Federal Register/Vol. 66, No. 197/Thursday, October 11, 2001/Rules and Regulations

List ofSubjects in 40 CFRPart 52

Environmental protection, Air pollution control, Hydrocarbons, Incorporation by reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements.

Dated: October 3,2001. Thomas C.Voltaggio, ActingRegional Administrator, RegionIII.

PART 52-[AMENDED]
§52.2020 [Amended]

Accordingly, the addition of §52.2020(c)(174) is withdrawn as of October 11, 2001. [FR Doc. 01-25548 Filed 10-10-01; 8:45 am]

BILLING CODE 6560-50-P

ENVIRONMENTAL PROTECTION
AGENCY

40 CFR Part 52

[PA-4118a; FRL-7079-4]
Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; VOC and NOx RACT Determinations for Nine Individual Sources Located in the PhiladelphiaWilmington-Trenton Area; Withdrawal of Direct Final Rule

AGENCY: Environmental Protection Agency (EPA). ACTION: Withdrawal ofdirect final rule.

SUMMARY: Due to receipt ofa letter of adverse comment, EPAis withdrawing the direct final rule approving revisions which establish reasonably available control technology (RACT)requirements for nine major sources ofvolatile organic compounds (VOC) and nitrogen oxides (NOx) located in the Philadelphia-Wilmington-Trenton

ozone nonattainment area. In the direct final rule published on August 31, 2001 (66 FR 45928), EPA stated that ifit received adverse commentby October 1, 2001, the rule wouldbe withdrawn and
not take effect. EPA subsequently received adverse comments from the Citizens for Pennsylvania's Future (PennFuture). EPA will address the
comments received in a subsequent final action based upon the proposed action also published onAugust 31, 2001 (66 FR 45953). EPA will not institute a second comment period on this action.
DATES: The direct final rule is withdrawn as of October 11, 2001.
FOR FURTHER INFORMATION CONTACT: Harold A. Frankford at (215) 814-2108. List ofSubjects in 40 CFRPart52
Environmental protection, Air pollution control, Hydrocarbons, Incorporation by reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements.

Dated: October 3,2001. Thomas C.Voltaggio, ActingRegional Administrator, RegionIlL

PART 52-[AMENDED]
§52.2020 [Amended]

Accordingly, the addition of §52.2020(c)(184) is withdrawn as of October 11, 2001. [FR Doc. 01-25547 Filed 10-10-01; 8:45 am]

BILLING CODE 6560-50-P

ENVIRONMENTAL PROTECTION
AGENCY

40 CFR Part 52

[PA-4148a; FRL-7079-3]
Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; VOC and NOx RACT Determinations for Three Individual Sources Located in the PhiladelphiaWilmington-Trenton Area; Withdrawal of Direct Final Rule

AGENCY: Environmental Protection Agency (EPA).
ACTION: Withdrawal ofdirect final rule.

SUMMARY: Due to receipt ofa letter of adverse comment, EPA is withdrawing the direct final rule approving revisions which establish reasonably available control technology (RACT)requirements for three major sources ofvolatile organic compounds (VOC) andnitrogen oxides (NOx) located in the Philadelphia-Wilmington-Trenton

ozone nonattainment area. In the direct final rule published on August 31, 2001 (66 FR 45938), EPA statedthat ifit received adverse comment by October 1, 2001, the rule would be withdrawn and
not take effect. EPA subsequently received adverse comments from the Citizens for Pennsylvania's Future (PennFuture). EPA will address the
comments received in a subsequent final action based upon the proposed action alsopublished onAugust 31, 2001 (66 FR 45954). EPA will not institute a second comment period on this action.
DATES: The direct final rule is withdrawn as ofOctober 11, 2001.
FOR FURTHER INFORMATION CONTACT: Harold A. Frankford at (215) 814-2108. List ofSubjects in 40 CFR Part52
Environmental protection, Air pollution control, Hydrocarbons, Incorporation by reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements.

Dated: October 3,2001. Thomas C.Voltaggio, ActingRegional Administrator,RegionIlL

PART 52-[AMENDED]
§52.2020 [Amended]

Accordingly, the addition of §52.2020(c)(182) iswithdrawn as of October 11, 2001. [FR Doc. 01-25546 Filed 10-10-01; 8:45 am]

BILLING CODE 6560-50-P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52 [AZ105-0045; FRL-7063-1]
Approval and Promulgation of Implementation Plans; ArizonaMaricopa Nonattainment Area; PM-10

AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.

SUMMARY: EPA is approving under the Clean Air Act (CAA or Act), as a revision to the Arizona State Implementation Plan (SIP), a general permit rule thatprovides for the expeditious implementation ofbest management practices (BMPs) to reduce particulate matter (PM-10)from agricultural sources inthe Maricopa County (Phoenix)PM-10 nonattainment

area. EPA is approving the general permit rule asmeeting the "reasonably available control measure" (RACM) requirements ofthe Act.
EFFECTIVE DATE: November 13, 2001. ADDRESSES: You caninspect copies of the administrative record for this action
atEPA's Region IX office during normal business hours. You can inspect copies ofthe submitted SIP revisions at the following locations: Environmental Protection Agency,

Region IX, 75 Hawthorne Street, San Francisco, CA94105-3901. Environmental Protection Agency, Air

Docket (6102), Ariel Rios Building, 1200 Pennsylvania Avenue, NW., Washington DC 20460. Arizona Department ofEnvironmental

Quality,Library, 3033 N. Central Avenue, Phoenix, Arizona 85012.
FOR FURTHER INFORMATION CONTACT: John Ungvarsky, Air Division,U.S. 

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Environmental Protection Agency, EPA Region 9, 75 Hawthorne Street (AIR2), SanFrancisco, CA 94105, (415) 744- 1286 or ungvarsky.john@epa.gov.This document is also available as an electronic file on EPA's Region 9 Web page at http://www.epa.gov/regionO9/ air.
SUPPLEMENTARY INFORMATION

I. Background

A. AirQualityStatus

Portions ofMaricopa County Iare designated nonattainment for the PM10 national ambient air quality standards (NAAQS) 2 and were originally classified as "moderate" pursuant to section 188(a) ofthe CAA. 56 FR 11101 (March 15, 1991). On May 10, 1996, EPA reclassified the Maricopa County PM-10 nonattainment area to "serious" under CAA section 188(b)(2). 61 FR 21372. Havingbeen reclassified, Phoenix is required to meet the serious

area requirements in CAA section 189(b).

While the Phoenix PM-10 nonattainment area is currently classified as serious, today's action relates only to the moderate area statutory requirements for RACM. However, Arizona developed legislation and ageneral permit rule applicable to agricultural sources ofPM-10 when the

area had already been reclassified to serious. Therefore the State's focus was

onthe serious area statutory requirements for "best available control measures" (BACM). RACM is generally considered to be a subset ofBACM. As

aresult, in order to evaluate whether the general permit rule meets the RACM requirements for the purpose ofthis rulemaking, EPA referred toportions of the State's serious area SIP submittal. 3

B. CAA Planning Requirementsand EPA Guidance

The air quality planning requirements for PM-10 nonattainment areas are set outin subparts 1 and 4 oftitle I ofthe Clean Air Act. Those states containing initial moderate PM-10 nonattainment

areas were required to submit, among otherthings, byNovember 15, 1991 provisions to assure that RACM

1"Maricopa," "Maricopa County" and "Phoenix"

are used interchangeably throughout this final rule
to refer to the nonattainment area.

2There are two PM-10 NAAQS, a 24-hour standard and an annual standard. 40 CFR 50.6.

3"Submittal ofState Implementation Plan revision for the Agricultural BestManagement
program in the Maricopa County PMo Nonattainment Area" from Jacqueline E. Schafer, Arizona Department ofEnvironmental Quality (ADEQ), to Laura Yoshii, EPA, June 13, 2001. See also the proposal for today's rulemaking at 66 FR 34598, 34599-34600 (June29, 2001). (including such reductions in emissions from existing sources in the area as may be obtained through the adoption, at a minimum, ofreasonably available control technology (RACT)) shall be implemented no later than December 10, 1993. CAA sections 172(c)(1) and 189(a)(1)(C). Since that deadline has passed, EPA has concluded that the required RACM/RACT must be implemented "as soon as possible." Delaneyv.EPA, 898 F.2d 687, 691 (9th Cir. 1990). EPAhas interpreted this requirement to be "as soon as practicable." See 55 FR 41204, 41210 (October 1, 1990) and 63 FR 28898, 28900 (May 27, 1998).

EPA has issued a "General Preamble" 4 describing EPA's preliminary views onhow the Agency intends toreview SIPs and SIP revisions submitted under title I ofthe Act, including those state submittals containing moderate PM-10 nonattainment area SIP provisions. The methodology for determining RACM/ RACT is described in detail in the General Preamble. 57 FR 13498, 13540- 13541. In short and as pertinent here, EPA suggests starting to define RACM with the list of available control

measures forfugitive dust in Appendix C1 to the General Preamble and adding
to this list any additional control

measures proposed and documented in public comments. Any measures that apply to emission sources ofPM-10 and that are de minimis and any measures that are unreasonable for technology

reasons or because ofthe cost ofthe control in the area can then be culled from the list. In addition, potential RACM may be culled from the list ifa

measure cannot be implemented ona schedule that would advance the date for attainment in the area. 57 FR 13498, 13560; 57 FR 18070, 18072 (April 28, 1992).

PM-10 nonattainment areas reclassified as serious under section 188(b)(2) ofthe CAA are required to submit, within 18 months ofthe area's reclassification, SIP revisions providing for, among other things, the implementation ofBACM no later than four years from the date of reclassification. The SIP must also provide for attainment ofthe PM-10 NAAQS by December 31, 2001, unless EPA grants an extension ofthat deadline. SeeCAA sections 188(c)(2) and (e); 189(b). On August 16, 1994, EPA issued an Addendum to the General Preamble that describes the

4 See "State Implementation Plans; General Preamble for the Implementation of Title I ofthe Clean Air Act Amendments of 1990," (General Preamble) 57FR 13498 (April 16, 1992) and 57 FR 18070 (April 28, 1992). Agency's preliminary views onthe CAA provisions for serious area PM-10 nonattainment SIPs. 59 FR 41998. The Addendum provides that for moderate PM-10 areas reclassified as serious, the RACM requirements are carried over and elevated to a higher level of stringency, i.e., BACM. 59 FR 41998, 42009.

II.Proposed Action

In May 1998, Arizona Governor Hull signed into law Senate Bill 1427 (SB 1427) which revised title 49 ofthe Arizona Revised Statutes (ARS)by adding section49-457. Thislegislation established an Agricultural Best Management Practices (BMP) Committee that was required to adopt by rule byJune 10, 2000, an agricultural general permit specifying BMPs for regulated agricultural activities to reduce PM-10 emissions in the Maricopa PM-10 nonattainment area. ARS49-457.A-F. Subsection M ofARS 49-457 provided for the initiation of BMP implementation through the
commencement ofan education programby June 10, 2000.

On September 4, 1998, the State submitted ARS 49-457 to EPA for inclusion in the Arizona SIP asmeeting the RACM requirements ofCAA section 189(a)(1)(C). On June 29, 1999, EPA approved ARS 49-457 as meeting the RACM requirements ofthe CAA. 64 FR 34726. 5

Pursuant to ARS 49-457, the Agricultural BMP Committee adopted the agricultural general permit and associated definitions, effective May 12, 2000, atArizona Administrative Code (AAC) R18-2-610, "Definitions forR18- 2-611," and 611, "Agricultural PM-10 General Permit; Maricopa PM10 Nonattainment Area" (collectively, general permit rule). OnJuly 11, 2000, the State submitted AAC R18-2-610 and 611 to EPA as a revision tothe Arizona SIP.6

OnJune 29, 2001, EPAproposed to approve ACC R18-2-610 and 611 under section 110(k)(3) ofthe CAA asmeeting the requirements of sections 110(a) and 189(a)(1)(C). EPA also concluded that its proposed approval ofACC R18-2-610 and 611 meets the requirements ofCAA section 110(1). 66 FR 34598.

5For further information on this legislation and itsrelationship to the history ofPM-10 planning in the Phoenix area, see EPA's proposed action. 66 FR
34598,34599.

6In evaluating this submittal, EPA relied on information submitted on June 13, 2001 by the State

as part ofits serious area PM-10 plan for Phoenix: "Submittal ofState Implementation Plan revision forthe Agricultural BestManagement program in the Maricopa County PM10 Nonattainment Area" fromJacqueline E. Schafer, ADEQ, to Laura Yoshii, EPA, June 13, 2001.

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III. Comments onProposed Rule and EPA Responses

EPA received two comment letters on its proposed action. The comments were submittedby Dan Thelander, Chairman, Governor's Agricultural Best Management Practices Committee and Joy E. Herr-Cardillo, Arizona Center for Law in the Public Interest (ACLPI). Mr. Thelander expressed the BMP Committee's support for EPA's proposed approval ofthe general permit and listed the factors and limitations thatthe Committee addressed during the development ofthe general permit. ACLPI, in aJuly 30, 2001 letter, opposes EPA's proposed action. EPAresponds to ACLPI's comments below. Comment:ACLPI contends thatthe general permit rule fails to meet the requirement ofCAA section 172(c)(1) that SIPs for nonattainment areas "shall provide for the implementation ofall reasonably available control measures."
ACLPI claims that therule fails to meet this requirement because the BMP Committee identified a variety ofclearly available and feasible control measures that are included in the rule as BMPs, but only requires commercial farmers to implement one BMP from each ofthree categories. As a result,ACLPI claims, the farmer determines which BMP will be implemented without any limiting parameters; and only one BMP is required under each category even where the implementation ofmore than

one wouldbe technologically and economically feasible, a result clearly prohibited by the CAA and EPApolicy.

Response:As relevant to today's action, Arizona's obligation under the CAA isto provide for the implementation ofRACM for the agricultural source category. 7In order to meet this obligation, the State had to determine what requirement wouldbe
not only technologically and economically feasible but also reasonable for controlling this source category in the Phoenix area.

This determination was particularly challenging given the variety, complexity andpractical realities of farming in the Phoenix area. In its proposed action on the general permit rule and accompanying technical support document (TSD), EPA explained the multi-year/multi-party
process for developing the BMPs ultimately adopted by the BMP Committee. See 66 FR 34598, 34601. As

aresult ofthe diversity and constraints offarming operations, the Committee

7 Nevertheless, as EPA stated in the proposed rulemaking, EPA believes that the general permit rule far exceeds the RACM requirements of the
CAA. See 66 FR 34598, 34603. concluded that farmers need flexibility
to tailor PM-10 controls totheir particular circumstances and that mandating a single, specific control for each individual farm activity would be unreasonable. The Committee did, however, determine that it could subdivide farming operations in Maricopa into three distinct categories for the purposes ofdeveloping the appropriate controls. As a result, the Committee created amenu ofcontrol options from which the farmer must select aminimum ofone for each ofthe tillage andharvest, cropland and noncropland categories.

EPA concurs withthe Committee's
assessment and consequently proposed that the requirement to implement at least one control from alist ofcontrol options for each ofthree categories of operations constitutes a reasonable control requirement for the agricultural
sector in the Phoenix area.

A requirement that an individual

source select one control method from

alist, but allowing the source to select which ismost appropriate for its situation, is a common and accepted practice for the control ofdust. For example, in its PM-10 federal implementation plan (FIP) for Phoenix, EPA promulgated a RACM rule applicable to, among other things, unpaved parking lots, unpaved roads and vacant lots. The rule allows owners and operators to choose one ofseveral listed control methods (pave, apply chemical stabilizers or apply gravel). 40 CFR 52.128(d). In the case ofthe FIP, those subject to the fugitive dust rule

were given a choice ofcontrol methods in order to accommodate their financial circumstances. See also South Coast Air Quality Management District (SCAQMD) Rule 403 (providingfor alternative compliance mechanisms for the control offugitive dust from earthmoving, disturbed surface areas, unpaved roads etc.); and SCAQMD Rule 1186 (requiring owners/operators of certain unpaved roads the option to pave, chemically stabilize, orinstall signage, speed bumps or maintain roadways to inhibit speeds greater than 15 mph). EPAproposed to approve these SCAQMD rules as meeting the RACM and/orBACM requirements of the CAA onAugust 11, 1998 (63 FR 42786) and tookfinal action approving them on December 9, 1998 (63 FR 67784).8

8 See alsoEPA's approval ofMaricopa County
Environmental Services Department (MCESD) Rule 310 as meeting the RACM/BACM requirements (62 FR 41856, August 4, 1997) and EPA's proposal to approve updated Rule 310 and MCESD Rule 310.01

as meeting the same requirements (65 FR 19964, April 13, 2000). Allowing sources the discretion to choose from a range ofspecified options is particularly important forthe agricultural sector because ofthe variable nature offarming. As a technical matter, neither EPAnorthe State is in a position to dictate what precise controlmethod is appropriate for agiven farm activity at agiven time in a given locale. The decision as to which control method from an array of methods is appropriate isbest left to the individual farmer. Moreover, the economic circumstances offarmers vary considerably. As a result, it is imperative that flexibility be built into any PM-10 control measure for the agricultural source category whether that measure is required to meet the RACM orBACM requirements ofthe Act.

Comment:ACLPI states thatthe CAA expressly provides that all RACM must be implemented byDecember 10, 1993, citing CAA sections 172(c)(1) and 189(a)(1)(C). CitingDelaneyv.EPA, 898 F. 2d 687, 691 (9th Cir. 1990), ACLPI contends that since that deadline has passed,RACM must be implemented "as soon as possible." ACLPI states that the general permit rule does not require implementation ofa single BMP until December 31, 2001 andthat this is clearly too little too late under the CAA.

Response:EPA addressed this issue in itsproposed approval ofthe general permit ruleby explaining that CAA section 189(a)(1)(C), as interpreted by the Agency underthe current circumstances, requires the implementation ofRACM as soon as practicable. EPA further explained that the Agency addressed Arizona's requirements regarding the timing ofthe implementation ofthe BMPs inits final approval ofARS 49-457. 64 FR 34726 (June 29, 1999). Itisthat enabling legislation that dictates the December 31, 2001 deadline. The general permit rule simply carries outits mandate by reiterating the statutory deadline. 66 FR 34598, 34600. Therefore, ACLPI, ifit wished to contestthe issue ofwhether the December 31, 2001 deadline meets the Delaneytest, shouldhave challenged that rule on thatbasis. Nevertheless, EPA briefly explains the reasoning for its conclusion below.

In 1996, the State ofArizona conducted afield study (known as the microscale study) ofPM-10 sources at various monitoring sites in Phoenix. Following the study,the results were modeled and formed thebasis forthe State's "Plan for Attainment ofthe 24- hourPM-10 Standard-Maricopa County Nonattainment Area," May 1997 (microscale plan). It was at thattime thatthe State first discovered that 

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agricultural activities did in fact constitute significant sources ofPM-10 in Phoenix, andthus required measures to control them. Because itdid not provide for the expeditious implementation ofreasonably and best available control measures for these agricultural sources, EPA disapproved the microscale plan for thatpurpose. 62 FR 41856 (August 4, 1997).

One year after disapproving the microscale plan, EPAissued a final FIP that addressed, among other things, PM-10 emissions from agricultural

sources in Phoenix. In the FIP, EPA promulgated an enforceable commitment, codified at 40 CFR 52.127,
to adopt, and begin implementing RACM for agricultural fields and aprons by June 2000. 63 FR 41326, 41350 (August 3, 1998).

In developing the FIP, EPA initially evaluated rules in the South Coast Air Basin, the only existing agricultural control measures for PM-10 in the country. However, agricultural sources, unlike many stationary sources which

canhave many common design features, whether located in California or New Jersey, vary by factors such as regional climate, soil type, growing season, crop type, water availability, and relation to urban centers. Therefore each PM-10 agricultural strategy is necessarily based

onlocal circumstances. With respect to Phoenix and the South Coast, EPA determined that the two areas differ in

anumber ofkey characteristics. Based

onthis initial screening, EPA decided that itwould not be responsible to propose the SCAQMD rules at that time because the Agency could not reasonably conclude thattheir implementation would in factresult in air quality benefits for the Maricopa nonattainment area.

As a result ofthis conclusion, EPA initiated a stakeholder process to develop RACM in the form ofBMPs for Phoenix that eventually included ADEQ, MCESD, the Natural Resources Conservation Service ofthe U.S. Department ofAgriculture, the Maricopa Association ofGovernments, the Maricopa Farm Bureau, Arizona Farm Bureau Federation, the University ofArizona and others. Following

numerous meetings and discussions, EPA concluded thatthe mostfeasible approach for the FIP would be the Agency's commitment to develop and implement the BMPs on an expeditious schedule. For a more detailed discussion ofEPA's efforts to develop RACM for agricultural sources in Phoenix, see EPA's FIP proposal at 15920, 15936 (April 1, 1998) and the accompanying technical support document. As discussed above, on June 29, 1999, EPA withdrew the FIP commitment and approved in itsplace ARS 49-457 which embodies a commitment to adopt by rule byJune 10, 2000 a general permit specifying BMPs. The statute alsoprovides for the initiation ofa public education program byJune 10, 2000 and sets a final deadline of December 31, 2001 for farmers to comply withthe BMPs. In itsproposed approval ofARS 49-457, EPAreiterated its reasons for concluding that the implementation schedule was as expeditious aspracticable:

In general, EPAbelieves thatbecause agricultural sources in the United States vary by factors such asregional climate, soil type, growing season, crop type, water availability, and relation tourban centers, each PM-10 agricultural strategy isuniquely based on local circumstances. Furthermore, EPA determined thatthe goal ofattaining the PM10 standards in Maricopa County with respect to agricultural sources wouldbe best servedby engaging all interested stakeholders in ajoint comprehensive process on theappropriate mix of agricultural controlsto implement in Maricopa County. EPA stated itsbeliefthat this process, despite the additional time needed towork through it,will ultimately result inthe best and most cost-effective controls onagricultural sources inthe County.

In the PIP notices,EPA also explained its intention to meet its RACM commitment by developingand promulgating BMPs. Given the number ofpotential BMPs, the variety of crops types, theneed for stakeholder input, and the time necessary to develop the BMPs into effective control measures, EPAbelieves that the adoption and implementation schedule inthe PIP isas expeditious as practicable and meets theAct's 189(a)(1)(C) requirement.
63 FR 71815, 71817 (December 30, 1998). EPA concluded thatthe commitment in ARS 49-457 was superior to thatin the FIP because it contains more substance andgreater procedural detail, andprovides a final implementation deadline. Id.9

The BMPs have nowbeen adopted andEPA is today approving the general permit rule into the Arizona PM-10 SIP for Phoenix. Thus the December 31, 2001 final implementation deadline will shortly be federally enforceable. Given that (1) agricultural sources had never been regulated anywhere in the country except southern California; (2) agricultural sources vary considerably based on anumber offactors; and (3) EPA and ADEQlacked expertise in farming conditions andpractices, EPA believes that under five years from

9 Inits final approval ofARS 49-457, EPA also responded to ACLPL's comment claiming that the implementation schedule is not sufficiently expeditious. 64 FR 34726, 34729. ground zeroto final implementation is

a considerable accomplishment and
meets the Delaneytest.

Comment:ACLPI, quoting fromthe "Technical Support Document for Quantification ofAgricultural Best Management Practices," Final Draft, URS Corporation and EasternResearch Group, Inc., November 1,2000, charges thatbecause the general permit rule fails
to require any specific control measures, and leaves it entirely to the permittee to determine which BMPs will be implemented, there is no way thatthe State canknow or meaningfully predict what the effect ofthe rule will be. ACLPI claims that, as a result, any estimated emissions reduction is entirely speculative and, thus, inadequate underthe CAA.

Response:The PM-10 emission reductions attributable to the BMPs are not at issue in this rulemaking. Here, EPAis merely determining whether the general permit rule meets the general SIP requirements ofCAA section 110(a) and whether that rule represents, pursuant to CAA section 189(a)(1)(C) a "reasonably available" level ofcontrol and is scheduled to be implemented as expeditiously aspracticable. EPAwill consider the quantification ofthe emission reductions from the general permit rule inits forthcoming actions on the State's reasonable further progress and attainment demonstrations in its serious area plan submittals.

Comment:ACLPI comments thatthe State has proposed to revise the SIP to include the general permit rule asboth

a control and a contingency measure. Citing CAA section 172(c)(9) and a proposed EPA action on a Washington SIP, ACLPI states that itmakes no sense to denominate the rule as a contingency

measure.

Response:This comment is also beyond the scope oftoday's rulemaking because EPA is not acting on the general permit rule asmeeting the Act's contingency measure requirements. EPA will address this issue in its forthcoming actions on the State's serious area PM-10 plan forthe Phoenix

area.
IV.Final Action

For the reasons discussed above and in the proposed rulemaking, EPA is approving, under CAA section 110(k)(3), ACC R18-2-610 and 611, the general permit rule, as meeting the requirements ofCAA sections 110(a) and 189(a)(1)(C). Moreover, EPA has concluded that its approval ofACC R18-2-610 and 611
meets the requirements ofsection 110(1) because the general permit rule strengthens the Arizona PM-10 SIP for the Maricopa County nonattainment

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area byproviding specific BMPs in place ofthe commitment to adopt BMPs in ARS 49-457. The general permit rule is also consistent with the development ofan overall plan capable ofmeeting the CAA's PM-10 attainment requirements.

V. Administrative Requirements

Under Executive Order 12866 (58 FR 51735, October4, 1993), this action is
not a "significant regulatory action" and therefore isnot subject toreview by the Office ofManagement and Budget. For this reason, this action is also not subject to Executive Order 13211, "Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, orUse" (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 thatthis rule will not have a significant economic impact on asubstantial number of small entities under the Regulatory Flexibility Act (5U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state lawand does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly oruniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (PublicLaw 104-4). This rule also does
not have asubstantial direct effect on
one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or onthe distribution ofpower and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it have substantial direct effects on the States, on the relationship between the national government and the States, or

onthe distribution ofpower and responsibilities among the various levels ofgovernment, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely
approves a state rule implementing a federal standard, and does not alter the relationship or the distribution ofpower andresponsibilities established in the Clean Air Act. This rule also isnot subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it isnot 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 ofa prior existing requirement for the State touse voluntary consensus standards (VCS), EPAhas no authority to disapprove aSIP submission for failure to use VCS. Itwould thus be inconsistent with applicable law for EPA, when itreviews a SIP submission,
to use VCS in place ofa SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements ofsection 12(d) ofthe National Technology Transfer and Advancement Act of1995 (15 U.S.C. 272 note) donot apply. As required by section 3ofExecutive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPAhas taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, andprovide a clear legal standard for affected conduct. EPAhas complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications ofthe rule in accordance with the "Attorney General's Supplemental Guidelines for the Evaluation ofRisk and Avoidance of Unanticipated Takings" issued under the executive order. This rule does not impose an information collection burden under the provisions ofthe Paperwork Reduction Act of1995 (44 U.S.C. 3501 etseq.).

The Congressional Review Act, 5 U.S.C. 801 etseq., as added by the Small Business Regulatory Enforcement Fairness Act of1996, generally provides that before a rule may take effect, the
agency promulgating the rule must submit arule report, which includes a copy ofthe rule, to each House ofthe Congress and tothe Comptroller General ofthe United States. EPAwill submit a report containing this rule and other required information to the United States Senate, the United States House ofRepresentatives, and the Comptroller General ofthe United States prior to publication ofthe rule in the Federal Register. A major rule cannot take effect until 60 days after itis published in the Federal Register. This rule isnot a "major rule" asdefined by 5U.S.C. 804(2).

Under section 307(b)(1) ofthe CAA, petitions forjudicial review ofthis action must be filed in the United States Court ofAppeals for the appropriate circuit byDecember 10, 2001. Filing a petition for reconsideration by the Administrator ofthis final rule does not affect the finality ofthis rule for the
purposes ofjudicial review nor does it extend the time within which a petition forjudicial review may be filed, and shall not postpone the effectiveness of suchrule or action. This action may not be challenged later in proceedings to enforce its requirements. See CAA section 307(b)(2). List ofSubjects in 40 CFR Part52
Environmental protection, Air pollution control, Incorporation by reference, Particulate matter, Reporting and recordkeeping requirements.

Dated: September 10, 2001. Mike Schulz, ActingRegional Administrator,RegionIX.

Part 52, chapter I, title 40 ofthe Code ofFederal Regulations 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 etseq. Subpart D-Arizona

2. Section 52.120 is amended by adding paragraph (c)(98) to read as follows:
§52.120 Identification of plan.

(c) * * * (98) Plan revisions were submitted on July 11, 2000 bythe Governor's designee.

(i) Incorporation by reference. (A)Arizona Administrative Code R18-2-610 and R18-2-611 effective May 12, 2000.

* * * * *

(B) [Reserved] [FR Doc. 01-25549 Filed 10-10-01; 8:45 am]

BILLING CODE 6560-50X-P

DEPARTMENT OF HEALTH AND

HUMAN SERVICES

42 CFR Part 51d

RIN 0930-AA09

Substance Abuse and Mental Health Services Administration; Mental Health and Substance Abuse Emergency Response Criteria

AGENCY: Substance Abuse and Mental Health Services Administration (SAMHSA), HHS. ACTION: Interim final rule.

SUMMARY: Section 3102 ofthe Children's Health Act of2000, Pub. L. 106-310, amends section 501 ofthe Public Health Service (PHS) Act (42 U.S.C. 290aa) to add a new subsection (in) entitled "Emergency Response." Thisnewly enacted subsection 501(m) authorizes the Secretary to use up to, but no more than, 2.5% of all amounts appropriated underTitle V ofthe PHS Act, otherthan those appropriated under Part C, in each 

### 51873

HeinOnline -- 66 Fed. Reg. 51873 2001