[Federal Register Volume 68, Number 171 (Thursday, September 4, 2003)]
[Rules and Regulations]
[Pages 52512-52517]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-22444]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 249-0409; FRL-7546-5]


Revisions to the California State Implementation Plan, South 
Coast Air Quality Management District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing a conditional approval of revisions to the 
South Coast Air Quality Management District portion of the California 
State Implementation Plan (SIP). This action was proposed in the 
Federal Register on May 13, 2002 and concerns oxides of nitrogen 
(NOX) and oxides of sulfur (SOX) emissions from 
facilities emitting 4 tons or more per year of NOX and/or 
SOX in the year 1990 or any subsequent year. Under authority 
of the Clean Air Act as amended in 1990 (CAA or the Act), this action 
approves local rules that regulate these emission sources and directs 
California to correct rule deficiencies.

EFFECTIVE DATE: This rule is effective on October 6, 2003.

ADDRESSES: You can inspect copies of the administrative record for this 
action at EPA's Region IX office during normal business hours. You can 
inspect copies of the submitted SIP revisions at the following 
locations:
    Environmental Protection Agency, Region IX, 75 Hawthorne Street, 
San Francisco, CA 94105-3901.
    Air and Radiation Docket and Information Center, U.S. Environmental 
Protection Agency, Room B-102, 1301 Constitution Avenue, N.W., (Mail 
Code 6102T), Washington, D.C. 20460.
    California Air Resources Board, Stationary Source Division, Rule 
Evaluation Section, 1001 ``I'' Street, Sacramento, CA 95814.
    South Coast Air Quality Management District (``SCAQMD''), 21865 E. 
Copley Dr., Diamond Bar, CA 91765-4182
    A copy of the rule may also be available via the Internet at http://www.arb.ca.gov/drdb/drdbltxt.htm. Please be advised that this is not 
an EPA Web site and may not contain the same version of the rule that 
was submitted to EPA.

FOR FURTHER INFORMATION CONTACT: Thomas C. Canaday, EPA Region IX, 
(415) 947-4121.

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and 
``our'' refer to EPA.

I. Proposed Action

    On May 13, 2002 (67 FR 31998), EPA proposed a conditional approval 
of the following rules that were submitted for incorporation into the 
California SIP.

                                            Table 1--Submitted Rules
----------------------------------------------------------------------------------------------------------------
              Local agency                Rule No.                Rule title                Adopted    Submitted
----------------------------------------------------------------------------------------------------------------
SCAQMD.................................    2000      General............................    05/11/01    05/31/01
SCAQMD.................................    2001      Applicability......................    05/11/01    05/31/01
SCAQMD.................................    2002      Allocations for Oxides of Nitrogen     05/11/01    05/31/01
                                                      (NOX) and Oxides of Sulfur (SOX).
SCAQMD.................................    2004      Requirements.......................    05/11/01    05/31/01
SCAQMD.................................    2005      New Source Review for RECLAIM......    04/20/01    10/30/01
SCAQMD.................................    2006      Permits............................    05/11/01    05/31/01
SCAQMD.................................    2007      Trading Requirements...............    05/11/01    05/31/01
SCAQMD.................................    2010      Administrative Remedies and            05/11/01    05/31/01
                                                      Sanctions.
SCAQMD.................................    2011      Requirements for Monitoring,           05/11/01    05/31/01
                                                      Reporting, and Recordkeeping for
                                                      Oxides of Sulfur (SOX) Emissions.
SCAQMD.................................  2011-2      Protocol for Monitoring, Reporting,    03/16/01    05/31/01
                                                      and Recordkeeping for Oxides of
                                                      Sulfur (SOX) Emissions.
SCAQMD.................................    2012      Requirements for Monitoring,           05/11/01    05/31/01
                                                      Reporting, and Recordkeeping for
                                                      Oxides of Nitrogen (NOX) Emissions.
SCAQMD.................................  2012-2      Protocol for Monitoring, Reporting,    03/16/01    05/31/01
                                                      and Recordkeeping for Oxides of
                                                      Nitrogen (NOX) Emissions.
SCAQMD.................................    2015      Backstop Provisions................    05/11/01    05/31/01
SCAQMD.................................    2020      RECLAIM Reserve....................    05/11/01    05/31/01
----------------------------------------------------------------------------------------------------------------


[[Page 52513]]

    We proposed conditional approval because we determined that these 
rules improve the SIP by strengthening reporting provisions. These 
rules are largely consistent with the relevant policy and guidance 
regarding enforceability, RACT, and SIP relaxations. However, we also 
determined that the rules conflict with section 110 and part D of the 
Act due to their treatment of excess emissions which occur as a result 
of equipment breakdown. Rules 2000 and 2004 contain provisions which 
exempt, under certain circumstances, excess emissions that occur during 
breakdowns from being counted when a RECLAIM facility reconciles its 
emissions with its RECLAIM Trading Credit (``RTC'') holdings. In our 
EIP Guidance and our Excess Emissions Policy, EPA interprets the CAA as 
requiring that such emissions not be exempted.
    On April 2, 2002, SCAQMD Executive Officer Barry R. Wallerstein 
submitted a commitment on behalf of the SCAQMD staff to adopt and 
submit further revisions to the RECLAIM program rules within one year 
after publication of today's final conditional approval by EPA of the 
currently submitted rule revisions. These future revisions will 
establish a mechanism within the RECLAIM program to mitigate all excess 
emissions resulting from breakdowns. RECLAIM will be revised to require 
monitoring and tracking of excess emissions from breakdowns and 
comparison of the total amount of exempted emissions to the amount of 
unused RTCs for that year. If total exempted breakdown emissions from 
all RECLAIM sources exceeds the total amount of unused RTCs program-
wide in any year, RECLAIM allocations in the following year will be 
reduced by an amount equal to that exceedence.
    Our proposed action contains more information on the basis for this 
rulemaking and on our evaluation of the submittal.

II. Public Comments and EPA Responses

    EPA's proposed action provided a 30-day public comment period. 
During this period, we received comments from the following parties.
    1. Mike Costa, Our Children's Earth Foundation (OCE); letter dated 
July 12, 2002 and received July 12, 2002.
    2. Suma Peesapati, Communities for a Better Environment (CBE); 
letter dated July 12, 2002 and received July 12, 2002. Attached to this 
July 12, 2002 letter was a previous letter from Suma Peesapati, CBE; 
dated October 9, 2001 that also contained comments pertaining to this 
rulemaking. We have responded to comments from both of these letters 
below.
    3. Elaine Chang, South Coast Air Quality Management District; 
letter dated July 11, 2002 and received July 12, 2002. The comments and 
our responses are summarized below.
    Comment #1: CBE stated that the RECLAIM program is fundamentally 
flawed and, as a result, has not achieved the emission reductions 
promised during program development. Among the problems that this 
commenter ascribes to RECLAIM are: (a) Initial over-allocation of 
credits resulting from artificially inflated baselines; (b) Inadequate 
safeguards against fraud and uncertainty; (c) Emissions increases from 
the two largest NOX source categories.
    Response #1: The RECLAIM program establishes a declining cap on 
emissions from medium and large stationary NOX sources. The 
program is not intended to necessarily achieve reductions in every 
source category. The current enforceable emissions cap is significantly 
lower than the level of the cap at the time of program inception. Under 
the subject revised RECLAIM program rules, any emissions in excess of 
the current emissions cap are required to be mitigated by concurrent 
reductions in emissions from non-RECLAIM sources, or from subsequent 
reductions from future-year RECLAIM allocations. EPA has reviewed the 
submitted revisions to the RECLAIM program rules and has determined 
that they meet the requirements of the CAA.
    Comment #2: CBE stated that SCAQMD has not complied with Rule 2015 
which requires SCAQMD to conduct a thorough investigation of the high 
price of credits in the context of the compliance and enforcement 
program, and of whether the program provides appropriate incentives to 
comply.
    Response #2: The provisions of Rule 2015 are separate enforceable 
requirements. Even if the SCAQMD has not complied with Rule 2015, 
nothing in that rule would bar EPA from approving the subject program 
rule revisions into the SIP. EPA has reviewed the submitted revisions 
to the RECLAIM program rules and has determined that they meet the 
requirements of the CAA.
    Comment #3: CBE provided information regarding California's power 
crisis and commented that the crisis may not have been responsible for 
the spike in RECLAIM credit prices. If it was, the energy crisis is 
over and doesn't justify changes to the RECLAIM program. If it wasn't, 
the price reflects the true cost of foregoing pollution control and 
represents a healthy market.
    Response #3: We believe the subject program rule revisions comply 
with the CAA and for this reason we proposed their approval. EPA's 
evaluation of SCAQMD's justification for the submitted rule revisions 
was not a criterion of our proposed approval of their submittal into 
the SIP. The rule revisions were evaluated according to the criteria 
listed in the Technical Support Document (``TSD'') prepared for the 
proposed conditional approval of the submitted revisions and were found 
to meet all of the applicable requirements of the CAA except as noted 
above.
    Comment #4: OCE stated that EPA concludes the RECLAIM revisions are 
needed because the price of credits is too high. However prices have 
gone as low as $0.75/lb, and have remained virtually unchanged since 
the early 1990s.
    Response #4: The SCAQMD's goal in adopting and submitting the 
subject rule revisions is to lower and stabilize RTC prices. Since 
December 2000, RTCs have sold for as much as $45,000/ton or $22.50/lb. 
EPA has not implied that $0.75/lb. is too high a price for RTCs. The 
$45,000/ton price is significantly higher than prices paid in the early 
1990s and is well in excess of the $15,000/ton benchmark for triggering 
program reevaluation contained in the SIP-approved Rule 2015.
    Comment #5: CBE stated that EPA is allowing the price of credits to 
drop further, thus allowing the current levels of pollution in the 
South Coast Air Basin to continue indefinitely.
    Response #5: One intended effect of the current program rule 
revisions is to cause a decrease in the price of RTCs. The cap on the 
total amount of emissions from RECLAIM facilities has decreased 
steadily since program inception and will continue to do so through the 
year 2003. After this the cap will remain constant through the year 
2010. This schedule has been unchanged since the inception of the 
RECLAIM program. Any temporary exceedence of the emissions cap allowed 
under the revised program rules will be offset by emissions reductions 
from non-RECLAIM sources or by reductions of future RECLAIM facility 
allocations.
    Comment #6: CBE stated that it is illogical to allow power plants 
to pay mitigation fees since the price of RTCs is so low.
    Response #6: As noted above, there has recently been significant 
volatility in the prices of RTCs. The Mitigation Fee Program is a 
temporary option that

[[Page 52514]]

power producing facilities will likely only choose to make use of if 
RTC prices exceed the mitigation fee. Emissions in excess of RTC 
holdings for which power plants pay mitigation fees will be offset by 
subsequent emissions reductions from non-RECLAIM sources or by 
reductions of future RECLAIM facility allocations at those power plants 
which exceeded their holdings.
    Comment #7: OCE stated that the revisions to the RECLAIM program 
rules violate Sec. 110(l) of the CAA because exemptions provided for 
power producing facilities will interfere with attainment, RFP, and 
RACT. The mitigation fee program and exemptions given to power 
producers in Rules 2004 and 2010 will ``explode the emissions cap'' and 
interfere with attainment and RFP requirements. The proposed action and 
associated TSD should have explained the agency's finding that the SIP 
revisions did not interfere with RFP and attainment.
    Response #7: There are no exemptions. Any emissions for which a 
facility does not possess sufficient RTCs will be offset either by 
concurrent emissions reductions obtained via the Air Quality Investment 
Program (for non-power producing facilities) or by concurrent emissions 
reductions or future reductions of emissions allocations via the 
Mitigation Fee Program (for power producing facilities). Any emissions 
for which concurrent offsets are unavailable will be compensated for by 
subsequent deductions from allocations. Thus the environment will be 
made whole and RECLAIM facilities will continue to have an incentive to 
comply with program requirements. The SCAQMD has achieved excess 
NOX reductions at present so any temporal shift in RECLAIM 
reductions between now and 2005 will not affect RFP. Attainment is due 
in 2010 which is well after the Mitigation Fee Program ends so 
attainment will not be affected.
    Comment #8: OCE stated that the revisions to the RECLAIM program 
rules immunize power producers from EPA and citizen suits in violation 
of CAA Section 110 and EPA guidance.
    Response #8: While the RECLAIM requirements for power producers 
have been modified, citizens may still bring suit against RECLAIM 
facilities to enforce compliance with the revised program requirements.
    Comment #9: CBE stated that the proposed SIP revisions remove the 
incentive for pollution control thereby frustrating RFP and delaying 
attainment.
    Response #9: The RECLAIM cap remains unchanged from the current 
SIP-approved version of the program. While there may be temporary 
exceedences of the cap due to power plant emissions in excess of RTC 
holdings by such facilities, these exceedences will not interfere with 
RFP because they will be more than offset by surplus reductions already 
obtained by SCAQMD from mobile sources. Attainment will not be delayed 
because the MFP will end well before the attainment date.
    Comment #10: OCE stated that EPA approved the program rule 
revisions solely on the basis that the revisions did not relax the SIP. 
Hall v. EPA requires EPA to do more.
    Response #10: This was not the basis for our action. We performed 
the analyses described above pertaining to attainment, RFP, and RACT.
    Comment #11: OCE stated that requirements for quarterly compliance 
are lifted for power producing facilities. Because pollution occurs on 
a daily basis, RECLAIM should continue to assure quarterly rather than 
annual compliance.
    Response #11: The purpose of the quarterly compliance requirements 
is to assure that correct and timely demand signals are sent to the 
market and price signals are received by the facilities. Now that power 
producers are temporarily not allowed to buy credits from the RECLAIM 
market in general and their price is temporarily capped at $7.50/lb. 
(if they choose to participate in the MFP) the purposes of quarterly 
reconciliation are rendered moot for this period of time.
    Comment #12: OCE stated that allocations will not be decreased 
until the year 2004. Sufficient reductions might not be obtained by 
then to offset all of the emissions of facilities utilizing the MFP.
    Response #12: Allocations will be decreased if and when there is a 
shortfall of reductions obtained through projects funded via the MFP. 
This will happen beginning in the year 2003 (for year 2000 exceedences) 
and will end no later than the year 2005. By this point all power plant 
emissions will have been reconciled with RTCs, offset by reductions 
funded through the MFP, or deducted from facility allocations.
    Comment #13: OCE stated that EPA's proposed action did not 
demonstrate that RECLAIM fulfills RACT requirements. Does the MFP 
interfere with RACT requirements by allowing facilities to exceed 
allocations until 2004?
    Response #13: RACT-in-the-aggregate was demonstrated at the 
beginning of RECLAIM in 1993. Since then the emissions cap has declined 
significantly. RACT is required in the aggregate across all RECLAIM 
facilities only. There is no CAA requirement, under an EIP, that 
individual facilities or particular source categories meet RACT.
    Comment #14: OCE stated that it is unclear what is meant by ``best 
available information'' which is the basis for environmental dispatch 
under Rule 2009. Also, Rule 2009 requires power producers to implement 
BARCT. What is the difference between BARCT and RACT?
    Response #14: Rule 2009 was not submitted to EPA and is not part of 
this rulemaking. BARCT is defined under California state law and not 
under the CAA. This is a state-only requirement. As it happens, BARCT 
is more stringent than RACT.
    Comment #15: OCE stated that Rule 2009 has not been submitted to 
EPA. Therefore the BARCT requirement for power plants will not be 
enforceable by citizens or EPA. Without the implementation of BARCT the 
MFP will fail.
    Response #15: Such enforcement is not necessary to meet the 
requirements of the CAA. RFP is assured because of the excess 
NOX reductions already obtained by the SCAQMD through mobile 
sources measures. Attainment will not be interfered with by the MFP 
since the MFP will no longer be in effect well before the attainment 
date. Power producing facilities may seek to offset any emissions in 
excess of their RTC holdings via the MFP. Their participation fees will 
be used by the SCAQMD to obtain offsetting reductions from non-RECLAIM 
sources. Any shortfall in reductions obtained will be made up for 
through deductions from future-year allocations for those facilities 
that experienced exceedences. The MFP is a temporary program that will 
end by 2005. All exceedences are required to be reconciled by this time 
irrespective of whether a power producing facility has installed BARCT.
    Comment #16: OCE stated that EPA has approved ``pilot credits'' to 
be used in the MFP. How can credits not yet acquired meet the EIP 
requirements for surplus, quantifiable, enforceable, and permanent?
    Response #16: EPA has not approved any credits but rather has 
approved credit generation rules that themselves contain protocols 
which will assure that credits generated thereunder will meet the EIP 
requirements. See 67 FR 5729, February 7, 2002.
    Comment #17: OCE stated that EPA should have addressed all of the 
issues raised in these comments in the FRN and especially in the TSD. 
EPA should remove the proposed conditional

[[Page 52515]]

approval until these issues are fully explored and supported.
    Response #17: The TSD and FRN listed the documents containing all 
of the criteria which were used in evaluating the submitted rules. It 
was not necessary or feasible to state explicitly in the FRN and TSD 
how each rule met each element contained in all of these documents. The 
explanation as to why the power plants were separated from the rest of 
the RECLAIM market and why they were required to put on controls is 
provided in the Staff Reports drafted by the SCAQMD for each of the 
subject rules and attached to the TSD as well as in the TSD itself. As 
stated in the TSD, the power producing facilities were separated from 
the rest of the RECLAIM market and trading was limited to isolate the 
rest of the market from RTC demands from the power producing 
facilities. The current SIP submittal does not require power producing 
facilities to install controls but does contain enforceable 
requirements that will assure that their emissions are reconciled with 
their RTC holdings. It should be noted that adopted state law does 
require these facilities to install controls.
    The next two comments are summarized from letters CBE wrote to 
SCAQMD during development of five RTC generation rules and were 
attached to CBE's October 9, 2001 comment letter to EPA. Since CBE's 
October 9, 2001 letter is quite extensive and raises many of the same 
issues as its attachments, we believe the attachments were included 
only as background information and not intended as comments to our May 
13, 2002 proposal. We also note that many of the issues in the 
attachments are not relevant to our proposal because they were raised 
in context of SCAQMD's local rulemaking. As a result, we do not believe 
we need to respond to the issues raised in the attachments. As a 
courtesy to the commenter, however, we have summarized and responded to 
these comments below.
    Comment #18: CBE stated that the RECLAIM program has already 
violated California Health and Safety Code section 39616(c), which 
require EIPs to reduce emissions as much or more than the programs they 
replace. A generous estimate of actual overall reductions resulting 
from RECLAIM is 16% since 1993. Approving the RECLAIM amendments and 
associated credit rules will only exacerbate the problem. CBE also 
stated that the Mitigation Fee Program and the RECLAIM AQIP violate the 
equivalency requirement under State Law.
    Response #18: On February 13, 2003, Jack P. Broadbent, Director of 
the Air Division for EPA Region IX, sent a letter to Catherine 
Witherspoon, Executive Officer of the California Air Resources Board 
(``CARB''), requesting assistance in responding to the above comments. 
Since CARB is the designated air pollution control agency for purposes 
of the preparation of SIPs (California Health and Safety Code section 
39602) we asked CARB to advise us whether the substantive and/or 
procedural requirements of section 39616 apply to the promulgation of 
the RECLAIM revisions. Further we requested that if CARB believed that 
the requirements of section 39616 did apply, that CARB describe the 
actions taken by SCAQMD and CARB to comply with these requirements. In 
a letter dated April 24, 2003, from Catherine Witherspoon to Jack P. 
Broadbent, CARB responded to our request. CARB's April 24, 2003 letter 
noted that the subject rule revisions were adopted by SCAQMD and 
subsequently approved by CARB and submitted to EPA for incorporation 
into the SIP. In reviewing the SCAQMD rule revisions, CARB considered 
CBE's claims (which had been raised at that time) and interpreted the 
relevant provisions of state law. To summarize CARB's findings, they 
believe that the requirements of section 39616 are limited to the 
initial adoption of rules to implement the RECLAIM program and that 
review of amendments to some of the RECLAIM rules to implement 
necessary program adjustments are not subject to these provisions. CARB 
also pointed out that they reviewed the RECLAIM rule amendments 
substantively and are satisfied they do not undermine the SIP. For a 
much more detailed explanation of CARB's analysis see their April 24, 
2003 letter, a copy of which can be obtained from EPA Region IX at the 
address listed above.

III. EPA Action

    No comments were submitted that change our assessment of the rule 
as described in our proposed action. Therefore, as authorized in 
sections 110(k)(4) of the Act, EPA is finalizing a conditional approval 
of the submitted rules to improve the SIP. This action incorporates 
into the SIP both the submitted rules and the commitment to correct the 
identified deficiency within one year.
    This conditional approval shall be treated as a disapproval if the 
SCAQMD fails to adopt rule revisions to correct the deficiency within 
the time allowed. If this rule is disapproved, sanctions will be 
imposed under section 179 of the Act unless EPA approves subsequent SIP 
revisions that corrects the rule deficiency within 18 months. These 
sanctions would be imposed according to 40 CFR 52.31. A final 
disapproval would also trigger the federal implementation plan (FIP) 
requirement under section 110(c). Note that the submitted rules have 
been adopted by the SCAQMD, and EPA's final conditional approval does 
not prevent the local agency from enforcing them.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

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

B. Paperwork Reduction Act

    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.)

C. Regulatory Flexibility Act

    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).

D. Unfunded Mandates Reform Act

    Under sections 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed

[[Page 52516]]

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.

E. Executive Order 13132, Federalism

    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.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 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.'' This final rule does not have 
tribal implications, as specified in Executive Order 13175. 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. Thus, Executive Order 13175 does not 
apply to this rule.

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

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

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

    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.

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 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. Congressional Review Act

    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 October 6, 2003.

K. 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 November 3, 2003. 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

[[Page 52517]]

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, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Reporting and recordkeeping requirements.

    Dated: July 14, 2003.
Laura Yoshii,
Acting Regional Administrator, Region IX.

0
Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for Part 52 continues to read as follows:

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

Subpart F--California

0
2. Section 52.220 is amended by adding paragraphs (c)(282)(i)(A)(2) and 
(c)(288)(i)(E) to read as follows:


Sec.  52.220  Identification of plan.

* * * * *
    (c) * * *
    (282) * * *
    (i) * * *
    (A) * * *
    (2) Rules 2000, 2001, 2002, 2004, 2006, 2007, 2010, 2011, 2012, 
2015, and 2020 adopted on May 11, 2001; and Rules 2011-2 and 2012-2 
adopted on March 16, 2001.
* * * * *
    (288) * * *
    (i) * * *
    (E) South Coast Air Quality Management District.
    (1) Rule 2005 adopted on April 20, 2001.
* * * * *
[FR Doc. 03-22444 Filed 9-3-03; 8:45 am]
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