balance here between the need to support and encourage innovation and the prescriptiveness of the federal criteria. Therefore, we believe that the total 12 year permitted time frame is reasonable and appropriate.

One commenter opposes the rule “as a matter of policy” because the means chosen—permit variances—are contrary to the goal of developing data that may be used to revise the existing federal MSWLF criteria, which should involve standardized research protocols. The example cited by the commenter is that EPA stated in the proposal that it expects the rule to foster experimentation with bioreactor technology and operation. The commenter believes that there are too many engineering problems with bioreactor landfills for state permitting authorities to be able to adequately address them in their permits.

EPA does not agree that the data generated from RD&D projects will be unusable because the research will not be carried out using standardized protocols. Today's rule, like many of the requirements in the existing MSWLF criteria, is based on unit-specific and site-specific flexibility for meeting the underlying standards established in the part 258 criteria. The existing MSWLF criteria and today's rule recognize that differences in climate, terrain, and a range of other factors are appropriate factors to address in the terms and conditions of individual permits.

Moreover, the information gathered as a result of RD&D permits is expected to be useful in a similar manner as information gathered from the Project XL bioreactor projects. Such information includes the quality and quantity of leachate, quality of waste, quality and quantity of gas generation, measurement of subsidence by using standard engineering/scientific approaches or approved EPA methods. When reviewing any data for use in future rulemaking efforts, whether from Project XL, RD&D permits, or other sources, standard Agency QA/QC protocols will be used and all information will be subject to public comment and review.

As noted above, the commenter expressed greatest concern with the application of today's rule to expand construction and/or operation of MSWLF units as “bioreactors,” i.e. , landfills where controlled addition of non-hazardous liquid wastes or water 3 accelerate the decomposition of waste and landfill gas generation. The deposition of liquid non-hazardous waste should be compatible and suitable with the operation of the landfill, i.e, the waste will not inhibit the biodegradation process or cause operational problems for the landfill, including risks to human health or the environment. EPA recognizes that RD&D permit authority will likely be used to allow leachate recirculation in existing MSWLF units constructed with alternative liners approved pursuant to § 258.40(a)(1). In fact, EPA believes this is an important area for research and views this as one of the principal benefits of this rule. Under the existing criteria in § 258.28, leachate recirculation is allowed only in MSWLF units constructed with a composite liner and leachate collection system in accordance with the design criteria in § 258.40(a)(2) and (b). Similarly, EPA recognizes that liquid wastes in addition to recirculated leachate may be allowed under an RD&D permit. As EPA noted in the proposal, new technologies for landfill operations and design have emerged since the MSWLF criteria were promulgated in 1991, which can enable safe bioreactor operation ( i.e., the four bioreactor landfills allowed by Project XL). EPA agrees with the commenter that there are major engineering challenges presented by substantially increasing the liquid component of the waste. However, as the commenter points out, recent research, lessons learned from failures, and experimentation through Project XL and the Outer Loop CRADA have provided valuable information and models for appropriate design, operation, and monitoring.

Each of the MSWLF leachate recirculation or bioreactor operations studied so far have been required to have leachate collection systems that maintain no more than 30 centimeters (cm) depth of leachate on the liner per section 258.40(a)(2). In light of the commenter's concerns about bioreactor operations in particular, EPA has determined that no variance from the requirement that a leachate collection system maintaining no more than 30 cm depth of leachate on the liner should be allowed. Where leachate is being recirculated and/or bulk liquids are added to the landfill to promote decomposition, EPA has required (in the existing criteria, § 258.28 and § 258.40) and is requiring in today's rule that the system maintain a maximum leachate head of 30 cm in order to assure that there is no excessive pressure on the landfill liner in order to prevent leakage of leachate into the groundwater. The 30 cm. head on the liner standard was originally proposed in the Federal Register for the MSWLF criteria on August 30, 1988 and is the same standard as used for leachate collection systems at subtitle C hazardous waste landfills (53 FR 33341 and 33396).

In addition, EPA believes that the owner/operator should be ever vigilant about any movement of the waste and he/she should include the methods of determining whether there is any or potential movement of the waste or liquid seepage from the landfill. The methods for determining geotechnical stability, as well as the results of monitoring should be submitted to the permitting authority at least on an annual basis as stated in III, A above.

Most commenters on this issue agreed that groundwater monitoring requirements should not be allowed to be varied under today's rule. However, two commenters recommend allowing variances from groundwater monitoring requirements. One commenter stated that the basic need to conduct groundwater monitoring should be maintained, but that it should not be “EPA's intent to forestall RD&D on new techniques for groundwater monitoring.”

EPA does not agree that variance from the groundwater monitoring criteria is needed to allow for research, development and demonstration of new techniques for groundwater monitoring. The existing criteria already provide for site-specific factors to be taken into account and provide a number of opportunities for approved states to make alternative determinations ( e.g. , §§ 258.51(a)(2), (b); 258.54(a)(1), (2)). Moreover, the existing criteria (§§ 258.52, 258.53) allow the owner/operator of an MSWLF unit flexibility in establishing a sufficient and appropriate groundwater monitoring system and a groundwater sampling and analysis program. Neither commenter identified any RD&D type activities that would be hampered by the existing groundwater monitoring criteria. Therefore, no variance from groundwater monitoring requirements is allowed under today's rule.

One commenter stated that the proposed language of § 258.4 (c) regarding project termination at “all operations at the facility” is excessive and may even be unnecessary. The commenter expects that a State Director's authority to terminate operations at a facility would already be established under State law, and would not depend on this provision. In this provision, EPA should concern itself only with those operations that are subject to the RD&D permit. If any projects were ever terminated for cause, it is inappropriate for EPA to suggest that it is necessary for the entire facility to cease operations. Instead, EPA should simply state that any RD&D permit issued pursuant to this authority shall contain the criteria and process for project termination.

EPA understands the commenter's concern with this requirement. EPA agrees that the State Director needs reasonable latitude for assuring protection of human health and environment. Therefore, EPA has decided to modify the language of this requirement to allow the State Director to order alternative corrective action procedures to protect human health and the environment as an option to termination of operations allowed under today's rule. In addition, today's rule does not apply to other operations on the site that may be operating under separate permits. The state permitting authority may include the criteria and process for project termination in the permit.

One commenter was concerned that the need to demonstrate that RD&D proposals are “at least as protective” as existing requirements is too high a burden for the owner/operator to meet. The commenter was concerned that states may establish prohibitively high standards for demonstrating technologies for those applying for an RD&D permit.

EPA believes at an “equivalent or better” standard is the correct standard. EPA has promulgated objective criteria under the statute, many of which include authority for approved states to allow “alternative” means of meeting the criteria which are “equivalent.”

EPA expects today's rule to be implemented in a comparable way to the existing authority for variances in part 258, and therefore does not expect the equivalence determination to be burdensome. Similarly, this type of determination has been made by states and EPA for the Project XL MSWLF projects for which site-specific rules already have been promulgated by the EPA. The XL projects can serve as examples for states with approved programs evaluating whether a proposal for an RD&D permit will be equivalent to the existing criteria with respect to environmental protection. In addition, in today's rule, EPA has limited the criteria for which variances are allowed as well as provided more specific information on making an equivalency determination. EPA will be available to work with states in resolving any issues in this area.

One commenter was concerned that the proposed rule change would not be self-implementing. Therefore, states could only issue RD&D permits only after EPA approval of new state rules. The commenter was concerned that states would take up to five years to adopt today's final rule since some states took this long for the original approval of the MSWLF criteria.

As explained in the proposal, today's rule is not self-implementing, that is, a MSWLF owner/operator will only have the opportunity to apply for an RD&D permit in a state with an approved state program containing RD&D permit provisions. Today's rule allows states with approved programs to adopt RD&D permit provisions, and any state without an approved program would be able to include RD&D permit provisions in a program it submits to EPA for a determination of adequacy under 40 CFR part 239.

EPA does not expect state program modifications that would incorporate RD&D permit provisions to be nearly as extensive as the original process for approval of the state's solid waste permit program. The initial submissions were complicated by the fact that EPA did not have rules for state permit program adequacy determinations in 1991, when the MSWLF criteria went into effect. Those rules, 40 CFR part 239, were promulgated by EPA in 1998.

EPA is aware that some state permitting authorities are interested in implementing the new rules as soon as possible. EPA is now working with some of these states in order to assure their submissions for approval are complete in order to minimize the time it will take for these state program modifications to be approved. EPA believes that a state submittal and EPA review could take as little as six months for approval. However, EPA acknowledges that the process could take significantly longer, if for example, a State delays making an adequate submission.

One commenter stated that bioreactor-type operations should not be allowed at small landfills for which design requirements, ground water monitoring, and corrective action are not required pursuant to § 258.1(f)(1), since adding liquid would violate the model on which the exemption is based.

EPA agrees that, because these landfills either have no liner or an inadequate liner to prevent the migration of any excess water in the landfill, no variance from operating procedures designed to control liquids should be allowed for those MSWLF units. Therefore, a paragraph has been incorporated into the final rule excluding any MSWLF unit that is exempt from subparts D and E of part 258. These MSWLF units will not be eligible for RD&D permits for variances from the run-on criteria in § 258.26(a)(1) or the liquids restrictions in § 258.28(a) This includes small and remote landfills operating under § 258.1(f)(1) of the criteria.

EPA also notes that small landfills, including those that qualify for the exemptions under § 258.1(f), already have the opportunity for alternative final cover requirements with respect to the infiltration layer requirements in § 258.60(b)(1). Under § 258.60(b)(3), the Director of any approved State may allow for alternative infiltration layer requirements for small MSWLF units, after public review and comment. Since small MSWLF units already have the flexibility afforded by today's rule with respect to final cover, EPA has determined that today's variance authority with respect to final cover requirements will not apply to small MSWLF units.

One commenter was concerned that larger quantities of landfill gas will be generated from MSWLF units that are operated as bioreactors. The commenter stated that additional gas collection and monitoring requirements should be required by rule.

With the exception of explosive gas control requirements, landfill gas controls are not regulated pursuant to Subtitle D of RCRA: rather landfill gas emissions are regulated under the Clean Air Act (CAA). The air criteria in 40 CFR 258.24 refer to CAA requirements by requiring compliance with the applicable State Implementation Plan provisions under section 110 of the CAA. Specific requirements pertaining to landfill gas emissions from MSWLF units are addressed in 40 CFR part 60, subparts Cc and WWW. Recently,EPA promulgated National Emission Standards for Hazardous Air Pollutants: Municipal Solid Waste Landfills (68 FR 2227, Jan. 16, 2003). This rule includes requirements for initiating landfill gas collection and control in bioreactor landfills. See 40 CFR part 63, subpart AAAA. State air permitting authorities should assure that air emissions from MSWLF units operating under a RD&D permit meet Federal Clean Air Act Regulations as specified in the state air permit or FESOP (Federally Enforceable State Operating Permit). Since these provisions apply to all MSWLF units, including those operating under RD&D permits, and consistent with section 1006(b) of RCRA, EPA sees no need for additional requirements under RCRA to address air emissions in today's rule.

Several state commenters suggested that successful waste management methods and techniques that prove successful in an RD&D project be allowed to be incorporated into the state's rules without waiting for EPA to amend the federal criteria. A similar comment was made regarding allowing such methods and techniques to be incorporated into the rules of other states based on successful RD&D projects. EPA does not agree that one successful RD&D project should necessarily be the basis for a rule change in the state issuing the permit or other states.

Pursuant to section 4005(c) of RCRA, EPA regulations governing state permit program approval require the state program to have the authority to impose requirements “adequate to ensure compliance with 40 CFR part 258.” 40 CFR 239.6(e). Part 258 does not allow variances from §§ 258.26(a)(1), 258.28(a) and 258.60(a)(1), (2) and (b)(1), except in accordance with today's rule, and therefore, EPA would not approve a state program modification incorporating authority to deviate from the requirements of these criteria in standard MSWLF permits. Unless and until EPA promulgates a rule incorporating any such changes into the federal criteria, after seeking comment, states would not be able to allow a new technology or method to be included in a MSWLF permit outside of the RD&D rule parameters.

The municipal solid waste landfill criteria are implemented in one of two ways. The first, and preferred alternative, is that each State implements the criteria after EPA reviews its municipal solid waste landfill permit program or other system of prior approval and finds it to be adequate pursuant to 40 CFR part 239. The criteria contain provisions that allow States to develop and rely on alternative approaches to address site-specific conditions. Therefore, the actual planning and direct implementation of solid waste programs is principally a function of State governments, rather than the federal government. The criteria can also be “self-implementing” by landfill owners and operators in those States that have not received EPA approval of their MSWLF permitting programs. In this case, the regulations provide less flexibility for owners and operators. As of January 1, 2002, 50 States and territories had received approval of their programs and are implementing the MSWLF criteria.

As discussed in a prior Federal Register notice (63 FR 57027, October 23, 1998), Tribes are not included in the definition of State under RCRA, and therefore EPA does not have authority under RCRA to approve tribal MSWLF permitting programs. However, tribes can seek the same flexibility as afforded owners and operators located in approved States through a site-specific rulemaking as discussed in the EPA draft guidance entitled, “Site Specific Flexibility Requests for Municipal Solid Waste Landfills in Indian Country,” EPA530-97-016, August 1997.

Today's final rule to allow RD&D permits is not self implementing. MSWLF owners/operators will only be able to obtain an RD&D permit in approved States that adopt authority to issue such permits. Because today's rule provides more flexibility than existing federal criteria, states are not required to amend permit programs which have been determined to be adequate under 40 CFR part 239. States have the option to amend statutory or regulatory provisions pursuant to today's rule. If a State chooses to amend its statutory or regulatory authority, and if doing so modifies the State's solid waste permit program, the State is required to notify the EPA Regional Administrator of the modification as provided by 40 CFR 239.12. Whether a State chooses to incorporate today's rule into its solid waste program will have no effect on the status of its existing program with respect to EPA approval, i.e., a State's submission of revisions to issue RD&D permits does not open a previously approved solid waste program for Federal review.

Tribes are also eligible for RD&D permits under today's rule, similar to owners and operators located in approved States, through a site-specific rulemaking outlined in the previously referenced draft guidance document, “Site Specific Flexibility Requests for Municipal Solid Waste Landfills in Indian Country.”

Under Executive Order 12866 (58 FR 51735), the Agency must determine whether this regulatory action is “significant” and therefore subject to formal review by the Office of Management and Budget (OMB) and to the requirements of the Executive Order, which include assessing the costs and benefits anticipated as a result of the proposed regulatory action. The Order defines “significant regulatory action” as one that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

Today's rule allows, but does not require, States to provide RD&D permits to individual MSWLFs. This rule will not require any MSWLF to apply for such a permit, but would provide an opportunity to those owners/operators of MSWLF units seeking to try innovative or new technology or processes with respect to landfilling municipal solid waste.

It has been determined that today's rule is not a significant regulatory action under Executive Order 12866 and is therefore not subject to OMB review. Today's rule would impose no new requirements and is intended to give more flexibility to the regulated community with significant potential net cost savings. Although net cost savings are expected, EPA is unable to estimate the magnitude of the savings because it is not known how many RD&D permits will be authorized nor what kinds of permit changes or innovations might be undertaken.

The information collection requirements in this rule will be submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An Information Collection Request (ICR) document will be prepared by EPA and a copy, when completed, may be obtained from Sandy Farmer by mail at Collection Strategies Division; U.S. Environmental Protection Agency (2822); 1200 Pennsylvania Ave., NW., Washington, DC 20460, by e-mail at farmer.sandy@epamail.epa.gov, or by calling (202) 260-2740. A copy can also be downloaded off the Internet at

The ICRs affected by this rule are for 40 CFR part 239, Requirements for State Permit Program Determination of Adequacy and part 258, MSWLF Criteria. OMB has reviewed the ICR for part 239 (ICR# 1608.03, OMB# 2050-152). EPA included estimates of the cost for approved States to revise their existing program for today's rule. The estimated cost was $5,680 per respondent. EPA will request comments under the ICR review process from States which plan to make these revisions so that EPA can better understand the expected burden that would be incurred by states who wish to make these changes. EPA is estimating that approximately five states will revise their rules to take advantage of today's rule. In addition, EPA will also be requesting information from MSWLF owners/operators on the reporting burden that they would incur due to this rule under the part 258, MSWLF criteria ICR (ICR# 1381.06, OMB# 2050-0122) when that review process begins. This process is scheduled to be completed in October 2003. Information which States are expected to require include a demonstration as part of the permit application, the annual report specified in the rule, as well as additional monitoring and testing requirements which may be specified by a State authority. Additional monitoring requirements could include the measurement of leachate head on the liner; landfill temperature at various locations; type, application rate and application method of various wastes, including liquid wastes and water that maybe placed in the landfill; additional hydraulic studies; landfill settlement rate determinations; etc. At present, EPA estimates that only two to three landfills a year will be permitted under this rule over the next few years. Reporting requirements are estimated to cost between $15,000 and $25,000 per year per landfill. So total reporting costs are estimated at $30,000 to $75,000 per year for the first year and increasing at a rate of $50,000 per year for the next three years thereafter.

The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et. seq., generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A small business that is primarily engaged in the collection and disposal of refuse in a landfill operation as defined by NAICS codes 562212 and 924110 (also defined by SIC codes 4953 and 9511) with annual receipts less than 10 million dollars, as defined in accordance with the Small Business Administration (SBA) size standards established for industries listed in the North American Industry Classification System ( see http://www.sba.gov/size/NAICS-cover-page.html ); (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of today's final rule on small entities, I hereby certify that this rule will not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on small entities, since the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives “which minimize any significant economic impact of the proposed rule on small entities” (5 U.S.C. Sections 603 and 604). Thus, an agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect on small entities subject to the rule. This rule will create no additional burden for small entities since small entities are not required to apply for a permit under today's rule in order to operate a landfill under part 258, unless they utilize a different technology then is allowed under existing rules. Therefore, getting a permit under today's rule is optional on the part of the landfill owner/operator.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments, and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of alternatives and adopt the least costly, most cost effective or least burdensome alternative that achieves the objective of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

EPA's analysis of compliance with the Unfunded Mandates Reform Act of 1995 found that this rule imposes no additional enforceable burden on any State, local or tribal governments or the private sector. Thus, today's rule is not subject to the requirements of sections 202, 203, and 205 of UMRA.

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” are defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

This final rule does not have federalism implications. It would 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. Implementation of this rule by a State is at the State's discretion and is not required. Nevertheless, although section 6 of Executive Order 13132 does not apply to this rule, EPA has consulted with States through the Association of State and Territorial Solid Waste Management Officials during the development of this rule. Thus, Executive Order 13132 does not apply to this rule change.

In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA requested and received comments on the proposed rule from State and local officials. These comments have been addressed in the preamble and the Response to Comments document.

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” are 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.”

Under section 5(b) of Executive Order 13175, EPA may not issue a regulation that has tribal 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 tribal governments, or EPA consults with tribal officials early in the process of developing the proposed regulation. Under section 5(c) of Executive Order 13175, EPA may not issue a regulation that has tribal implications and that preempts tribal law, unless the Agency consults with tribal officials early in the process of developing the regulation.

EPA has concluded that this rule will have no new tribal implications. It would not present any additional burden on the tribes, but will allow more flexibility for compliance with the MSWLF criteria. It will neither impose substantial direct compliance costs on tribal governments, nor preempt tribal law. Thus, the requirements of sections 5(b) and 5(c) of the Executive Order do not apply to this rule.

Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” 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 rule as defined by Executive Order 12866, and because it would not affect decisions involving the environmental health or safety risks to children.

This rule is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. This rule reduces regulatory burden. It thus should not adversely affect energy supply, distribution or use.

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

This rulemaking does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards.

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 21, 2004.

Background

This final rule implements the MPCE Act codified at section 3721 of title 31 of the United States Code. The MPCE Act establishes guidelines Federal agencies must follow when an agency employee files a claim for personal property damage or loss incurred incident to his or her Federal service. Under the MPCE Act, the Secretary may approve claims made against the Government by a federal government employee for damage or loss of personal property that is incident to employment if the loss was not due to a negligent or wrongful act of the claimant. Therefore, HHS adds a new regulation to implement to the MPCE Act. Prior guidance in the Department's General Administration Manual is hereby superseded.

This rulemaking is limited to internal agency management and policy, and therefore is not a regulation or rule as defined by Executive Order 12866. It has also has also been determined that this rulemaking is not a significant regulatory action for purposes of Executive Order 12866. Accordingly, a regulatory impact analysis is not required.

This rule relates to internal agency management and policy, and therefore, it is not subject to Executive Order 12291. Because no notice of proposed rulemaking is required for this final rule, it is not subject to the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ).

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

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, 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 Sates-based companies to compete with foreign-based companies in domestic or export markets.

This rule will not have a substantial direct effect on the states, on the relationship between the National Government and the states, or on the distribution of power and responsibilities among various levels of government. Therefore, in accordance with Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of federalism assessment.

This final rule would not impose any new reporting or recordkeeping requirements under the Paper Reduction Act, 44 U.S.C. chapter 35.

No public comments were received.

This is a synopsis of the Commission's Report and Order, MB Docket No. 03-213, adopted February 25, 2004, and released March 3, 2004. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 202-863-2893, facsimile 202-863-2898, or via-e-mail qualexint@aol.com.

This is a synopsis of the Commission's Report and Order, MB Docket No. 03-207, adopted February 25, 2004, and released March 3, 2004. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 202-863-2893, facsimile 202-863-2898, or via-e-mail qualexint@aol.com.

This is a synopsis of the Commission's Report and Order, MM Docket No. 01-82, adopted February 25, 2004, and released March 5, 2004. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 202-863-2893, facsimile 202-863-2898, or via-e-mail qualexint@aol.com.

NASA FAR Supplement (NFS) provision 1852.213-70, Offeror Representations and Certifications—Other Than Commercial Items, provides a consolidated set of representations and certifications for use under non-commercial simplified acquisitions. This interim rule makes changes to NFS 1852.213-70 to conform to changes made to FAR provisions 52.225-4 and 52.225-6 by FACs 01-14 and 01-19, and changes made to 52.225-2 by FAC 01-14. These FAR provisions are included as paragraphs (e) and (f) of 1852.213-70. Specifically, FAC 01-14 clarified the use of the term “United States,” when used in a geographic sense and provided a definition of “outlying areas” of the United States, a term that encompasses the named outlying commonwealths, territories, and minor outlying islands. In addition to changes required in paragraphs (e) and (f) of 1852.213-70, a change is required in the introductory text of paragraph (c) as a result of the definition of “outlying areas”. FAC 01-19 made changes to implement the new Free Trade Agreements with Chile and Singapore, as approved by Congress (Pub. L. 108-77 and 108-78). These changes included removing references to “North American Free Trade Agreement” and incorporating the new concept of “Free Trade Agreements” in FAR provisions 52.225-4 and 52.225-6. In addition to the changes resulting from FACs 01-14 and 01-19, this interim rule revises 1852.213-70 to incorporate the definition of “service-disabled veteran” into the definition of “service-disabled veteran-owned small business concern” consistent with FAR 2.101(b). Finally, this change updates and corrects references and makes minor editorial changes.

This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

This interim rule is not expected to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. because acquisitions under $100,000 that are set aside for small businesses are exempt from trade agreements and these representations and certifications only apply to non-commercial acquisitions less than $100,000. NASA will consider comments from small entities concerning the affected NFS Part 1852 in accordance with 5 U.S.C. 610.

The Paperwork Reduction Act does not apply because the changes do not impose any new recordkeeping or information collection requirements which require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

In accordance with 41 U.S.C. 418(d), NASA has determined that urgent and compelling reasons exist to promulgate this interim rule without prior opportunity for public comment. This action is necessary consistent with the determination made for issuance of Item II of FAC 01-19 as an interim rule because the Free Trade Agreements with Chile and Singapore, as approved by Congress (Pub. L. 108-77 and 108-78) were effective January 1, 2004. NASA will consider public comments received in response to this interim rule in formation of the final rule.