[Federal Register: September 4, 2003 (Volume 68, Number 171)]
[Rules and Regulations]
[Page 52512-52517]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04se03-9]
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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
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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]
BILLING CODE 6560-50-P