Federal Register / Vol. 69, No. 238 / Monday, December 13, 2004 / Rules and Regulations 72115

compile information in the course of an 

investigation which may not be relevant 

to a specific prosecution. It is 

impossible to determine in advance 

what information collected during an 

investigation will be important or 

crucial to the apprehension of fugitives. 

In the interests of effective law 

enforcement, it is necessary to retain 

such information in this system of 

records because it can aid in 

establishing patterns of criminal activity 

and can provide valuable leads for 

federal and other law enforcement 

agencies. This consideration applies 

equally to information acquired from, or 

collated or analyzed for, both law 

enforcement agencies and agencies of 

the U.S. foreign intelligence community 

and military community. 

(7) From subsection (e)(2) because in 

a criminal, civil, or regulatory 

investigation, prosecution, or 

proceeding, the requirement that 

information be collected to the greatest 

extent practicable from the subject 

individual would present a serious 

impediment to law enforcement because 

the subject of the investigation, 

prosecution, or proceeding would be 

placed on notice as to the existence and 

nature of the investigation, prosecution, 

and proceeding and would therefore be 

able to avoid detection or apprehension, 

to influence witnesses improperly, to 

destroy evidence, or to fabricate 

testimony. Moreover, thorough and 

effective investigation and prosecution 

may require seeking information from a 

number of different sources. 

(8) From subsection (e)(3) (to the 

extent applicable) because the 

requirement that individuals supplying 

information be provided a form stating 

the requirements of subsection (e)(3) 

would constitute a serious impediment 

to law enforcement in that it could 

compromise the existence of a 

confidential investigation or reveal the 

identity of witnesses or confidential 

informants and endanger their lives, 

health, and physical safety. The 

individual could seriously interfere 

with undercover investigative 

techniques and could take appropriate 

steps to evade the investigation or flee 

a specific area. 

(9) From subsection (e)(5) because the 

acquisition, collation, and analysis of 

information for law enforcement 

purposes from various agencies does not 

permit a determination in advance or a 

prediction of what information will be 

matched with other information and 

thus whether it is accurate, relevant, 

timely and complete. With the passage 

of time, seemingly irrelevant or 

untimely information may acquire new 

significance as further investigation 

brings new details to light and the 

accuracy of such information can often 

only be determined in a court of law. 

The restrictions imposed by subsection 

(e)(5) would restrict the ability of 

trained investigators, intelligence 

analysts, and government attorneys to 

exercise their judgment in collating and 

analyzing information and would 

impede the development of criminal or 

other intelligence necessary for effective 

law enforcement. 

(10) From subsection (e)(8) because 

the individual notice requirements of 

subsection (e)(8) could present a serious 

impediment to law enforcement by 

revealing investigative techniques, 

procedures, evidence, or interest and 

interfering with the ability to issue 

warrants or subpoenas, and could give 

persons sufficient warning to evade 

investigative efforts. 

(11) From subsection (g) because this 

subsection is inapplicable to the extent 

that the system is exempt from other 

specific subsections of the Privacy Act. 

(12) In addition, exemption is claimed 

for this system of records from 

compliance with the following 

provisions of 5 U.S.C. 552a pursuant to 

the provisions of 5 U.S.C. 552a(k): 

subsections (c)(3), (d), (e)(1), to the 

extent that the records contained in this 

system are specifically authorized to be 

kept secret in the interests of national 

defense and foreign policy.

Dated: December 6, 2004. 

Paul R. Corts, 

Assistant Attorney General for 

Administration.

[FR Doc. 04–27237 Filed 12–10–04; 8:45 am] 

BILLING CODE 4410–14–P

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[VA155–5081; FRL–7847–4] 

Approval and Promulgation of Air 

Quality Implementation Plans; Virginia 

NOX RACT Determinations for Two 

Individual Sources

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is approving a State 

Implementation Plan (SIP) revisions 

submitted by the Commonwealth of 

Virginia (Virginia or the 

Commonwealth). The revisions consist 

of reasonably available control 

technology (RACT) determinations for 

the control of nitrogen oxides (NOX) 

from two individual sources located in 

Fairfax County, Virginia; namely, the 

Central Intelligence Agency (CIA), and 

the National Reconnaissance Office 

(NRO). EPA is approving these revisions 

to establish and impose RACT 

requirements in accordance with the 

Clean Air Act (CAA).

DATES: Effective Date: This final rule is 

effective on January 12, 2005.

ADDRESSES: Copies of the documents 

relevant to this action are available for 

public inspection during normal 

business hours at the Air Protection 

Division, U.S. Environmental Protection 

Agency, Region III, 1650 Arch Street, 

Philadelphia, Pennsylvania 19103; and 

the Virginia Department of 

Environmental Quality, 629 East Main 

Street, Richmond, Virginia 23219.

FOR FURTHER INFORMATION CONTACT: Rose 

Quinto, (215) 814–2182, or by e-mail at 

quinto.rose@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. Background 

On April 19 and 21, 2004, the Virginia 

Department of Quality (DEQ) submitted 

formal SIP revisions to establish RACT 

for two individual sources of NOX

located in Fairfax County, Virginia. The 

Virginia DEQ determined and imposed 

RACT under the Commonwealth’s SIPapproved generic NOX RACT 

regulations, 9 VAC 5–40–310 and 9 VAC 

5–40–311. Generic RACT regulations are 

regulations that do not, themselves, 

specifically define RACT for a source or 

source category but instead establish 

procedures for imposing case-by-case 

RACT determinations. The 

Commonwealth’s SIP-approved generic 

NOX RACT regulations consist of the 

procedures DEQ uses to establish and 

impose RACT for subject sources of 

NOX. Pursuant to the SIP-approved 

generic RACT rules, DEQ imposes 

RACT on each subject source in an 

enforceable document, usually a permit 

or order. The Commonwealth then 

submits these permits or orders to EPA 

for approval as source-specific SIP 

revisions. EPA approved Virginia’s 

generic NOX RACT regulations on April 

28, 1999 (64 FR 22792). 

On September 9, 2004 (69 FR 54574), 

EPA published a direct final rule (DFR) 

approving as SIP revisions DEQ-issued 

operating permits which establish and 

require RACT for the CIA (Operating 

Permit Registration No. 71757), and the 

NRO (Operating Permit Registration No. 

71988). A detailed description of the 

RACT determinations and EPA’s 

rationale for approving them were 

provided in the September 9, 2004 DFR 

and will not be restated herein. In 

accordance with direct final rulemaking 

procedures, on September 9, 2004 (69

72116 Federal Register / Vol. 69, No. 238 / Monday, December 13, 2004 / Rules and Regulations 

FR 54600), EPA also published a 

companion notice of proposed 

rulemaking on these SIP revisions 

inviting interested parties to comment 

on the DFR. On October 12, 2004, EPA 

received adverse comment on its 

proposed approval. On November 4, 

2004 (69 FR 64259), due to receipt of the 

adverse comment, EPA published a 

withdrawal of the DFR. A summary of 

the comment received and EPA’s 

response to the comment are provided 

in section II of this document. 

II. Public Comment and EPA Responses 

Comment: The commenter, Clean 

Fuels Technology, Inc., submitted a 

spreadsheet with source testing data 

indicating that Alternative Diesel Oil 

Emulsion fuels can produce NOX

emission limits lower than those 

imposed by the DEQ for the CIA in 

Operating Permit Registration No. 

71757, and the NRO in Operating Permit 

Registration No. 71988. The commenter 

states that the power levels of the test 

units are very similar to the units 

located at the CIA and NRO facilities in 

Fairfax County, Virginia. The 

commenter suggests in light of the 

information in the spreadsheet and the 

cost savings that could accrue to the use 

of fuels less costly than natural gas, that 

Alternative Diesel Oil Emulsion fuels be 

considered an applicable RACT for the 

control of NOX emissions at the cited 

sources.

Response: EPA disagrees with the 

commenter. The CAA requires that a 

state determine and impose RACT for 

existing major sources of NOX and VOCs 

located in ozone nonattainment areas 

and the Ozone Transport Region. Those 

RACT requirements are then to be 

submitted to EPA for approval into the 

SIP. EPA can only take action on a SIP 

revision as submitted by a state, and 

cannot, through its rulemaking action 

on a SIP revision, alter the state’s 

submission to make its requirements 

more (or less) stringent. Therefore, even 

if EPA agreed that the commenter 

submitted convincing evidence that the 

SIP revision submitted by Virginia are 

not RACT for these facilities, EPA could 

not modify the SIP revision as requested 

by the commenter, but instead could 

only disapprove the SIP revision 

submitted by the Commonwealth. 

With regard to the criteria EPA uses 

to determine whether to approve or 

disapprove RACT SIP revisions 

submitted by the Virginia DEQ pursuant 

to 9 VAC 5–40–310 and 9 VAC 5–40–

311 we look to the requirements of the 

CAA and relevant EPA guidance. 

In approving Virginia’s NOX RACT 

regulations, 9 VAC 5–40–310 and 9 VAC 

5–40–311 (RACT Guidelines for 

Stationary Sources of NOX), EPA, 

thereby, approved the definitions, 

provisions and procedures contained 

within those regulations under which 

the Commonwealth would require and 

impose RACT. In accordance with 9 

VAC 5–40–310, subject facilities are 

required to submit a RACT plan 

proposal to the DEQ. The DEQ then 

evaluates that RACT plan and 

determines and imposes RACT. The 

DEQ submits each RACT determination 

to EPA for approval as a SIP revision. 

Pursuant to CAA requirements for SIP 

revisions, the DEQ conducts a public 

comment period and public hearing on 

its proposed SIP revision prior to 

submittal of the revisions to EPA. EPA 

reviews the case-by-case RACT plan 

approvals and/or permits submitted as 

individual SIP revisions by the 

Commonwealth to verify and determine 

if they are consistent with the RACT 

requirements of the CAA and any 

relevant EPA guidance. Then EPA 

reviews the technical and economic 

analyses conducted by the source and 

the state. If EPA believes additional 

information may further support or 

would undercut the RACT analyses 

submitted by the state, then we may add 

additional EPA-generated analyses to 

the record of our rule to approve or 

disapprove the SIP revision. EPA’s 

review of the Commonwealth of 

Virginia’s submission of its RACT 

determination for the two individual 

sources imposed in DEQ operating 

permits indicate that the requirements 

of its SIP-approved NOX RACT 

regulations 9 VAC 5–40–310 and 9 VAC 

5–40–311 have been met. 

While the commenter provides a 

spreadsheet of testing data from source 

testing performed at other units which 

indicates lower emission rates at those 

test units, and asserts that the test units’

power levels are similar to the CIA’s and 

NRO’s Virginia-based units, the 

commenter did not submit any 

additional technical information 

regarding the comparability of the test 

units to the CIA’s and NRO’s units (e.g., 

age, specific design, required operating 

schedules, comparison of emissions 

rates between the test units and the 

Virginia-based units when the later are 

burning natural gas versus diesel oil) to 

support its suggestion that Diesel Oil 

Emulsion fuels be considered RACT for 

the specific units located at the CIA’s 

and NRO’s Fairfax County, Virginia 

facilities. Nor did the commenter 

provide any information as to the 

availability and supply of Diesel Oil 

Emulsion fuels to these facilities. The 

commenter provided no data or 

information of any kind to support the 

comment that cost savings could accrue 

to the use of fuels less costly than 

natural gas. Finally, the commenter did 

not submit any justification or analysis 

to suggest that the RACT limits imposed 

by the Commonwealth are inconsistent 

with the its SIP-approved generic RACT 

regulations, the CAA or EPA guidance. 

Because the commenter has submitted 

no new information that would cause us 

to reconsider our analysis that 

accompanied the proposed rule, we 

continue to believe that analysis 

supports our approval of the NOX RACT 

determinations imposed by the Virginia 

DEQ for the CIA’s and NRO’s facilities 

located in Fairfax County, Virginia.

III. Final Action 

EPA is approving the Virginia DEQ’s 

NOX RACT requirements for the two 

individual sources located in Fairfax 

County, Virginia, namely, the Central 

Intelligence Agency, and the National 

Reconnaissance Office. EPA is 

approving these SIP revisions because 

DEQ established and imposed these 

RACT requirements in accordance with 

the criteria set forth in the SIP-approved 

RACT regulations applicable to these 

sources. The DEQ has also imposed 

record keeping, monitoring, and testing 

requirements on the two individual 

sources sufficient to determine 

compliance with the applicable RACT 

determinations. 

IV. Statutory and Executive Order 

Reviews 

A. General Requirements 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this action is 

not a ‘‘significant regulatory action’’ and 

therefore is not subject to review by the 

Office of Management and Budget. For 

this reason, this action is also not 

subject to Executive Order 13211, 

‘‘Actions Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355, May 

22, 2001). This action merely approves 

State law as meeting Federal 

requirements and imposes no additional 

requirements beyond those imposed by 

State law. Accordingly, the 

Administrator certifies that this rule 

will not have a significant economic 

impact on a substantial number of small 

entities under the Regulatory Flexibility 

Act (5 U.S.C. 601 et seq.). Because this 

rule approves pre-existing requirements 

under State law and does not impose 

any additional enforceable duty beyond 

that required by State law, it does not 

contain any unfunded mandate or 

significantly or uniquely affect small 

governments, as described in the 

Unfunded Mandates Reform Act of 1995

Federal Register / Vol. 69, No. 238 / Monday, December 13, 2004 / Rules and Regulations 72117

(Public Law 104–4). This rule also does 

not have tribal implications because it 

will not have a substantial direct effect 

on one or more Indian tribes, on the 

relationship between the Federal 

Government and Indian tribes, or on the 

distribution of power and 

responsibilities between the Federal 

Government and Indian tribes, as 

specified by Executive Order 13175 (65 

FR 67249, November 9, 2000). This 

action also does not have federalism 

implications because it does 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 (64 FR 43255, 

August 10, 1999). This action 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. This rule also is not 

subject to Executive Order 13045 

‘‘Protection of Children from 

Environmental Health Risks and Safety 

Risks’’ (62 FR 19885, April 23, 1997), 

because it is not economically 

significant. In reviewing SIP 

submissions, EPA’s role is to approve 

state choices, provided that they meet 

the criteria of the Clean Air Act. In this 

context, in the absence of a prior 

existing requirement for the State to use 

voluntary consensus standards (VCS), 

EPA has no authority to disapprove a 

SIP submission for failure to use VCS. 

It would thus be inconsistent with 

applicable law for EPA, when it reviews 

a SIP submission, to use VCS in place 

of a SIP submission that otherwise 

satisfies the provisions of the Clean Air 

Act. Thus, the requirements of section 

12(d) of the National Technology 

Transfer and Advancement Act of 1995 

(15 U.S.C. 272 note) do not apply. 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.). 

B. Submission to Congress and the 

Comptroller General 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. Section 804 

exempts from section 801 the following 

types of rules: (1) Rules of particular 

applicability; (2) rules relating to agency 

management or personnel; and (3) rules 

of agency organization, procedure, or 

practice that do not substantially affect 

the rights or obligations of non-agency 

parties. 5 U.S.C. 804(3). EPA is not 

required to submit a rule report 

regarding today’s action under section 

801 because this is a rule of particular 

applicability establishing sourcespecific requirements for two individual 

sources. 

C. 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 February 11, 

2005. 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 pertaining to the 

Virginia NOX RACT Determinations for 

the Central Intelligence Agency and the 

National Reconnaissance Office, may 

not be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).)

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Nitrogen dioxide, Ozone, 

Reporting and recordkeeping 

requirements.

Dated: December 6, 2004. 

Donald S. Welsh, 

Regional Administrator, Region III.

■ 40 CFR part 52 is amended as follows:

PART 52—[AMENDED]

■ 1. The authority citation for part 52 

continues to read as follows:

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

Subpart VV—Virginia

■ 2. In § 52.2420, the table in paragraph 

(d) is amended by adding entries for 

Central Intelligence Agency (CIA), 

George Bush Center for Intelligence and 

National Reconnaissance Office, Boeing 

Service Center at the end of the table to 

read as follows:

§ 52.2420 Identification of plan.

* * * * *

(d) * * *

EPA—APPROVED SOURCE SPECIFIC REQUIREMENTS

Source name Permit/order or registration 

number 

State effective 

date EPA approval date 40 CFR part 52 citation 

* * * * * * * 

Central Intelligence Agency (CIA), 

George Bush Center for Intelligence.

Registration No. 71757 ........ 04/16/04 12/13/04 [Insert page number where 

the document begins].

52.2420(d)(6) 

National Reconnaissance Office, Boeing Service Center.Registration No. 71988 ........ 04/16/04 12/13/04 [Insert page number where 

the document begins].

52.2420(d)(6) 

[FR Doc. 04–27260 Filed 12–10–04; 8:45 am] 

BILLING CODE 6560–50–P