[Federal Register Volume 68, Number 124 (Friday, June 27, 2003)]
[Rules and Regulations]
[Pages 38518-38523]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-16235]



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Part IV





Environmental Protection Agency





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40 CFR Parts 70 and 71



State and Federal Operating Permits Program: Amendments to Compliance 
Certification Requirements; Final Rule

  Federal Register / Vol. 68 , No. 124 / Friday, June 27, 2003 / Rules 
and Regulations  

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 70 and 71

[AL-FRL-7519-5]
RIN 2060-AK11


State and Federal Operating Permits Program: Amendments to 
Compliance Certification Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is taking final action on a March 2001 proposal to 
amend the State Operating Permits Program and the Federal Operating 
Permits Program. The amendments respond to a decision of the United 
States Court of Appeals for the District of Columbia Circuit (October 
29, 1999) remanding to us those revisions to the compliance 
certification requirements that accompanied promulgation of the 
compliance assurance monitoring (CAM) rule (October 22, 1997) and that 
tailored the ongoing compliance certification content to the monitoring 
imposed by CAM. In particular, the Court ruled that the compliance 
certification must include whether the facility or source has been in 
continuous or intermittent compliance. We are removing the language in 
the 1997 revisions that addressed this requirement implicitly and 
replacing it with an express requirement tracking the statute.

EFFECTIVE DATE: The final rule amending parts 70 and 71 announced 
herein is effective on June 27, 2003.

ADDRESSES: We are not seeking comments on this final rule. A public 
version of the record for this action is available for public 
inspection in person and electronically. See SUPPLEMENTARY INFORMATION 
section.

FOR FURTHER INFORMATION CONTACT: Grecia Castro, U.S. Environmental 
Protection Agency, Office Air Quality Planning and Standards, at (919) 
541-1351. Facsimile: (919) 541-5509. e-mail: [email protected].

SUPPLEMENTARY INFORMATION: 

I. General Information

A. Regulated Entities

    These regulations may apply to you if you own or operate any 
facility subject to the compliance certification requirements of part 
70 or 71. These regulations apply to, but are not limited to, owners or 
operators of all sources who must have operating permits under either 
of these programs. State, local, and tribal governments that are 
implementing the part 70 and 71 operating permits program are 
potentially affected to the extent that those governments must revise 
existing compliance certification requirements to make them consistent 
with these revisions.

B. How Can I Get Copies of Related Information?

1. Docket
    The EPA has established an official public docket for this action 
under Docket Number OAR-2002-0062. 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 or other information whose 
disclosure is restricted by statute. The official public docket for 
this action is available for public viewing at the Air and Radiation 
Docket in the EPA Docket Center, (EPA/DC) EPA West, Room B102, 1301 
Constitution Avenue, 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 Reading 
Room is (202) 566-1742, and the telephone number for the Air and 
Radiation Docket is (202) 566-1742. The Docket Office may charge a 
reasonable fee for copying docket materials.
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.B. Once in the system, select 
``search,'' then key in the appropriate docket identification number.

Contents of Today's Preamble

    The information in this preamble is organized as follows:

I. Authority
II. Background
    A. Regulatory and litigation background
    B. Summary of Issues Raised by the Proposal
III. Description of the Final Rule
    A. How is EPA responding to comments on the proposal?
    B. What are the regulatory revisions to the proposal?
IV. Administrative Requirements
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act Compliance as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 
U.S.C. 601 et seq.
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children from 
Environmental Health Risks and Safety Risks
    H. Executive Order 13211: Actions that Significantly Affect 
Energy Supply, Distribution, or Use (Energy Effects)
    I. National Technology Transfer and Advancement Act
    J. Congressional Review Act
V. Judicial Review

I. Authority

    The statutory authority for this final rule is provided by sections 
114 and 501 through 507 of the Clean Air Act (CAA or the Act or the 
Statute), as amended (42 U.S.C. 7414a and 7661-7661f).

II. Background

A. Regulatory and Litigation Background

    On October 22, 1997 (62 FR 54900), we promulgated part 64, the CAM 
rule, and revisions to parts 70 and 71, the State and Federal Operating 
Permits Programs. In particular, the 1997 revisions to parts 70 and 71 
revised the rule language requiring responsible officials to indicate 
in the annual compliance certification whether the source's compliance 
certification was continuous or intermittent and replaced it with a 
requirement to indicate whether the certification was based on methods 
that provide continuous or intermittent data and whether deviations, 
excursions, or exceedances occurred. Subsequently, the Natural 
Resources Defense Council, Inc. (NRDC) and the Appalachian Power 
Company et al. (Industry) filed petitions with the United States Court 
of Appeals for the District of Columbia Circuit (Court) challenging 
several aspects of the parts 70 and 71 revisions. Among other issues, 
NRDC argued that the part 70 and 71 revisions were inconsistent with 
the Act's explicit requirement in section 114(a)(3) that compliance 
certifications identify whether compliance is

[[Page 38519]]

continuous or intermittent. On October 29, 1999, the Court issued a 
decision (see docket A-91-52, item VIII-A-1) Natural Resources Defense 
Council v. EPA, 194 F.3d 130 (D.C. Cir. 1999), on these challenges. The 
Court agreed with NRDC that EPA's removal from parts 70 and 71 of the 
explicit requirement that compliance certifications address whether 
compliance is continuous or intermittent revisions was contrary to the 
Statute. See section 114(a)(3)(D), 42 U.S.C. 7414(a)(3)(D). The Court 
wrote: ``While [section] 114(a)(3) clearly states that a major source's 
``compliance certification shall include * * * whether compliance is 
continuous or intermittent[,]'' EPA only requires that a major source's 
compliance certification include ``[t]he identification of the 
method(s) * * * used by the owner for determining the compliance status 
* * * and whether such methods * * * provide continuous or intermittent 
data'' (40 CFR 70.6(c)(5)(iii)(B), 71.6(c)(5)(iii)(B)). The statute 
requires that certification include whether ``compliance''--not just 
``data''--is continuous or intermittent'' (194 F.3d at 137). The Court 
thus remanded the regulations to EPA for the Agency to revise them in 
accordance with the Court's opinion (Id. at 138). In response to the 
Court's remand, we issued a direct final rule for ``Amendments to Part 
70 and Part 71 Compliance Certification Requirements.'' These revisions 
to parts 70 and 71 inserted language into sections 70.6(c)(5)(iii)(C) 
and 71.6(c)(5)(iii)(C) to require that the responsible official for 
each subject facility include in the annual (or more frequent) 
compliance certification whether compliance during the period was 
continuous or intermittent. The original direct final rule notice, 
published March 1, 2001 (66 FR 12872), was accompanied by a proposal 
with the same revisions. In the March 1 notice, we indicated that we 
would withdraw the direct final rule if we received adverse comments 
and would respond to any adverse comments on the direct final rule as 
comments on the proposal. We subsequently received adverse comments on 
the direct final rule; however, through an inadvertent administrative 
error, we did not publish the withdrawal prior to the rule's April 30 
effective date. To correct this oversight, we issued an amendment 
notice withdrawing the direct final rule, effective on November 5, 2001 
(66 FR 55883).

B. Summary of Issues Raised by the Proposal

    We received five letters from commenters, three of which were from 
industry groups, one from an environmental interest group and one from 
a local permitting agency. All comments are discussed in detail in the 
response to comments document that is part of the docket documents; 
those that are pertinent to the March 1, 2001, proposal are summarized 
below.
    On the whole, the primary issue raised by the commenters on the 
March 1, 2001, proposal for this final rule is that neither the 
proposed rule nor the preamble provides clear guidance for responsible 
officials to know how to comply with the requirement to certify whether 
compliance with the permit terms and conditions was continuous or 
intermittent. Neither does the proposed rule or the preamble enable 
regulatory authorities and the public to understand the meaning of such 
statement in a certification, commenters asserted. Commenters urged us 
to clarify in the final rule when responsible officials must certify 
continuous compliance and when responsible officials must certify 
intermittent compliance.
    Commenters stated that the explanation of our interpretation of 
continuous versus intermittent compliance certification, contained in 
the preamble for the March 1, 2001, proposal, was unclear. In general, 
commenters stated that our explanation of the meaning of continuous or 
intermittent compliance certification in the March 1, 2001, proposal is 
indirect, ambiguous, and would lead to inconsistent implementation 
rendering the compliance certifications meaningless. Commenters also 
pointed out that, according to our explanation, responsible officials 
under the same compliance conditions could arrive at different 
conclusions regarding their compliance status. Additionally, commenters 
noted that the March 1, 2001, proposal equates the compliance status of 
responsible officials collecting periodic data with that of responsible 
officials experiencing periods of noncompliance. Commenters also argued 
that substantive portions of the discussion referenced in the preamble 
of the March 1, 2001, proposal as guidance are no longer valid because 
this guidance was developed for the rules that the court in NRDC held 
were inconsistent with the Act.
    Additionally, commenters expressed concern with our approach for 
revising the rule in the March 1, 2001, proposal and disagreed that it 
fully addressed the Court's direction expressed in the remand. One 
commenter representing environmental interests and two industry 
commenters noted that the proposal retained the requirement for 
responsible officials to identify in the compliance certification 
whether their monitoring methods provide continuous or intermittent 
data. Industry commenters urged us to remove this requirement in the 
final rule arguing that this requirement was originally in the rule due 
to the approach invalidated by the Court in NRDC. These commenters 
further argued that the Statute does not provide for this requirement 
and it only adds an unnecessary burden. One industry commenter 
suggested that if we would find that such requirement is necessary for 
implementing the amendments, we should impose it on permitting 
authorities to avoid mistakes in the classification of methods.
    One industry commenter disagreed with our explanation, in section 
III.B. of the March 1, 2001, proposal's preamble, that permit terms and 
conditions that are the basis of the certification include applicable 
recordkeeping, monitoring and reporting provisions. The commenter also 
objected to the procedure for completing the compliance certification, 
suggested by this explanation, finding it confusing and impractical. 
The commenter argued that according to this procedure monitoring, 
recordkeeping and reporting requirements would need to be identified 
first as ``methods'' and then again as ``permit terms and conditions.'' 
Although, the commenter added, it would be unclear what ``methods'' to 
use to verify compliance with monitoring, recordkeeping and reporting 
requirements. This commenter further argued that a better reading of 
the regulations is that ``permit terms and conditions'' include only 
substantive terms such as emission limits, standards and work practice 
requirements and exclude monitoring, recordkeeping and reporting. The 
compliance certification would then address only ``permit terms and 
conditions,'' and that monitoring, recordkeeping, and reporting 
requirements would be handled in semiannual monitoring reports. This 
commenter asked that the discussion of the compliance certification 
obligations in the final rule should be revised accordingly.

III. Description of the Final Rule

A. How Is EPA Responding to Comments on the Proposal?

    Consistent with the March 1, 2001, proposal, today's final rule 
requires responsible officials to identify in the certification whether 
compliance with each permit term and condition that is the basis of the 
certification was continuous or intermittent, during the period covered 
by the ongoing

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certification. The final rule differs from its March 1, 2001, proposal 
in that responsible officials are no longer required to certify whether 
the methods used for determining compliance provide continuous or 
intermittent data. Although the requirement to identify whether the 
methods used provide continuous or intermittent data was derived for 
the 1997 amendments to parts 70 and 71, we kept this requirement and 
the corresponding preamble explanation, in the March 1, 2001, proposal 
because we sought to address the direction of the Court in a manner 
that we believed was both simple and direct and we did not believe at 
that time that this requirement would impose additional burden on 
sources; therefore, we simply added, to the language already in the 
rule, regulatory language directing responsible officials to identify, 
in the certification, whether compliance was continuous or 
intermittent. In concurring with comments stating that the Court 
disagreed with us that the requirement to identify whether the methods 
provide continuous or intermittent data derives from a correct 
interpretation of the Statutory provision and that this requirement 
adds unnecessary burden upon sources, we removed the requirement in the 
final rule.
    The Agency is withdrawing section III. B. of the March 1, 2001, 
proposal's preamble, which would have explained what must be included 
in the compliance certification, to address comments that the section's 
depiction of how the certification must be completed is confusing and 
that this explanation is also ambiguous because it references an 
invalidated discussion from the preamble of another rule (see section 
II. B. for comments). In addition, we provide the following 
clarification in regard to the comment on the discussion of the 
elements of the certification. While agreeing that periodic reporting 
of monitoring deviations is covered under a separate requirement, the 
Agency disagrees that compliance with permit terms and conditions that 
are the basis of the certification can be addressed separately from 
monitoring deviations or that identifying permit deviations in the 
compliance certification duplicates other reporting. See Sec.  
70.6(c)(5)(iii). In regard to the permit terms and conditions that 
constitute the ``basis of the certification,'' we agree that these are 
the substantive regulatory requirements of the Act (such as standards, 
emission limits or work practices) referred to in Section 114 (a)(3) as 
``applicable requirements.'' This conclusion, however, does not in any 
way alter the sources' compliance certification obligations. First, 
Sec.  70.6(c)(5)(iii) clearly requires that permit terms that are the 
basis of the certification as well as permit terms that are the methods 
be identified in the certification. Second, in order to establish 
whether the compliance status was continuous or intermittent, for any 
permit term that is the basis of the certification, responsible 
officials must first determine whether there were instances of 
deviations for each of the corresponding monitoring, recordkeeping and 
reporting permit terms, during periods when compliance was required.
    Finally, we agree that our explanation of a certification of 
``continuous'' or ``intermittent'' compliance contained in the preamble 
to the March 1, 2001, is unclear since core portions of the explanation 
adopted by reference are invalidated by the Court's decision. Following 
is our explanation of when a source may certify ``continuous'' or 
``intermittent'' compliance, according to the final rule, which 
includes background information. Sections 504(c) and 114(a)(3) of the 
Act require that each permit contain conditions establishing compliance 
certification requirements with permit terms and conditions including a 
requirement for responsible officials to identify the status of 
compliance and whether compliance, for the covered period, is 
continuous or intermittent. Additionally, section 504(f) provides that 
compliance with the permit may be deemed compliance with the underlying 
applicable requirements. Within this statutory scheme we believe that 
the determination of the compliance status made by the responsible 
official, for the purpose of the compliance certification, is simply an 
evaluation of whether or not the source is, at the time of the 
certification, and was, during the covered period, in compliance with 
those permit terms and conditions that establish practically 
enforceable obligations on the part of the source. Absent evidence to 
the contrary, the responsible official for a source that is in 
compliance according to the monitoring results in the permit may 
certify ``continuous'' compliance, provided that the responsible 
official did not fail to monitor, or report, or collect the minimum 
data required by the permit; if there were any deviations, these should 
have been excused by the permit. If any possible exceptions to 
compliance occurred, the permit would have provided for additional 
action that shows the underlying requirement was not violated. Any 
failure to meet the permit terms or conditions during a period when the 
permit required compliance would mean that compliance was not 
continuous, and the responsible official must identify the permit 
deviation (or possible exception to compliance in the context of part 
64) in the certification and certify that compliance for the permit 
term or condition (that is the basis of the certification) was 
intermittent. If the source's circumstances are such that the status of 
compliance with a particular term or condition is undetermined at the 
time the compliance certification is submitted (such as when the source 
is awaiting for test results), the responsible official may indicate so 
in the certification together with the reason, and the date when the 
source was last found in continuous compliance with the permit term. A 
responsible official is always free to include any written explanation 
and other material information that helps clarify the responsible 
official's conclusion regarding the compliance status.
    Responsible officials that used any monitoring method not specified 
in the permit (regardless of whether the monitoring was performed 
voluntarily, to comply with a State only requirement, or to track 
compliance with an applicable requirement that is not yet addressed by 
the permit), would need to identify the method(s), and take the 
monitoring results into account when determining the compliance status 
of the term or condition that is the basis of the certification 
(applicable requirement).
    The final rule takes effect today, June 27, 2003. State permitting 
authorities who did not revise their operating program rules to conform 
to the 1997 part 70 revisions, need to take no action, to the extent 
their rules are consistent with this final rule. Except as described in 
the following paragraph, other permitting authorities must revise their 
programs by June 28, 2004 to add a requirement for compliance 
certifications to identify whether compliance with each permit term and 
condition that is the basis of the certification was continuous or 
intermittent during the covered period. The Administrator specifies a 
deadline of 12 months for submittal of program revisions in light of 
the narrow scope of the revision required of State programs. Authority 
for this deadline is provided in 40 CFR 70.4(i)(1), which specifies 
that the deadline for submittal of revisions to State part 70 programs 
following revision of relevant Federal regulations is 180 days or 
``such other period as the Administrator may

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specify, following notification* * *'' Today's action is the 
notification that triggers the 12-month deadline.
    If a State can demonstrate that additional legal authority is 
needed, the deadline for submittal of a revised program to add a 
requirement for compliance certifications to identify whether 
compliance with each permit term and condition during the covered 
period was continuous or intermittent is June 27, 2005. Authority for 
this deadline is the same provision in 40 CFR 70.4(i)(1) described in 
the preceding paragraph for the 12-month deadline.
    We believe that this final rule amending the 1997 revisions to part 
70 and part 71 rules adequately address the Court's direction expressed 
in the remand.

B. What Are the Regulatory Revisions to the Proposal?

    In response to the comments, we have deleted the second clause 
after the comma in the first sentence from Sec. Sec.  
70.6(c)(5)(iii)(B) and 71.6(c)(5)(iii)(B). This removes the requirement 
that the responsible official for the affected facility identify in the 
annual (or more frequent) compliance certification whether the methods 
provide continuous or intermittent data. The current language in 
paragraph (5)(iii)(B) for both sections states: ``The identification of 
the method(s) or other means used by the owner or operator for 
determining the compliance status with each term and condition during 
the certification period, and weather such methods or other means 
provide continuous or intermittent data.'' The revised text for both 
sections reads: ``The identification of the method(s) or other means 
used by the owner or operator for determining the compliance status 
with each term and condition during the certification period.'' Other 
text within Sec. Sec.  70.6(c)(5)(iii)(B), 71.6(c)(5)(iii)(B), 
70.6(c)(5)(iii)(C), and 71.6(c)(5)(iii)(C) remains as proposed in March 
2001. The language in this final rule requires responsible officials to 
identify in the compliance certification whether compliance during the 
covered period was continuous or intermittent, but responsible 
officials do not need to state whether the methods used for determining 
compliance provide continuous or intermittent data. We believe these 
revisions respond directly and adequately to the Court's decision to 
remand the compliance certification requirements to us and are 
consistent with the requirements of the Act.

IV. Administrative Requirements

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), we must 
determine whether this final rule is ``significant'' and therefore 
subject to Office of Management and Budget (OMB) review and the 
requirements of the Executive Order. 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 in 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 entitlement, grants, 
user fees, or loan programs of 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.
    Because the annualized cost of this final rule amendment would be 
significantly less than $100 million and would not meet any of the 
other criteria specified in the Executive Order, we have determined 
that this final rule is not a ``significant regulatory action'' under 
the terms of Executive Order 12866, and is therefore not subject to OMB 
review.

B. Paperwork Reduction Act

    This amendment does not include or create any information 
collection activities subject to the Paperwork Reduction Act, and 
therefore we will submit no information collection request (ICR) to OMB 
for review in compliance with the Paperwork Reduction Act, 44 U.S.C. 
3501, et seq.

C. Regulatory Flexibility Act Compliance as Amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 
601 et seq.

    The Regulatory Flexibility Act generally requires an Agency to 
conduct a regulatory flexibility analysis of any rule subject to notice 
and comment 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. For purposes of 
assessing the impacts of today's rule on small entities, small entity 
is defined as (1) a small business that meets the Small Business 
Administration size standards for small businesses found in 13 CFR 
121.201; (2) a small governmental jurisdiction that is a government of 
a city, country, 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. We determined and hereby certify that 
these revisions to parts 70 and 71 will not have a significant economic 
impact on a substantial number of small entities. The 1992 part 70 and 
the 1996 part 71 rules imposed the requirement to submit periodic 
compliance certification reports identifying the compliance status with 
permit terms and conditions, including a statement of whether 
compliance was continuous or intermittent. The 1997 part 70 and 71 
revisions interpreted that the requirement to address, in the 
certification, whether the status of compliance was continuous or 
intermittent could be met implicitly. Although this interpretation did 
not change the substance of the requirement, it would have adjusted the 
existing way to comply with the requirement. However, in NRDC the court 
held that the compliance certification must address explicitly whether 
compliance was continuous or intermittent. The amendments to parts 70 
and 71 in this final rule merely revert the implementation of this 
requirement according to EPA's original position under the 1992 part 70 
and the 1996 part 71 rules; therefore, today's amendments add no burden 
on responsible officials for any small entities.

D. Unfunded Mandates Reform Act

    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, we 
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 we promulgate a rule for which a written statement is 
needed, section 205 of the UMRA requires us to identify and consider a 
reasonable number of regulatory

[[Page 38522]]

alternatives and adopt the least costly, most cost-effective or least 
burdensome alternative that achieves the objectives of the rule. The 
provisions of section 205 do not apply when they are inconsistent with 
applicable law. Moreover, section 205 allows us 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 of why that alternative was not adopted. Before we 
establish any regulatory requirements that may significantly or 
uniquely affect small governments, including tribal governments, we 
must have developed under section 203 of the UMRA a small government 
agency plan. That 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 regulatory 
proposals with significant Federal intergovernmental mandates, and 
informing, educating, and advising small governments on compliance with 
the regulatory requirements.
    As noted above, this amendment is of very narrow scope, and 
provides a compliance alternative very similar to one already required 
under the promulgated part 70 and 71 compliance certification 
regulations. We have determined that this final rule contains no new 
regulatory requirements that might significantly or uniquely affect 
small governments. We have also determined that this final rule does 
not contain a Federal mandate that may result in expenditures of $100 
million or more for State, local, and tribal governments, in the 
aggregate, or the private sector in any one year. Thus, today's final 
rule is not subject to the requirements of sections 202 and 205 of the 
UMRA.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires us 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 section 6 of Executive Order 13132, we 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 we consult 
with State and local officials early in the process of developing the 
proposed regulation. We also may not issue a regulation that has 
federalism implications and that preempts State law, unless we consult 
with State and local officials early in the process of developing the 
proposed regulation.
    This final rule does not have federalism implications. This final 
rule will not have substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government, as specified in Executive Order 13132. This action would 
not alter the overall relationship or distribution of powers between 
governments for the part 70 program. Thus, the requirements of section 
6 of the Executive Order do not apply to this rule.

F. Executive Order 13175: Consultation and Coordination With Tribal 
Governments

    This final rule 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), because it does 
not alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. Accordingly, this 
rule is not subject to Executive Order 13175.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies 
to any rule that the EPA determines is (1) ``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.
    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that are based on health or safety risk, such that 
the analysis required under section 5-501 of the Order has the 
potential to influence the regulation. This final rule amending the 
State and Federal operating permit programs is not subject to Executive 
Order 13045 because it is not ``economically significant'' under 
Executive Order 12866 and it does not establish an environmental 
standard intended to mitigate health and safety risks.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This proposed 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 
action simply clarifies the implementation of an existing requirement 
and does not impose any new requirements that may affect the supply 
distribution or use of energy.

I. National Technology Transfer and Advancement Act

    Under section 12(d) of the National Technology Transfer and 
Advancement Act, Public Law 104-113 (March 7, 1996), we are required to 
use voluntary consensus standards in its regulatory and procurement 
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, business practices, etc.) which are adopted by voluntary 
consensus standard bodies. Where we do not use available and 
potentially applicable voluntary consensus standards, the NTTA requires 
us to provide Congress, through OMB, an explanation of the reasons for 
not using such standards. This final rule does not involve technical 
standards. Therefore, we did not consider the use of any voluntary 
consensus standards.

J. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., 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

[[Page 38523]]

Congress and to the Comptroller General of the United States. We will 
submit a report containing this rule and other required information to 
the United States Senate, the United States House of Representatives, 
and the Comptroller General of the United States prior to publication 
of the rule in the Federal Register. This final rule is not a ``major 
rule'' as defined by 5 U.S.C. 804(2).

V. Judicial Review

    Section 307(b)(1) of the Act indicates which Federal Courts of 
Appeals have venue for petitions for review of final actions by EPA. 
This section provides, in part, that petitions for review must be filed 
in the D.C. Circuit: (i) When the agency action consists of ``national 
applicable regulations promulgated, or final actions taken, by the 
Administrator,'' or (ii) when such action is locally or regionally 
applicable, if ``such action is based on a determination of nationwide 
scope or effect and if in taking such action the Administrator finds 
and publishes that such action is based on such a determination.''
    This final rule revises part 70 and 71 operating permits programs 
regulations that are nationally applicable for purposes of section 
307(b)(1). Thus, any petitions for review of this interim final rule 
must be filed in the D.C. Circuit within 60 days from June 27, 2003.

List of Subjects in 40 CFR Parts 70 and 71

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Reporting and 
recordkeeping requirements.

    Dated: June 20, 2003.
Christine Todd Whitman,
Administrator.

0
For the reasons stated in the preamble, we amend title 40, chapter I, 
parts 70 and 71 of the Code of Federal Regulations to read as follows:

PART 70--STATE OPERATING PERMIT PROGRAMS

0
1. The authority citation for part 70 continues to read as follows:

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


0
2. Section 70.6 is amended by revising paragraphs (c)(5)(iii)(B) and 
(c)(5)(iii)(C) to read as follows:


Sec.  70.6  Permit content

* * * * *
    (c) * * *
    (5) * * *
    (iii) * * *
    (B) The identification of the method(s) or other means used by the 
owner or operator for determining the compliance status with each term 
and condition during the certification period. Such methods and other 
means shall include, at a minimum, the methods and means required under 
paragraph (a)(3) of this section;
    (C) The status of compliance with the terms and conditions of the 
permit for the period covered by the certification, including whether 
compliance during the period was continuous or intermittent. The 
certification shall be based on the method or means designated in 
paragraph (c)(5)(iii)(B) of this section. The certification shall 
identify each deviation and take it into account in the compliance 
certification. The certification shall also identify as possible 
exceptions to compliance any periods during which compliance is 
required and in which an excursion or exceedance as defined under part 
64 of this chapter occurred; and
* * * * *

PART 71--FEDERAL OPERATING PERMITS PROGRAMS

0
3. The authority citation for part 71 continues to read as follows:

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


0
4. Section 71.6 is amended by revising paragraphs (c)(5)(iii)(B) and 
(c)(5)(iii)(C) to read as follows:


Sec.  71.6  Permit content.

* * * * *
    (c) * * *
    (5) * * *
    (iii) * * *
    (B) The identification of the method(s) or other means used by the 
owner or operator for determining the compliance status with each term 
and condition during the certification period. Such methods and other 
means shall include, at a minimum, the methods and means required under 
paragraph (a)(3) of this section;
    (C) The status of compliance with the terms and conditions of the 
permit for the period covered by the certification, including whether 
compliance during the period was continuous or intermittent. The 
certification shall be based on the method or means designated in 
paragraph (c)(5)(iii)(B) of this section. The certification shall 
identify each deviation and take it into account in the compliance 
certification; and
* * * * *
[FR Doc. 03-16235 Filed 6-26-03; 8:45 am]
BILLING CODE 6560-50-P