[Federal Register Volume 67, Number 27 (Friday, February 8, 2002)]
[Rules and Regulations]
[Pages 6148-6152]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-3103]



[[Page 6147]]

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Part VII





Environmental Protection Agency





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40 CFR Part 52



Approval of Revision to State Implementation Plan; New Mexico; Dona Ana 
County State Implementation Plan for Ozone; Emission Inventory; 
Permits; Approval of Waiver of Nitrogen Oxides Control Requirements; 
Volatile Organic Compounds, Nitrogen Oxides, Ozone; Final Rule and 
Proposed Rule

  Federal Register / Vol. 67, No. 27 / Friday, February 8, 2002 / Rules 
and Regulations  

[[Page 6148]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[NM-36-1-7372a; FRL-7140-4]


Approval of Revision to State Implementation Plan; New Mexico; 
Dona Ana County State Implementation Plan for Ozone; Emission 
Inventory; Permits; Approval of Waiver of Nitrogen Oxides Control 
Requirements; Volatile Organic Compounds, Nitrogen Oxides, Ozone

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is providing direct final approval of the New Mexico 
State Implementation Plan (SIP) for the Dona Ana County ozone 
nonattainment area. The area was designated nonattainment for ozone and 
classified as ``marginal'' in 1995. New Mexico submitted its SIP for 
the Dona Ana County area in 1997, requesting approval of the SIP, and 
requesting approval of a waiver of nitrogen oxides (NOX) 
requirements contained in section 182(f) of the Clean Air Act, as 
amended in 1990 (the Act). With this action the EPA is providing direct 
final approval of the Dona Ana County nonattainment area SIP and waiver 
of NOX requirements. The waiver for NOX 
requirements is granted because the area has attained the one-hour 
ozone standard without them, within the deadline prescribed by the Act.

DATES: This direct final rule will become effective on April 9, 2002 
without further notice unless the EPA receives adverse comments by 
March 11, 2002. Should the EPA receive such comments, it will publish a 
timely document in the Federal Register withdrawing this rule and 
informing the public that this rule will not take effect.

ADDRESSES: Written comments on this action should be addressed to Mr. 
Thomas H. Diggs, Chief, Air Planning Section (6PD-L), at the EPA Region 
6 Office listed below. Copies of documents relevant to this action are 
available for public inspection during normal business hours at the 
following locations. Anyone wanting to examine these documents should 
make an appointment with the appropriate office at least two working 
days in advance.
    Environmental Protection Agency, Region 6, Air Planning Section 
(6PD-L), 1445 Ross Avenue, Dallas, Texas 75202-2733.
    New Mexico Environment Depart, Air Quality Bureau, 1190 St. Francis 
Drive, Santa Fe, New Mexico 87502.

FOR FURTHER INFORMATION CONTACT: Mr. Matthew Witosky, Air Planning 
Section (6PD-L), Multimedia Planning and Permitting Division, EPA 
Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733, telephone (214) 
665-7214, electronic mail [email protected]

SUPPLEMENTARY INFORMATION:

I. Background

    Throughout this document, the EPA uses the word ``we,'' ``us,'' 
or ``our,'' to mean the EPA. The information in this section is 
organized as follows.
    1. What action is the EPA taking today?
    2. Why is this necessary?
    3. What part of New Mexico is affected?
    4. What part of the SIP is being approved?
    a. Emission inventory (EI).
    b. Emission Certification Statement in Emission Reports.
    c. NSR permit program for the construction and operation of new 
and modified major stationary sources of VOC (section 172(c)(5) of 
the Act)
    5. Does the SIP submitted contain a motor vehicle emissions 
budget for on-road emissions of volatile organic compounds (VOC's) 
for transportation conformity purposes?
    6. What is a waiver of NOX control requirements?
    7. Why is the Dona Ana County area being granted a 
NOX waiver?
    8. How long is the waiver of NOX requirements valid?
    9. What process did the State use to approve the SIP and the 
NOX waiver?
    10. Did EPA make an exception for Dona Ana County under section 
179B(a) of the Act, because the area borders Mexico?

II. Final Action

III. Administrative Requirements

I. Background

1. What Action is the EPA Taking Today?

    EPA is approving a revision to the New Mexico SIP, for the Dona Ana 
County (marginal) ozone nonattainment area. A portion of Dona Ana 
County was designated nonattainment for the National Ambient Air 
Quality Standards (NAAQS) for ozone (see 40 CFR 81.332). The SIP 
contains four elements that were adopted by the State to meet the 
requirements of the Act. EPA is approving three of these elements in 
this action. The fourth element, revisions to the transportation 
conformity rule, (see 65 FR 14873) was approved March 20, 2000. By 
approving these final three elements, the EPA is approving the Dona Ana 
County SIP. With final approval of this action, the State has met all 
the requirements that apply to Dona Ana county under the one-hour ozone 
standard. The EPA is also approving a waiver of NOX control 
requirements established under section 182(f); the authority for EPA to 
waive these requirements is likewise under section 182(f).

2. Why is This Necessary?

    The EPA designated the area as nonattainment, and classified it as 
``marginal'' due to violations of the ozone standard during 1993, 1994, 
and 1995 (see 60 FR 30789, June 12, 1995). That action imposed certain 
requirements under the Act to reduce pollution in order to bring the 
area back into attainment of the ozone standard. New Mexico has adopted 
the appropriate regulations, submitted them to EPA for review and 
approval, and implemented them. Under the Act, the EPA must approve 
these regulations and other actions into the existing federally-
approved State Implementation Plan (SIP), to make them federally 
enforceable.

3. What part of New Mexico is Affected?

    The Dona Ana County nonattainment area encompasses the community of 
Sunland Park, and several smaller communities adjacent to El Paso, 
Texas, and Ciudad Juarez, Mexico. (See 40 CFR 81.332)

4. What Part of the SIP is Being Approved?

    The Dona Ana County SIP constitutes a revision to New Mexico's 
overall SIP, adopted prior to the 1990 Amendments to the Act. The Dona 
Ana County SIP is made up of four components, three of which the EPA 
will approve in this action.
    a. Emission inventory (EI),
    b. Emission Certification Statement,
    c. Revisions to new source review (NSR), The fourth component, 
Revisions to the transportation conformity rule, was approved in a 
previous action (see 65 FR 14873, March 20, 2000).
a. Emission Inventory (EI)
    New Mexico completed a comprehensive, accurate, and current 
inventory of actual emissions from all sources of relevant pollutants 
in the nonattainment area. The State used 1995 as the base year for the 
inventory, using a three-month ozone season of August through October, 
1995. Stationary point sources, area sources, on-road mobile sources, 
non-road mobile sources, and biogenic sources of ozone precursors, 
VOC's and NOX were included in the inventory. The New Mexico 
Environment Department (NMED) included stationary sources with 
emissions greater than 100 tons per year (tpy) within a 25-mile range 
of the nonattainment area.
    For a listing of the ozone peak season daily emissions estimates by 
source

[[Page 6149]]

category, please see the docket file for this rulemaking action.
    EPA reviewed the emissions inventory submitted by the State, and 
the methodology used to generate it. EPA verified that the State 
followed EPA's emission inventory guidance in developing the inventory. 
Please see the docket file for more information on the inventory.
    For calendar year 1998 and for each three-year period thereafter 
(until the area is redesignated to attainment), NMED will be required 
to submit to EPA a revised inventory meeting the requirements of 
sections 182(a)(1) and 182(a)(3) of the CAA.
b. Emission Certification Statement in Emission Reports
    Section 182(a) of the Act requires that States insert an emission 
certification requirement into their regulations. That means the owner 
or operator of each stationary source of NOX or VOC must 
provide the State with a written report tallying the actual emissions 
of NOX and VOC from that source. The first such reports had 
to be submitted to the State within three years after the effective 
date of the final action establishing the nonattainment designation, 
July 12, 1998.
    Subsequent reports must be submitted at least every year 
thereafter. All reports must contain a certification that the 
information submitted is accurate to the best knowledge of the 
individual certifying the statement.
    New Mexico revised 20 NMAC, chapter 2, part 73, to meet these 
requirements. Subpart III, sections 300 to 304, contain the detailed 
reporting requirements for sources affected by the regulation. These 
sections will be incorporated by reference into the approved SIP. See 
the docket file for the actual text of the regulation.
c. NSR Permit Program for the Construction and Operation of New and 
Modified Major Stationary Sources of VOC (section 172(c)(5) of the Act)
    Prior to designation as nonattainment, New Mexico operated an air 
permit program in Dona Ana County, under New Mexico Air Code (NMAC) 
part 72--Construction Permits and part 74--Prevention of Significant 
Deterioration (see generally the Act, sections 110(a) (2)(c) and 
sections 160-169). After designation to nonattainment, new major 
sources and major modifications of VOC sources in the nonattainment 
area of Dona Ana County were required \1\ to be permitted under part 
79--Permits-Nonattainment areas, under revised 20 NMAC, chapter 2, part 
79, section 112.C.1, to meet the marginal nonattainment offset 
requirements of section 182 (a)(4). Section 112.C.1 sets the ratio of 
offsets required of new or modified sources in such areas. Subsequent 
sections outline the procedure for calculating the baseline from which 
offsets will be obtained, how to calculate actual offset emissions, and 
how to bank them. Section 112.C.1 will be incorporated by reference 
into the approved SIP. See the docket file for the actual text of the 
regulation.
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    \1\ See generally 172(c)(5) and 173(c). New major sources and 
major modifications which increase emissions of pollutants other 
than VOC continue to be subject to the permitting requirements under 
part 74. New and modified sources which are not major under part 74 
and part 79 continue to be subject to the permitting requirements 
under part 72.
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5. Does the SIP Submitted Contain a Motor Vehicle Emissions Budget for 
On-Road Emissions of Volatile Organic Compounds (VOC's) for 
Transportation Conformity Purposes?

    The SIP submitted by the State does not contain an MVEB. Although 
the area is subject to the transportation conformity requirements, as 
are all nonattainment and maintenance areas, the State has directed the 
planning agency responsible for transportation planning in Sunland Park 
to perform all necessary conformity analyses using the build/no-build 
test (see 40 CFR 93.119). The El Paso Metropolitan Planning 
Organization is the agency that currently performs this analysis for 
the Sunland Park area. The build/no-build test is an acceptable method 
to meet the transportation conformity requirements under 40 CFR 
93.109(c)(4)(i).

6. What is a waiver of NOX Control Requirements?

    Under the Act, marginal and certain other ozone nonattainment areas 
are required to control NOX emissions, as well as VOC 
emissions, the two main precursors for ozone. However, some areas can 
forego the additional control of NOX, and still attain the 
standard. Still other areas have shown that NOX reductions 
in their areas do not reduce ozone concentrations. For these areas, the 
EPA is allowed to waive the control requirements on NOX by 
rulemaking action. This is called a NOX waiver rule (See 
generally 182(f) and the NOX preamble, 57 FR 55620, November 
25, 1992).

7. Why is Dona Ana County Being Granted a NOX Waiver?

    The State requested a NOX waiver when they submitted 
their SIP in 1997. The area is being given a NOX waiver 
because the area has attained the standard by relying on reductions of 
only VOC emissions. Under the provisions of section 182(f), the EPA 
Administrator may waive the NOX requirements because 
additional reductions would not contribute to attainment of the one-
hour ozone standard (see 182(f)(A)). The EPA has sufficient data 
proving the area is monitoring attainment. Any NOX 
reductions that would otherwise be required under section 182, would be 
beyond the reductions needed for attainment. Hence, the EPA is honoring 
the State's request for a waiver of the NOX requirements. 
Doing so does not affect the requirements for control of VOC's. The 
State has not requested that EPA redesignate the area to attainment at 
this time.
    In the case of Dona Ana County, which is classified marginal for 
ozone, granting its request will waive requirements applicable under 
the Act; NOX requirements under the nonattainment new source 
review program, including offsets; the NOX requirements of 
general conformity, as well as the NOX requirements of the 
build/no-build provisions of the transportation conformity rules. For 
transportation conformity, see 58 FR 62188 published on November 24, 
1993, as amended, and 60 FR 44790, and 44794 of August 29, 1995. See 
also 59 FR 31238 published June 17, 1994. For general conformity, see 
58 FR 63214 published on November 30, 1993, and 59 FR 31239, June 17, 
1994.

8. How Long is the Waiver of NOX Requirements Valid?

    The EPA believes that all waivers of section 182(f) requirements 
that are approved, should be approved only on a contingent basis. If 
the area exceeds the one-hour ozone standard in the future, the EPA 
would re-evaluate all available data and modeling to determine the 
continuing validity of our decision to grant the NOX waiver. 
An exceedence of the standard, in and of itself, would not compel EPA 
to rescind the waiver. That said, compelling air quality data or 
modeling evidence that reductions in NOX would reduce the 
number or severity of ozone violations in the Dona Ana County area, 
would be justification to rescind the waiver.

9. What Process did the State use to Approve the SIP and the 
NOX Waiver?

    Under the authority of section 107(d)(3) of the Act, the EPA 
designated the area as a marginal ozone nonattainment area on June 12, 
1995 (see 60 FR 30789, June 12, 1995).
    The Act requires states to observe certain procedural requirements 
in

[[Page 6150]]

developing implementation plans and plan revisions for submission to 
EPA in response to such a designation. Section 110(a)(2) of the Act 
provides that each implementation plan submitted by a State must be 
adopted after reasonable notice and public hearing. See also section 
110(l) of the Act. Also, EPA must determine whether a submittal is 
complete and, therefore, warrants further EPA review and action. See 
section 110(k)(1) and 57 FR 13565. EPA's completeness criteria for SIP 
submittals are set out at 40 CFR part 51.
    The SIP package was received on October 8, 1997. The submittal 
included a Governor's letter dated September 24, 1997, a certification 
of public hearing with the hearing record, and copies of the rules 
adopted to fulfill the requirements of the Act. The certificate of 
public hearing showed that public hearings were held on July 11, 1997, 
to entertain public comment on a revision of the SIP. Following the 
public hearing, this revision was adopted by the State on August 8, 
1997, and submitted to the EPA as a proposed revision to the SIP. This 
submittal is necessary to satisfy the requirements of sections 182(a) 
and 179B of the Act. The State adopted the request for a NOX 
waiver and the SIP at the same time, and submitted them together.
    The SIP revision was reviewed by EPA to determine completeness, in 
accordance with the completeness criteria referenced above. A letter 
dated December 24, 1997, was forwarded to the Governor indicating the 
SIP was complete. This direct rulemaking notice would constitute final 
action by EPA to approve the SIP and NOX waiver submissions.

10. Did EPA make an exception for Dona Ana County Under Section 179B(a) 
of the Act, Because the Area Borders Mexico?

    EPA does not have to justify its approval of the SIP under section 
179B, because the area is monitoring attainment and has met the other 
applicable nonattainment requirements of the Act.
    Section 179B(a)(2) of the Act contains provisions under which EPA 
can approve SIP revisions that meet all the applicable requirements for 
a nonattainment area, even though the area has not achieved attainment. 
In doing so, EPA must have evidence that the failure to attain the 
standard is due to the contribution of emissions originating from 
outside the United States.
    In addition to authorizing waivers of the requirement to 
demonstrate attainment, section 179B(a) also allows an area affected by 
emissions from outside the United States to avoid being reclassified or 
``bumped up'' to the next higher classification because of its 
inability to demonstrate attainment. Without such a waiver, the area 
would be compelled to implement more rigorous control requirements. The 
EPA has granted such approvals in cases that demonstrate the area would 
be in attainment of a standard, but for emissions from outside the 
United States. For example, this was done for El Paso, in approving 
their PM-10 SIP (see 59 FR 2532, January 19, 1994).
    When New Mexico submitted the Dona Ana County SIP to the EPA, the 
area had not yet attained the one-hour ozone standard. Since that time, 
the area has attained the standard, by accumulating three consecutive 
years of quality-assured ambient air data showing no violations of the 
standard. The most recent data provided by the State of New Mexico, 
available through the EPA Aerometric Information and Retrieval Service 
(AIRS) demonstrates that the area continues to attain the one-hour 
standard. New Mexico has recorded three consecutive years of valid data 
in the area showing that ozone readings meet the standard.
    Since the area has been able to demonstrate it is attaining the 
one-hour ozone standard, EPA does not need to use the flexibility 
allowed under section 179B at this time. Similarly, because the area is 
now attaining the ozone NAAQS, the provisions of section 179B are not 
needed to insulate the area from the possibility of reclassification. 
However, the State has provided EPA with evidence indicating that the 
nonattainment area is influenced by ozone precursor emissions from El 
Paso, Texas, and Ciudad Juarez, Mexico--a much larger metropolitan 
region that continues to suffer ozone exceedences. The State is 
concerned that these other areas could affect air quality in the Dona 
Ana County nonattainment area in the future and interfere with its 
current attainment status. Indeed, because the potential for the area 
to fall out of attainment due to pollution impacts from these adjoining 
areas cannot be discounted, the State has informed the EPA that it does 
not intend to seek to formally redesignate the Dona Ana County 
nonattainment area to attainment under section 107(d)(3)(e) at this 
time.
    Since the situation envisioned by Congress when it enacted section 
179B is not now occurring in the Dona Ana County nonattainment area, 
there is no basis for the EPA to evaluate and/or make a determination 
at this time regarding the applicability of that section. If the 
State's fears about the impact of regional emissions are subsequently 
realized, and ozone concentrations violate the standard, the State will 
need to analyze and submit any air quality information available in 
support of their approved SIP and NOX waiver. This 
information would be necessary for the EPA to apply 179B of the Act in 
this context.

II. Final Action

    The EPA is approving New Mexico's request for approval of a 
revision to the State Implementation Plan for New Mexico. This revision 
is the implementation plan for the Dona Ana County ozone nonattainment 
area. The revision contains an inventory of actual emissions from all 
sources, a state regulation requiring that sources covered by the 
regulation certify the actual emissions of NOX and VOC, and 
a revised nonattainment new source review permitting program meeting 
the requirements of sections 172(c)(5) and 173 of the Act.
    The EPA is also approving a waiver of NOX control 
requirements, because the area has attained the standard without them.
    The EPA is publishing this rule without prior proposal because we 
view its contents as noncontroversial and anticipate no adverse 
comments, because this action approves State regulations in place at 
the State level for some time, into the Federally approved SIP. 
However, in the ``Proposed Rules'' section of today's Federal Register 
publication, we are publishing a separate document that will serve as 
the proposal to approve the SIP if adverse comments are received. This 
rule will be effective on April 9, 2002 without further notice unless 
we receive adverse comment by March 11, 2002. If EPA receives adverse 
comments, we will publish a timely withdrawal in the Federal Register 
informing the public that the rule will not take effect. We will 
address all public comments in a subsequent final rule based on the 
proposed rule. We will not institute a second comment period on this 
action. Any parties interested in commenting must do so at this time.

III. Administrative Requirements

A. Executive Order 12866

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

B. Executive Order 13045

    Protection of Children from Environmental Health Risks and Safety

[[Page 6151]]

Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is 
determined to be ``economically significant'' as defined under 
Executive Order 12866, and (2) concerns an environmental health or 
safety risk that EPA has reason to believe may have a disproportionate 
effect on children. If the regulatory action meets both criteria, the 
Agency must evaluate the environmental health or safety effects of the 
planned rule on children, and explain why the planned regulation is 
preferable to other potentially effective and reasonably feasible 
alternatives considered by the Agency.
    This rule is not subject to Executive Order 13045 because it does 
not involve decisions intended to mitigate environmental health or 
safety risks.

C. Executive Order 13132

    Federalism (64 FR 43255, August 10, 1999) revokes and replaces 
Executive Orders 12612 (Federalism) and 12875 (Enhancing the 
Intergovernmental Partnership). Executive Order 13132 requires EPA to 
develop an accountable process to ensure ``meaningful and timely input 
by State and local officials in the development of regulatory policies 
that have federalism implications.'' ``Policies that have federalism 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.'' Under Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts State law unless the 
Agency consults with State and local officials early in the process of 
developing the proposed regulation.
    This rule will not have substantial direct effects on the States, 
on the relationship between the national government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government, as specified in Executive Order 13132, because it 
merely approves 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. Thus, the 
requirements of section 6 of the Executive Order do not apply to this 
rule.

D. Executive Order 13175

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

E. Executive Order 13211

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a 
significant regulatory action under Executive Order 12866.

F. Regulatory Flexibility

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions.
    This rule will not have a significant impact on a substantial 
number of small entities because SIP approvals under section 110 and 
subchapter I, part D of the Clean Air Act do not create any new 
requirements but simply approve requirements that the State is already 
imposing. Therefore, because the Federal SIP approval does not create 
any new requirements, I certify that this action will not have a 
significant economic impact on a substantial number of small entities. 
Moreover, due to the nature of the Federal-State relationship under the 
Clean Air Act, preparation of flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of state action. The 
Clean Air Act forbids EPA to base its actions concerning SIPs on such 
grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 
42 U.S.C. 7410(a)(2).

G. Unfunded Mandates

    Under sections 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate; or to 
the private sector, of $100 million or more. Under section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the approval action promulgated does not 
include a Federal mandate that may result in estimated costs of $100 
million or more to either State, local, or tribal governments in the 
aggregate, or to the private sector. This Federal action approves pre-
existing requirements under State or local law, and imposes no new 
requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action.

H. Submission to Congress and the Comptroller General

    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 9, 2002 unless EPA receives 
adverse written comments by March 11, 2002.

I. National Technology Transfer and Advancement Act

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

[[Page 6152]]

would be inconsistent with applicable law or otherwise impractical.
    The EPA believes that VCS are inapplicable to this action. Today's 
action does not require the public to perform activities conducive to 
the use of VCS.

J. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by April 9, 2002. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Incorporation by reference, Intergovernmental relations, Nitrogen 
dioxide, Volatile Organic Compounds, Ozone, Reporting and recordkeeping 
requirements.

    Dated: February 1, 2002.
Christine Todd Whitman,
Administrator.

    Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

    1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart GG--New Mexico

    2. Section 52.1620 is amended as follows:
    a. In the table in paragraph (c) entitled ``EPA Approved New Mexico 
Regulations'' under the heading ``New Mexico Administrative Code (NMAC) 
Title 20--Environmental Protection Chapter 2--Air Quality'' by revising 
the entries for part 73 and part 79;
    b. In the table in paragraph (e) entitled ``EPA Approved 
Nonregulatory Provisions and Quasi-Regulatory Measures in the New 
Mexico SIP'' by adding to the end of the table an entry entitled 
``Waiver of NOX control requirements.''
    The revisions and addition read as follows:


Sec. 52.1620  Identification of plan.

* * * * *
    (c) * * *

                                       EPA Approved New Mexico Regulations
----------------------------------------------------------------------------------------------------------------
                                                     State
                                                   approval/
    State citation            Title/subject        effective       EPA approval date             Comments
                                                      date
----------------------------------------------------------------------------------------------------------------
         New Mexico Administrative Code (NMAC) Title 20--Environmental Protection Chapter 2--Air Quality
----------------------------------------------------------------------------------------------------------------
 
*                  *                  *                  *                  *                  *
                                                        *
Part 73...............  Notice of Intent and         10-01-97  [February 8, 2002 and FR
                         Emmissions Inventory                   page number].
                         Requirements..
 
*                  *                  *                  *                  *                  *
                                                        *
Part 79...............  Permits--Nonattainment       10-01-97  [February 8, 2002 and FR
                         Areas.                                 page number].
 
*                  *                  *                  *                  *                  *
                                                        *
----------------------------------------------------------------------------------------------------------------

    (e) *  *  *

            EPA Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the New Mexico SIP
----------------------------------------------------------------------------------------------------------------
                                                            State
                                        Applicable        submittal/
      Name of SIP provision            geographic or      effective     EPA approval date        Explanation
                                    nonattainment area       date
----------------------------------------------------------------------------------------------------------------
 
*                  *                  *                  *                  *                  *
                                                        *
Waiver of NOX control              Dona Ana County          10-01-97  [February 8, 2002
 requirements..                     (part), marginal                   and FR page number].
                                    ozone nonattainment
                                    area.
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[FR Doc. 02-3103 Filed 2-7-02; 8:45 am]
BILLING CODE 6560-50-P