Federal Register / Vol. 68, No. 247 / Wednesday, December 24, 2003 / Rules and Regulations 74483

deadline for the filing of DART claims. 

See, United States v. Locke, 471 U.S. 84, 

101 (1985). Thus, claimants are still 

required to file their claims by March 1, 

2004. 

Waiver of an agency’s rules is 

‘‘appropriate only if special 

circumstances warrant a deviation from 

the general rule and such deviation will 

serve the public interest.’’ Northeast 

Cellular Telephone Company v. FCC,

897 F.2d 1164, 1166 (D.C. Cir. 1990); see 

also, Wait Radio v. FCC, 418 F.2d 1153 

(D.C. Cir. 1969), cert. denied, 409 U.S. 

1027 (1972). Under ordinary 

circumstances, the Office is reluctant to 

waive its regulations. However, the 

continuing delays in the receipt of the 

mail constitutes a special circumstance 

which has led the Office to deviate from 

its usual mail processing procedures. 

Thus, given the delays in the receipt of 

mail, the Office believes that the public 

interest will best be served by waiving, 

for this filing period, the requirement 

that DART claims bear the original 

signature of the claimant or of a duly 

authorized representative of the 

claimant, when, and only when, such 

claim is filed online through the Office’s 

Web site. See 67 FR at 5214. 

The Office cannot waive the statutory 

deadline set forth in 17 U.S.C. 1007 and 

accept claims filed after March 1, 2004. 

See Locke, supra. Therefore, in order to 

serve the public interest the Office is 

providing claimants with alternative 

methods of filing, in addition to those 

set forth in the regulations, in order to 

assist them in timely filing their claims. 

By allowing claims to be filed online 

and by facsimile transmission, the 

Office is affording to all claimants an 

equal opportunity to meet the statutory 

deadline.

Dated: December 19, 2003. 

Marybeth Peters, 

Register of Copyrights.

[FR Doc. 03–31774 Filed 12–23–03; 8:45 am] 

BILLING CODE 1410–33–P

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[AD–FRL–7601–5] 

RIN 2060–AK28 

Approval and Promulgation of 

Implementation Plans; Prevention of 

Significant Deterioration (PSD)

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Final rule.

SUMMARY: This final action revises 

implementation plans concerning the 

Prevention of Significant Deterioration 

(PSD) program mandated by part C of 

title I of the Clean Air Act (CAA or Act). 

These revisions include changes to 

incorporate newly promulgated 

paragraphs in the Federal PSD rule into 

the Federal Implementation Plan (FIP) 

portion of the State plan where a State 

agency does not have an approved PSD 

State Implementation Plan (SIP) in 

place. Specifically, the revisions 

provide a category of equipment 

replacement activities that are not 

subject to Major New Source Review 

(NSR) requirements under the routine 

maintenance, repair and replacement 

(RMRR) exclusion. The changes are 

intended to provide greater regulatory 

certainty without sacrificing the current 

level of environmental protection and 

benefit derived from the NSR program, 

and to ensure comprehensive and 

consistent implementation of the 

Federal PSD program by State, local, 

and tribal agencies where EPA has 

determined that they have the 

responsibility to implement the Federal 

PSD program.

EFFECTIVE DATE: This final rule is 

effective on December 26, 2003.

ADDRESSES: Docket. Docket No. A–

2002–04 is located at the EPA Docket 

Center, EPA West, U.S. EPA (6102T), 

1301 Constitution Avenue, NW, Room 

B–102, Washington, DC 20460. The Edocket OAR–2002–0068 for this 

rulemaking is available electronically at 

http://www.epa.gov/edocket.

FOR FURTHER INFORMATION CONTACT: Mrs. 

Pamela S. Long, Information Transfer 

and Program Integration Division 

(C339–03), U.S. EPA Office of Air 

Quality Planning and Standards, 

Research Triangle Park, North Carolina 

27711, telephone number (919) 541–

0641, facsimile number (919) 541–5509, 

electronic mail email address: 

long.pam@epa.gov.

SUPPLEMENTARY INFORMATION: 

Regulated Entities 

Entities potentially affected by this 

final action include sources in all 

industry groups. The majority of sources 

potentially affected are expected to be in 

the following groups.

Industry group SIC a NAICSb

Electric Services .......................................................................... 491 221111, 221112, 221113, 221119, 221121, 221122 

Petroleum Refining ...................................................................... 291 32411 

Industrial Inorganic Chemicals .................................................... 281 325181, 32512, 325131, 325182, 211112, 325998, 331311, 325188 

Industrial Organic Chemicals ...................................................... 286 325110, 325132, 325192, 325188, 325193, 325120, 325199 

Miscellaneous Chemical Products .............................................. 289 325520, 325920, 325910, 325182, 325510 

Natural Gas Liquids ..................................................................... 132 211112 

Natural Gas Transport ................................................................. 492 48621, 22121 

Pulp and Paper Mills ................................................................... 261 322110, 322121, 322122, 32213 

Paper Mills ................................................................................... 262 322121, 322122 

Automobile Manufacturing ........................................................... 371 336111, 336112, 336211, 336992, 336322, 336312, 336330, 336340, 

336350, 336399, 336212, 336213 

Pharmaceuticals .......................................................................... 283 325411, 325412, 325413, 325414 

aStandard Industrial Classification 

b North American Industry Classification System. 

Entities potentially affected by this 

final action also include State, local, 

and tribal governments that are 

delegated authority to implement these 

regulations. 

The EPA has established an official 

public docket for this action under Edocket OAR–2002–0068 (Legacy Docket 

No. A–2002–04). 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 is the collection of materials that 

is available for public viewing at the 

EPA Docket Center, EPA West, Room B–

102, 1301 Constitution Avenue, NW, 

Washington, DC 20460. The Docket 

Center is open from 8:30 a.m. to 4:30 

74484 Federal Register / Vol. 68, No. 247 / Wednesday, December 24, 2003 / Rules and Regulations 

1 In this preamble the term ‘‘we’’ refers to EPA 

and the term ‘‘you’’ refers to major stationary 

sources of air pollution and their owners and 

operators. All other entities are referred to by their 

respective names (for example, reviewing 

authorities.)

p.m., Monday through Friday, excluding 

legal holidays. The telephone number 

for the Reading Room is (202) 566–1744, 

and the telephone number for the 

Docket is (202) 566–1742. A reasonable 

fee may be charged for copying docket 

materials. 

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/.

Worldwide Web (WWW). In addition 

to being available in the docket, an 

electronic copy of today’s final rule will 

also be available on the WWW through 

EPA’s Technology Transfer Network 

(TTN). Following signature by the EPA 

Administrator, a copy of the rule will be 

posted on the TTN’s policy and 

guidance page for newly proposed or 

promulgated rules at: http://

www.epa.gov/ttn/oarpg. The TTN 

provides information and technology 

exchange in various areas of air 

pollution control. If more information 

regarding the TTN is needed, call the 

TTN HELP line at (919) 541–5384. 

Judicial Review 

Under section 307(b) of the CAA, 

judicial review of the final rule is 

available only by filing a petition for 

review in the United States Court of 

Appeals for the District of Columbia 

Circuit February 23, 2004. Under 

section 307(d)(7)(B) of the CAA, only an 

objection to the rule that was raised 

with reasonable specificity during the 

period for public comment can be raised 

during judicial review. Moreover, under 

section 307(b)(2) of the CAA, the 

requirements established by today’s 

final action may not be challenged 

separately in any civil or criminal 

proceeding we bring to enforce these 

requirements. 

Outline 

The information presented in this 

preamble is organized as follows:

I. Today’s Final Action 

A. Background 

B. Revisions to Part 52 

C. Effective Date for Today’s Final Action 

II. Statutory and Executive Order Reviews 

A. Executive Order 12866—Regulatory 

Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Analysis (RFA) 

D. Unfunded Mandates Reform Act of 1995 

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 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act of 1995 

J. Congressional Review Act 

I. Today’s Final Action 

A. Background

The 1970 CAA at section 110 required 

States to submit plans to provide for the 

implementation and maintenance of the 

national ambient air quality standards 

(NAAQS). While the 1970 CAA established 

requirements for protecting the NAAQS 

through SIP’s, it did not address prevention 

of significant deterioration of air quality. On 

May 31, 1972 (37 FR 10842), the 

Administrator published initial approvals 

and disapprovals of SIP’s submitted pursuant 

to section 110 of the CAA. On November 9, 

1972 (37 FR 23836), all SIP’s were 

disapproved insofar as they failed to provide 

for significant deterioration of air quality. 

This action was taken in response to a 

preliminary injunction issued by the District 

Court for the District of Columbia, which also 

required the Administrator to promulgate 

regulations as to any State plan that either 

permits the significant deterioration of air 

quality in any portion of any State, or fails 

to take the measures necessary to prevent 

significant deterioration. 

On July 16, 1973 (38 FR 18986), ‘‘we’’ 1

proposed several alternative plans for 

prevention of significant deterioration. On 

December 5, 1974 (39 FR 42510), we 

promulgated the Federal PSD program, 40 

CFR 52.21. These regulations established a 

Federal program under section 101(b)(1) of 

the 1970 CAA to conduct preconstruction 

review of specified source categories where 

State agencies fail to provide for prevention 

of significant deterioration of air quality. This 

final action also disapproved all State plans 

as lacking procedures or regulations for 

preventing significant deterioration of air 

quality and incorporated the Federal PSD 

regulations by reference into all State plans. 

Specifically, it incorporated the provisions of 

section 52.21 by reference into the SIP’s in 

subparts B through DDD of part 52. (See 39 

FR 42514 concerning section 52.21(a), plan 

disapproval.)

On June 19, 1978 (43 FR 26388), we 

amended our PSD regulations to implement 

the new requirements of the Clean Air Act 

Amendments of 1977 (Pub. L 95–95). These 

regulations built on the previous ones, but 

provided a more comprehensive program 

pursuant to part C (sections 160–165) of title 

I, which was added in the 1977 CAA 

Amendments. The 1977 CAA Amendments 

also added the specific requirement that the 

PSD program be implemented through SIP’s 

submitted pursuant to CAA section 110. Our 

final rules in 1978 also amended section 

52.21 to incorporate all of the new 

requirements of CAA sections 160–165 into 

the Federal PSD program. This final rule 

contained the same language concerning plan 

disapprovals that is contained in section 

52.21(a)(1) as promulgated on December 31, 

2002, as follows: 

Section 52.21(a) Plan disapproval. The 

provisions of this section are applicable to 

any State implementation plan which has 

been disapproved with respect to prevention 

of significant deterioration of air quality in 

any portion of any State where the existing 

air quality is better than the national ambient 

air quality standards. Specific disapprovals 

are listed where applicable in subparts B 

through DDD of this part. The provisions of 

this section have been incorporated by 

reference into the applicable implementation 

plans for various States, as provided in 

subparts B through DDD of this part. Where 

this section is so incorporated, the provisions 

shall also be applicable to all lands owned 

by the Federal government and Indian 

reservations located in such State. No 

disapproval with respect to a State’s failure 

to prevent significant deterioration of air 

quality shall invalidate or otherwise affect 

the obligation of States, emission sources, or 

other persons with respect to all portions of 

these plans approved or promulgated under 

this part (46 FR 26403).

The 1978 final rule also incorporated 

section 52.21 by reference into the SIP’s 

for 54 programs (50 States, Puerto Rico, 

Virgin Islands, American Samoa, and 

Guam) as follows:

(a) The requirements of sections 160 

through 165 of the Clean Air Act are not met, 

since the plan does not include approvable 

procedures for preventing the significant 

deterioration of air quality. 

(b) The provisions of section 52.21 (b) 

through (v) are hereby incorporated and 

made part of the applicable State plan for the 

State oflll(see 43 FR 26410).

On August 7, 1980 (43 FR 52676), we 

amended our PSD regulations in 

response to the decision by the U.S. 

Court of Appeals for the D.C. Circuit in 

Alabama Power Company v. Costle, 636 

F.2d. 323 (D.C. Cir. 1979). In addition to 

revising the PSD rules to respond to the 

court, this final rule disapproved a 

number of SIP’s for PSD purposes and 

incorporated section 52.21 by reference 

into the Federal implementation plan 

portions of the SIP’s for those programs. 

It also contained the same language 

concerning plan disapprovals that is 

contained in the December 31, 2002 

provisions at section 52.21(a)(1), as well 

as the same language concerning 

incorporation by reference in the 

relevant subparts of part 52 (see 45 FR 

52741). 

B. Revisions to Part 52 

Today, we are making administrative 

amendments to the Federal 

implementation plan portions of State 

plans to update the reference to the PSD 

FIP that is already incorporated into 

these plans. When we proposed the 

Federal Register / Vol. 68, No. 247 / Wednesday, December 24, 2003 / Rules and Regulations 74485

RMRR regulation, we indicated that the 

rule would impact State and local 

authorities implementing the Federal 

PSD program through delegations. In the 

rule that was published in the Federal 

Register on October 27, 2003 (68 FR 

61248), consistent with the proposal, we 

unambiguously announced our intent to 

finalize an update to the State plans that 

had delegated FIPs for PSD. Today’s 

final rule makes administrative 

amendments to the these delegated 

programs to incorporate the provisions 

published in the Federal Register on 

October 27, 2003. This rule is similar in 

effect to the amendments published in 

the Federal Register on March 10, 2003 

(68 FR 11316). In that action, EPA 

adjusted the citations incorporated into 

the Federal implementation plan 

portions of State plans so that all of the 

substantive amendments as of December 

31, 2002 to the PSD regulations would 

become part of the Federal 

implementation plan portions of State 

plans. In today’s action, we are further 

revising references for each FIP to 

incorporate the equipment replacement 

provision amendments into the Federal 

implementation plan portions of State 

plans. 

Today’s rule differs in one respect 

from the previous action to revise the 

Federal implementation portions of 

State plans. In the previous rule, we 

incorporated the relevant subsection 

52.21 by referring to the paragraphs as 

‘‘(a)(2) and (b) to (bb).’’ The purpose of 

that reference was to incorporate all the 

substantive provisions of 52.21. Today’s 

rule adopts a different cross-referencing 

format—‘‘40 CFR 52.21 except 

paragraph (a)(1).’’ Using this format, the 

Agency intends for the Federal 

implementation plan portions of State 

plans to automatically update whenever 

new sections are added to 52.21. 

No tribal government currently has an 

approved tribal implementation plan 

(TIP) under the CAA to implement the 

NSR program. The Federal government 

is currently the NSR reviewing authority 

in Indian country. Pursuant to section 

52.21(a)(1), the provisions of section 

52.21 are applicable to all lands owned 

by the Federal Government and Indian 

Reservations located in each State. 

Therefore, we are incorporating the PSD 

regulations in section 52.21 by reference 

into the FIP portion of SIP’s where the 

requirements of CAA sections 160–165 

are not met for federally designated 

Indian lands. By this final action, we are 

not changing the authority for 

implementing and enforcing the Federal 

PSD permitting program for any sources 

located in Indian country. This 

incorporation by reference only applies 

to those sections of subparts B through 

DDD of part 52 that currently 

incorporate the PSD FIP program for 

Indian lands. 

C. Effective Date for Today’s Final 

Action 

Today’s final regulations are effective 

on December 26, 2003. This is 

consistent with the December 26, 2003 

effective date for the changes to the 

Federal PSD program in section 52.21 

that were published in the Federal 

Register on October 27, 2003. (See 68 

FR 61248.) 

II. Statutory and Executive Order 

Reviews 

A. Executive Order 12866—Regulatory 

Planning and Review 

Under Executive Order 12866, [58 FR 

51735 (October 4, 1993)] the Agency 

must determine whether the regulatory 

action is ‘‘significant’’ and therefore 

subject to 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, or 

State, local, or tribal governments or 

communities;

(2) create a serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency; 

(3) materially alter the budgetary 

impact of entitlements, grants, user fees, 

or loan programs or the rights and 

obligations of recipients thereof; or 

(4) raise novel legal or policy issues 

arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in the Executive Order 

It has been determined that this rule 

is not a ‘‘significant regulatory action’’

under the terms of Executive Order 

12866 and is therefore not subject to EO 

12866 review. 

B. Paperwork Reduction Act 

The information collection 

requirements for the final rule 

published October 27, 2003 (68 FR 

61248) has been submitted for approval 

to OMB under the requirements of the 

Paperwork Reduction Act, 44 U.S.C. 

3501 et seq. An ICR document has been 

prepared by EPA (ICR No. 1230.14), and 

a copy may be obtained from Susan 

Auby, U.S. Environmental Protection 

Agency, Office of Environmental 

Information, Collection Strategies 

Division (2822T), 1200 Pennsylvania 

Avenue, NW., Washington, DC 20460–

0001, by e-mail at auby.susan@epa.gov,

or by calling (202) 566–1672. A copy 

may also be downloaded off the Internet 

at http://www.epa.gov/icr. The 

information requirements included in 

ICR No. 1230.14 are not enforceable 

until OMB approves them. 

The information that ICR No. 1230.14 

covers is required for the submittal of a 

complete permit application for the 

construction or modification of all major 

new stationary sources of pollutants in 

attainment and nonattainment areas, as 

well as for applicable minor stationary 

sources of pollutants. This information 

collection is necessary for the proper 

performance of EPA’s functions, has 

practical utility, and is not 

unnecessarily duplicative of 

information we otherwise can 

reasonably access. We have reduced, to 

the extent practicable and appropriate, 

the burden on persons providing the 

information to or for EPA. In fact, we 

expect that this rule will result in less 

burden on industry and reviewing 

authorities since it streamlines the 

process of determining whether a 

replacement activity is RMRR. 

However, as we articulated in ICR No. 

1230.14, we do anticipate an initial 

increase in burden for reviewing 

authorities as a result of the rule 

changes, to account for revising state 

implementation plans to incorporate 

these rule changes. As discussed above, 

we expect those one-time expenditures 

to be no more than $580,000 for the 

estimated 112 affected reviewing 

authorities. For the number of 

respondent reviewing authorities, the 

analysis uses the 112 reviewing 

authorities count used by other 

permitting ICR’s for the one-time tasks 

(for example, SIP revisions). 

Burden means the total time, effort, or 

financial resources expended by persons 

to generate, maintain, retain, or disclose 

or provide information to or for a 

Federal agency. This includes the time 

needed to review instructions; develop, 

acquire, install, and utilize technology 

and systems for the purpose of 

responding to the information 

collection; adjust existing ways to 

comply with any previously applicable 

instructions and requirements; train 

personnel to respond to a collection of 

information; search existing data 

sources; complete and review the 

collection of information; and transmit 

or otherwise disclose the information. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for EPA’s regulations are listed 

in 40 CFR part 9 and 48 CFR chapter 15.

74486 Federal Register / Vol. 68, No. 247 / Wednesday, December 24, 2003 / Rules and Regulations 

We will continue to present OMB 

control numbers in a consolidated table 

format to be codified in 40 CFR part 9 

of the Agency’s regulations, and in each 

CFR volume containing EPA 

regulations. The table lists the section 

numbers with reporting and 

recordkeeping requirements, and the 

current OMB control numbers. This 

listing of the OMB control numbers and 

their subsequent codification in the CFR 

satisfy the requirements of the 

Paperwork Reduction Act (44 U.S.C. 

3501 et seq.) and OMB’s implementing 

regulations at 5 CFR part 1320. 

C. Regulatory Flexibility Analysis (RFA) 

The EPA has determined that it is not 

necessary to prepare a regulatory 

flexibility analysis in connection with 

this final rule. The EPA has also 

determined that this rule will not have 

a significant economic impact on a 

substantial number of small entities. For 

purposes of assessing the impacts of 

today’s rule on small entities, small 

entity is defined as: (1) Any small 

business employing fewer than 500 

employees (based on Small Business 

Administration’s size definition); (2) a 

small governmental jurisdiction that is a 

government of a city, county, town, 

school district, or special district with a 

population of less than 50,000; or (3) a 

small organization that is any not-forprofit enterprise that is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of today’s final rule on small 

entities, we have concluded that this 

action will not have a significant 

economic impact on a substantial 

number of small entities. In determining 

whether a rule has a significant 

economic impact on a substantial 

number of small entities, the impact of 

concern is any significant adverse 

economic impact on small entities, 

since the primary purpose of the 

regulatory flexibility analyses is to 

identify and address regulatory 

alternatives ‘‘which minimize any 

significant economic impact of the 

proposed rule on small entities’’ (5 

U.S.C. sections 603 and 604). Thus, an 

agency may conclude that a rule will 

not have a significant economic impact 

on a substantial number of small entities 

if the rule relieves regulatory burden, or 

otherwise has a positive economic 

effect, on all of the small entities subject 

to the rule. 

Today’s rule will not have a 

significant economic impact on a 

substantial number of small entities 

because it will decrease the regulatory 

burden of the existing regulations and 

have a positive effect on all small 

entities subject to the rule. This rule 

improves operational flexibility for 

owners or operators of major stationary 

sources and clarifies applicable 

requirements for determining if a 

change qualifies as a major 

modification. We have therefore 

concluded that today’s rule will relieve 

regulatory burden for all small entities.

D. Unfunded Mandates Reform Act of 

1995 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), Pub. L. 

104–4, establishes requirements for 

Federal agencies to assess the effects of 

their regulatory actions on State, local, 

and tribal governments and the private 

sector. Under section 202 of the UMRA, 

EPA generally must prepare a written 

statement, including a cost-benefit 

analysis, for proposed and final rules 

with ‘‘Federal mandates’’ that may 

result in expenditures to State, local, 

and tribal governments, in the aggregate, 

or to the private sector, of $100 million 

or more in any 1 year. Before 

promulgating an EPA rule for which a 

written statement is needed, section 205 

of the UMRA generally requires EPA to 

identify and consider a reasonable 

number of regulatory 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 EPA to adopt an alternative other 

than the least costly, most cost effective 

or least burdensome alternative if the 

Administrator publishes with the final 

rule an explanation as to why that 

alternative was not adopted. 

Before EPA establishes any regulatory 

requirements that may significantly or 

uniquely affect small governments, 

including tribal governments, it must 

have developed under section 203 of the 

UMRA a small government agency plan. 

The plan must provide for notifying 

potentially affected small governments, 

enabling officials of affected small 

governments to have meaningful and 

timely input in the development of EPA 

regulatory proposals with significant 

Federal intergovernmental mandates, 

and informing, educating, and advising 

small governments on compliance with 

the regulatory requirements. 

We have determine that this 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 1 year. There is no 

burden for State, local, and tribal 

agencies in order for this rule to be 

included in the SIP, as this final action 

directly incorporates the changes into 

the SIP. Moreover, these revisions will 

ultimately provide greater operational 

flexibility to sources permitted by the 

States, which will in turn reduce the 

overall burden of the program on State 

and local authorities by reducing the 

number of required permit 

modifications. In addition, we believe 

the rule changes will actually reduce the 

regulatory burden associated with the 

major NSR program by improving the 

operational flexibility of owners and 

operators and improving the clarity of 

requirements. Thus, today’s rule is not 

subject to the requirements of sections 

202 and 205 of the UMRA. 

For the same reasons stated above, we 

have determined that this rule contains 

no regulatory requirements that might 

significantly or uniquely affect small 

governments. Thus, today’s rule is not 

subject to the requirements of section 

203 of the UMRA. 

E. Executive Order 13132—Federalism 

Executive Order 13132, entitled 

‘‘federalism’’ (64 FR 43255, August 10, 

1999), requires EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have federalism 

implications.’’ ‘‘Policies that have 

federalism implications’’ 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.’’

This final rule does not have 

federalism implications. It 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. We do not 

expect this final rule to result in 

expenditures by the States. Today’s final 

rules only apply in States that have been 

delegated the authority to implement 

the Federal PSD rules. Therefore, 

reviewing authorities will not incur a 

burden to revise their SIP’s. Moreover, 

these revisions provide greater 

operational flexibility to sources 

permitted by the States, which will in 

turn reduce the overall burden of the 

program on State and local authorities 

by reducing the number of required 

permit modifications. Thus, Executive 

Order 13132 does not apply to this rule. 

Nevertheless, in the spirit of Executive 

Order 13132, and consistent with EPA 

policy to promote communications 

Federal Register / Vol. 68, No. 247 / Wednesday, December 24, 2003 / Rules and Regulations 74487

between EPA and State and local 

governments, we specifically solicited 

comment on the proposed rule from 

State and local officials. 

F. Executive Order 13175—Consultation 

and 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.’’ We believe that this final 

rule does not have tribal implications as 

specified in Executive Order 13175. 

Thus, Executive Order 13175 does not 

apply to this rule. 

The EPA began considering potential 

revisions to the NSR rules in the early 

1990’s and proposed changes in 1996. 

The purpose of today’s final rule is to 

add greater flexibility to the existing 

major NSR regulations. These changes 

will benefit both reviewing authorities 

and the regulated community by 

providing increased certainty as to 

when the requirements apply, and by 

providing alternative ways to comply 

with the requirements. Taken as a 

whole, today’s final rule should result 

in no added burden or compliance costs 

and should not substantially change the 

level of environmental performance 

achieved under the previous rules. 

No tribal government currently has an 

approved tribal implementation plan 

(TIP) under the CAA to implement the 

NSR program. The Federal government 

is currently the NSR reviewing authority 

in Indian country, thus tribal 

governments should not experience 

added burden, nor should their laws be 

affected with respect to implementation 

of this rule. Additionally, although 

major stationary sources affected by 

today’s final rule could be located in or 

near Indian country and/or be owned or 

operated by tribal governments, such 

sources would not incur additional 

costs or compliance burdens as a result 

of this rule. Instead, the only effect on 

such sources should be the benefit of 

the added certainty and flexibility 

provided by the rule. 

We recognize the importance of 

including tribal consultation as part of 

the rulemaking process. Although we 

did not include specific consultation 

with tribal officials as part of our 

outreach process on this final rule, 

which was developed largely prior to 

issuance of Executive Order 13175 and 

which does not have tribal implications 

under Executive Order 13175, we will 

continue to consult with tribes on future 

rulemakings to assess and address tribal 

implications, and will work with tribes 

interested in seeking TIP approval to 

implement the NSR program to ensure 

consistency of tribal plans with this 

rule. 

G. Executive Order 13045—Protection of 

Children From Environmental Health 

Risks and Safety Risks 

Executive Order 13045, entitled 

‘‘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 final rule is not subject to the 

Executive Order because it is not 

economically significant as defined in 

Executive Order 12866, and because the 

Agency does not have reason to believe 

the environmental health or safety risks 

addressed by this action present a 

disproportionate risk to children 

because we believe that this package as 

a whole will result in equal or better 

environmental protection than currently 

provided by the existing regulations, 

and do so in a more streamlined and 

effective manner. 

H. Executive Order 13211—Actions 

Concerning Regulations 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 of 1995 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (NTTAA), Pub. L. No. 104–

113, 12(d) (15 U.S.C. 272 note) directs 

EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. 

Voluntary consensus standards are 

technical standards (for example, 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. The NTTAA directs EPA to 

provide Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. 

This action does not involve technical 

standards. This final rule does not 

create new requirements but, rather, 

revises an existing permitting program 

by providing a series of program options 

that affected facilities may choose to 

adopt. These options will reduce the 

regulatory burden associated with the 

major NSR program by improving the 

operational flexibility of owners and 

operators, improving the clarity of 

requirements, and providing 

alternatives that sources may take 

advantage of to further improve their 

operational flexibility. Therefore, EPA 

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., 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. The EPA submitted 

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). Therefore, 

this rule will be effective on December 

26, 2003.

List of Subjects in 40 CFR Part 52 

Environmental protection, 

Administrative practices and 

procedures, Air pollution control, 

Carbon monoxide, Hydroocarbons, 

Intergovernmental relations, Nitrogen 

oxides, Ozone, Particular matter, Sulfur 

oxides.

Dated: December 16, 2003. 

Michael O. Leavitt, 

Administrator.

■ For the reasons set out in the preamble, 

title 40, chapter I of the Code of Federal 

Regulations is amended as follows:

74488 Federal Register / Vol. 68, No. 247 / Wednesday, December 24, 2003 / Rules and Regulations 

PART 52—[AMENDED]

■ 1. The authority citation for part 52 

continues to read as follows:

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

Subpart C—[Amended]

■ 2. Section 52.96 is amended by 

revising paragraph (b) to read as follows:

§ 52.96 Significant deterioration of air 

quality.

* * * * *

(b) The requirements of sections 160 

through 165 of the Clean Air Act are not 

met for Indian reservations since the 

plan does not include approvable 

procedures for preventing the 

significant deterioration of air quality on 

Indian reservations and, therefore, the 

provisions of § 52.21 except paragraph 

(a)(1) are hereby incorporated and made 

part of the applicable reservation in the 

State of Alaska.

Subpart D—[Amended]

■ 3. Section 52.144 is amended by 

revising paragraph (b) to read as follows:

§ 52.144 Significant deterioration of air 

quality.

* * * * *

(b) Regulation for preventing 

significant deterioration of air quality. 

The provisions of § 52.21 except 

paragraph (a)(1) are hereby incorporated 

and made a part of the applicable State 

plan for the State of Arizona for that 

portion applicable to the Pima County 

Health Department and the Maricopa 

County Department of Health Services 

and sources locating on Indian lands.

Subpart E—[Amended]

■ 4. Section 52.181 is amended by 

revising paragraph (b) to read as follows:

§ 52.181 Significant deterioration of air 

quality.

* * * * *

(b) The requirements of sections 160 

through 165 of the Clean Air Act are not 

met for federally designated Indian 

lands. Therefore, the provisions of 

§ 52.21 except paragraph (a)(1) are 

hereby incorporated and made a part of 

the applicable implementation plan and 

are applicable to sources located on 

land under the control of Indian 

governing bodies.

Subpart F—[Amended]

■ 5. Section 52.270 is amended by 

revising paragraphs (a)(3), (b)(1) 

introductory text, (b)(2) introductory 

text, (b)(3) introductory text, and (b)(4) 

introductory text to read as follows:

§ 52.270 Significant deterioration of air 

quality. 

(a) * * *

(3) The provisions of § 52.21 except 

paragraph (a)(1) are hereby incorporated 

and made a part of the applicable State 

plan for the State of California. 

(b) * * *

(1) The PSD rules for Sacramento 

County Air Pollution Control District 

are approved under Part C, Subpart 1, of 

the Clean Air Act. However, EPA is 

retaining authority to apply § 52.21 in 

certain cases. The provisions of § 52.21 

except paragraph (a)(1) are therefore 

incorporated and made a part of the 

State plan for California for the 

Sacramento County Air Pollution 

Control District for:

* * * * *

(2) The PSD rules for North Coast 

Unified Air Quality Management 

District are approved under Part C, 

Subpart 1, of the Clean Air Act. 

However, EPA is retaining authority to 

apply § 52.21 in certain cases. The 

provisions of § 52.21 except paragraph 

(a)(1) are therefore incorporated and 

made a part of the State plan for 

California for the North Coast Unified 

Air Quality Management District for:

* * * * *

(3) The PSD rules for Mendocino 

County Air Pollution Control District 

are approved under Part C, Subpart 1, of 

the Clean Air Act. However, EPA is 

retaining authority to apply § 52.21 in 

certain cases. The provisions of § 52.21 

except paragraph (a)(1) are therefore 

incorporated and made a part of the 

State plan for California for the 

Mendocino County Air Pollution 

Control District for:

* * * * *

(4) The PSD rules for Northern 

Sonoma County Air Pollution Control 

District are approved under Part C, 

Subpart 1, of the Clean Air Act. 

However, EPA is retaining authority to 

apply § 52.21 in certain cases. The 

provisions of § 52.21 except paragraph 

(a)(1) are therefore incorporated and 

made a part of the State plan for 

California for the Northern Sonoma 

County Air Pollution Control District 

for:

* * * * *

Subpart G—[Amended]

■ 6. Section 52.343 is amended by 

revising paragraph (b) to read as follows:

§ 52.343 Significant deterioration of air 

quality.

* * * * *

(b) Regulations for preventing 

significant deterioration of air quality. 

The provisions of § 52.21 except 

paragraph (a)(1) are hereby incorporated 

and made a part of the applicable State 

plan for the State of Colorado for the 

sources identified in paragraph (a) of 

this section as not meeting the 

requirements of sections 160–165 of the 

Clean Air Act.

* * * * *

Subpart H—[Amended]

■ 7. Section 52.382 is amended by 

revising paragraph (b) to read as follows:

§ 52.382 Significant deterioration of air 

quality.

* * * * *

(b) The increments for nitrogen 

dioxide promulgated on October 17, 

1988 (53 FR 40671), and related 

requirements in 40 CFR 52.21 except 

paragraph (a)(1), are hereby 

incorporated and made part of the 

applicable implementation plan for the 

State of Connecticut.

Subpart J—[Amended]

■ 8. Section 52.499 is amended by 

revising paragraph (b) to read as follows:

§ 52.499 Significant deterioration of air 

quality.

* * * * *

(b) Regulations for preventing 

significant deterioration of air quality. 

The provisions of § 52.21 except 

paragraph (a)(1) are hereby incorporated 

and made a part of the applicable State 

plan for the District of Columbia.

Subpart K—[Amended]

■ 9. Section 52.530 is amended by 

revising paragraph (d) introductory text 

to read as follows:

§ 52.530 Significant deterioration of air 

quality.

* * * * *

(d) The requirements of sections 160 

through 165 of the Clean Air Act are not 

met since the Florida plan, as 

submitted, does not apply to certain 

sources. Therefore, the provisions of 

§ 52.21 except paragraph (a)(1) are 

hereby incorporated by reference and 

made a part of the Florida plan for:

* * * * *

Subpart M—[Amended]

■ 10. Section 52.632 is amended by 

revising paragraph (b) to read as follows:

§ 52.632 Significant deterioration of air 

quality.

* * * * *

(b) Regulations for preventing 

significant deterioration of air quality. 

The provisions of § 52.21 except

Federal Register / Vol. 68, No. 247 / Wednesday, December 24, 2003 / Rules and Regulations 74489

paragraph (a)(1) are hereby incorporated 

and made a part of the applicable State 

plan for the State of Hawaii.

Subpart N—[Amended]

■ 11. Section 52.683 is amended by 

revising paragraphs (b) and (c) to read as 

follows:

§ 52.683 Significant deterioration of air 

quality.

* * * * *

(b) The requirements of sections 160 

through 165 of the Clean Air Act are not 

met for Indian reservations since the 

plan does not include approvable 

procedures for preventing significant 

deterioration of air quality on Indian 

reservations. Therefore, the provisions 

of § 52.21 except paragraph (a)(1) are 

hereby incorporated and made part of 

the applicable plan for Indian 

reservations in the State of Idaho. 

(c) The requirements of section 165 of 

the Clean Air Act are not met for 

sources subject to prevention of 

significant deterioration requirements 

prior to August 22, 1986, the effective 

date of EPA’s approval of the rules cited 

in paragraph (a) of this section. 

Therefore, the provisions of § 52.21 

except paragraph (a)(1) are hereby 

incorporated and made part of the 

applicable plan for sources subject to 

§ 52.21 prior to August 22, 1986.

Subpart O—[Amended]

■ 12. Section 52.738 is amended by 

revising paragraph (b) to read as follows:

§ 52.738 Significant deterioration of air 

quality.

* * * * *

(b) Regulations for preventing 

significant deterioration of air quality.

The provisions of § 52.21 except 

paragraph (a)(1) are hereby incorporated 

and made a part of the applicable State 

plan for the State of Illinois.

* * * * *

Subpart Q—[Amended]

■ 14. Section 52.833 is amended by 

revising paragraph (b) to read as follows:

§ 52.833 Significant deterioration of air 

quality.

* * * * *

(b) Regulations for preventing 

significant deterioration of air quality. 

The provisions of § 52.21 except 

paragraph (a)(1) are hereby incorporated 

and made a part of the applicable State 

plan for the State of Iowa for sources 

wishing to locate on Indian lands; 

sources constructed under permits 

issued by EPA; and certain sources as 

identified in Iowa’s April 22, 1987, 

letter.

Subpart T—[Amended]

■ 15. Section 52.986 is amended by 

revising paragraph (b) to read as follows:

§ 52.986 Significant deterioration of air 

quality.

* * * * *

(b) The requirements of sections 160 

through 165 of the Clean Air Act are not 

met for federally designated Indian 

lands since the plan (specifically LAC: 

33:III:509.A.1) excludes all federally 

recognized Indian lands from the 

provisions of this regulation. Therefore, 

the provisions of § 52.21 except 

paragraph (a)(1) are hereby incorporated 

and made a part of the applicable 

implementation plan, and are applicable 

to sources located on land under the 

control of Indian governing bodies.

Subpart W—[Amended]

■ 16. Section 52.1165 is amended by 

revising paragraph (b) to read as follows:

§ 52.1165 Significant deterioration of air 

quality.

* * * * *

(b) Regulation for preventing 

significant deterioration of air quality. 

The provisions of § 52.21 except 

paragraph (a)(1) are hereby incorporated 

and made a part of the applicable State 

plan for the State of Massachusetts.

Subpart X—[Amended]

■ 17. Section 52.1180 is amended by 

revising paragraph (b) to read as follows:

§ 52.1180 Significant deterioration of air 

quality.

* * * * *

(b) Regulations for preventing 

significant deterioration of air quality. 

The provisions of § 52.21 except 

paragraph (a)(1) are hereby incorporated 

and made a part of the applicable State 

plan for the State of Michigan.

* * * * *

Subpart Y—[Amended]

■ 18. Section 52.1234 is amended by 

revising paragraph (b) to read as follows:

§ 52.1234 Significant deterioration of air 

quality.

* * * * *

(b) Regulations for preventing 

significant deterioration of air quality. 

The provisions of § 52.21 except 

paragraph (a)(1) are hereby incorporated 

and made a part of the applicable State 

plan for the State of Minnesota.

* * * * *

Subpart BB—[Amended]

■ 19. Section 52.1382 is amended by 

revising paragraph (b) to read as follows:

§ 52.1382 Prevention of significant 

deterioration of air quality.

* * * * *

(b) Regulation for preventing 

significant deterioration of air quality. 

The provisions of § 52.21 except 

paragraph (a)(1) are hereby incorporated 

and made a part of the Montana State 

implementation plan and are applicable 

to proposed major stationary sources or 

major modifications to be located on 

Indian Reservations.

* * * * *

Subpart CC—[Amended]

■ 20. Section 52.1436 is amended by 

revising the introductory text to read as 

follows:

§ 52.1436 Significant deterioration of air 

quality. 

The requirements of sections 160 

through 165 of the Clean Air Act are met 

except as noted in paragraphs (a) and (b) 

of this section. The EPA is retaining 

§ 52.21 except paragraph (a)(1) as part of 

the Nebraska SIP for the following types 

of sources:

* * * * *

Subpart DD—[Amended]

■ 21. Section 52.1485 is amended by 

revising paragraph (b) to read as follows:

§ 52.1485 Significant deterioration of air 

quality.

* * * * *

(b) Regulation for preventing 

significant deterioration of air quality. 

The provisions of § 52.21 except 

paragraph (a)(1) are incorporated and 

made a part of the applicable State plan 

for the State of Nevada except for that 

portion applicable to the Clark County 

Health District.

* * * * *

Subpart FF—[Amended]

■ 22. Section 52.1603 is amended by 

revising paragraph (b) to read as follows:

§ 52.1603 Significant deterioration of air 

quality.

* * * * *

(b) Regulations for preventing 

significant deterioration of air quality. 

The provisions of § 52.21 except 

paragraph (a)(1) are hereby incorporated 

and made a part of the applicable State 

plan for the State of New Jersey.

74490 Federal Register / Vol. 68, No. 247 / Wednesday, December 24, 2003 / Rules and Regulations 

Subpart GG—[Amended]

■ 23. Section 52.1634 is amended by 

revising paragraph (b) to read as follows:

§ 52.1634 Significant deterioration of air 

quality.

* * * * *

(b) The requirements of section 160 

through 165 of the Clean Air Act are not 

met for federally designated Indian 

lands. Therefore, the provisions of 

§ 52.21 except paragraph (a)(1) are 

hereby incorporated and made a part of 

the applicable implementation plan, 

and are applicable to sources located on 

land under the control of Indian 

governing bodies.

* * * * *

Subpart HH—[Amended]

■ 24. Section 52.1689 is amended by 

revising paragraph (b) to read as follows:

§ 52.1689 Significant deterioration of air 

quality.

* * * * *

(b) Regulations for preventing 

significant deterioration of air quality.

The provisions of § 52.21 except 

paragraph (a)(1) are hereby incorporated 

and made a part of the applicable state 

plan for the State of New York.

Subpart JJ—[Amended]

■ 25. Section 52.1829 is amended by 

revising paragraph (b) to read as follows:

§ 52.1829 Prevention of significant 

deterioration of air quality.

* * * * *

(b) Regulation for preventing of 

significant deterioration of air quality. 

The provisions of § 52.21 except 

paragraph (a)(1) are hereby incorporated 

and made a part of the North Dakota 

State implementation plan and are 

applicable to proposed major stationary 

sources or major modifications to be 

located on Indian Reservations.

Subpart LL—[Amended]

■ 26. Section 52.1929 is amended by 

revising paragraph (a) introductory text 

to read as follows:

§ 52.1929 Significant deterioration of air 

quality. 

(a) Regulation for preventing 

significant deterioration of air quality. 

The Oklahoma plan, as submitted, does 

not apply to certain sources in the State. 

Therefore the provisions of § 52.21 

except paragraph (a)(1) are hereby 

incorporated, and made part of the 

Oklahoma State implementation plan, 

and are applicable to the following 

major stationary sources or major 

modifications:

* * * * *

Subpart MM—[Amended]

■ 27. Section 52.1987 is amended by 

revising paragraph (c) to read as follows:

§ 52.1987 Significant deterioration of air 

quality.

* * * * *

(c) The requirements of sections 160 

through 165 of the Clean Air Act are not 

met for Indian reservations since the 

plan does not include approvable 

procedures for preventing the 

significant deterioration of air quality on 

Indian reservations and, therefore, the 

provisions of § 52.21 except paragraph 

(a)(1) are hereby incorporated and made 

part of the applicable plan for Indian 

reservations in the State of Oregon.

Subpart QQ—[Amended]

■ 28. Section 52.2178 is amended by 

revising paragraph (b) to read as follows:

§ 52.2178 Significant deterioration of air 

quality.

* * * * *

(b) Regulations for preventing 

significant deterioration of air quality. 

The provisions of § 52.21 except 

paragraph (a)(1) are hereby incorporated 

and made a part of the applicable State 

plan for the State of South Dakota.

* * * * *

Subpart RR—[Amended]

■ 29. Section 22.2233 is amended by 

revising paragraph (b) introductory text 

to read as follows:

§ 52.2233 Significant deterioration of air 

quality.

* * * * *

(b) The requirements of § 52.21 except 

paragraph (a)(1) are hereby incorporated 

and made part of the applicable SIP for 

the State of Tennessee for the following 

purposes:

* * * * *

Subpart SS—[Amended]

■ 30. Section 52.2303 is amended by 

revising paragraphs (c) and (d) to read as 

follows:

§ 52.2303 Significant deterioration of air 

quality.

* * * * *

(c) The requirements of section 160 

through 165 of the Clean Air Act are not 

met for federally designated Indian 

lands. Therefore, the provisions of 

§ 52.21 except paragraph (a)(1) are 

hereby adopted and made a part of the 

applicable implementation plan and are 

applicable to sources located on land 

under the control of Indian governing 

bodies. 

(d) The requirements of section 160 

through 165 of the Clean Air Act are not 

met for new major sources or major 

modifications to existing stationary 

sources for which applicability 

determinations would be affected by 

dockside emissions of vessels. 

Therefore, the provisions of § 52.21 

except paragraph (a)(1) are hereby 

adopted and made a part of the 

applicable implementation plan and are 

applicable to such sources.

Subpart TT—[Amended]

■ 31. Section 52.2346 is amended by 

revising paragraph (b) to read as follows:

§ 52.2346 Significant deterioration of air 

quality.

* * * * *

(b) Regulation for prevention of 

significant deterioration of air quality.

The provisions of § 52.21 except 

paragraph (a)(1) are hereby incorporated 

and made a part of the Utah State 

implementation plan and are applicable 

to proposed major stationary sources or 

major modifications to be located on 

Indian Reservations.

* * * * *

Subpart WW—[Amended]

■ 32. Section 52.2497 is amended by 

revising paragraph

(b) to read as follows:

§ 52.2497 Significant deterioration of air 

quality.

* * * * *

(b) Regulations for preventing 

significant deterioration of air quality. 

The provisions of § 52.21 except 

paragraph (a)(1) are hereby incorporated 

and made a part of the applicable State 

plan for the State of Washington.

* * * * *

Subpart YY—[Amended]

■ 33. Section 52.2581 is amended by 

revising paragraph (e) to read as follows:

§ 52.2581 Significant deterioration of air 

quality.

* * * * *

(e) Regulations for the prevention of 

the significant deterioration of air 

quality. The provisions of § 52.21 except 

paragraph (a)(1) are hereby incorporated 

and made a part of the applicable State 

plan for the State of Wisconsin for 

sources wishing to locate in Indian 

country; and sources constructed under 

permits issued by EPA.

Federal Register / Vol. 68, No. 247 / Wednesday, December 24, 2003 / Rules and Regulations 74491

Subpart ZZ—[Amended]

■ 34. Section 52.2630 is amended by 

revising paragraph (b) introductory text 

to read as follows:

§ 52.2630 Prevention of significant 

deterioration of air quality.

* * * * *

(b) Regulation for preventing 

significant deterioration of air quality. 

The Wyoming plan, as submitted, does 

not apply to certain sources in the State. 

Therefore, the provisions of § 52.21 

except paragraph (a)(1) are hereby 

incorporated and made a part of the 

State implementation plan for the State 

of Wyoming and are applicable to the 

following proposed major stationary 

sources or major modifications:

* * * * *

Subpart AAA—[Amended]

■ 35. Section 52.2676 is amended by 

revising paragraph (b) to read as follows:

§ 52.2676 Significant deterioration of air 

quality.

* * * * *

(b) Regulations for preventing 

significant deterioration of air quality. 

The provisions of § 52.21 except 

paragraph (a)(1) are hereby incorporated 

and made a part of the applicable State 

plan for the State of Guam.

Subpart BBB—[Amended]

■ 36. Section 52.2729 is amended by 

revising paragraph (b) to read as follows:

§ 52.2729 Significant deterioration of air 

quality.

* * * * *

(b) Regulations for preventing 

significant deterioration of air quality. 

The provisions of § 52.21 except 

paragraph (a)(1) are hereby incorporated 

and made a part of the applicable State 

plan for the State of Puerto Rico.

Subpart CCC—[Amended]

■ 37. Section 52.2779 is amended by 

revising paragraph (b) to read as follows:

§ 52.2779 Significant deterioration of air 

quality.

* * * * *

(b) Regulations for preventing 

significant deterioration of air quality. 

The provisions of § 52.21 except 

paragraph (a)(1) are hereby incorporated 

and made a part of the applicable State 

plan for the Virgin Islands.

Subpart DDD—[Amended]

■ 38. Section 52.2827 is amended by 

revising paragraph (b) to read as follows:

§ 52.2827 Significant deterioration of air 

quality.

* * * * *

(b) Regulations for preventing 

significant deterioration of air quality. 

The provisions of § 52.21 except 

paragraph (a)(1) are hereby incorporated 

and made a part of the applicable State 

plan for American Samoa.

[FR Doc. 03–31586 Filed 12–23–03; 8:45 am] 

BILLING CODE 6560–50–P

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Medicare & Medicaid 

Services 

42 CFR Part 411 

[CMS–1809–F4] 

RIN 0938–AM21 

Medicare and Medicaid Programs; 

Physicians’ Referrals to Health Care 

Entities With Which They Have 

Financial Relationships: Extension of 

Partial Delay of Effective Date

AGENCY: Centers for Medicare & 

Medicaid Services (CMS), DHHS.

ACTION: Final rule; extension of partial 

delay in effective date. 

SUMMARY: This final rule further delays 

for 6 months, until July 7, 2004, the 

effective date of the last sentence of 42 

CFR 411.354(d)(1). This section was 

promulgated in the final rule entitled 

‘‘Medicare and Medicaid Programs; 

Physicians’ Referrals to Health Care 

Entities With Which They Have 

Financial Relationships,’’ published in 

the Federal Register on January 4, 2001. 

A 1-year delay of the effective date of 

the last sentence in this section was 

published in the Federal Register on 

December 3, 2001. A 6-month delay, 

until July 7, 2003, was published in the 

Federal Register on November 22, 2002. 

An additional 6-month delay, until 

January 7, 2004, was published on April 

25, 2003. This further extension of the 

delay in the effective date of that 

sentence will give us additional time to 

reconsider the definition of 

compensation that is ‘‘set in advance’’

as it relates to percentage compensation 

methodologies in order to avoid 

unnecessarily disrupting existing 

contractual arrangements for physician 

services. Accordingly, the last sentence 

of § 411.354(d)(1), which would have 

become effective January 7, 2004, will 

not become effective until July 7, 2004. 

We expect that the definition of ‘‘set in 

advance’’ will be addressed definitively 

before July 7, 2004 in a final rule with 

comment period, entitled ‘‘Medicare 

Program; Physicians’ Referrals to Health 

Care Entities With Which They Have 

Financial Relationships’’ (Phase II).

DATES: Effective date: The effective date 

of the last sentence in § 411.354(d)(1) of 

the final rule published in the Federal 

Register on January 4, 2001 (66 FR 856), 

is delayed to July 7, 2004.

FOR FURTHER INFORMATION CONTACT:

Karen Raschke, (410) 786–0016.

SUPPLEMENTARY INFORMATION: This 

Federal Register document is available 

from the Federal Register online 

database through GPO Access, a service 

of the U.S. Government Printing Office. 

The Web site address is: http://

www.access.gpo.gov/nara/index.html. 

In addition, the information in this 

final rule will be available soon after 

publication in the Federal Register on 

our MEDLEARN Web site: http://

cms.hhs.gov/medlearn/refphys.asp. 

I. Background 

The final rule, entitled ‘‘Medicare and 

Medicaid Programs; Physicians’

Referrals to Health Care Entities With 

Which They Have Financial 

Relationships,’’ published in the 

Federal Register on January 4, 2001 (66 

FR 856), interpreted certain provisions 

of section 1877 of the Social Security 

Act (the Act). Under section 1877, if a 

physician or a member of a physician’s 

immediate family has a financial 

relationship with a health care entity, 

the physician may not make referrals to 

that entity for the furnishing of 

designated health services (DHS) under 

the Medicare program, and the entity 

may not bill for the services, unless an 

exception applies. Many of the statutory 

and new regulatory exceptions that 

apply to compensation relationships 

require that the amount of 

compensation be ‘‘set in advance.’’

Section 411.354(d)(1) of the final rule 

defines the term ‘‘set in advance.’’

The last sentence of § 411.354(d)(1) 

reads: ‘‘Percentage compensation 

arrangements do not constitute 

compensation that is ‘set in advance’ in 

which the percentage compensation is 

based on fluctuating or indeterminate 

measures or in which the arrangement 

results in the seller receiving different 

payment amounts for the same service 

from the same purchaser.’’ Many of the 

comments we received regarding the 

January 4, 2001 physician self-referral 

final rule indicated that physicians are 

commonly paid for their professional 

services using a formula that takes into 

account a percentage of a fluctuating or 

indeterminate measure (for example, 

revenues billed or collected for 

physician services). According to the